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United States Court of Appeals, Fifth Circuit. No. 95-31247 Summary Calendar. UNITED STATES of America, Plaintiff-Appellee, v. Terrance Merrill FLANAGAN, Defendant-Appellant. June 19, 1996. Appeal from the United States District Court for the Western District of Louisiana. Before GARWOOD, WIENER and PARKER, Circuit Judges. PER CURIAM: Defendant-Appellant Terrance Merrill Flanagan appeals the sentence imposed by the district court following Flanagan's conviction on a plea of guilty for possession with intent to distribute cocaine base, in violation of 21 U.S.C. §§ 841(a)(1) and (b)(1)(A). In challenging his sentence, Flanagan asserts error by the district court in (1) basing his sentence on penalties for cocaine base instead of powder cocaine and in relation thereto in refusing to consider scientific testimony from another district court case in another circuit; and (2) refusing to consider Flanagan's eligibility for the "safety valve" provision of U.S.S.G. § 5C1.2 which permits departure below the statutory minimum sentence. Although, based on binding precedent, we reject Flanagan's contentions regarding the cocaine base/powder cocaine dichotomy, we vacate his sentence and remand for resentencing in light of § 5C1.2, which the district court mistakenly believed it was precluded from applying, due to the mandatory minimum sentence requirements of § 841(b)(1)(A). I FACTS AND PROCEEDINGS After initially pleading "not guilty," Terrance Merrill Flanagan entered into a plea agreement in which he pleaded guilty to Count XXI of a 23-count indictment, in which he and 10 co-defendants were charged with various cocaine-distribution offenses. In his plea agreement's factual recitation, Flanagan admitted that he and Wesley Harris transported 425 grams of crack cocaine from Houston to Calcasieu Parish, Louisiana. The Presentence Report (PSR) contains the following recommendations: Flanagan's base offense level is 34 because he was responsible for 425 grams of crack cocaine. He is entitled to a two-level reduction for acceptance of responsibility. The result of Flanagan's total offense level (32) and his criminal history score (Category I; Flanagan had no criminal history points) produces a guideline sentencing range of 121-151 months. The statute under which he was convicted required a minimum prison term of 10 years. See 21 U.S.C. § 841(b)(1)(A). Flanagan objected, contending that he was entitled to a third point for acceptance of responsibility. The Probation Office did not oppose this objection and observed that the additional one-point reduction lowered his total offense level to 31 and his guideline range to 108-135 months. Flanagan also insisted that he "should be sentenced based on the penalty for powder cocaine, rather than the penalty for crack cocaine." By motion he urged the court to adopt the sentencing hearing transcript of defendant Jerry Jones ("the Jones transcript") from United States v. Davis, 864 F.Supp. 1303 (N.D.Ga.1994), in which four scient ific experts purportedly testified that cocaine powder and cocaine base are chemically indistinguishable. Flanagan maintains that the Jones transcript was admissible under Fed.R.Evid. 201(b)(2), in that the accuracy of the testimony therein "cannot be reasonably questioned." He argued that, under the rule of lenity, the penalties for cocaine powder should be applied; they would produce a total offense level of only 21 and a guideline range of only 37-46 months. Recognizing that the statutory mandatory minimum sentence was 10 years, Flanagan also urged the court to depart downward under U.S.S.G. § 5C1.2 ("safety valve") or U.S.S.G. § 5K2.0. He contended that he met all five criteria set forth in § 5C1.2. Without giving an explanation the district court denied Flanagan's motion to adopt the Jones transcript, but permitted him to "proffer the transcript at sentencing in anticipation of the appeal of this matter." At the sentencing hearing two days later, Flanagan proffered the testimony from the Jones transcript, but the court refused to consider it, stating:  [L]et me just say for the record, in case this case is taken up on appeal, I want the court's position known ... that if they want to equalize it, that if fine. We will adopt the crack cocaine standard rather than the powder cocaine standard. The court did not address Flanagan's contention regarding the chemical equivalency of the two types of cocaine. Additionally, the court denied Flanagan's request for "the lowest possible sentence available," stating, "I don't have that freedom," then sentenced him to 120 months in prison and a five-year supervised release term. Flanagan timely filed a notice of appeal. II ANALYSIS A. Penalties for powder cocaine and cocaine base and district court's denial of motion to introduce Jones transcript Acknowledging that we have already rejected Equal Protection challenges to the disparity in penalties for offenses involving powder and crack cocaine, Flanagan contends that his argument concerning the chemical congruity of the two types of cocaine presents a different issue. He maintains that the expert testimony reflected by the Jones transcript shows that "cocaine" and "cocaine base" are interchangeable. He argues that because this identity creates an ambiguity in the law, the rule of lenity requires the court to apply powder cocaine's lesser penalties. Flanagan insists that the Jones transcript should have been admitted under Fed.R.Evid. 804(b)(1), as an exception to the hearsay rule, because the declarants were unavailable as witnesses and hearsay evidence is admissible during sentencing proceedings. After an evidentiary hearing "at which four experts were qualified and testified," the Davis court found that cocaine base was synonymous with cocaine within the scientific community and that there "was also unanimous agreement among all four experts that the term "crack' as it relates to cocaine substances does not have a fixed meaning in the scientific community." Davis, 864 F.Supp. at 1304-05 (footnote omitted). That court concluded, as a matter of law, that it must "apply the lesser statutory penalties for cocaine rather than hundred-fold greater penalties for the possession of cocaine base," because the ambiguity "about the reach o f a criminal statute or the penalties to be imposed" requires the application of the rule of lenity. Id. at 1305-06 (citing Bifulco v. United States, 447 U.S. 381, 387, 100 S.Ct. 2247, 2252, 65 L.Ed.2d 205 (1980)). Thus,  based on the total unanimity of opinion of the four experts, ... there is unquestioned ambiguity on the face of the statute, and, unless it could be said that the legislative history or public policy concerns alter the outcome, the rule of lenity must be applied. Davis, 864 F.Supp. at 1306. We have not yet published an opinion addressing the contention, based explicitly on either the Davis testimony or other expert scientific testimony, that—because the chemicals are chemically indistinguishable1—the penalty provisions for cocaine base and powder cocaine are ambiguous. We have, however, rejected such challenges in several unpublished opinions. See e.g., United States v. Lewis, No. 95-60131, at 1-2, 70 F.3d 1268 (5th Cir. Oct. 19, 1995) (unpublished); United States v. Lampkin, No. 95-30131, at 2-4, 68 F.3d 467 (5th Cir. Aug. 25, 1995) (unpublished); United States v. Martin, No. 95-30335, at 4 & n. 6, 79 F.3d 1143 (5th Cir. Feb. 5, 1996) (unpublished); United States v. Thomas, No. 95-30946, at 5-6, --- F.3d ---- (5th Cir. May 1, 1996) (unpublished). Lewis and Lampkin were issued before January 1, 1996, and are precedent. See 5th Cir. Rule 47.5.3. As these opinions constitute binding precedent, they foreclose Flanagan's argument based on Davis, so we need not and therefore do not address his contention that the district court should have admitted the Jones transcript. B. Refusal to Depart Downward Under U.S.S.G. § 5C1.2 Flanagan contends that he was entitled to a downward departure from the mandatory minimum sentence because he meets all five "safety valve" criteria set forth in U.S.S.G. § 5C1.2, and observes that the district court failed to make factual findings regarding the application of § 5C1.2. Although he does not explain how he met each of the five criteria, he argues that "it is not necessary" to make such arguments now because he raises the issue only to "preserve its viability on remand to the Trial Court."2 Flanagan has not abandoned his § 5C1.2 claim, but he has abandoned his claim that 1 We have stated that, "when cocaine is changed into cocaine base, it becomes a different chemical substance." United States v. Thomas, 932 F.2d 1085, 1090 (5th Cir.1991), cert. denied, 502 U.S. 1038, 112 S.Ct. 887, 116 L.Ed.2d 791 (1992). It cannot be determined from reading the Thomas opinion whether scientific testimony was introduced or proffered, however. See id. 2 Although this statement suggests that Flanagan is effectively abandoning this contention because he is not adequately briefing it on appeal, see Yohey, 985 F.2d at 225, the statement also reflects Flanagan's awareness that we cannot make the required factual findings for the first time on appeal anyway. he was entitled to a departure pursuant to § 5K2.0. See id.; Yohey v. Collins, 985 F.2d 222, 225 (5th Cir.1993). The government counters by urging that we lack jurisdiction to address the § 5C1.2 claim unless Flanagan shows that the "district court violated some law or erro neously believed [it] was without authority to depart downward." Flanagan did not orally renew his request for a § 5C1.2 reduction at his sentencing hearing. He did, though, raise the issue in his sentencing memorandum, and that was sufficient to preserve the issue for appeal. We apply the "plain error" standard when a defendant "fail[s] to object to the PSR or at the sentencing hearing." See United States v. McCaskey, 9 F.3d 368, 376 (5th Cir.1993) (emphasis added), cert. denied, --- U.S. ----, 114 S.Ct. 1565, 128 L.Ed.2d 211 (1994). "U.S.S.G. § 5C1.2 is a "safety valve' provision which allows qualified defendants to escape the applicable statutory minimum sentence." United States v. Edwards, 65 F.3d 430, 433 (5th Cir.1995) (citation omitted). A defendant convicted of an offense under 21 U.S.C. § 841 shall be sentenced "in accordance with the applicable guidelines" without regard to any statutory minimum sentence, if the court finds that he satisfies five criteria: (1) the defendant does not have more than 1 criminal history point, as determined under the sentencing guidelines; (2) the defendant did not use violence or credible threats of violence or possess a firearm or other dangerous weapon (or induce another participant to do so) in connection with the offense; (3) the offense did not result in death or serious bodily injury to any person; (4) the defendant was not an organizer, leader, manager, or supervisor of others in the offense ...; and (5) not later than the time of the sentencing hearing, the defendant has truthfully provided to the Government all information and evidence the defendant has concerning the offense or offenses that were part of the same course of conduct or of a common scheme or plan, but the fact that the defendant has no relevant or useful other information to provide or that the Government is already aware of the information shall not preclude a determination by the court that the defendant has complied with this requirement. See id.; § 5C1.2. We review a sentencing court's legal interpretation of the guidelines de novo. United States v. Rodriguez, 60 F.3d 193, 195 (5th Cir.) (applying § 5C1.2), cert. denied, --- U.S. ----, 116 S.Ct. 542, 133 L.Ed.2d 446 (1995).  Flanagan's guideline sentencing range was 108 to 135 months. There is no indication in the record that Flanagan fails to meet any of the five § 5C1.2 criteria.3 Indeed, if he meets all five, the court had authority to reduce Flanagan's sentence to 108 months. We "uphold a sentence unless it is imposed in violation of law, results from a misapplication of the guidelines, or is an unreasonable departure from the applicable guideline range." United States v. Akin, 62 F.3d 700, 701 (5th Cir.1995). Although we lack jurisdiction to review a defendant's challenge to his sentence based on mere dissatisfaction with the court's refusal to grant to a downward departure, we may do so if the court's refusal was the result of a violation of law. United States v. Burleson, 22 F.3d 93, 94-95 (5th Cir.), cert. denied, --- U.S. ----, 115 S.Ct. 283, 130 L.Ed.2d 199 (1994). A refusal to depart is a violation of law only if the court mistakenly assumed that it lacked the authority to depart. Id. at 95; see 18 U.S.C. § 3742(e). Here, the district court noted that Flanagan's involvement was "substantial,"4 but then stated: [I]f I had any freedom in the matter, I might be inclined [to depart downward] because of [Flanagan's] youth and all, not to sentence him to that much time, but ... I don't have that freedom. I have got to be bound by the law. The law says that the minimum is hundred and twenty months. This language confirms that the court did not consider the criteria listed in § 5C1.2, and mistakenly believed that it was bound by the mandatory minimum sentence set forth in 21 U.S.C. § 841(b)(1)(A). Clearly it was not; that is what the safety valve provision is all about. The court's mistaken belief satisfies the Burleson test for a violation of law in refusing to depart downward for incorrectly assuming that it lacked authority to do so. We therefore vacate Flanagan's sentence and remand for resentencing following a full exploration of the applicability of § 5C1.2 to Flanagan's situation. See 3 Recently we held that, under § 5C1.2(5), the defendant has the affirmative burden of providing the government with all information and evidence regarding the offense; the government is not required to solicit such information. United States v. Flanagan, 80 F.3d 143, 146 (5th Cir.1996) (no apparent relationship to Defendant-Appellant herein). Flanagan may have satisfied this criterion when he "acknowledged his participation and involvement in the instant offense" in connection with accepting responsibility. 4 The Government notes this statement by the court, apparently implying that the court was finding that Flanagan's "substantial" involvement disqualified him from receiving the § 5C1.2 reduction. See red brief at 16. However, none of the § 5C1.2 criteria addresses whether a defendant had "substantial" or minimal involvement in the offense. See § 5C1.2. United States v. Flanagan, 80 F.3d 143 (5th Cir.1996). VACATED and REMANDED for resentencing. 

626 F.2d 863 Swope Coal Co.v.Mine Safety and Health Review Commission 79-1691 UNITED STATES COURT OF APPEALS Fourth Circuit 7/3/80 AFFIRMED

F I L E D United States Court of Appeals Tenth Circuit UNITED STATES COURT OF APPEALS MAY 22 2002 FOR THE TENTH CIRCUIT PATRICK FISHER Clerk UNITED STATES OF AMERICA, Respondent - Appellee, v. No. 01-8068 (D.C. No. 01-CV-29-B, MIGUEL NAVARRETE-CARRILLO, 97-CR-106-B) (D. Wyoming) Petitioner - Appellant. ORDER AND JUDGMENT * Before SEYMOUR , PORFILIO , and BALDOCK , Circuit Judges. After examining the briefs and appellate record, this panel has determined unanimously that oral argument would not materially assist the determination of this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is therefore ordered submitted without oral argument. Federal prisoner Miguel Navarrete-Carrillo, proceeding pro se , seeks to appeal from the denial of his 28 U.S.C. § 2255 motion to vacate his sentence. * This order and judgment is not binding precedent, except under the doctrines of law of the case, res judicata, and collateral estoppel. The court generally disfavors the citation of orders and judgments; nevertheless, an order and judgment may be cited under the terms and conditions of 10th Cir. R. 36.3. Mr. Navarrete-Carrillo pleaded guilty on January 30, 1998, to one count of conspiring to possess with intent to distribute methamphetamine, in violation of 21 U.S.C. § 846. He was sentenced to serve seventy-seven months in prison and did not appeal from his conviction. Over two years later, on February 16, 2001, Mr. Navarrete-Carrillo filed a § 2255 motion, contending for the first time that his plea was involuntary and he would not have pleaded guilty if counsel had advised him that the government’s evidence was invalidly obtained by use of a wiretap or that under Apprendi v. New Jersey , 530 U.S. 466 (2000), “quantity under 21 U.S.C. § 841 would have to be proven beyond a reasonable doubt.” R. Vol. 1, Doc. 1 at 5. The district court denied his § 2255 motion as untimely filed. See § 2255(1) (providing that one-year period of limitation generally runs from the date the judgment of conviction becomes final). The court also noted that “[n]either the Supreme Court nor the Tenth Circuit . . . has applied Apprendi retroactively,” R. Vol. 1, Doc. 7 at 2, foreclosing any tolling of the statute of limitations. See § 2255(3) (providing tolling of one-year statute of limitation when the right asserted was newly recognized by the Supreme Court after appellant’s conviction and made retroactively applicable to cases on collateral review). Mr. Navarrete-Carrillo must obtain a certificate of appealability (COA) by making a “substantial showing of the denial of a constitutional right.” 28 U.S.C. -2- § 2253(c)(2). When, as here, the district court has dismissed the case on procedural grounds without considering the underlying constitutional claim, the appellant must demonstrate 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.” Slack v. McDaniel, 529 U.S. 473, 484 (2000). Mr. Navarrete-Carrillo does not argue for a tolling of the limitations period, and we have no reason to question the district court’s holding that his § 2255 motion was barred by the applicable statute of limitations. Therefore, we conclude that jurists of reason would not “find it debatable whether the district court was correct in its procedural ruling.” Id. Further, if we were to reach the merits, the record demonstrates that Mr. Navarrete-Carrillo’s decision to plead guilty was based on the fact that his co-conspirator “decided to plead [guilty] on that last day [before trial] and turned State’s evidence on [him],” and not on any alleged wiretap evidence the government had obtained. Aplt. Br., App. A at 7 (Tr. of Sentencing Hr’g). In addition, the indictment alleged that Mr. Navarrete-Carrillo “possessed with intent to distribute and/or distributed at least six ounces of methamphetamine during the course of the conspiracy,” R. Supp’l Vol. 1, Doc. 15 at 2, and he conceded at his sentencing hearing that “there were two instances in which [a -3- witness] saw [him] deliver three ounces.” Aplt. Br., App. A at 7. Under these circumstances, even if Apprendi applied retroactively, there would be no violation because Mr. Navarrete-Carrillo pleaded guilty to conspiring to possess and distribute at least six ounces of methamphetamine and the maximum sentence for that offense is twenty years under § 841(b)(1)(C). See United States v. Wilson, 244 F.3d 1208, 1215 (10th Cir.) (noting that reversible Apprendi error arises only when drug quantity causes sentence to exceed the statutory maximum), cert. denied, 533 U.S. 962 (2001); United States v. Thompson, 237 F.3d 1258, 1262 (10th Cir.) (holding that, because neither § 841 nor § 846 require a specific quantity of drugs as an element of the offense and the maximum sentence under these statutes was twenty years, no Apprendi violation occurred where defendant sentenced to less than twenty years), cert. denied, 532 U.S. 987 (2001). Mr. Navarrete-Carrillo’s request for a COA is DENIED and the case is DISMISSED. His motion to proceed in forma pauperis in this court is GRANTED. The mandate shall issue forthwith. Entered for the Court John C. Porfilio Circuit Judge -4- 

DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA FOURTH DISTRICT TEDDY JOSEPH, Appellant, v. DEPARTMENT OF REVENUE, CHILD SUPPORT ENFORCEMENT o/b/o OLLIE COLLINS, Appellee. No. 4D19-487 [September 25, 2019] Appeal from the State of Florida, Department of Revenue; L.T. Case Nos. 06550021920AO, 2001317056. Teddy Joseph, Homestead, pro se. Ashley Moody, Attorney General, Tallahassee, and Toni C. Bernstein, Senior Assistant Attorney General, Child Support Enforcement, Tallahassee, for appellee. CONFESSION OF ERROR PER CURIAM. Teddy Joseph challenges the Department of Revenue’s administrative support order entered in a proceeding under section 409.2563, Florida Statutes (2018). This court has jurisdiction to review the Department’s order. See Fla. R. App. P. 9.030(b)(1)(C). Because the Department properly concedes error in providing Joseph proper notice, we reverse. After initiating child support proceedings against Joseph, the Department created its proposed support order and sent it to Joseph at his previous address in Hialeah despite having his current address in Homestead on file. The proposed order listed Joseph’s monthly child support obligation amounts and indicated that if he disagreed with the listed amounts, he should request a hearing. See § 409.2563(5). The order further indicated that it would become final if Joseph failed to request a hearing or otherwise respond. See § 409.2563(7). The Department finalized the proposed order when Joseph failed to respond. See id.  On appeal, Joseph claims he did not receive the Department’s proposed order or final order. The Department concedes that the proposed order was sent to the incorrect address. See Little v. D’Aloia, 759 So. 2d 17, 20 (Fla. 2d DCA 2000) (“We hold that where the City had actual knowledge of the correct mailing address . . . and failed to provide the notice of hearing to [the] correct address, it failed to comply with the due process requirements.”). Therefore, we order that the Department’s final administrative support order be vacated and remand the case for an administrative hearing. Reversed and remanded. CONNER, KLINGENSMITH and KUNTZ, JJ., concur. * * * Not final until disposition of timely filed motion for rehearing. 2 

819 F.Supp. 811 (1993) BRUNER CORPORATION, Plaintiff, v. John BALOGH, Roger Balogh, Bert Lukens, Lukens Enterprises, Inc. d/b/a Balco Sales & d/b/a Balco Electrical and Plumbing Service, and John Does III to X, Defendants. No. 93-C-0080. United States District Court, E.D. Wisconsin. April 30, 1993. *812 Maureen A. McGinnity, James L. Huston, Foley & Lardner, Milwaukee, WI, for plaintiff. Martin D. Stein, John J. Fields & Associates, Brookfield, WI, for defendant Roger Balogh. Philip L. Atinsky, Atinsky, Kahn, Sicula & Teper, Milwaukee, WI, for defendant John Balogh. M. Christine Cowles, Borgelt, Powell, Peterson & Frauen, S.C., Milwaukee, WI, for defendants Lukens Enterprises, d/b/a Balco Sales & Bert Lukens, d/b/a Balco Elect. DECISION AND ORDER RANDA, District Judge. Before the Court are motions filed by Defendant Roger Balogh and Defendants Bert Lukens, Lukens Enterprises, Inc. d/b/a Balco Sales and Balco Electrical and Plumbing Service (collectively "Lukens") for a stay of the proceedings in the above captioned case. For the reasons set forth more fully below, the Court will stay the proceedings. FACTUAL AND PROCEDURAL BACKGROUND On January 25, 1993, a criminal complaint was filed in Fond du Lac County Circuit Court charging Defendant Roger Balogh with the felony of receiving stolen property contrary to § 943.34(1)(c) of the Wisconsin Statutes. On January 27, 1993, Plaintiff Bruner Corporation ("Bruner") filed a civil action in the United States District Court for the Eastern District of Wisconsin alleging that one of its former employees, Defendant John Balogh, and his brother, Defendant Roger Balogh had stolen and sold over $1,000,000 worth of Bruner water treatment equipment. The complaint alleges violations of the Racketeer Influenced and Corrupt Organizations Act ("RICO"), 18 U.S.C. § 1961 et seq., as well as violations of Wisconsin law. *813 On February 12, 1993, Bruner amended its complaint naming the additional Defendants and adding an additional predicate RICO offense, interstate transportation of stolen property. On February 17, 1993, Defendant Roger Balogh moved this Court for a stay of these proceedings on the grounds that the concurrent state criminal prosecution would require him to invoke his Fifth Amendment privilege in this case, thereby hindering his defense against Bruner's civil allegations. (Roger Balogh's Brief at 3) On March 11, 1993, Bruner moved in opposition to the motion to stay on the grounds that parallel civil and criminal proceedings are constitutionally permissible and that "Balogh's blanket invocation of the privilege is as hypothetical as it is unsubstantiated." (Bruner Brief at 3, 5) On April 9, 1993, Lukens joined in Roger Balogh's motion and moved in its own right for a stay on the grounds that Roger Balogh's invocation of the Fifth Amendment would curtail the discovery of evidence necessary for its defense. (Lukens Brief at 9)[1] LEGAL ANALYSIS While the Court has the inherent power to stay its proceedings, Landis v. North American Company, 299 U.S. 248, 254, 57 S.Ct. 163, 165, 81 L.Ed. 153 (1936), "[I]t is not unconstitutional to force a litigant to choose between invoking the fifth amendment in a civil case, thus risking a loss there, or answering the questions in the civil context, thus risking subsequent criminal prosecution." Brock v. Tolkow, 109 F.R.D. 116, 119 (E.D.N.Y.1985) citing Baxter v. Palmigiano, 425 U.S. 308, 318-19, 96 S.Ct. 1551, 1557-58, 47 L.Ed.2d 810 (1976) (citations omitted). "Nevertheless, a court may decide in its discretion to stay civil proceedings, postpone civil discovery, or impose protective orders and conditions `when the interests of justice seem[] to require such action ...'". SEC v. Dresser Industries, Inc., 628 F.2d 1368, 1375 (D.C.Cir.1980) (quoting United States v. Kordel, 397 U.S. 1, 12 n. 27, 90 S.Ct. 763, 770 n. 27, 25 L.Ed.2d 1 (1970) (citations omitted). "In other words, the Court in a civil case may exercise its discretion so that a defendant need not find himself in the position in which the Kordel and Baxter Courts have said he may constitutionally be put." Brock 109 F.R.D. at 119. Roger Balogh argues that a stay is appropriate because, "the strongest case for deferring civil proceedings until after completion of criminal proceedings [is] where a party under indictment for a serious offense is required to defend a civil or administrative action involving the same matter." (Roger Balogh's Brief at 3, citing SEC v. Dresser Industries, Inc., supra 628 F.2d at 1375-76)[2] Bruner's argument in opposition is threefold: 1) a stay is not required because there is no "unity of interest" between the State of Wisconsin and Bruner; 2) the criminal prosecution "relates to but a small portion of this civil action." (Bruner Brief at 4); Roger Balogh has failed to state with precision or specificity, the grounds for his assertion of the privilege. (Bruner Brief at 6) With respect to the "unity of interest" argument, Bruner cites no authority for such a rule, and the Court is unaware of any case which so holds. While the Fifth Amendment issue typically arises where the *814 government is prosecuting parallel civil and criminal actions — United States v. One 1990 Porsche Carrera, 807 F.Supp. 371 (D.Md. 1992) (civil forfeiture with parallel criminal prosecution); United States v. 6250 Ledge Road, 943 F.2d 721 (7th Cir.1991) (civil forfeiture with parallel criminal prosecution); United States v. O'Connor, 118 F.Supp. 248 (D.Mass.1953) (IRS enforcement proceedings); SEC v. Dresser Industries, Inc., supra (civil and criminal enforcement of securities laws) — the issue also arises in cases where, as here, no governmental entity is represented in the civil proceeding. Nowaczyk v. Matingas, 146 F.R.D. 169 (N.D.Ill.1993) (action for fraud, conversion, and an accounting); Brumfield v. Shelton, 727 F.Supp. 282 (E.D.La.1989) (action for breach of fiduciary duty); Andover Data Services v. Statistical Tabulating Corp., 876 F.2d 1080 (2nd Cir. 1989) (tortious interference with business relations); Golden Quality Ice Cream Co. v. Deerfield Specialty Papers, Inc., 87 F.R.D. 53 (E.D.Pa.1980) (civil antitrust). None of the cited cases discuss a requirement that there exist a "unity of interest". Even if, as Bruner suggests, the Court in United States v. Private Sanitation Industry Assn., 811 F.Supp. 802, 806 (E.D.N.Y.1992), held that a stay is "most appropriate" where the government is prosecuting both the civil and criminal actions, it does not follow that it is inappropriate to stay a case where the government is not a party to the civil proceeding. As a matter of law, there need not even be a parallel criminal proceeding for a witness to properly invoke the privilege. McCarthy v. Arndstein, 266 U.S. 34, 40, 45 S.Ct. 16, 17, 69 L.Ed. 158 (1924); National Life Ins. Co. v. Hartford Acci & Indem. Co., 615 F.2d 595, 597 (3rd Cir.1980) ("It is undisputed that the fifth amendment privilege against self-incrimination may be asserted in a civil action as well as a criminal action.") Nevertheless, the right to invoke the privilege is not absolute. The privilege is not properly invoked "if the testimony sought cannot possibly be used as a basis for, or in the aid of, a criminal prosecution against the witness ..." Brown v. Walker, 161 U.S. 591, 597, 16 S.Ct. 644, 647, 40 L.Ed. 819 (1896). While this action is broader in scope than the criminal complaint, (and relying upon the language of Brown) the subject matter is sufficiently intertwined for the Court to conclude that there exists more than a "possibility" that Roger Balogh's testimony could "aid in" the state prosecution against him. Bruner's final argument is that Roger Balogh has reflexively asserted a blanket privilege which is insufficient as a matter of law. As authority, Bruner cites the Seventh Circuit's opinion in United States v. 6250 Ledge Road, 943 F.2d 721, 729 (7th Cir.1991) (The "blanket assertion of the privilege ... does not provide a sufficient basis for a district court to grant a stay.")[3] Bruner's reliance upon 6250 Ledge Road is misplaced. First, despite the quoted language, the Seventh Circuit stated that the decision to stay a civil proceeding pending the outcome of a criminal proceeding is within the District Court's discretion. Id. at 729, n. 9. Second, an examination of the quoted language reveals not only that it is dicta[4], but that the cases cited by the Seventh Circuit in support of that rule are factually distinguishable from this one.[5]*815 The Seventh Circuit cited United States v. Little Al, 712 F.2d 133 (5th Cir.1983), wherein the Fifth Circuit reviewed a District Court's entry of summary judgment on behalf of the government in a civil forfeiture proceeding. The defendant-appellee had already been convicted of conspiring to import and possess with intent to distribute marijuana. In the subsequent civil forfeiture proceeding, defendant-appellee's counsel moved for a continuance on the basis that he could not adequately oppose the government's summary judgment motion without utilizing affidavits from the defendant-appellee and his codefendants which might "substantial[ly] prejudice" their criminal appeals. Id. at 135. In holding that the District Court had not abused its discretion in denying the motion to stay, the Fifth Circuit noted that nothing in the attorney's affidavit submitted in support of the motion explained "how the filing of an affidavit [in the forfeiture proceeding] would have prejudiced the criminal appeals of Pollard or his codefendants" Id. at 136. In Little Al, the defendant-appellee's claim of the privilege was questionable given that he had already been convicted. In this case, it is not difficult to see how Balogh's testimony might prejudice him in a contemporaneous criminal proceeding. The Fifth Circuit went on to state: Certainly, a district court may stay a civil proceeding during the pendency of a parallel proceeding. See SEC v. First Financial Group of Texas, Inc., 659 F.2d 660, 668 (5th Cir.1981) Such a stay contemplates "special circumstances" and the need to avoid "substantial and irreparable prejudice." Id. Little Al, 712 F.2d at 136. Here, Roger Balogh has asserted the privilege in a timely manner and it remains within the sound discretion of the Court to determine whether this case presents the "special circumstances" discussed in SEC v. First Financial Group, Inc. The Fifth Circuit in First Financial, cited Wehling v. Columbia Broadcasting System, 608 F.2d 1084 (5th Cir.1979) as an example of a "special circumstances" case. First Financial, 659 F.2d at 668. In Wehling, the Fifth Circuit reversed the District Court's dismissal of Wehling's civil action against CBS. Wehling had brought a libel action against CBS for a broadcast which suggested that Wehling had defrauded both his own students and the federal government through abuse of federal student loan and grant programs. On the day of his deposition, Wehling asserted his Fifth Amendment privilege stating that he had reason to believe that he was under investigation by a federal grand jury. (Before the CBS broadcast, Wehling had already appeared five (5) times before the grand jury and asserted the privilege.) In addition, Wehling moved for a protective order seeking to stay discovery. The District Court dismissed the suit on the grounds that Wehling's invocation of the privilege would prevent CBS from presenting an adequate defense. In reversing and remanding, the Fifth Circuit stated, "... Wehling asks only that discovery be stayed until all threat of criminal liability has ended." Id. 608 F.2d at 1087. The Fifth Circuit's rational was that CBS would not be prejudiced by a stay because Wehling was not seeking to force CBS to go to trial after limited discovery, but rather a stay of the proceedings until the threat of criminal prosecution had passed. Because, Wehling had not yet been indicted, the Fifth Circuit remanded with instructions that the case be stayed until the statute of limitations had run, a period of more than three years. Id. at 1089. Upon comparison, Balogh's argument in support of the stay is even stronger than that made by Wehling in that a criminal complaint has already been filed. The Second Circuit reached a similar conclusion in Andover Data Services v. Statistical Tabulating Corporation, 876 F.2d 1080 (2nd Cir.1989) Andover Data filed suit against Statistical alleging that Statistical and one of Andover Data's officers attempted to convert Andover Data's business. Upon first discovering the wrongful conduct, Andover Data contacted the police and requested a criminal investigation of its former officer Walter B. Schwer and Statistical. The District *816 Court, in an effort to accommodate both parties and move the case along, entered a protective order foreclosing prosecutorial access to the testimony. When Schwer continued to assert the privilege, the Judge held him in contempt. Id. at 1082-84. The Second Circuit reversed the order of contempt on the grounds that the District Judge's attempt to substitute the Fifth Amendment with a Rule 26(c) protective order, while "not without certain appeal", was erroneous. Id. at 1083. In holding that Schwer had properly asserted the privilege, the Second Circuit acknowledged that it was unknown whether the criminal investigation was still ongoing. Id. at 1081. Given that both the Fifth and Second Circuits have held that a pre-indictment assertion of the privilege is proper, Bruner's argument that Roger Balogh's assertion is "hypothetical" and "unsubstantiated" must be rejected. Based on the forgoing, the Court concludes that Roger Balogh's invocation of the Fifth Amendment is timely and valid and this case should be stayed. As a final matter, Lukens has joined in Roger Balogh's motion and moved in its own right to stay the proceedings. Lukens has moved to stay all proceedings until the "termination of any and all related criminal actions pending or threatened against defendants Roger Balogh and John Balogh". (Lukens Motion at 2) In support thereof, Lukens argues that it will not be able to conduct essential discovery given Roger Balogh and John Balogh's invocation of the Fifth Amendment. (Lukens Brief at 9) Bruner has argued that it has not sought discovery from Roger Balogh and therefore the invocation of the Fifth Amendment is premature. (Bruner Brief at 6-7) It is not likely that either Bruner or Lukens could proceed to trial without meaningful discovery from Roger Balogh (or John Balogh). Accordingly, the Court concludes that a stay is warranted by the circumstances and that it would be prejudicial to Lukens and wasteful of judicial resources to stay this case as to some, but not all of the Defendants. Accordingly, this case will be stayed.[6] NOW THEREFORE, IT IS HEREBY ORDERED THAT: 1. All proceedings related to Case No. 93-C-0080 are STAYED. 2. Case No. 93-C-0080 is CLOSED for statistical purposes, to be reopened by motion of any party. SO ORDERED. NOTES [1] Both Bruner and Lukens have noted that the scope of the stay sought by Roger Balogh is unclear. (Bruner Brief, p. 5, n. 2, Lukens Brief, p. 3, n. 1) In light of the Court's decision to stay these proceedings in their entirety, it need not address this issue. [2] Roger Balogh suggests that the Court adopt the five (5) factor test set forth in Golden Quality Ice Cream Co. v. DeerField Specialty Papers, Inc., 87 F.R.D. 53 (E.D.Pa.1980). The factors to consider are: 1) the interest of the plaintiffs in proceeding expeditiously with this litigation or any aspect of it, and the potential prejudice to plaintiffs of a delay; 2) the burden which any particular aspect of the proceedings may impose on defendants; 3) the convenience of the court in the management of its cases, and the efficient use of judicial resources; 4) the interests of persons not parties to the civil litigation; and 5) the interest of the public in the pending civil and criminal litigation. Considering that the Seventh Circuit has recently shown a dislike for multi-factor tests, Farmer v. Hass et al., 990 F.2d 319 (7th Cir. 1993), citing Prussner v. United States, 896 F.2d 218, 224 (7th Cir.1990); Kenosha Liquor Co. v. Heublein, Inc., 895 F.2d 418, 419 (7th Cir.1990); Stevens v. Tillman, 855 F.2d 394, 399 (7th Cir. 1988), the Court declines to adopt the test as set forth in Golden Quality Ice Cream supra. [3] It is not clear to the Court, as Bruner argues, that Roger Balogh has improperly made a "blanket" assertion of the privilege. Lukens disputes Bruner's argument that Roger Balogh's assertion is "hypothetical" or "unsubstantiated". Lukens points out that Roger Balogh has pled the Fifth Amendment in answering the Complaint. (Lukens Brief at 8) Nevertheless, to the extent that it may be so characterized, those cases which have disapproved of a "blanket" assertion of the privilege, were confronted almost exclusively with a recalcitrant witness where the validity of the assertion was not readily apparent. See United States v. White, 970 F.2d 328, 334 (7th Cir.1992); In Re Witnesses Before Special March 1980 Grand Jury, 729 F.2d 489, 495 (7th Cir.1984); United States v. Verkuilen, 690 F.2d 648, 653-54 (7th Cir.1982); Martin-Trigona v. Gouletas, 634 F.2d 354, 357 (7th Cir.1980) In the instant case, with the pendency of a state criminal proceeding based upon the same factual predicates, the validity of the assertion is apparent. [4] The Seventh Circuit held, "[b]y agreeing to go to trial on stipulated facts without objecting to the procedure on Fifth Amendment grounds, the claimant waived this issue." 6250 Ledge Road, 943 F.2d at 729. [5] The Seventh Circuit cited two cases in support of this rule; Little Al, discussed above, and United States v. $250,000 in United States Currency, 808 F.2d 895, 901 (1st Cir.1987). In $250,000, the First Circuit, citing the Fifth Circuit's holding in Little Al, held that the appellant, who had not raised the issue at the forfeiture proceedings, could not make a "blanket assertion" of the privilege at the appellate level (emphasis ours). [6] In United States v. Private Sanitation Industry Assn., 811 F.Supp. 802 (E.D.N.Y. 1992), the Court denied a motion to stay, but in doing so distinguished its prior decision in United States v. 1344 Ridge Rd., 751 F.Supp. 1060 (E.D.N.Y.1989): [In 1344 Ridge Rd.] ... this Court stayed discovery in a civil forfeiture action against the claimants of the property where they argued that they would be forced to invoke their Fifth Amendment privilege to avoid prejudicing their rights in an anticipated criminal proceeding. However, in that case, one of the two claimants had already been indicted before the commencement of the forfeiture action, making it appropriate to stay the action even against the unindicted co-defendants. Private Sanitation 811 F.Supp. at 806. See also Brumfield v. Shelton, 727 F.Supp. 282, 284 (E.D.La.1989) ("And, since the issues in both are exactly the same, with respect to Shelton, a stay of discovery as to Shelton, effectively stays the entire civil proceeding.")

911 F.2d 731 Unpublished DispositionNOTICE: 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.Herman W. BENJAMIN, Plaintiff-Appellant,v.MERRILL LYNCH, PIERCE, FENNER AND SMITH, INC., Defendant-Appellee. Nos. 90-5382, 90-5383, 90-5400, 90-5669, to 90-5671 and 90-5673. United States Court of Appeals, Sixth Circuit. Aug. 22, 1990. Before BOYCE F. MARTIN, Jr. and WELLFORD, Circuit Judges, and CELEBREZZE, Senior Circuit Judge. ORDER 1 These appeals have been referred to this panel of the court pursuant to Rule 9(a), Rules of the Sixth Circuit. 2 A review of the record indicates that plaintiff filed seven appeals from various orders entered by the district court in this civil action. Plaintiff appealed on February 20, 1990, from the joint pretrial order entered January 25, 1990 (appeal no. 90-5382) and from the order quashing a subpoena duces tecum entered February 2, 1990 (appeal no. 90-5383). A directed verdict was granted in open court on February 6, 1990; the order to that effect was entered February 8, 1990; and the judgment was entered March 2, 1990. A Fed.R.Civ.P. 52(b) motion was served on March 5, 1990, and tolled the appeal period. See Fed.R.App.P. 4(a)(4). Plaintiff appealed on March 8, 1990, from the February 8, 1990, order (appeal no. 90-5400). The Rule 52(b) motion was denied by order entered April 12, 1990. On April 26, 1990, plaintiff appealed again from the February 2, 1990, order (appeal no. 90-5669); the February 8, 1990, order (appeal no. 90-5670); and the January 25, 1990, order (appeal no. 90-5671). By notice of appeal dated and filed May 10, 1990, plaintiff appealed the judgment entered March 2, 1990 (appeal no. 90-5673). 3 This court lacks jurisdiction in appeal nos. 90-5382 and 90-5383 from a joint pretrial order and an order quashing a subpoena duces tecum. Such orders are not final and appealable in that they failed to end the litigation and leave nothing to be done except to execute the judgment. Nor do they qualify as appealable orders under the collateral order exception of Cohen v. Beneficial Indus. Loan Corp., 337 U.S. 541 (1949). See Dalton v. United States, 733 F.2d 710, 714-15 (10th Cir.1984), cert. dismissed, 469 U.S. 1185 (1985). 4 This court also lacks jurisdiction in appeal no. 90-5400 from the order entered February 8, 1990, granting a directed verdict. Although such order is final and appealable, the Fed.R.Civ.P. 52(b) motion served within ten days of entry of judgment tolled the appeal period. Fed.R.App.P. 4(a)(4) provides that a notice of appeal filed before the disposition of a timely Rule 52(b) motion shall have no effect. A timely notice of appeal is mandatory and jurisdictional. Osterneck v. Ernst & Whinney, 489 U.S. 169 (1989); Griggs v. Provident Consumer Discount Co., 459 U.S. 56, 61 (1982) (per curiam). The district court denied the Rule 52(b) motion by order entered April 12, 1990. 5 Plaintiff's appeal no. 90-5670 from the February 8, 1990, order granting directed verdict and appeal no. 90-5673 from the judgment granting directed verdict are from the same decision. Accordingly, because they are duplicate appeals, appeal no. 90-5673 will be dismissed and appeal no. 90-5670 shall proceed and have the merits considered. Any issue which plaintiff intended to raise in appeal no. 90-5673 can be raised in appeal no. 90-5670. 6 Accordingly, it is ORDERED that appeal no. 90-5382, 90-5383, 90-5400 and 90-5673 be, and they hereby are dismissed. Rule 9(b)(1), Rules of the Sixth Circuit.

65 N.W.2d 923 (1954) STATE of South Dakota, Plaintiff and Respondent, v. Lloyd NESS, Dale Ness and Howard Ness, Defendants and Appellants. No. 9388. Supreme Court of South Dakota. September 17, 1954. *924 Ralph A. Dunham, Atty. Gen., Benj. D. Mintener, Asst. Atty. Gen., Samuel W. Masten, States Atty., Canton, for respondent. Henry C. Mundt, Acie W. Matthews, Sioux Falls, for appellants. ROBERTS, Judge. The defendants were tried in the municipal court of Canton on a complaint charging them with assault and battery upon the person of Godfrey Krutch and found guilty. Reversal of the judgment is sought on the grounds (1) that the judgment is void in that the municipal court of the City of Canton was not legally established; (2) that the evidence adduced was insufficient to warrant submission to the jury; (3) that the court erred in restricting cross-examination by counsel for defendants; (4) that misconduct of the State's Attorney caused prejudice against defendants; and (5) that the court did not instruct the jury with reference to demonstrations on the part of attendants at the trial. SDC 32.0702 authorizes the establishment of a municipal court in "Any city in this state having a population of five thousand or over, or any city which is a county seat, having a population of one thousand five hundred or over". The City of Canton, a county seat having a population of less than five thousand, established under and pursuant to the terms of this statute a municipal court. Section 1, Article V, of the constitution provides that the judicial powers of the state except as in the constitution otherwise provided shall be vested in the supreme court, circuit courts, county courts and justices of the peace, and such other courts as may be created by law for cities and towns. Section 23, Article V, provides in part: "In cities having a population of five thousand or over the legislature may provide, in lieu of police magistrates, for municipal courts, the judges whereof shall be chosen in such manner as the legislature shall prescribe". Appellants challenge the constitutionality of the statute and the legal existence of the municipal court upon the ground that the legislature was without power to authorize the establishment of a municipal court in a city not having the population required by the constitution. The rule that the acts of a de facto court or judge cannot be attacked collaterally has been invoked by counsel for the respondent. This court in Merchants' Nat. Bank v. McKinney, 2 S.D. 106, 48 N.W. 841, 845, adopted the definition of a de facto officer laid down in State v. Carroll, 38 Conn. 449, 9 Am.Rep. 409: "`An officer de facto is one whose acts, though not those of a lawful officer, the law, upon principles of policy and justice, will hold valid, so far as they involve the interests of the public and third persons, where the duties of the office are exercised—First. Without a known appointment or election, but under such circumstances of reputation or acquiescence as were calculated to induce people, without inquiry, to submit to or invoke his action, supposing him to be the officer he assumed to be. Second. Under color of a known or valid appointment or election, but where the officer had failed to conform to some precedent, requirement, or condition, as to take an oath, give a bond, or the like. Third. Under color of a known election or appointment, void because the officer was not eligible, or because there was a want of power in the electing or appointing body, or by reason of *925 some defect or irregularity in its exercise, such ineligibility, want of power, or defect being unknown to the public. Fourth. Under color of an election or appointment by or pursuant to a public, unconstitutional law, before the same is adjudged to be such.'" The de facto doctrine is grounded upon policy and convenience. It is for the protection of persons who deal with those who apparently are officers in fact. It would be contrary to the interests of the public to permit the acts of a de facto officer to be collaterally impeached. As pointed out by the court in Burt v. Winona & St. P. R. Co., 31 Minn. 472, 18 N.W. 285, 287, 289: "It would be a matter of almost intolerable inconvenience, and be productive of many injustices, of individual hardship and injustice, if third persons, whose interests or necessities require them to rely upon the acts of the occupants of public offices, should be required to ascertain at their peril the legal right to the offices which such occupants are permitted by the state to occupy." There can be no de facto incumbent of an office not existing by virtue of a statute or ordinance. This conclusion applies where an act creating an office has been held unconstitutional or has been repealed. According to the weight of authority, however, a legislative act although unconstitutional may give such potential existence to an office as to make its incumbent a de facto officer. 14 Am. Jur., Courts, § 10. In Norton v. Shelby County, 118 U.S. 425, 6 S.Ct. 1121, 1125, 30 L.Ed. 178, a leading case upholding a contrary view, the court said: "An unconstitutional act is not a law; it confers no rights; it imposes no duties; it affords no protection; it creates no office; it is, in legal contemplation, as inoperative as though it had never been passed." That case was cited with approval by this court in Merchants' Nat. Bank v. McKinney, supra, wherein the existence of de jure offices appeared. Whether the scope of the de facto doctrine is limited to de jure offices was not there involved. In Wendt v. Berry, 154 Ky. 586, 157 S.W. 1115, 1119, 45 L.R.A.,N.S., 1101, Ann.Cas.1915C, 493, the court in holding that the acts of public officers exercising authority under a statute until it was declared unconstitutional were binding said: "Acts of the Legislature are presumed to be valid until declared void by the courts. The people generally and rightfully so regard them. The power and authority of public officers who exercise the duties of office under legislative enactments is recognized by all persons with whom they have dealings in their official capacity, and the public good imperatively demands that validity should be given to the acts of these officers when they are performing duties within the scope of their public authority. If individuals dealing with public officers might in every instance question their authority or deny their right to exercise the office until the courts of last resort had given the sanction of their approval to the validity of the legislation under which the office was established, the conduct of public affairs would be involved in interminable confusion and doubt. No person would feel secure either in his personal or his private rights. Confusion and uncertainty would attend every official act that was performed. Such a condition as this would be disastrous to the peace and welfare of society." In Marckel Co. v. Zitzow, 218 Minn. 305, 15 N.W.2d 777, 779, the court had under consideration the validity of proceedings conducted in a municipal court established by a statute apparently valid but subsequently declared unconstitutional. The court after reviewing its prior decisions and a number of authorities in other states concluded that proceedings conducted by the municipal court prior to the time that the statute creating it was declared unconstitutional were valid. The court said: "Important official acts were actually performed by the judge of the court created under a statute apparently regularly enacted by the branch of the government to which the power to make laws has been delegated by the constitution. The acts of the incumbent were as potent, as far as the public is concerned, as were the acts of any de jure officer performing a duty of *926 a legally existing office. The public, in its organized capacity, as well as private citizens, has acquiesced in and submitted to its authority. Under those circumstances, it appears to us that to suggest that, because there cannot be a de facto court without a de jure court, all such acts are invalid is too hypercritical a refinement and one which should have no support in law or reason." See also annotation in 99 A.L.R. 294. The question whether the statute authorizing the establishment of a municipal court in the City of Canton is unconstitutional cannot be decided in this action. The court and judge exercised power under color of authority and there was at least a de facto court. Its acts are not open to collateral attack. Appellants urge that there is no evidence whatever to connect them with the commission of a crime. They insist the record justified the conclusion that Godfrey Krutch was injured when he lost his balance and fell or in some other way than being struck by the appellants. It appears from the record that Godfrey Krutch and his son Lorrane were employed by the Flora Engineering Company. On the evening of October 31, 1952, they were assigned the duty of guarding trucks and other equipment of their employer near the town of Worthing. Lorrane left his father about ten o'clock that evening and while in a barroom in Worthing altercations took place between him and one Andy Fodness and appellant Lloyd Ness. Shortly after eleven o'clock Lorrane rejoined his father. There is no substantial dispute up to this point in the evidence between the testimony of the State and that of the appellants. Since the parties are not in accord as to the import of testimony regarding subsequent events we detail certain phases of the testimony. The following pertinent excerpts are from the testimony of Godfrey Krutch: "Well, Lorrane came back there first and shortly after that a crowd came down there. Lloyd Ness said it wasn't a fair fight they had uptown. He was talking mostly to Lorrane at the time. They had a fight. They then shook hands and the crowd went back uptown. Well, it wasn't too long, I'd say probably ten or fifteen minutes, they come back down again and the crowd was bigger than the first time. These three boys sitting here at the table were at the front of the crowd. They said they came down to get Lorrane and they wasn't kidding. I was hit with a club. Howard Ness had the club. So I started to run. I turned around to see whether they were really coming after me and this man (Howard Ness) was right behind me, real close, and that's the last thing I can remember. I was hit while running." An eye witness to the fracas testified: "I saw Godfrey Krutch on the ground. Dale Ness was standing by him, for one. I saw him kick this old man in the head." Appellants denied that they assaulted Godfrey Krutch. The evidence was sufficient to justify the jury in finding as it did that the offense of assault and battery was committed as charged in the complaint. We have made examination of errors assigned with respect to the rulings of the court in restricting cross-examination of state witnesses. It is claimed that the questions propounded went to their credibility. The trial court has discretionary powers over cross-examinations which will not be disturbed on appeal unless there was an abuse of discretion. State v. Rasmusson, 72 S.D. 400, 34 N.W.2d 923. We cannot find that there was such abuse in the refusal of the court to permit cross-examination of Godfrey Krutch and one Sidney Peterson concerning the disposition and sobriety of Lorrane Krutch. Appellants charge instances of misconduct by the state's attorney. These assignments of error deal with remarks made by the state's attorney during colloquies between counsel respecting the admissibility of testimony and the asking of questions which appellants assert were irrelevant and had the effect of producing a verdict based on passion and prejudice. If it be conceded that some of the side remarks of the state's attorney were improper, *927 we are satisfied from an examination of the record that they were not sufficiently prejudicial to require a new trial. In some instances the remarks of the state's attorney were invited by counsel for appellants of which they cannot complain. Objections to the questions asked by the state's attorney and referred to in these assignments were sustained by the court and were not of such character as to require reversal notwithstanding the favorable rulings. Appellants next contend that they were deprived of a fair trial because of the presence and conduct of the large number of spectators during the trial as described in the affidavits supporting motion for new trial. It is stated in the affidavits that there was upon a number of occasions during the trial applause which the trial court did not suppress and the opinion is expressed by affiants that the verdict of the jury was influenced by the misconduct of the audience. The affidavit of the state's attorney is to the effect that the alleged indecorum of the audience is grossly exaggerated in the affidavits supporting motion for new trial and that on the two occasions when there was laughter on the part of the spectators the court admonished them to maintain order. The constitution requires that an accused shall be given a public trial. The judge presiding at the trial has ample authority to enforce decorum in the courtroom and it is the duty of the court to exercise this power. Daudel v. Wolf, 30 S.D. 409, 138 N.W. 814; Larsen v. Johnson, 43 S.D. 223, 178 N.W. 876. The accused did not claim during the progress of the trial that the conduct of the audience was in any manner interfering with or preventing them from having a fair and impartial trial. The showing on motion for new trial was conflicting. The trial court was of the opinion that the jury was not influenced in its verdict finding defendants guilty by the conduct of the audience during the trial. The decision of the trial court on the conflicting affidavits is entitled to great weight and will not be reversed by this court unless such decision was clearly against the evidence. We find no prejudicial error in the record. Judgment is affirmed. All the Judges concur.

451 So.2d 185 (1984) STATE of Louisiana v. Rod COLEMAN. No. 83 KA 1296. Court of Appeal of Louisiana, First Circuit. May 30, 1984. Writ Granted September 14, 1984. *186 Ossie Brown, Dist. Atty., Baton Rouge, for plaintiff-appellee. Paula Cobb, Baton Rouge, William J. Guste, Jr., Atty. Gen., State of La., New Orleans, for defendant-appellant. Before SHORTESS, LANIER and CRAIN, JJ. CRAIN, Judge. Defendant, Rod Coleman, was charged with having committed attempted first degree murder on October 30, 1981, in violation of La.R.S. 14:30 and 14:27. He pled not guilty. A jury subsequently found him guilty of attempted manslaughter. He was sentenced to five (5) years at hard labor without benefit of probation, parole or suspension of sentence and with credit for time served. Defendant appealed his conviction and sentence, and both were affirmed by this court on May 17, 1983. [State v. Coleman, 432 So.2d 323 (La.App. 1st Cir.1983)]. The sentence was made executory on June 20, 1983. On July 8, 1983, the State filed a Motion for Sentencing in Conformity with La.C. Cr.P. art. 893.1 and La.R.S. 14:95.2, based on the fact that the evidence presented at trial revealed that defendant had used a firearm in the commission of the crime. Defendant filed an opposition to the State's motion, contending the trial court was without jurisdiction to correct the sentence. After a contradictory hearing, the trial court found that the original sentence was illegal and that it was mandated to impose the sentence and conditions of La.C.Cr.P. art. 893.1 and La.R.S. 14:95.2. On October 18, 1983, the original sentence was vacated and the trial court re-imposed the sentence, adding two years at hard labor without benefit of parole, suspension, or credit for good time to be served consecutively with the five year sentence. Defendant appeals from this corrected sentence, alleging the trial court was without jurisdiction to modify the sentence after the conviction and the original sentence were appealed and affirmed by the appellate court. ASSIGNMENT OF ERROR Defendant contends the trial court erred in vacating his original sentence and imposing *187 an increased sentence. He argues that the trial court was divested of jurisdiction upon entering of the order of appeal. He contends the original sentence in this case was not illegal and, therefore, the exception in La.C.Cr.P. art. 916(3) allowing the trial court jurisdiction after appeal to correct an illegal sentence is not applicable in this case. He argues further that, in light of La.C.Cr.P. art. 881, a sentence may not be amended or changed after execution of the sentence. La.C.Cr.P. art. 916 provides, in pertinent part: The jurisdiction of the trial court is divested and that of the appellate court attaches, upon the entering of the order of appeal. Thereafter, the trial court has no jurisdiction over the matter except to: (3) Correct an illegal sentence, or reduce a legal sentence in accordance with Article 913(B); Additionally, La.C.Cr.P. art. 882 provides in pertinent part, that "[a]n illegal sentence may be corrected at any time by the court that imposed the sentence." Article 881 prohibits the amendment of a legal sentence after execution has commenced and is not applicable to correcting an illegal sentence. The first issue which must be addressed is whether the original sentence imposed was illegal. Defendant argues that, since this original sentence was within the guidelines of the attempted manslaughter statutes, it was legal. Attempted manslaughter is punishable by imprisonment at hard labor for not more than ten and one-half years. La.R.S. 14:31 and 14:27. In this case, the offense was committed with a firearm. Therefore, when defendant was convicted, the mandatory sentencing provisions of La.C.Cr.P. art. 893.1 and La.R.S. 14:95.2 were applicable.[1] La.C.Cr.P. 893.1 mandates at least a five year sentence without benefit of suspension of sentence, probation or parole, for a felony committed with a firearm when the maximum sentence for the offense is five or more years. La.R.S. 14:95.2 requires an additional term of two years without benefit of probation, parole, suspension of sentence or credit for good time for a first conviction for attempted manslaughter with use of a firearm. The two year sentence is to be in addition to and to run consecutive to any other sentence imposed for crimes listed in La.R.S. 14:95.2. Applying both La.C.Cr.P. art. 893.1 and La.R.S. 14:95.2, the minimum allowable sentence was seven years at hard labor without suspension and without benefit of parole or probation. The sentence imposed here was only five years at hard labor without benefit of probation, parole or suspension of sentence. It complied with La.C.Cr.P. art. 893.1, but not with La.R.S. 14:95.2. Consequently, *188 it was less than the mandatory sentence required by law. Sentences not imposed without benefit of suspension, probation or parole when that restriction is mandated by statute are illegal sentences (unlawfully lenient). See State v. Telsee, 425 So.2d 1251 (La.1983); State v. Thomas, 439 So.2d 629 (La.App. 1st Cir.1983); State v. Jackson, 439 So.2d 622 (La.App. 1st Cir.1983), writs granted in part and denied in part, 443 So.2d 1123 (La.1984). A sentence imposed without compliance with the mandatory provisions of both La.C.Cr.P. art. 893.1 and La.R.S. 14:95.2 is analagous to a sentence not imposed with the required language "without benefit of parole, probation or suspension of sentence". Therefore, we hold that the original sentence imposed in this case being less than the minimum sentence mandated by application of both La. C.Cr.P. art. 893.1 and La.R.S. 14:95.2 was illegal. The second issue is whether the trial court may correct an illegal sentence after appeal, affirmance of the sentence on appeal, and the beginning of execution of the sentence. The language of La.C.Cr.P. art. 882 indicates that the trial court can correct an illegal sentence at any time. This language does not limit the correction of sentencing errors to those adverse to the defendant. State v. Jackson, 439 So.2d at 626. Furthermore, the Official Revision Comment to La.C.Cr.P. art. 882 states, in pertinent part: (a) The first sentence, taken from Fed. Rule 35, states the almost self-evident authority of the court to correct an illegal sentence at any time, for an illegal sentence is, in the contemplation of the law, no sentence at all. State v. Johnson, 220 La. 64, 55 So.2d 782 (1951). The phrase `at any time' makes clear the court's authority to make a correction after the defendant has begun to serve the sentence. Such authority was squarely affirmed in United States v. Johnson, 142 F.Supp. 532 (E.D.Tex.1956), aff'd, 241 F.2d 60 (5th Cir.1957), citing Bozza v. United States, 330 U.S. 160, 67 S.Ct. 645, 91 L.Ed. 818 (1947). (b) The court's authority to correct an illegal sentence at any time, which includes the power to pronounce a legal sentence, applies when an order of appeal or writs have been granted. This authority of the trial court is specifically set forth in Art. 916. (emphasis added). When a sentencing court discovers that a sentence imposed by it did not conform to the applicable penalty statute, it has a duty to correct the sentence so as to comply with the statute, even though service of the sentence first imposed has begun, and though the corrected sentence is required to be more onerous. Llerena v. United States, 508 F.2d 78 (5th Cir.1975). Recent jurisprudence from the Louisiana Supreme Court makes it imperative that the trial court be able to correct an illegal sentence at any time. In State v. Napoli, 437 So.2d 868 (La.1983), the Louisiana Supreme Court prohibited the Court of Appeal from ordering the trial court to correct a patently illegal sentence and ordered reinstatement of that illegal sentence holding that an illegal sentence in favor of a defendant cannot be reviewed or corrected by the appellate court. But see, State v. Telsee, 425 So.2d 1251 (La.1983), where the Court recognized ex proprio motu that a sentence for forcible rape was unlawfully lenient because the district court did not order it to be served without benefit of probation, parole or suspension for at least two years. Again in State ex rel. Pierre v. Maggio, 445 So.2d 425 (La.1984), the Court required the Department of Corrections to consider parole eligibility for a defendant who was illegally sentenced with that benefit contrary to a statute that prohibited parole eligibility. Unless the trial court can correct the sentences in both the Napoli and Pierre situations these defendants are going to achieve parole eligibility when *189 the statute under which they were sentenced clearly prohibits it.[2] Therefore, we find that the trial court did not err in correcting an illegal sentence after appeal and while the sentence was being executed. Accordingly, we affirm the sentence reimposed by the trial court. AFFIRMED. NOTES [1] La.C.Cr.P. art. 893.1 provides: When the court makes a finding that a firearm was used in the commission of a felony and when suspension of sentence is not otherwise prohibited, the court shall impose a sentence which is not less than: (1) The maximum sentence provided by law, in the same manner as provided in the offense, if the maximum sentence is less than five years, or (2) Five years, in the same manner as provided in the offense, if the maximum sentence is five years or more. Imposition or execution of sentence shall not be suspended and the offender shall not be eligible for probation or parole. La.R.S. 14:95.2 provides: Notwithstanding any other provisions of law to the contrary, any person who uses a firearm or explosive device at the time he commits or attempts to commit the crime of second degree murder, manslaughter, aggravated battery, simple kidnapping, aggravated escape, aggravated burglary, or aggravated arson or attempted aggravated rape, attempted first degree murder or attempted aggravated kidnapping shall upon conviction serve a term of two years imprisonment for the first conviction and upon conviction for each second and subsequent offense listed in this Section, he shall serve a term of five years imprisonment. The penalty provided herein shall be in addition to any other penalty imposed under the provisions of this Title and such person shall serve the additional term of imprisonment without benefit of parole, probation, suspension of sentence or credit for good time and any adjudication of guilt or imposition of sentence shall not be suspended. The prison terms provided under the provisions of this Section, shall run consecutively to any other penalty imposed upon conviction of any of the crimes listed in this Section. [2] If the appellate courts are restricted from correcting or ordering corrected a sentence illegal in favor of a defendant, and the parole board is required to honor an illegal sentence, serious problems are going to be presented even with the ability of the trial court to correct the sentence. It would become impossible for an illegal sentence to be corrected in the event it is acquiesed in by the State. Thus, a defendant charged with armed robbery could be sentenced, and the sentence suspended, or be given with parole and probation and absent a State motion to correct the sentence, it would stand. Consequently, mandatory sentencing requirements could be ignored if the State desired. Given the desire in so many instances to obtain a guilty plea, this result is not at all improbable. The crux of the matter is, given the right circumstances, a sentence patently in violation of a statute and thus illegal could be effectively imposed if there is agreement among the involved parties. We would be telling the legislature in effect that having a particular mandatory sentencing requirement is fine unless the principals in a criminal litigation, the trial judge, prosecutor and defendant choose to ignore it. Then, it is not worth the proverbial paper it is written on. The correct view should be that when a statute sets mandatory requirements of a sentence, deviation from the mandate of the statute simply has no effect whether that deviation be in favor of or against a defendant. See Concurring Opinion, State v. Jackson, 439 So.2d at 628. It should also be noted that in Napoli the Court held that it was error for an appellate court to review a sentencing error unfavorable to a defendant because that would provide `a chilling effect on defendant's exercise of his right to appeal.' If an illegal sentence can be corrected before appeal (La.C.Cr.P. art. 882), during appeal (La.C.Cr.P. art. 916[3]) and after appeal (the instant case), we do not see how the correction of the sentence is relevant to or prejudices the right to appeal.

STATE OF WEST VIRGINIA SUPREME COURT OF APPEALS G. David Ramezan, Petitioner FILED vs) No. 14-1311 (Gilmer County 12-JD-6) September 11, 2015 RORY L. PERRY II, CLERK SUPREME COURT OF APPEALS Gerald B. Hough, Gilmer County Prosecuting OF WEST VIRGINIA Attorney and the Gilmer County Commission, Respondents MEMORANDUM DECISION Petitioner G. David Ramezan, appearing pro se, appeals the November 24, 2014, order of the Circuit Court of Gilmer County denying his motion to be reimbursed for attorney’s fees incurred in litigation ancillary to a confidential juvenile matter. Respondents Gerald B. Hough, Gilmer County Prosecuting Attorney and Gilmer County Commission (collectively, “Gilmer County prosecutor”), by counsel Wendy E. Greve and Drannon L. Adkins, filed a response. The Court has considered the parties’ briefs and the record on appeal. The facts and legal arguments are adequately presented, and the decisional process would not be significantly aided by oral argument. Upon consideration of the standard of review, the briefs, and the record presented, the Court finds no substantial question of law and no prejudicial error. For these reasons, a memorandum decision affirming the circuit court’s order is appropriate under Rule 21 of the Rules of Appellate Procedure. Petitioner owns and operates an internet publication known as The Gilmer Free Press. In that capacity, petitioner published a letter to the editor concerning a confidential juvenile matter, No. 12-JD-6, then-pending in the Circuit Court of Gilmer County. The Gilmer County prosecutor filed a subpoena to compel petitioner to divulge the identity of the letter’s author to investigate whether that person had violated the law.1 Petitioner refused to disclose the author’s identity based on his belief that as a news reporter, he could not be required to breach his promise of confidentiality to his source. At a March 8, 2012, in-chambers hearing, the circuit court declined to compel petitioner to divulge the author’s identity at that time, but advised that petitioner should retain counsel if he wished to continue to protect the confidentiality of his source. Thereafter, petitioner obtained counsel to litigate whether he was required to disclose his source, and the Gilmer County prosecutor subpoenaed petitioner’s tax records based on the State’s 1 West Virginia Code § 49-5-103(f), which was in effect at the time of the events at issue, provided, in pertinent part, that “[a]ny person who willfully violates [the confidentiality of juvenile records] is guilty of a misdemeanor and, upon conviction, shall be fined not more than $1,000, or confined in jail for not more than six months, or both fined and confined.” 1 position that petitioner could not invoke the reporter’s privilege found in West Virginia Code § 57-3-10 unless petitioner derived income from his reporting activities. Petitioner opposed the subpoena of his tax records. By order entered October 22, 2014, the circuit court first determined that petitioner’s tax records were irrelevant to the determination of whether petitioner could exercise the statutory privilege West Virginia Code § 57-3-10 afforded to news reporters and, therefore, petitioner did not have to produce those records. Second, the circuit court found that petitioner was a “reporter” within the meaning of West Virginia Code § 57-3-10 and was able to exercise the privilege and protect the identity of his source. Finally, finding that no exception applied, the circuit court ruled that petitioner properly refused to disclose the identity of the author of the letter to the editor concerning the juvenile matter. While the litigation over the reporter’s privilege was ongoing, petitioner filed a separate civil action, No. 13-C-19, against the Gilmer County prosecutor alleging that he was being harassed by the prosecutor. As part of the harassment suit, petitioner sought reimbursement of the attorney’s fees he incurred in resisting the Gilmer County prosecutor’s subpoena. The circuit court in No. 13-C-19 directed petitioner to litigate the attorney’s fees issue in Case No. 12-JD-6 concerning the subpoena.2 Consequently, on April 10, 2014, petitioner filed a motion to be awarded his attorney’s fees in No. 12-JD-6.3 The Gilmer County prosecutor filed a response to the motion on July 10, 2014. Following a hearing, the circuit court denied the motion by order entered November 24, 2014. First, the circuit court noted that under the “American Rule,” each party involved in litigation ordinarily pays his own attorney’s fees. Second, the circuit court noted that West Virginia Code § 57-3-10 did not contain a fee-shifting provision allowing a prevailing reporter to recover attorney’s fees. Finally, the circuit court found that the Gilmer County prosecutor did not act vexatiously, wantonly, or in bad faith in seeking the identity of petitioner’s source as to entitle petitioner to be awarded his attorney’s fees as a matter of equity. Petitioner appeals the circuit court’s November 24, 2014, order to this Court. “The decision to award or not to award attorney’s fees rests in the sound discretion of the circuit court, and the exercise of that discretion will not be disturbed on appeal except in cases of abuse.” Syl. Pt. 2, in part, Beto v. Stewart, 213 W.Va. 355, 356, 582 S.E.2d 802, 803 (2003). However, before we address whether the circuit court abused its discretion in not awarding petitioner his attorney’s fees, we discuss two preliminary matters raised by petitioner. First, petitioner argues that Judge Richard A. Facemire, who was assigned to No. 12-JD-6, should have been disqualified from ruling on his motion for attorney’s fees.4 Petitioner asserts that 2 The circuit court ultimately granted summary judgment in favor of the Gilmer County prosecutor in petitioner’s harassment suit by order entered March 9, 2015. 3 Petitioner claimed $25,082.79 in attorney’s fees. 4 In petitioner’s separate civil action, No. 13-C-19, Judge Facemire voluntarily 2 Judge Facemire “forced” him into hiring counsel to litigate the reporter’s privilege issue. The Gilmer County prosecutor counters—and the record supports—that petitioner did not seek the judge’s disqualification. “This Court will not pass on a nonjurisdictional question which has not been decided by the trial court in the first instance.” Syl. Pt. 2, Sands v. Security Trust Co., 143 W.Va. 522, 102 S.E.2d 733, 734 (1958). From our review of the transcript of the March 8, 2012, hearing, all Judge Facemire did was to indicate to petitioner that if he wanted to litigate the reporter’s privilege issue, it would be beneficial to him if he retained counsel who would know the law surrounding the privilege and the exceptions thereto. Indeed, as petitioner concedes—once that issue was fully briefed—Judge Facemire ruled in petitioner’s favor. Therefore, we find no merit to the issue of whether Judge Facemire was disqualified from ruling on the motion for attorney’s fees because (1) the record does not show that the issue was ever raised; and (2) even if the issue had been properly preserved, the record reflects that no reason existed for the judge’s disqualification. The second preliminary issue petitioner raises is his claim that his request for attorney’s fees ought to have been decided by a jury.5 The Gilmer County prosecutor counters that there is no right to a jury trial in circumstances such as these, where the parties litigated a privilege issue and then an attorney’s fees issue in proceedings purely ancillary to a confidential juvenile matter. See Richardson v. Kentucky National Insurance Co., 216 W.Va. 464, 467, 607 S.E.2d 793, 796 (2004) (amount of attorney’s fees arising out of first-party bad faith action against policyholder’s insurer constituted question for court—not jury). We agree with the Gilmer County prosecutor that petitioner had no right to have his request for attorney’s fees decided by a jury in circumstances such as those of the instant case. We now turn to the primary issue of whether the circuit court abused its discretion in denying petitioner’s motion for attorney’s fees. 6 In syllabus points 2 and 3 of Sally-Mike Properties v. Yokum, 179 W.Va. 48, 48-49, 365 S.E.2d 246, 246-47 (1986), we held as follows: [Generally, under the “American Rule,”] each litigant bears his or her own attorney’s fees absent a contrary rule of court or express statutory or contractual authority for reimbursement. * * * There is authority in equity to award to the prevailing litigant his or her reasonable attorney’s fees as “costs,” without express statutory authorization, when the losing disqualified himself because the Gilmer County prosecutor was the named defendant. We note that this was not true of the instant case, No. 12-JD-6, where the named defendant was the juvenile accused of delinquency. 5 The record on appeal does not show that this issue was raised with the circuit court. However, we address the merits of petitioner’s assignment of error. 6 See Syl. Pt. 2, in part, Beto, 213 W.Va. at 359, 582 S.E.2d at 806. 3  party has acted in bad faith, vexatiously, wantonly or for oppressive reasons. Petitioner does not argue that there is contractual authority for reimbursement of his attorney’s fees; therefore, the only considerations are (1) whether statutory authorization existed for an award of attorney’s fees; and (2) if there was not statutory authorization, whether petitioner was entitled to be awarded his attorney’s fees as a matter of equity. First, from our independent review of West Virginia Code § 57-3-10,7 we agree with the circuit court that West Virginia Code § 57-3-10 does not contain any fee-shifting provision allowing a reporter prevailing under it to recover attorney’s fees. Second, we concur with the circuit court’s ruling that the Gilmer County prosecutor did not act vexatiously, wantonly, or in bad faith in in seeking the identity of petitioner’s source. In connection with No. 12-JD-6, petitioner’s major complaint was that the Gilmer County prosecutor sought his tax records. The circuit court determined that petitioner’s tax records were irrelevant to the determination of whether petitioner could exercise the statutory privilege pursuant to West Virginia Code § 57-3-10, but made no finding that the Gilmer County prosecutor acted vexatiously, wantonly, or in bad faith. West Virginia § 57-3-10(a) provides, in pertinent part, that a “reporter” is a person who disseminates the news to the public and engages in such activity “for a substantial portion of the person’s livelihood.” While the circuit court did not accept the Gilmer County prosecutor’s position that petitioner had to derive income from his reporting activities to be a “reporter,” the prosecutor’s argument had its basis in the language of West Virginia § 57-3-10(a). Thus, we find that the argument was made in good faith and was not advanced either vexatiously or wantonly. Therefore, we conclude that the circuit court did not abuse its discretion in denying petitioner’s motion for attorney’s fees. For the foregoing reasons, we affirm. Affirmed. ISSUED: September 11, 2015 CONCURRED IN BY: Chief Justice Margaret L. Workman Justice Robin Jean Davis Justice Brent D. Benjamin Justice Menis E. Ketchum Justice Allen H. Loughry II 7 Issues of statutory interpretation are reviewed de novo. See Syl. Pt. 2, Richardson, 216 W.Va. at 466, 607 S.E.2d at 795. 4 

611 So.2d 26 (1992) Russell H. JONES, Appellant, v. STATE of Florida, Appellee. No. 92-455. District Court of Appeal of Florida, First District. December 22, 1992. Nancy A. Daniels, Public Defender, Glen P. Gifford, Asst. Public Defender, Tallahassee, for appellant. Robert A. Butterworth, Atty. Gen., Marilyn McFadden, Asst. Atty. Gen., Tallahassee, for appellee. SHIVERS, Judge. Appellant, Russell Jones, entered a plea of nolo contendere, was adjudicated guilty of aggravated battery upon his wife, and was placed on community control for a *27 period of twelve months on September 11, 1991. Based on an Affidavit of Violation of Community Control presented by Appellant's community control officer, Barbara Bloom, on January 8, 1992, the trial court held a violation hearing. After determining that Appellant had violated three conditions of community control, the trial court revoked community control and sentenced Appellant to 3 1/2 years in state prison. Because of the lack of specificity of Condition (19) of the Judgment of Guilt Placing Defendant on Community Control and the inadequacy of the directions given by Appellant's community control officer, we must vacate both the order revoking community control and the resulting sentence, and remand the cause for another violation of community control hearing regarding the two remaining conditions. Cf. Young v. State, 566 So.2d 69 (Fla. 2d DCA 1990) (reversing order that revoked probation for violation of a single condition requiring completion of sex offender program, where order lacked requisite specificity and record failed to show a willful and substantial violation of probation). Appellant was ordered to comply with certain enumerated conditions and sanctions of community control, three of which are pertinent on appeal. The only disputed condition is Condition (19) stating: "You shall receive a mental health evaluation and follow any recommended treatment as directed by your Community Control Officer." The testimony presented at the violation hearing indicates that the only direction given to Jones by Officer Bloom was on November 8, 1991, when she instructed Appellant to have a mental health evaluation appointment by the following week. Bloom provided no assistance in obtaining accurate information about fee charges and payment options for an evaluation, nor was a list of names and addresses provided to guide Jones as to whom to contact or where to go to seek an evaluation. We find nothing in the record indicating that Appellant was ever informed about the nature and scope of a "mental health evaluation." In fact, the record shows it was unclear whether the required evaluation would involve a visit to a psychiatrist or to a psychologist. Bloom testified that she ordinarily allows two months for an individual on twelve months' community control to schedule an appointment. Jones and his community control officer had no further communication until January 7, 1992, when Appellant visited Bloom's office and informed her that he had not scheduled an appointment because he could not afford to pay the fee for an evaluation. Jones testified that he had called two psychiatrists and was told that an initial visit would cost in the range of $200-$255. At that time, Appellant had just resumed employment, and he provided evidence that his earnings for November and December 1991 had been $1,250 and $800, respectively. Jones failed to schedule an appointment based on his belief that he would have to pay the full typical fee at the time of the evaluation, so that scheduling an appointment for apparently unaffordable treatment would be futile. Bloom filed an affidavit of violation of community control based on Appellant's failure to get an appointment. Appellant concedes that the other violations are supported by competent evidence, but he asserts that those two violations alone do not warrant revocation of community control. They involve Condition (11) (imposing confinement to approved residence subject to specific exceptions) and Condition (20) (prohibiting contact with his wife and one of his children). "A violation which triggers a revocation of probation must be willful and substantial and the willful and substantial nature of the violation must be supported by the greater weight of the evidence." Johnson v. State, 561 So.2d 1254, 1255 (Fla. 2d DCA 1990); McNemar v. State, 588 So.2d 605 (Fla. 1st DCA 1991) (applying same test to violation of community control and reversing order revoking same). Accordingly, the issue on appeal is whether Jones violated Condition (19) willfully and substantially. We find Young instructive on the question of whether Condition (19) was specific enough to reasonably permit Appellant to act within the time period imposed by his *28 supervising officer. As a condition of probation, Young was ordered to complete a program for mentally disordered sex offenders. Like Appellant here, Young professed a willingness to meet the condition and took the initial steps toward compliance. Young was admitted into the program but was released due to his denial of having committed the sexual offense in question and his conflict with the program's director. An affidavit of violation of probation was filed, but he requested a continuance of the violation hearing so that he could enter another program. Nevertheless, the trial court revoked probation based on Young's violation of the condition. The Second District Court reversed the order and remanded the cause to the trial court for reinstatement of probation and clarification of the requirements of the condition. Id., 566 So.2d at 70. Among the deficiencies in the probation order were the failure to specify the period within which Young had to complete the program, or how many opportunities he would have to obtain success. Id. Cf. Haynes v. State, 571 So.2d 1380 (Fla. 2d DCA 1990) (revocation of probation and community control was error, based on appellant's failure to complete sex offender program, where order presenting conditions lacked specificity). We find that Condition (19) of Appellant's community control order likewise lacks the necessary specificity to direct him toward compliance. But for his perceived inability to pay the expected up-front costs of an evaluation, Appellant indicated an intent to fulfill the requirements of Condition (19). Although the trial court stated on the record that Appellant's financial situation did not preclude him from getting an appointment, and that upon diligent inquiry Appellant could have known that the county mental health association performed evaluations on a sliding scale, we hold that Condition (19) lacks the necessary specificity for a finding of a willful and substantial violation of community control. Young; Washington v. State, 579 So.2d 400 (Fla. 5th DCA 1991) (reversing order revoking probation, where appellant was never instructed on terms of probation, including requirement to report to probation officer). Because Appellant concedes that the record demonstrates violations of the other two conditions, we remand the cause to the trial court for a hearing to reconsider whether revocation of community control and imposition of a 3 1/2 year prison sentence are still warranted absent Condition (19). See McPherson v. State, 530 So.2d 1095 (Fla. 1st DCA 1988); Wilson v. State, 506 So.2d 1170 (Fla. 3d DCA 1987) (striking of one of three probation violations did not require remand for reconsideration of either the revocation or the sentence, where the appellate court was convinced that neither would be affected by the deletion of one violation). Given the seriousness and nature of the original offense (aggravated battery), we would note that the condition requiring Jones to submit to a mental health evaluation was an integral part of the rehabilitative purpose of community control. The order revoking community control is vacated, and the cause remanded for the trial court to hold another violation hearing to consider Conditions (11) and (20). VACATING revocation order and sentence, and REMANDING for a new hearing. SMITH and KAHN, JJ., concur.

585 F.Supp. 670 (1984) GILMORE STEEL CORPORATION, Plaintiff, v. UNITED STATES, et al., Defendants, Societe Anonyme De Fabrique De Fer De Charleroi, and Societe Anonyme De Forges De Clabecq, Intervenors. Court No. 84-2-00228. United States Court of International Trade. April 23, 1984. *671 Heller, Ehrman, White & McAuliffe, San Francisco, Cal. (John H. Cutler, Rene P. Tatro, and John S. Yun, San Francisco, Cal., on briefs), for plaintiff. Richard K. Willard, Acting Asst. Atty. Gen., David M. Cohen, Director, Commercial Litigation Branch, Washington, D.C. (Francis J. Sailer, Washington, D.C., on briefs), for defendants. Robert M. Gottschalk, New York City (Sidney N. Weiss, New York City, on briefs) for intervenors. Opinion and Order MALETZ, Senior Judge: In this action plaintiff Gilmore Steel Corp. challenges the government's rescission of a notice initiating an antidumping proceeding, as well as its dismissal of plaintiff's antidumping petition. The crux of the parties' dispute focuses on the phrase "on behalf of an industry" contained in section 732(b) of the Tariff Act of 1930, as amended by the Trade Agreements Act of 1979, 19 U.S.C. § 1673a(b) (1982). Section 1673a provides in part: § 1673a. Procedures for initiating an antidumping duty investigation * * * * * * (b) Initiation by petition (1) Petition requirements An antidumping proceeding shall be commenced whenever an interested party ... files a petition with the administering authority, on behalf of an industry, which alleges the elements necessary for the imposition of the duty imposed by section 1673 of this title, and which is accompanied by information reasonably available to the petitioner supporting those allegations. The petition may be amended at such time, and upon such conditions, as the administering authority and the Commission may permit. [Emphasis added.] The term "industry" is defined in general as the domestic producers as a whole of a like product, or those producers whose collective output of the like product constitutes a major proportion of the total domestic production of that product. 19 U.S.C. § 1677(4)(A) (1982). The questions presented are fourfold. First, does "on behalf of an industry" mean "as the representative of an industry," as the government contends; or does it merely refer to the scope of relief sought by the petitioner, i.e., relief which would inure to the benefit of an industry, as Gilmore maintains? Second, does the term "industry" as used in section 1673a(b) refer only to national industries, or does it include regional industries as well? The third inquiry —and in Gilmore's view the overriding question—is whether the Department of Commerce, International Trade Administration (ITA), had the power to dismiss Gilmore's petition well after the 20-day period had run for determining the sufficiency of its petition. See 19 U.S.C. § 1673a(c), discussed infra. Fourth, assuming that certain ex parte communications took place between the ITA and officials of the European Economic Community, what bearing, if any, does that have on the outcome of this action? As to the first two inquiries, the court believes that a petitioner must present an antidumping petition in a representative capacity, but that it may do so on behalf of either a regional or national industry. The court is also of the view that the ITA had the power to dismiss Gilmore's petition after the 20-day petition determination period of section 1673a(c) had run, insofar as that petition purported to represent the national hot-rolled carbon steel plate industry. However, to the extent Gilmore's petition alleged in the alternative less-than-fair-value (LTFV) sales and injury to a regional industry, it was error for the ITA to dismiss it. And as for the alleged ex parte communications, the court finds any error in that connection harmless. *672 Accordingly, for the reasons that follow, the ITA's determination is affirmed in part and reversed in part, and the case is remanded for further proceedings consistent with this opinion. Background Approximately one year before Gilmore filed its antidumping petition, an eleventh-hour agreement had been reached among the Commerce Department, the major U.S. steel producers, and the European Economic Community (EEC or EC), whereby the EEC agreed to restrict its exports of steel products to the United States in exchange for the U.S. steel industry's commitment to drop all pending antidumping and countervailing duty proceedings against the EC steel producers. See 47 Fed.Reg. 49,058 (Oct. 29, 1982). This agreement, generally referred to as "the Arrangement," was not acceded to by all domestic steel producers, Gilmore being one such nonsignatory. The Arrangement allows for abrogation by the EC producers if any U.S. producer—signatory or nonsignatory—files an antidumping petition respecting EC carbon steel products. During 1983 Gilmore sustained what it characterizes as a deteriorating business condition due to imports of hot-rolled carbon steel plate in cut lengths (steel plate) from Belgium and West Germany—both EC members. Gilmore therefore petitioned the ITA on September 29, 1983, for initiation of an antidumping investigation pursuant to 19 U.S.C. § 1673a(b)(1). With regard to both the alleged Belgian and West Germany LTFV sales, the petition was brought "on behalf of" all U.S. producers of steel plate. Alternatively, however, with respect to LTFV sales from West Germany, the petition was brought on behalf of a regional industry only, comprising West coast steel plate producers. At the time the petition was filed that regional industry numbered two producers—Kaiser Steel Corp. and Gilmore. By the end of 1983 their number had been winnowed to one, Gilmore being the sole survivor. Within 20 days of Gilmore's filing the ITA made an affirmative determination under 19 U.S.C. § 1673a(c)[1] that the petition set forth the allegations necessary for imposition of antidumping duties. Notice of the commencement of an investigation was, accordingly, published in the Federal Register on October 25, 1983. 48 Fed.Reg. 49,322. The ITA simultaneously notified the International Trade Commission (ITC) that a preliminary injury investigation should be undertaken. See 19 U.S.C. § 1673a(d). On November 7, 1983, a unanimous ITC rendered an affirmative preliminary injury determination, but only insofar as the national steel plate industry was concerned. There was no regional industry determination by the full ITC. See Determination of the Commission in Investigations Nos. 731-TA-146 and 147 (Preliminary) Under the Tariff Act of 1930, Together with the Information Obtained in the Investigation, USITC Pub. No. 1451 (Nov. 1983) (the ITC Report). Two months after the ITC Report the ITA published the following notice in the Federal Register, purporting to rescind its earlier notice commencing the investigation, and dismissing Gilmore's petition: [T]he Department has determined that Gilmore's petition was not filed on behalf of a United States industry and that this *673 earlier initiation was not well founded. This conclusion is based on the following facts, which came to light only after our initial decision to initiate. At an ITC public conference held on October 26, 1983, Gilmore was the only producer of this merchandise to testify in support of the petition. Conversely, letters were submitted by Armco Inc., to the Department and by United States Steel Corp., to the ITC specifically indicating that these firms do not support Gilmore's petition. Given this absence of support from Armco Inc., and United States Steel Corp., the Department had reason, for the first time, to question whether the petition was, in fact, properly filed on behalf of a domestic industry, and asked other U.S. carbon steel plate producers if they supported Gilmore's petition. Written replies were received from: Bethlehem Steel Corp., Inland Steel Co., Jones and Laughlin Steel Inc., Lukes Steel Co., National Steel Corp., Phoenix Steel Corp., U.S. Steel Corporation and Republic Steel Corp. All of these—except Bethlehem, which did not take a position—indicated that they do not support Gilmore's petition. 49 Fed.Reg. 3503, 3504 (Jan. 27, 1984). Thus, on the basis of information received after the running of the 20-day period spelled out in 19 U.S.C. § 1673a(c), the ITA reconsidered the sufficiency of and dismissed Gilmore's petition, concluding that it had not been brought "on behalf of an industry" since the petition lacked the support of a majority of domestic steel plate producers. The ITA did not stop there, however. It went one step further, concluding that since only one ITC commissioner had discussed the regional industry issue, the ITC had thereby rendered a negative determination as to the existence of a regional industry. 49 Fed.Reg. 3504. Consequently, Gilmore's entire petition was dismissed. Having thus been shunted by the ITA, Gilmore brought this present action, requesting a preliminary injunction which, in effect, seeks the ultimate relief sought in its complaint—continuation of the entire investigation. The government has moved for summary judgment. At a consolidated hearing on these two motions, the parties agreed that the matter could be considered as cross-motions for summary judgment.[2]Compare rule 65(a)(2) of the rules of this court (hearing on preliminary injunction may be combined with trial on merits). With this factual and legal backdrop, the court addresses the threshold issue: may the ITA, having rendered its determination to commence an antidumping proceeding, reconsider that determination, rescind it, and terminate the investigation in midstream on the basis of information which is neither within the petition nor part of the public domain? Reconsideration of Decision to Commence Investigation While comprising three counts of its five-count complaint, Gilmore's contentions regarding the procedural aspects of the dismissal of its petition boil down to one. In Gilmore's view, once the 20-day period for considering the sufficiency of a petition has run, and the decision to commence the investigation has been made, the investigation must proceed to a final determination especially where, as here, a preliminary affirmative injury determination has already been reached by the time the ITA decides to dismiss the petition. The court cannot agree. As the court understands it, Gilmore's argument envisions an administrative juggernaut that, once set into motion, can only be derailed by either a negative injury or *674 negative LTFV sales determination. The court finds no support for this position in either the statute itself or its legislative history. There is no question that within the 20-day determination period of section 1673a(c) the ITA must decide whether or not to initiate an investigation. United States v. Roses, Inc., 706 F.2d 1563, 1569 (Fed.Cir.1983); S.Rep. No. 249, 96th Cong., 1st Sess. 63 (1979), reprinted in 1979 U.S. Code Cong. & Ad.News 381, 449. The agency did so here. But having combed the Trade Agreements Act of 1979 and its legislative history the court is unable to discern in either any prohibition against the ITA's reconsideration of that determination in order to correct a manifest error which taints the proceeding.[3] In the court's view, the ITA must be so empowered. If it was otherwise, arbitrary and capricious agency practice would be the inevitable by-product. For Gilmore's position, if adopted, would obligate the agency to continue with an investigation in the knowledge that there existed a defect in the proceedings which could result in reversal by this court. See Greene County Planning Board v. FPC, 559 F.2d 1227, 1233 (2d Cir.1976) ("an agency does have an obligation to make corrections ... [where] the new evidence offered, if true, would clearly mandate a change in result ..."), cert. denied, 434 U.S. 1086, 98 S.Ct. 1280, 55 L.Ed.2d 791 (1978). The ITA's decision to rescind was based on its conclusion that Gilmore's petition had not been brought "on behalf of an industry"—a finding that Gilmore lacked standing to bring the petition. See S.Rep. No. 249, 96th Cong., 1st Sess. 63 (1979). That is precisely the sort of correction which the ITA must be allowed to make after section 1673a(c)'s 20-day period has run. To require the ITA to continue an obviously unwarranted investigation, simply because material inaccuracies in the petition do not come to its attention until after the expiration of the 20-day period, flies in the face of reason. See Asahi Chemical Industry Co. v. United States, 4 C.I.T. 120, 128, 548 F.Supp. 1261, 1267 (1982). It is axiomatic that courts have the power and the duty to correct judgments which contain clerical errors or judgments which have issued due to inadvertence or mistake, and to do so sua sponte. Fed.R.Civ.P. 60(a). It is equally well established that jurisdictional defects can be raised at any time, and sua sponte as well. Rath Packing Co. v. Becker, 530 F.2d 1295 (9th Cir.1975), aff'd, 430 U.S. 519, 97 S.Ct. 1305, 51 L.Ed.2d 604 (1977); Fed.R.Civ.P. 12(h)(3). A similar power must be vested in the ITA. "In fact, the presence of authority in administrative officers and tribunals to correct such errors has long been recognized...." American Trucking Associations v. Frisco Transportation Co., 358 U.S. 133, 145, 79 S.Ct. 170, 177, 3 L.Ed.2d 172 (1958). See Bookman v. United States, 453 F.2d 1263, 197 Ct.Cl. 108 (1972) (administrative agency is empowered to correct errors). A contrary holding would be tantamount to saying that once an error initially evades detection, the ITA is thereafter powerless to take remedial steps, thereby compounding the error. Here, the defect in Gilmore's petition, according to the government, went to its standing—not only whether Gilmore was an "interested party," but also whether Gilmore had the requisite support of the industry to warrant invocation of the ITA's jurisdiction and to justify the exercise of that agency's remedial powers. Compare Simon v. Eastern Kentucky Welfare Rights Organization, 426 U.S. 26, 96 S.Ct. 1917, 48 L.Ed.2d 450 (1976) (the concept of standing is part of the limitation on federal court jurisdiction); Warth v. Seldin, 422 *675 U.S. 490, 498, 95 S.Ct. 2197, 2204, 2205, 45 L.Ed.2d 343 (1975). Being an aspect of the ITA's jurisdiction, the court cannot find the ITA in error for raising it sua sponte, nor for dismissing Gilmore's petition in part on that basis. Whether the ITA's legal conclusion regarding Gilmore's standing is well founded, the court considers in a later portion of this opinion. In sum, when the purpose of reconsideration is to correct a decision based upon manifest error—such as one implicating defects jurisdictional in nature—reconsideration is essential to the proper administration of justice. Having established that the ITA had the power to reconsider its decision to initiate the investigation, the next inquiry is whether, as a substantive legal matter, it properly dismissed Gilmore's petition on the ground that Gilmore had not brought the petition "on behalf of an industry." Dismissal of Gilmore's Petition As previously noted, the heart of the present controversy turns on the meaning of the phrase "on behalf of an industry" contained in section 1673a(b). Gilmore submits that it refers to the scope of relief being sought by the petitioner. The government contends that the plain language of that phrase refers to the extent of producer support within an industry. Gilmore counters that if "on behalf of an industry" requires a petitioner to be the representative of an industry, then the "interested party"[4] criterion of section 1673a(b) is redundant because a petitioner who has garnered industry support will also invariably be an "interested party," i.e., a person with sufficient "interest" in the outcome to have standing before the ITA. The government responds, however, that Gilmore's reading of section 1673a(b) would reduce "on behalf of an industry" to a nullity since, by statute, relief is automatically accorded to an industry once LTFV sales and injury have been affirmatively determined. The court is persuaded by the government's argument, and for the following reason. It is, of course, hornbook law that "[t]he starting point in every case involving construction of a statute is the language itself." Blue Chip Stamps v. Manor Drug Stores, 421 U.S. 723, 756, 95 S.Ct. 1917, 1935, 44 L.Ed.2d 539 (1975). The Supreme Court has in fact warned that "[g]oing behind the plain language of a statute in search of a possibly contrary congressional intent `is a step to be taken cautiously' even under the best circumstances." American Tobacco Co. v. Patterson, 456 U.S. 63, 75, 102 S.Ct. 1534, 1540, 71 L.Ed.2d 748 (1982) (quoting Piper v. Chris-Craft Industries, 430 U.S. 1, 26, 97 S.Ct. 926, 941, 51 L.Ed.2d 124 (1977)). Indeed, "[a]bsent a clearly expressed legislative intention to the contrary, [the] language [of the statute] must ordinarily be regarded as conclusive." Consumer Product Safety Commission v. GTE Sylvania, Inc., 447 U.S. 102, 108, 100 S.Ct. 2051, 2056, 64 L.Ed.2d 766 (1980). See Shields v. United States, 698 F.2d 987, 989 (9th Cir.1983). The court believes that the plain meaning of "on behalf of" is "as the representative of," "as the proxy for," or "as the surrogate of." See, e.g., Random House College Dictionary 122 (1982) ("1. in or on behalf of, as a representative of or a proxy for"). The court has consulted the legislative history *676 and has found no contrary intent. See Schramm v. Department of Health & Human Services, 682 F.2d 85, 91 (3d Cir.1982) (where Congress in plain language has expressed its intention, and the legislative history does not demonstrate a contrary purpose, a court is bound to follow the statutory provision as written). Mindful, however, of Learned Hand's admonition "not to make a fortress out of the dictionary," Cabell v. Markham, 148 F.2d 737, 739 (2d Cir.), aff'd, 326 U.S. 404, 66 S.Ct. 193, 90 L.Ed. 165 (1945), the court finds additional support for this conclusion within the very framework of the Trade Agreements Act of 1979. As the government points out, the relief sought under an antidumping petition automatically inures to the benefit of the affected industry if that petition is ultimately sustained. If affirmative LTFV sales and injury determinations are reached, then under 19 U.S.C. § 1673b(d) liquidation of all entries of the subject merchandise is suspended and estimated antidumping duties imposed. Given this situation, adopting Gilmore's view of section 1673a(b) would require a petitioner to go through the hollow ritual of including in its petition the incantation "on behalf of an industry." Gilmore's interpretation of "on behalf of an industry" thus reduces that phrase to a redundancy, given that industry-wide relief is already accorded every successful petitioner under section 1673b(d). As for Gilmore's suggestion that the government's argument reduces the term "interested party" to mere surplusage, this ignores the definition of that term found in section 1677(9). For unless a petitioner is either a producer, union, or trade association within that industry, it cannot acquire "interested party" status in an antidumping proceeding. 19 U.S.C. § 1677(9)(C), (D) & (E). See Zenith Radio Corp. v. United States, 5 C.I.T. ___, Slip Op. 83-32 (April 13, 1983). This fairly narrow circumscription closes the door on groups such as, for example, the U.S. Chamber of Commerce, the National Association of Manufacturers, and the American Association of Exporters and Importers —groups which could conceivably muster majority support within a specific industry for an antidumping petition, but which could not attain "interested party" status under section 1677(9). The "interested party" criterion of section 1673a(b) is thus the first in a two-step sifting process—not only must a petitioner be a member of the affected industry, i.e., be an "interested party," it must also show that a majority of that industry backs its petition. See S.Rep. No. 249, 96th Cong., 1st Sess. 63 (1979) ("the standing requirements in section 732(b)(1) [19 U.S.C. § 1673a(b)(1) ] for filing a petition [are] to provide an opportunity for relief to an adversely affected industry and to prohibit petitions filed by persons with no stake in the result of the investigation [emphasis added]."). Guided by the elementary canon of construction that "a statute should be interpreted so as not to render one part inoperative," Colautti v. Franklin, 439 U.S. 379, 392, 99 S.Ct. 675, 684, 58 L.Ed.2d 596 (1979), the court is convinced that "on behalf of an industry" carries the meaning advanced by the government. In the present case there is no dispute that Gilmore does not have the support of a majority of the national steel plate industry. As indicated, the overwhelming majority of domestic steel plate producers scotched Gilmore's petition when contacted by the ITA. While not unsympathetic to Gilmore's plea of "tyranny of the majority," that is a matter for Congress to address, not this court. The looming antitrust problems are for another day in another forum. The short answer to Gilmore's claim of majority oppression is that the Trade Agreements Act of 1979 is drafted throughout in terms of relief to an industry, not to individual manufacturers or producers. See 19 U.S.C. §§ 1671a(b), 1671d(b), 1673b(a) & 1673d(b). See also S.Rep. No. 249, 96th Cong., 1st Sess. 63 (1979). Any untoward harshness resulting from this statutory scheme is ameliorated to a limited extent by 19 U.S.C. *677 § 1677(4)(B),[5] which excludes from the industry headcount those producers who are related to importers or foreign manufacturers of the subject product, or who themselves import the allegedly dumped merchandise. The ITA was thus correct in dismissing Gilmore's petition insofar as it was purportedly brought on behalf of the national steel plate industry. As to the propriety of that dismissal in connection with Gilmore's alternative regional industry claim, the court turns next. The Meaning of "Industry" This phase of Gilmore's action is the most puzzling, not due to any difficulty either in coming to grips with the law or in Gilmore's presentation, but in understanding the reasons for the ITA's dismissal of this portion of Gilmore's petition. The government has, in the court's view, shifted positions on this question from the time it first dismissed the petition. Initially, it argued somewhat curiously that since the ITC had not made an affirmative finding of the existence of a regional industry, the negative inference was warranted that one did not exist. However, the fact of the matter is that the ITC felt no need to address this question, that issue being subsumed by its determination that injury existed in connection with a national industry. As the ITC Report put it: Having reached affirmative determinations of a reasonable indication of material injury to the U.S. cut-length and coiled plate industries as a whole, Commissioners Stern, Haggart, and Lodwick do not reach the issues of (1) whether the producers in the Western region should be treated as if they are a separate industry, and (2) if so, whether there is material injury to that industry or a threat thereof caused by the subject imports. See Additional Views of Chairman Eckes concerning the question of injury to a regional industry. [Chairman Eckes expressed the opinion that a regional industry did exist]. ITC Report, USITC Pub. No. 1451 at 8 n. 17 (emphasis added). Yet, the ITA elected to dismiss the entirety of Gilmore's petition, proffering the following rationale: Although Gilmore had alleged that imports of this merchandise from the FRG had caused injury to a regional industry as defined in section 771(4)(C) of the Act, the conclusion of the ITC, as reflected in its report with respect to this merchandise (USITC Publication 1451 dated November 1983), contained only the views of Chairman Alfred Eckes on the regional injury question and did not include a determination that there was a regional industry or that there was a resonable [sic] indication of injury to such a regional industry. Since the ITC did not decide whether a regional industry existed within the meaning of section 771(4)(C) of the Act, the Department cannot conclude that Gilmore has properly filed its petition on behalf of a regional industry. 49 Fed.Reg. 3504. Moving slightly away from this view in its briefs filed with the court, the government now contends that the question whether Gilmore has filed its petition "on behalf of a West coast regional industry" is simply indeterminate at this time. The court is at a loss to comprehend why Gilmore's petition should be dismissed even if the existence of a regional industry is, at this time, an indeterminate question. *678 These waters are further muddied by the government's insistence that it is the exclusive function of the ITC to determine the existence of a regional industry.[6] But if Gilmore's petition cannot go forward because the ITA is not satisfied that it is brought on behalf of a regional industry, how will the ITC ever have the opportunity to consider the question? This "Catch-22" situation is an all too convenient bar to further agency consideration of Gilmore's petition. Suffice it to say that the court finds the ITA's action wholly unsupportable in the law. First of all, there is no vice in pleading in the alternative when presenting an antidumping petition to the ITA. This has apparently become a customary practice. Secondly, although there is some suggestion in the government's brief that the phrase "on behalf of an industry" is limited to national industries, at oral argument the government conceded that the term "industry" includes both "regional" and "national" industries. Any other result would, of course, be so onerous as to be an absurdity. For, unless they could first gather support from the national producers of the like product, producers comprising a regional industry would be thwarted in their efforts to obtain relief under the Trade Agreements Act of 1979. Not only would such a result be unduly harsh, it would as a practical matter write section 1677(4)(C)—the regional industry provision—out of the statute. See Colautti v. Franklin; Asahi Chemical Industry Co., 4 C.I.T. at 128, 548 F.Supp. at 1267 ("`No rule of construction necessitates ... acceptance of an interpretation resulting in patently absurd consequences.'") (quoting United States v. Brown, 333 U.S. 18, 27, 68 S.Ct. 376, 381, 92 L.Ed. 442 (1948)). What is more, an examination of 19 U.S.C. § 1677(4) shows that while in general "industry" means the national producers of a product, "in appropriate circumstances" it may also mean a regional industry. See S.Rep. No. 249, 96th Cong., 1st Sess. 83 (1979), U.S.Code Cong. & Admin.News 1979, p. 469 ("`Industry' generally means: ...; or (3) a regional industry."). In short, it was error for the ITA to have dismissed Gilmore's petition to the extent that it was brought on behalf of a West coast regional industry. The court expresses no view as to the existence of such a regional industry, that being a question to be answered in the first instance by the appropriate agency. The court considers, finally, the question of the allegedly improper ex parte communications between the ITA and EC officials. The Ex Parte Communications The fifth count of Gilmore's complaint alleges that the ITA reached its decision to dismiss Gilmore's petition on the basis of extralegal considerations—namely, threats by the EC to abrogate the Arrangement if Gilmore's petition was not dismissed. This information was allegedly in the form of undisclosed ex parte communications. Since this present matter is one on crossmotions *679 for summary judgment, the court's function is to determine whether there are any issues of triable fact, accepting as true Gilmore's allegations. C. Wright, A. Miller & M. Kane, 10 Federal Practice & Procedure § 2712 at 574-78 (1983). The court finds none. 19 U.S.C. § 1677f(a)(3) provides: (3) Ex parte meetings The administering authority and the Commission shall maintain a record of ex parte meetings between— (A) interested parties or other persons providing factual information in connection with an investigation, and (B) the person charged with making the determination, and any person charged with making a final recommendation to that person, in connection with that investigation. The record of the ex parte meeting shall include the identity of the persons present at the meeting, the date, time, and place of the meeting, and a summary of the matters discussed or submitted. The record of the ex parte meeting shall be included in the record of the proceeding. Ex parte communications per se are thus not improper, see Roses, Inc., 706 F.2d at 1567, but a record of them must be maintained and made available. The government insists that no such communications took place, while Gilmore counters that they must have. The court believes that whether they did or not is irrelevant, amounting at most to harmless error, assuming they did take place. First, since the court has ruled as a matter of law that Gilmore did not bring its petition on behalf of a national industry, it makes no difference to the outcome of this portion of Gilmore's case whether or not ex parte communications occurred between the EC and the ITA. Second, regarding the regional industry aspects of its petition, that portion of its action has been sustained and the ITA's dismissal invalidated. Gilmore has thus received all of the relief to which it is entitled at this stage. If there were unrecorded ex parte communications, the prejudice to Gilmore flowing from them has now been cured. As this court noted in Timken Co. v. Regan, 4 C.I.T. 174, 179, 552 F.Supp. 47, 52 (1982): It is basic that procedural irregularities by an administrative agency are not per se prejudicial. NLRB v. Seine & Line Fishermen's Union, 374 F.2d 974, 981 (9th Cir.), cert. denied sub nom. Biazevich v. NLRB, 389 U.S. 913 [88 S.Ct. 239, 19 L.Ed.2d 261] (1967); 5 U.S.C. § 706. Material prejudice to the interests of the complaining party must clearly appear. NLRB v. Selwyn Shoe Mfg. Corp., 428 F.2d 217, 224 (8th Cir. 1970). Given the present disposition of this action, the court is unable to discern any material prejudice to Gilmore, assuming the existence of the alleged ex parte communications. Conclusion For all the foregoing reasons, Gilmore's complaint is dismissed to the extent it seeks relief involving the ITA's determination that its antidumping petition was not brought on behalf of a national industry. Gilmore's action is sustained, however, insofar as the ITA's dismissal of the regional industry phase of its antidumping petition. The ITA's determination in that connection is hereby reversed. All remaining claims are dismissed, and the case remanded to the ITA for further proceedings consistent herewith. NOTES [1] 19 U.S.C. § 1673a(c) provides: (c) Petition determination Within 20 days after the date on which a petition is filed under subsection (b) of this section, the administering authority shall— (1) determine whether the petition alleges the elements necessary for the imposition of a duty under section 1673 of this title and contains information reasonably available to the petitioner supporting the allegations, (2) if the determination is affirmative, commence an investigation to determine whether the class or kind of merchandise described in the petition is being, or is likely to be, sold in the United States at less than its fair value, and provide for the publication of notice of the determination in the Federal Register, and (3) if the determination is negative, dismiss the petition, terminate the proceeding, notify the petitioner in writing of the reasons for the determination, and provide for the publication of notice of the determination in the Federal Register. [2] Intervenors Societe Anonyme de Fabrique de Fer and Societe Anonyme de Forges de Clabecq, both Belgian producers of hot-rolled carbon steel plate, have filed motions to dismiss, alleging procedural defects in Gilmore's service of the summons and complaint on them, the government and the domestic producers. Inasmuch as Gilmore's complaint is being dismissed insofar as it affects Belgian steel plate, intervenors' motions to dismiss are denied as moot. And to the extent intervenors complain of similar procedural defects relative to Gilmore's service on domestic producers and the government, they lack standing to do so. [3] Gilmore's reliance on Babcock & Wilcox Co. v. United States, 2 C.I.T. 74, 521 F.Supp. 479 (1981) (reconsideration beyond statutory time periods unlawful), vacated as moot, 4 C.I.T. 3 (1982), is ill-founded since, having been vacated, it is no longer binding precedent. Compare Cohen v. Illinois Institute of Technology, 524 F.2d 818, 829-30 n. 33 (7th Cir.1975) (a court of appeals' decision having been withdrawn, it has no precedential value), cert. denied, 425 U.S. 943, 96 S.Ct. 1683, 48 L.Ed.2d 187 (1976). [4] 19 U.S.C. § 1677(9) defines "interested party" as (A) a foreign manufacturer, producer, or exporter or the United States importer, of merchandise which is the subject of an investigation under this subtitle or a trade or business association a majority of the members of which are importers of such merchandise, (B) the government of a country in which such merchandise is produced or manufactured, (C) a manufacturer, producer, or wholesaler in the United States of a like product, (D) a certified union or recognized union or group of workers which is representative of an industry engaged in the manufacture, production, or wholesale in the United States of a like product, and (E) a trade or business association a majority of whose members manufacture, produce, or wholesale a like product in the United States. [5] That section provides: (4) Industry * * * * * * (B) Related parties When some producers are related to the exporters or importers, or are themselves importers of the allegedly subsidized or dumped merchandise, the term "industry" may be applied in appropriate circumstances by excluding such producers from those included in that industry. The fact that certain producers are excluded from the term "industry" naturally gives rise to the question, excluded for what purpose? The obvious answer is that such interested producers are excluded for the purpose of determining the extent of industry support for a petition. [6] 19 U.S.C. § 1677(4)(C) defines a "regional industry" as follows: (C) Regional industries In appropriate circumstances, the United States, for a particular product market, may be divided into 2 or more markets and the producers within each market may be treated as if they were a separate industry if— (i) the producers within such market sell all or almost all of their production of the like product in question in that market, and (ii) the demand in that market is not supplied, to any substantial degree, by producers of the product in question located elsewhere in the United States. In such appropriate circumstances, material injury, the threat of material injury, or material retardation of the establishment of an industry may be found to exist with respect to an industry even if the domestic industry as a whole, or those producers whose collective output of a like product constitutes a major proportion of the total domestic production of that product, is not injured, if there is a concentration of subsidized or dumped imports into such an isolated market and if the producers of all, or almost all, of the production within that market are being materially injured or threatened by material injury, or if the establishment of an industry is being materially retarded, by reason of the subsidized or dumped imports.

 Because no statute or court rule permits an appeal from an order denying a motion to disqualify judge, we lack jurisdiction. Castillo u. State, 106 Nev. 349, 352, 792 P.2d 1133, 1135 (1990). Accordingly, we ORDER these appeals DISMISSED. Hardesty , Douglas cc: Chief Judge, Fifth Judicial District Court Hon. Joseph T. Bonaventure, Senior Judge Cedric Alan Dial Nye County District Attorney Attorney GenerallCarson City Nye County Clerk SUPREME COURT OF NEVADA 2 (0) 1947A e 

283 F.2d 117 Ethel Foote STARKE, Trustee under the Last Will and Testament of Lewis A. Foote, Deceased, Plaintiff-Appellant,v.MANUFACTURERS NATIONAL BANK OF DETROIT, a national banking association, Defendant-Appellee. No. 14050. United States Court of Appeals Sixth Circuit. October 18, 1960. Joseph H. Guttentag, Detroit, Mich., R. M. Waterman, McClintock, Fulton, Donovan & Waterman, Detroit, Mich., on brief, for appellant. Carson C. Grunewald, Detroit, Mich., Henry C. Bogle and Bodman, Longley, Bogle, Armstrong & Dahling, Detroit, Mich., on brief, for appellee. Before MILLER, WEICK and O'SULLIVAN, Circuit Judges. PER CURIAM. 1 Appellant brought this action for alleged breach of a contract, executed in September, 1933, by which the owner of a patent for a System of Accrual Accounting, issued February 15, 1927, granted to appellee the right to use the patented system in connection with its banking operations. The system included the use of the patent and contemplated the use of particular copyrighted accounting forms, such as Interest Tables, Pro rata Tables and Accrual Ledger Control Sheets, with printed instructions which accompanied them. The owner of the system promised to sell appellee these forms at reasonable prices, and appellee promised not to purchase forms used with the System from anyone else. 2 The contract provided that in the event the appellee absorbed other banks, "which at such time are not licensed to use the System", the right and license to use and apply the System to the assets of such absorbed banks could be obtained for certain payments therein designated. 3 The patent expired February 15, 1944. 4 About July, 1952, and November, 1955, appellee absorbed two Detroit banks and thereafter continued the use of the same accrual accounting methods as it used prior to such dates, in connection with all of its combined assets and accounts. 5 The appellee declined to make the payments provided by the paragraph of the contract with reference to the assets of the merged banks, hereinabove referred to. This action followed. 6 The District Judge ruled that the contract granted to appellee a nonexclusive license to use the patented system; that a licensing agreement terminates with the expiration of the patent; that when the appellee applied the system to the assets of the two absorbed banks, the system was in the public domain; and that it would be an unreasonable construction of the contract to interpret it to require the appellee to obtain a license for the use of the system at a time when any bank or anyone else could have used the system without obtaining permission to do so. A discussion of the issue with citation of authorities is contained in his opinion. 7 We concur in the ruling of the District Judge for the reasons stated in his opinion. 8 The judgment is affirmed.

UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 08-5216 UNITED STATES OF AMERICA, Plaintiff - Appellee, v. DWIGHT SPEARS, Defendant - Appellant. Appeal from the United States District Court for the District of South Carolina, at Spartanburg. Henry F. Floyd, District Judge. (7:08-cr-00112-HFF-3) Submitted: June 25, 2009 Decided: November 10, 2009 Before MOTZ, GREGORY, and DUNCAN, Circuit Judges. Affirmed in part, vacated in part, and remanded by unpublished per curiam opinion. C. Carlyle Steele, Greenville, South Carolina, for Appellant. W. Walter Wilkins, United States Attorney, Regan A. Pendleton, William J. Watkins, Jr., Assistant United States Attorneys, Greenville, South Carolina, for Appellee. Unpublished opinions are not binding precedent in this circuit. PER CURIAM: Dwight Spears was convicted after a jury trial of conspiracy to murder a federal law enforcement officer in violation of 18 U.S.C. § 115(a)(1)(A) (2006). He was sentenced to 240 months of imprisonment. On appeal, counsel raises three issues: (1) whether the district court erred by failing to dismiss the indictment or grant a directed verdict because testimony revealed that Spears had withdrawn from the conspiracy; (2) whether the district court erred in failing to dismiss the indictment because Spears committed no overt act in furtherance of the conspiracy; and (3) whether the district court erred by charging the jury that it was Spears’ burden to prove withdrawal from the conspiracy by a preponderance of the evidence. Spears has filed two pro se supplemental briefs, alleging that his conviction under 18 U.S.C. § 115(a)(1)(A) was erroneous and therefore his indictment should be dismissed for lack of subject matter jurisdiction under Fed. R. Crim. P. 12(b)(3)(B). For the reasons that follow, we affirm in part, vacate in part, and remand. Although we review Spears’ first argument de novo, United States v. Loayza, 107 F.3d 257, 260 (4th Cir. 1997), the argument fails because the evidence did not reveal that Spears withdrew from the conspiracy. United States v. Cardwell, 433 F.3d 378, 391 (4th Cir. 2005). 2  The second argument lacks merit because there is no overt act element in a conspiracy offense. See United States v. Shabani, 513 U.S. 10, 13-14 (1994) (noting that absent statutory or congressional guidance to the contrary, the common law understanding of conspiracy does not make the doing of any other act a condition of liability). Moreover, even if an overt act was required for conviction under the statute, the record reveals that Spears engaged in acts in furtherance of the conspiracy, e.g., casing the area where the coconspirators expected to ambush and shoot the Federal Bureau of Investigation agent. See generally United States v. Ochoa-Torres, 626 F.2d 689, 691 (9th Cir. 1980) (noting that a trip in an automobile was an overt act in furtherance of conspiracy). Spears’ third argument simply is incorrect that it was not his burden to prove the defense of withdrawal from the conspiracy. Withdrawal from a conspiracy “requires the defendant to take affirmative actions inconsistent with the object of the conspiracy and communicate his intent to withdraw in a manner likely to reach his accomplices.” Cardwell, 433 F.3d at 391. Spears did have the burden to prove the defense. See United States v. Watford, 894 F.2d 665, 670 (4th Cir. 1990) (stating that the burden is on the defendant to show that he withdrew from the conspiracy by affirmative action); United States v. Urbanik, 801 F.2d 692, 697 (4th Cir. 1986) (same). 3 Once a defendant produces evidence of withdrawal, it then becomes a jury issue which the Government must prove beyond a reasonable doubt that the defendant did not withdraw from the conspiracy. United States v. West, 877 F.2d 281, 289 (4th Cir. 1989). Thus, we affirm Spears’ conviction. In his final argument, Spears alleges, pro se, that his indictment was defective because the evidence did not support his conviction under 18 U.S.C. § 115(a)(1)(A) (2006). We agree with Spears that evidence did not support his conviction under § 115(a)(1)(A) or under § 115(a)(1)(B), as the Government argues. Rather, the evidence supports his conviction for his unambiguous participation in the conspiracy to murder a federal law enforcement officer in violation of 18 U.S.C.A. § 1114 (West Supp. 2009). The indictment and criminal conviction properly note the conspiracy to murder; however, those documents erroneously cite to § 115(a)(1)(A), which is inapplicable to the instant facts. Rather than dismissing the indictment, however, this court has held that the proper remedy in this circumstance is to vacate and remand for resentencing under the appropriate statute. See United States v. Massuet, 851 F.2d 111, 115 (4th Cir. 1988) (noting that the “proper procedure for dealing with the problem of the erroneously cited statute would be to remand the case for resentencing under the proper statute”) (citation omitted); see also United States v. 4 Bennett, 368 F.3d 1343, 1352-55 (11th Cir. 2004) (holding that sufficient evidence supported a conviction for attempt to kill an officer of the United States, under 18 U.S.C. § 1114, where the defendant was actually charged with violating 18 U.S.C. § 115), vacated on other grounds, 543 U.S. 1110 (2005). Accordingly, we grant Spears’ motion to file his second pro se supplemental brief, vacate Spears’ sentence, and remand for resentencing in accordance with this opinion. We dispense with oral argument because the facts and legal contentions are adequately presented in the materials before the court and argument would not aid the decisional process. AFFIRMED IN PART, VACATED IN PART, AND REMANDED 5 

972 F.2d 351 NOTICE: Seventh Circuit Rule 53(b)(2) states unpublished orders shall not be cited or used as precedent except to support a claim of res judicata, collateral estoppel or law of the case in any federal court within the circuit.Leonard McKINNIS, Plaintiff-Appellant,v.Gary T. MORGAN, Guardianship Administrator of the IllinoisDepartment of Children and Family Services, Bremen Campbelland Agnes Piszczek, in their official and individualcapacities, Defendants-Appellees. No. 91-1946. United States Court of Appeals, Seventh Circuit. Argued April 29, 1992.Decided July 24, 1992. Before CUMMINGS and COFFEY, Circuit Judges, and WOOD, JR., Senior Circuit Judge. ORDER 1 Plaintiff Leonard McKinnis filed a complaint in the district court seeking to regain the custody of his daughter Melissa. The defendants are three employees of the Illinois Department of Children and Family Services ("IDCFS"). The suit was filed under 42 U.S.C. § 1983 claiming a violation of the due process clause of the Fourteenth Amendment. Defendants' actions were said to have been taken under the Illinois Juvenile Court Act (Ch. 37 Ill.Rev.Stat. § 701-1 et seq.). 2 According to the complaint, defendant Piszczek filed a petition for the adjudication of wardship of Melissa Stewart whose natural father is the plaintiff. Melissa was then in plaintiff's custody. According to Piszczek's verified petition, Melissa was neglected, abused and dependent in violation of Ch. 37, § 704-4(1)(A), § 702-4(2)(b), § 702-4(2)(A)(iii) and § 702-5(1)(b) of the Juvenile Court Act. In that proceeding plaintiff was held in contempt of court and sentenced to 23 days in the Cook County, Illinois, jail on November 15, 1984. He was assertedly represented by eight different Assistant Public Defenders in those proceedings. 3 On August 20, 1986, the Illinois trial court entered its finding of neglect as recommended by defendant Campbell. On the following October 9, it terminated plaintiff's custodial rights and appointed Gary T. Morgan as Melissa's guardian. The judgment was affirmed by the Appellate Court of Illinois on January 18, 1989, and the Cook County Public Defender declined to file a petition for leave to appeal to the Illinois Supreme Court. Plaintiff did not raise any constitutional issues before the Illinois trial and appellate courts. 4 The complaint asserts that defendants deprived plaintiff of various due process rights and claimed that the Illinois Juvenile Court Act is void for vagueness. The complaint asked the district court to grant a writ of habeas corpus to bring Melissa within its jurisdiction and order the IDCFS to return Melissa to plaintiff's care and custody. Plaintiff also sought $1,000,000 compensatory damages and a trial by jury. Subsequently he filed a motion for preliminary injunction and defendants filed a motion to dismiss. 5 In April 1991, plaintiff's motion for preliminary injunction was denied and defendants' motion to dismiss was granted. The judgment is affirmed for the reasons given in the portion of Judge Nordberg's opinion quoted below, with which we agree:1 6 According to the Rooker-Feldman doctrine, lower federal courts have no jurisdiction to review the final determinations of state judicial proceedings. See, e.g., Worldwide Church of God v. McNair, 805 F.2d 888, 890 (9th Cir.1986 (see cases cited). Because "federal review of state court decisions is entrusted solely to the Supreme Court, [the lower federal courts] may not decide federal issues that are raised in state proceedings and are inextricably intertwined with the state court's judgment ... This 'bar' also operates where the plaintiff fails to raise his federal claims in state court." Staley v. Ledbetter, 837 F.2d 1016, 1018 (11th Cir.1988) (citations omitted). In Staley, Georgia's juvenile court had terminated the plaintiff's parental rights, a judgment later affirmed by the state's higher courts. Plaintiff brought suit in federal court under Section 1983, seeking a writ of habeas corpus and damages for the alleged violation of her constitutional rights. Affirming the district court's dismissal, the court held that "no federal subject matter jurisdiction existed in this case. In effect, [plaintiff] seeks to challenge collaterally the state agency and court proceedings that terminated her parental rights ... The district court in this case lacked jurisdiction to hear a sec. 1983 claim that in essence sought to reverse a state court's child custody determination." Id. 7 That is precisely the nature of McKinnis' claim in this case. Unhappy with the Circuit Court's removal of Melissa from his custody, McKinnis now seeks to have the judgment reversed and to reclaim Melissa. That he also challenges certain portions of the Juvenile Court Act as being unconstitutional is of no consequence. First, McKinnis explicitly "requests that [the Illinois Juvenile Court Act] be judged on an as-applied basis," Response p. 4, and Rooker-Feldman prohibits federal review where "the district court would have to go beyond mere review of a state rule as promulgated, to an examination of the rule as applied by the state court to the particular factual circumstances of [the plaintiff's] case." McNair, at 892 (emphasis original). Second, Staley makes clear that Rooker-Feldman applies to federal claims not raised in state court. Staley, at 1018. This last principle echoes the rule of res judicata, which also bars McKinnis' claim (the two doctrines have been described as two sides of the same coin--see Worldwide at 892). Res judicata precludes the exercise of federal jurisdiction as to any matters raised, or which could have been raised, before the state court. Migra v. Warren City School Dist. Bd. of Educ., 465 U.S. 75 (1984) (state court judgment has same preclusive effect in § 1983 action that it would have in state court); Morris v. Union Oil Co., 96 Ill.App.3d 148, 421 N.E.2d 278 (1981) (Illinois res judicata rules bar litigation of issues that could have been raised in earlier proceeding). McKinnis offers no explanation why he failed to raise his constitutional challenges before the Circuit Court. 1 We need not consider the other reasons supporting dismissal advanced by the district judge

606 P.2d 217 (1979) John CALL and Clark Jenkins, Plaintiffs and Appellants, v. CITY OF WEST JORDAN, Utah, Defendant and Respondent. No. 15908. Supreme Court of Utah. December 26, 1979. *218 Robert J. DeBry and Valden P. Livingston, Salt Lake City, for appellant. Nick J. Colessides, Salt Lake City, for respondent. CROCKETT, Chief Justice: Plaintiffs John Call and Clark Jenkins, subdividers, brought this action in which they challenge the validity of an ordinance adopted by the defendant City which requires that subdividers dedicate 7 percent of the land to the city, or pay the equivalent of that value in cash, to be used for flood control and/or parks and recreation facilities. The district court upheld the validity of the ordinance and denied plaintiffs' request for injunctive relief and damages. The latter appeal. Plaintiffs contend that the ordinance is invalid because: (1) it is not within the City's granted powers; (2) the land or the money required is not for the benefit of the subdivision, but rather the City as a whole; (3) that the City is attempting to exercise the power of eminent domain without following the requirements thereof and paying just compensation; and (4) it unlawfully imposes a tax. On January 21, 1975, the City amended an existing ordinance (No. 33) relating to subdivisions by adding the following: Section 9-C-8(a). In addition to all the other requirements prescribed under this ordinance the subdivider shall be required to dedicate seven percent (7.0%) of the land area of the proposed subdivision to the public use for the benefit and use of the citizens of the City of West Jordan ... or in the alternative at the option of the governing body of the City, the City may accept the equivalent value of the land in cash if it deems advisable. Sections 9-C-8(b) and (d) further provide that the money received "shall be used by the City for its flood control and/or parks and recreational facilities" and that if the City elects to receive money in lieu of land, payment shall be made "by the subdivider on or before final approval of the plat is given by the City Council." On May 2, 1977, the plaintiffs presented to the City two plats and maps for a proposed "Wescall subdivision" which, if approved, would result in the future development of 92 lots on about 30 acres of land located in the City. When the City exercised its option to accept money in lieu of land, plaintiff Clark Jenkins paid, under protest, $16,576.00, representing about 7 percent of the value of his land. The City Council then approved the subdivision and the plats were recorded. The City refused plaintiffs' demand to refund the money and this action resulted. In rejecting plaintiffs' attack upon the ordinance, the trial court stated in its memorandum decision: As it affects the plaintiffs, it is the opinion of this Court that the City of West Jordan, Utah's ordinance 33, as amended January 21, 1975, is valid and constitutional. It is further the Court's opinion that there has been no taking of the plaintiff's property by the defendant without just compensation nor has the defendant levied an invalid tax upon the plaintiffs. See Secs. 10-9-1 through 10-9-30, U.C.A. 1953. [Citing cases.] The Authority of the City It is not questioned that cities have no inherent sovereign power, but only those granted by the legislature.[1] But it must be realized that it is impractical for statutes to spell out to the last detail all of the things city governments must do to perform the *219 functions imposed upon them by law. This Court has in numerous cases recognized this and has held that cities have those powers which are expressly granted and also those necessarily implied to carry out such responsibilities.[2] There are a series of statutes through which the City derives its authority to enact ordinances of the character here in question. Sec. 10-8-84, U.C.A. 1953, grants to cities the authority and the duty ... to preserve the health, safety and good order of the city and its inhabitants. This idea is carried forward and echoed in Section 10-9-1, U.C.A. 1953, which provides that: For the purpose of promoting health, safety, morals and the general welfare of the community the legislative body of cities and towns is empowered to regulate and restrict ... the location and use of buildings, structures and land for trade, industry, residence or other purposes. Further dealing with that subject and more specific as to the establishment of parks, Section 10-9-3 states that such regulations ... shall be made in accordance with a comprehensive plan designed to ... facilitate adequate provision for transportation, water, sewage, schools, parks and other public requirements. The Municipal Planning Enabling Act[3] empowers a city to have a planning commission which may "adopt and certify to the legislative body, a master plan for the physical development of the municipality."[4] Section 10-9-22 states that the planning commission "shall have such powers as may be necessary to enable it to perform its functions and promote municipal planning." Significantly, Section 10-9-25 then provides: In exercising the powers granted to it by the act, the planning commission shall prepare regulations governing the subdivision of land within the municipality. A public hearing thereon shall be held by the legislative body, after which the legislative body may adopt said regulations for the municipality. [all emphasis herein added.] If the above statutes are viewed together, and in accordance with their intent and purpose, as they should be, it seems plain enough that the ordinance in question is within the scope of authority and responsibility of the city government in the promotion of the "health, safety, morals and general welfare" of the community.[5] Just how essential and desirable it is that cities have such authority in planning their growth is brought into sharp focus by reflecting, on the one hand, upon the conditions in the slum and ghetto areas of various cities, where there are none, or inadequate, parks and playgrounds and, on the other, upon the enrichment of life which has been conferred on other cities where there are parks, plazas, recreational and cultural areas (some of which are very famous) for the use of the public. In modern times of ever-increasing population and congestion, real estate developers buy land at high prices. From the combined pressures of competition and desire for gain, they often squeeze every lot they can into some labyrinthian plan, with only the barest minimum for tortious and circuitous streets, without any arterial ways through such subdivisions, and with little or no provision for parks, recreation areas, or even for reasonable "elbow room." The need for some general planning and control is apparent, and makes manifest the wisdom underlying the delegation of powers to the cities, as is done in the statutes above referred to. As undeveloped land is improved, it is also important that some provision for flood control be made. To the extent that the *220 establishment of subdivisions increases the need for flood control measures or recreational facilities, it is both fair and essential that subdividers be required to contribute to the costs of providing those facilities. Lack of Benefit to the Subdivision In their point No. (2), the plaintiffs attack the ordinance on the ground that the land dedicated (or the money in lieu thereof) is not to be used solely and exclusively for the benefit of the created subdivision. They point to the provision that the land is received "for the benefit and use of the citizens of the City of West Jordan" and the money is used for "its [West Jordan's] flood control and/or parks and recreation facilities." We agree that the dedication should have some reasonable relationship to the needs created by the subdivision.[6] But in the planning for the expansion of a city, it is obvious that no particular percentage of each subdivision, or of each lot, could be used as a park or playground in that particular subdivision; and likewise, that it could not be so used for flood control. But it is so plain as to hardly require expression that if the purpose of the ordinance is properly carried out, it will redound to the benefit of the subdivision as well as to the general welfare of the whole community. The fact that it does so, rather than solely benefiting the individual subdivision, does not impair the validity of the ordinance.[7] These observations are also pertinent: Although the money which was collected from the plaintiffs in this case was deposited in the City's general fund, it should not be assumed that the money thus becomes usable for other purposes by the City and is of no special benefit to the area sought to be subdivided. On the contrary, that it will be used for its stated purpose is assured, first, by the integrity and good faith of the public officials charged with that responsibility; and second, by the fact that the recognized principle is that if money is collected from the public for a specific purpose, it becomes a trust fund committed to the carrying out of that purpose.[8] The Eminent Domain Issue There is an obvious fallacy in the plaintiffs' argument that the City has not followed the proper procedure for taking plaintiffs' property under eminent domain. This is not a proceeding initiated by the City to acquire property.[9] It has indicated no desire to compel the plaintiff to subdivide their property, nor to dedicate any part of it. The plaintiffs are the moving parties, and as a prerequisite for permitting the creation of the subdivision, the City, under the powers conferred upon it as hereinabove discussed, can and does impose reasonable regulations.[10] Invalidity as a Tax Plaintiffs urge that the requirements of the ordinance in question are but a revenueraising scheme for the purpose of meeting the financial needs of the City, and thus constitute an improper levy of a tax upon their property. This labeling is but an exercise *221 in semantics which misconstrues the purpose of the ordinance to make another attack upon it. It has been adjudicated that such an ordinance, if reasonably designed and carried out for the purpose intended, is a proper form of planning for the good of the community, and is not such a prohibited tax.[11] The question as to the percentage of the land in the subdivision (in this instance, 7 percent) to be committed to the public purpose is within the prerogative of the City Council to determine, and so long as it is within reasonable limits, so that it cannot be characterized as capricious or arbitrary, the courts will not interfere therewith.[12] In harmony with what has been said above, it is our opinion that the ordinance under attack is within the scope of the powers granted to the City so that it can plan for the general good of the community as well as for the newly-created subdivisions. We have decided the principal issue which was addressed by the parties in the district court, and on this appeal, as to the validity of the ordinance. However, we observe that in the averments of the affidavits, there are other matters which may need to be resolved on remand; and accordingly, it is deemed appropriate that we make some additional comments.[13] There is no question, but that the ordinance should be applied fairly, and without favoritism or discrimination insofar as that can be accomplished. In view of the averment in plaintiffs' affidavit that that principle has been violated, the trial court should be concerned with examination into and resolution of any legitimate issue raised thereon. In his affidavit, plaintiff Clark Jenkins averred that he not only paid the $16,576 (assumed to be 7 percent of the value of the subdivision, $248,000) but was also required to dedicate .028 acres valued at $1,500; and to expend about $19,000 in construction of a storm sewer (which plaintiff urges is flood control) before the City would approve the subdivision. He asserts that these amounts are in excess of the 7 percent required by the ordinance. The City's affidavit states that it received the $16,576, but says nothing about receiving the other amounts just referred to. It is, of course, essential that the amount the City exacts pursuant to the ordinance is not more than the 7 percent of value of plaintiffs' property it prescribes. Our final observation is on plaintiffs' urgence that the $19,000 they expended in constructing a storm sewer should be credited upon their obligation under the ordinance. From what has been said in this decision, it should be sufficiently plain that the 7 percent exacted pursuant to the ordinance is for the general purpose of parks, recreation facilities and flood control, and is to be so administered and expended by the city government for that purpose; and that it is not necessarily to be used solely for the plaintiffs' subdivision or any other particular one. This does not in any way prevent the City from imposing other reasonable conditions upon the approval of a subdivision and proposed construction therein, including requiring a storm sewer if the conditions are such that it is needed in that subdivision for the protection of future residents thereof or other residents of the City. We therefore do not disagree with the City's requirement of the storm sewer, nor with its refusal to credit the plaintiff with the cost thereof on its 7 percent required by the ordinance. The decision of the trial court is affirmed and the case is remanded for further proceedings *222 consistent with this opinion. No costs awarded. HALL, J., concurs. STEWART, Justice (concurring). I concur in the conclusion that § 9-C-8(a) of the ordinance of the City of West Jordan is authorized by § 10-8-84 U.C.A. (1953), as amended. This statute delegates to cities general police power to be used for the benefit of the city and its inhabitants. However, the ordinance in question clearly approaches constitutionally protected rights, i.e., the prohibition against the taking of private property without just compensation. The power of a city, or for that matter of the state, to require subdividers to dedicate a portion of their land for public improvements is not without limitation. In my judgment, the Court should address the problem of what standards delineate a constitutional and an unconstitutional forced dedication by a subdivider. The question is certainly one that will recur and ought to be resolved by the Court. WILKINS, Justice (dissenting). I respectfully dissent. The majority opinion forms a perilous new rule today by impermissibly expanding municipal powers, for the first time in this State, beyond those granted cities and towns by our Legislature and beyond those recognized by subdivision, zoning, and municipal government authorities, and it endangers the sound precedent of narrowly construing municipal powers which has been developed in Salt Lake City v. Revene,[1]Ritholz v. City of Salt Lake,[2]Salt Lake City v. Sutter,[3]Tooele City v. Elkington,[4]Nance v. Mayflower Tavern,[5]Parker v. Provo City,[6]Nasfell v. Ogden City,[7]Bohn v. Salt Lake City,[8]Lark v. Whitehead,[9]American Fork City v. Robinson,[10]Layton City v. Speth,[11] and other cases. I shall relate my view of this case, as well as review what I perceive to be the correct legal principles applicable to it. All statutory references are to Utah Code Annotated, 1953, as amended, unless otherwise indicated. Subdividers have undertaken to develop a subdivision within the City's boundaries and have dedicated land area and installed storm sewer facilities within the subdivision and have additionally paid $16,576 to the City, all in response to City demands made under authority of the Ordinance as a prerequisite to subdivision approval. The record and briefs indicate a dispute as to whether the land was dedicated and the money paid under protest. No formal written protest appears in the record, but plaintiffs claim they attended a city council meeting in which they orally objected to the land dedication and fee payment. Subdividers framed their complaint as a class action seeking a declaration of the invalidity of the Ordinance on their own behalf and on behalf of others similarly situated. Other than a general denial in its answer and the allegation that the class consisted of 28 subdividers rather than the 100 alleged by plaintiffs buried within an affidavit on another subject, the City has totally failed to address, either here or below, the Subdividers' class action allegations. The record does not indicate whether the District Court made any of the determinations contemplated by Rule 23(a) or (b), Utah Rules of Civil Procedure, but the Court disposed of the matter in an Order dated April 21, 1978, denying the Subdividers' "Motion for Declaration of a Class Action." *223 The City's motion to dismiss was treated as one for summary judgment. On May 17, 1978, the District Court ruled in favor of the City's motion, and against the Subdividers' motion, that the Ordinance was valid and the City's demands were in conformity with it. Except for cities which operate under charter[12] and derive their authority from Article XI, Section 5 of the Utah Constitution, the cities of this State are "creatures of statute and limited in powers to those delegated by the legislature, ..."[13] All power and authority of our nonchartered municipalities is derived through legislative grant, and for the Ordinance under review here to be upheld, it must have been enacted pursuant to an enabling statute. Prior to the majority decision here, this Court recognized that legislative authority may be exercised by municipalities in only one of three ways. Justice Wolfe wrote in Salt Lake City v. Revene: It has been repeatedly stated by this court "that a municipal corporation possesses and can exercise the following powers, and no others: First, those granted in express words; second, those necessarily or fairly implied in or incident to the powers expressly granted; third, those essential to the accomplishment of the declared objects and purposes of the corporation, — not simply convenient, but indispensable." 1 Dillon Municipal Corporation, 5th Ed., p. 448, § 237; ...[14] [Emphasis added.] and held therein that in the absence of a specific legislative grant of power the city had no authority to limit barbershop business hours for health purposes under three statutory grants of power to cities and towns. One statute provided cities power to "license, tax, and regulate" barbershops. A second statute empowered cities to promulgate regulations "to secure the general health of the city," and the third broadly delegated to cities authority to enact ordinances for the public health, safety, prosperity, morals, peace and good order, and comfort and convenience of the city and its inhabitants. That third statute now appears in our Code as § 10-8-84 and is relied upon by the City and the majority opinion as authority for the City to enact the Ordinance under attack here. In Salt Lake City v. Sutter,[15] defendant's conviction for violating Salt Lake City's prohibition ordinance was reversed, this Court holding that the statute enabling cities to pass ordinances necessary to provide for the safety, health, morals, comfort and convenience, again the statute relied upon by the City and the majority opinion, did not authorize the City's legislation prohibiting possession of intoxicating liquors. Whatever power or authority municipalities in this state have is derived from the Legislature. It will hardly be contended that the ordinance in question is "essential to the accomplishment of the declared objects and purposes of the corporation." As we have seen, it is not included within any express grant; nor is it necessarily or fairly implied as an incident to the powers expressly granted measured by the rule laid down by the authorities. It may be, and is, contended that the ordinance in question is only carrying out the general policy of the state as reflected by the legislative enactment making it an offense against the state law for any person to knowingly have in his possession without authority intoxicating liquors within the state. But the policy of the state cannot control in determining the powers of a municipality. Those powers must be measured and determined by the grants found in the charter or in the general laws purporting to enumerate such powers. *224 We can see no escape from the conclusion that the board of city commissioners of Salt Lake City was without authority to enact the ordinance in question on this appeal.[16] The requirement that cities must have express authority to enact ordinances is not unique to Utah. McQuillin in Municipal Corporations, and Yokley, in The Law of Subdivisions, state as a general proposition that dedication ordinances require enabling legislation. In some jurisdictions, zoning-enabling statutes authorize local zoning bodies to require, as a condition precedent to development, that subdividers dedicate portions of their property for public purposes, or pay an assessment in lieu of dedication. There must be express statutory authority granting the power to municipalities to impose such conditions, or at least language from which the intention to grant the power may be inferred....[17] Further, judicial scrutiny of a municipal ordinance differs from that imposed in the test of a State statute in that the usual presumption of validity of the sovereign's action does not apply. In the case of an ordinance, any reasonable doubt must be resolved against the municipality's power to enact it, and any questioned power must be denied.[18] Neither party nor the majority opinion cites any Utah statute directly authorizing the City's enactment of the Ordinance in this case. The City refers us only to § 57-5-3[19] and to Title 10, Chapter 9 of the Utah Code Ann. The majority opinion finds authority for the City's action in § 10-8-84 and various sections in Title 10, Chapter 9, under the theory that the City was acting under those powers necessarily implied to it to carry out those powers expressly granted. Section 57-5-3 governs the nature of maps and plats a subdivider must file and have approved. Title 10, Chapter 9, is a Legislative grant of power to cities and towns for the purpose of enacting zoning regulations to promote the "health, safety, morals and general welfare of the community." Chapter 10 also includes the Municipal Planning Enabling Act, §§ 10-9-19 through 10-9-30, which empowers any city to adopt a master plan for the physical development of the municipality and to promulgate regulations to assure that subdivisions conform to the master plan. The City has adopted a master plan as contemplated by the Act. Section 10-8-84 is a broad grant of the State's police powers to cities and towns and is frequently referred to as the "general welfare clause."[20] It is derived from Utah's earliest laws and states: They [the cities and towns] may pass all ordinances and rules, and make all regulations, not repugnant to law, necessary for carrying into effect or discharging all powers and duties conferred by this chapter, and such as are necessary *225 and proper to provide for the safety and preserve the health, and promote the prosperity, improve the morals, peace and good order, comfort and convenience of the city and the inhabitants thereof, and for the protection of property therein; ... Emphasis added.] This section is not, however, authority for the Ordinance under attack here. Cases decided under this statute are emphatic and explicit in limiting its scope. In Nasfell v. Ogden City,[21] the city's power to enact an ordinance declaring that the presence of a vehicle parked in violation upon any public street was prima facie evidence that the registered owner committed the violation, was successfully challenged. Although Chief Justice Crockett reasoned there as here, that what is now Section 10-8-84 implied to the city the power to enact the ordinance, the Court held that the city had been granted no express authority to pass the ordinance, and that the city had no implied power to pass the ordinance based upon this general welfare statute or statutes granting cities the right to regulate the use of streets, traffic and sidewalks. The Court has also characterized this statute as "merely in aid of the express powers elsewhere granted"[22] in invalidating a city ordinance prohibiting keeping a pool table or playing pool. And in Lark v. Whitehead;[23] Chief Justice Crockett again dissenting, the Court held that while the cities had been expressly granted Legislative authority to enact an ordinance punishing persons for indecent or disorderly conduct in § 10-8-50, Salt Lake City's ordinance exceeded that statutory grant, and that even under § 10-8-84, the statute relied upon in the majority opinion here, the city had no implied power to enact its ordinance. The general provisions of Sec. 10-8-84 do not confer authority upon a municipal body to abrogate the limitations specified in the express provisions of Sec. 10-8-50, U.C.A. 1953. In Salt Lake City v. Sutter this court cited the principle that where an express authority is given to pass ordinances in a particular class of cases, followed by a general authority to pass all necessary laws, the express authority is a limitation upon the general power so far as it relates to matters which belong to the class of those enumerated, but which are not, in terms, included. A general power granted to the corporation to pass all ordinances necessary for the welfare of the corporation, is qualified and restricted by those other clauses and provisions of the charter or the general law which specify particular purposes for which ordinances may be passed. Otherwise, the general clause would confer authority to abrogate the limitations implied from the express provisions.[24] In Layton City v. Speth,[25] this Court set aside a conviction under a city ordinance which exceeded the statutory grant of authority from the Legislature. In Layton City, the city had enacted an ordinance making it illegal for a vehicle owner to knowingly and intentionally permit persons who possess, use, or distribute controlled substances to occupy his vehicle. The State statute in effect at the time the ordinance was enacted granted to cities the power to prohibit distribution of intoxicating liquors, narcotics or controlled substances to persons under the age of twenty-one. This Court held over the dissents of Chief Justice Crockett and Justice Hall, that the ordinance was not necessary for carrying into effect the purposes of the statute, was beyond the scope of Legislative authority granted to the city, and was therefore invalid. The remaining statutes cited by the City and the majority opinion as implied authority *226 for the City to enact the Ordinance are zoning statutes found in Title 10, Chapter 9, and §§ 57-5-3 and 57-5-4, the pertinent parts of which are cited in footnote 19 of this opinion. Clearly, these statutes do not grant the City express authority to enact the Ordinance nor do I find in these statutes implied authority to enact the Ordinance to carry out powers expressly granted under the zoning statutes. A generalized difference between zoning statutes and subdivision controls is that zoning normally prohibits certain uses of property, while the title remains in the private owner, and subdivision controls normally make positive exactions, such as conveyance of the title to the city, from the private owner. ... [I]t must be kept in mind that zoning regulations, generally, only limit the use of the property, whereas subdivision legislation often exacts a penalty for approval of a desired use.[26] Traditionally, zoning and subdivision have been founded on separate legislation and administered separately. Subdivision regulation and zoning are frequently interrelated in purpose and technique; . . [N]onetheless, fundamental differences do exist between the two areas. While zoning involves no more than negative prohibitions on certain uses of the owner's property, subdivision regulation often makes positive exactions of the owner. It may require him to construct streets or sewers, to convey a portion of his land to the municipality for public use, or to pay the equivalent of such construction or dedication in cash. It is submitted that this difference necessitates a more specific test of constitutionality, i.e., the legislation should not only be substantially related to the public health, safety, morals, or general welfare, but, insofar as dedications, activities and expenditures are positively required of the subdivider, these requirements should be reasonably related to the subdivision in question and should concern types of improvement for which municipalities have generally been conceded the power to levy special taxes or assessments.[27] [Emphasis added.] Here, the City is not attempting to rezone the Subdividers' property from residential use to municipal use for schools and parks or to otherwise limit or prohibit its use. In this case, the City is requiring the Subdividers to convey land to it, or to pay it an amount of money equal to the value of the land, without remuneration. In no sense is this a conventional zoning case. Further, §§ 57-5-3 and 57-5-4 cannot stand as authority for the Ordinance. The statutes automatically vest fee title in the municipal agency upon acknowledgment and recordation of the plat. They do not delegate to the cities and towns the power to enact ordinances exacting property or in lieu fees, without compensation, from private property owners as a condition to subdivision approval. Nor can such exaction be read as necessarily or even fairly implied from those sections. In his review of State statutory authorizations for subdivision control, Yokley reviews §§ 57-5-1 to 57-5-8 of our Code and states: A review of these provisions indicates an absence of any standards governing approval of plats except the usual directions for delineation of lots and streets, that is, there seems to be no authority conferred for the promulgation of regulations by the governing body which would require the meeting of certain conditions as a prerequisite to plat approval. The statute itself contains no provisions for meeting conditions before plat approval.[28] Anderson, in The American Law of Zoning, distinguishes between requiring a subdivision developer to plan for streets and *227 sewers, which he states can be required with or without subdivision controls, and which may be required in this State under §§ 57-5-3 and 57-5-4, and exacting property for other municipal purposes, which he repeatedly states must be done pursuant to strictly construed enabling legislation.[29] Finally, the Municipal Planning Enabling Act,[30] and specifically § 10-9-25, quoted by the majority opinion, cannot stand as sufficient authority for the City to take the Subdividers' property under its Ordinance. That Section states: "In exercising the powers granted to it by the act [the Municipal Planning Enabling Act], the planning commission shall prepare regulations governing the subdivision of land within the municipality." [Emphasis added.] Nowhere does the act authorize the planning commission or any municipality of this State to take any portion of a subdivider's property. The act enables municipal bodies to adopt a master plan (which the City has adopted), establish an official street map and to zone in conformance with those plans. It gives cities and towns the power to prohibit the issuance of a building permit or approval of a subdivision which does not conform to the master plan, and it makes it a misdemeanor to sell subdivision lots without planning commission approval. Again, in this case, the City is not attempting either to rezone the Subdividers' property or to refuse to approve their subdivision until it conforms to the master plan; the City, here, is appropriating the Subdividers' property. The Legislature has had two opportunities to expressly expand the powers available to municipalities in controlling problems associated with rapid subdivision development, but it has not, as yet, prescribed that necessary expended power. In 1973, a bill was introduced in the Utah Senate which would have delegated to the cities the power to require fees or dedication of land or both as a condition for approval of a subdivision plat. In 1975, a bill amending § 10-9-25 was introduced in the Utah Senate which would have allowed cities and counties to prescribe qualifications upon subdividers, such as providing for storm drainage systems, parks and recreational facilities in order to gain approval of their subdivision plats. Neither bill gained the approval of both Houses of the Legislature. I have reviewed those statutes characterized by the City and the majority opinion as enabling the City's actions here, and I remain unpersuaded that any or all of them are sufficient to expressly grant or necessarily imply to the City that power which it seeks to exercise by Ordinance No. 33. As noted ante, the normal presumptions in favor of the validity of statutes do not generally apply to ordinances, and this especially when the questioned ordinance seeks to appropriate to the government some protected private right. There is some difference of view with respect to a presumption of power to enact an ordinance and also with respect to burden of proof on that issue. Generally, there is no such presumption of validity of an ordinance as against the objection that no power existed under charter or statute to enact it. In other words, there is no presumption in favor of the validity of an ordinance where it is questioned on the ground of want of power to enact it; on the contrary, power to pass it must appear to have existed when it was adopted, if the ordinance is to be sustained. Accordingly, one claiming under an ordinance must be able to point to existing power to enact it, either granted in express terms or in terms by which the power is fairly and necessarily implied. Also, proof of authority to enact an ordinance has been ruled to be necessary where ... objection is made to it on the ground that it interferes with common rights. Indeed, the view has been taken that with respect to the exercise of every power by a municipal corporation, any reasonable doubt that arises as to the existence of the power is to be *228 resolved against the corporation, and the power is to be denied. Consistently, a strict construction against ordinances restricting personal liberty, property, immunity or privilege is followed in many cases... . Certainly, where it is clear that an ordinance exceeds the legislative powers of a city, it will not be presumed to be valid.[31] Only after ordinances are satisfactorily determined to have been enacted pursuant to Legislative grants of authority may they carry the presumption of validity. In Marshall v. Salt Lake City,[32] Utah's zoning statutes were declared constitutional and the City's ordinances, enacted pursuant to those express grants of authority, were upheld. At that point, the presumption of validity attaches to the ordinance under attack and it will not be declared invalid unless it is arbitrary, discriminatory or unreasonable, or unless it clearly offends some provision of the Constitution or a statute.[33] It is also only after a subdivision ordinance has been determined valid that it is to be tested as to its reasonableness in application to the particular fact situation. In Jenad v. Village of Scarsdale,[34] cited in the majority opinion, villages in the State of New York had been delegated sufficient grants of power to require exactions from subdividers, so the question became one of the reasonableness of the application of the ordinance to the facts of that case, unlike our problem here. Applying the presumption test to the facts of this case, the Ordinance should fail for want of authority to enact it. Several states have enacted statutes authorizing mandatory dedication of land or in lieu fees as a prerequisite to plat approval. These enactments, however, have taken place with a keen eye to protecting the rights of private property owners. In Associated Home Builders v. City of Walnut Creek,[35] a case relied upon by the City and the majority opinion, a dedication ordinance similar to the ordinance here survived attack. But Associated Home Builders does not stand for the proposition espoused by the majority opinion, because that case construed an ordinance which had been enacted pursuant to an express State enabling statute and a newly adopted amendment to the California Constitution. And in 1974, California passed statutes[36] requiring public agencies benefiting from the subdivision dedication to remunerate the developer-dedicator for his property. The Subdividers also challenge the Ordinance as an unreasonable exercise of the police power because the City has deposited the in lieu fees into its general account, presumably to be used for general City purposes, and because they claim, the City has not shown that the exaction from them is reasonably related to the demands placed on the City by their subdivisions, and that therefore the exaction benefits others at their subdivision's expense. The affidavit of one of the Subdividers (made a part of the record) states, and the City does not dispute, that the Subdividers' in lieu fees have been used to purchase land for a water-detention basin to receive run-off from subdivisions other than the one developed by the Subdividers herein. A reading of the Ordinance discloses that the land shall be dedicated or the in lieu fees paid "to the public use for the benefit and use of the citizens of the City of West Jordan" and "shall be used by the City for flood control and/or parks and recreational facilities." As support for their argument, the Subdividers cite Weber Basin Home Builders Ass'n v. Roy City.[37] In that case, the Court *229 struck as ultra vires and discriminatory a city ordinance raising building permit fees from $12 to $112. The money was received and paid into the city's general fund, as also occurred in this case, not for the purpose of meeting increased costs of regulating building construction, but for the purpose of improving the city's water and sewer systems necessitated by the construction of new homes and for other general purposes. The Court observed that equal protection and due process principles are violated by an ordinance which undertakes to impose a greater burden of general government cost on one class of residents than upon others without reasonable basis for classification and held that an ordinance which imposed a greater burden on those who built within the city after the ordinance than before its enactment was constitutionally unacceptable. Chief Justice Crockett, writing for the Court, correctly stated: The critical question here in whether the ordinance in its practical operation results in an unjust discrimination by imposing a greater burden of the cost of city government on one class of persons as compared to another, without any proper basis for such differentiation and classification. It is not to be doubted that each new residence has its effect in increasing the cost of city government; nor that due to the steadily increasing costs of everything, including those involved in rendering such services, the city would have authority to raise the fees charged for such services from time to time. Nevertheless, in that connection, the new residents are entitled to be treated equally and on the same basis as the old residents.[38] [Emphasis added.] I am not unsympathetic to the needs of the cities in our State faced with dramatic expansion. I am constrained, however, to review their ordinances with sensitivity to both the constitutionally protected rights of property owners and the limiting nature of the statutory grants of power to those cities. And that sensitivity compels a view on my part that the Ordinance is invalid and void because of the specific reasons noted in this opinion. MAUGHAN, J., concurs in the views expressed in the dissenting opinion of WILKINS, J. NOTES [1] Johnson v. Sandy City Corp., 28 Utah 2d 22, 497 P.2d 644 (1972). [2] See Salt Lake City v. Revene, 101 Utah 504, 124 P.2d 537 (1942); and Butt v. Salt Lake City Corp., Utah, 550 P.2d 202 (1976). [3] 10-9-19 et seq., U.C.A. 1953. [4] 10-9-20, U.C.A. 1953. [5] Language from Sec. 10-9-1, U.C.A. 1953. [6] See statements in Aunt Hack Ridge Estates, Inc. v. Planning Commission of Danbury, 27 Conn.Sup. 74, 230 A.2d 45 (1967); Krughoff v. City of Naperville, 68 Ill.2d 352, 12 Ill.Dec. 185, 369 N.E.2d 892 (1977); Home Builders Ass'n v. City of Kansas City, Mo., 555 S.W.2d 832 (1977). [7] Ayres v. City Council, 34 Cal.2d 31, 207 P.2d 1 (1949); Associated Home Builders, Inc. v. City of Walnut Creek, 4 Cal.3d 633, 94 Cal. Rptr. 630, 484 P.2d 606 (1971). [8] 15 McQuillin, Municipal Corporations, Sec. 39.45 states that: "Special funds are often created ... for a particular purpose, and in such case the general rule is that they cannot be used for any other purpose" and that "... a fund raised by a municipality for a special purpose is a trust fund, and equity will, in a proper case, interfere to prevent its diversion." (Citing cases.) [9] See Ayres v. City Council, supra, note 7; Petterson v. City of Naperville, 9 Ill.2d 233, 137 N.E.2d 371 (1956). [10] Billings Properties, Inc. v. Yellowstone County, 144 Mont. 25, 394 P.2d 182, 187 (1964); City of Albuquerque v. Chapman, 77 N.M. 86, 419 P.2d 460 (1966); Mid-Continent Builders, Inc. v. Midwest City, Okl., 539 P.2d 1377 (1975). [11] Petterson v. City of Naperville, supra, note 9; Jenad v. Village of Scarsdale, 18 N.Y.2d 78, 271 N.Y.S.2d 955, 218 N.E.2d 673 (1966). [12] For an excellent discussion of the various constitutional challenges that have been made regarding subdivision legislation, see Associated Home Builders, Inc. v. City of Walnut Creek, supra, note 7, and authorities therein cited. [13] See Rule 76(a), U.R.C.P.; LeGrand Johnson Corp. v. Peterson, 18 Utah 2d 260, 420 P.2d 615 (1966). [1] 101 Utah 504, 124 P.2d 537 (1942). [2] 3 Utah 2d 385, 284 P.2d 702 (1955). [3] 61 Utah 533, 216 P. 234 (1923). [4] 100 Utah 485, 116 P.2d 406 (1941). [5] 106 Utah 517, 150 P.2d 773 (1944). [6] Utah, 543 P.2d 769 (1975). [7] 122 Utah 344, 249 P.2d 507 (1952). [8] 79 Utah 121, 8 P.2d 591, 81 A.L.R. 215 (1932). [9] 28 Utah 2d 343, 502 P.2d 557 (1972). [10] 77 Utah 168, 292 P. 249 (1930). [11] Utah, 578 P.2d 828 (1978). [12] The City in this case does not represent itself to be chartered. [13] Ritholz v. City of Salt Lake, supra, note 2 at 3 Utah 2d 387, 284 P.2d 703. [14] Supra, note 1. Although cited by the majority as authority for its position here, Revene held, in direct conflict with the majority, that the Ordinance enacted by the City exceeded the City's authority under the enabling statutes. [15] Supra, note 3. [16] Id. at 61 Utah 540, 41, 216 P. 237. Also supporting this rule is Tooele City v. Elkington, supra, note 4. [17] 8 McQuillin, Mun.Corp. § 25.146a (Rev. 1976). 1 Yokley Mun. Corp. § 97 (Supp. 1978, p. 179); Accord, Yokley, The Law of Subdivisions § 15 (1963). [18] Nance v. Mayflower Tavern, supra, note 5; Parker v. Provo City, supra, note 6; Nasfell v. Ogden City, supra, note 7; Salt Lake City v. Revene, supra, note 1. [19] Maps and plats to be acknowledged, certified, approved, and recorded. Such map or plat shall be acknowledged by such owner before some officer authorized by law to take the acknowledgment of conveyances of real estate, and certified by the surveyor making such plat; if the land is situated in any city or incorporated town such plat or map shall be approved by its governing body, or by some city or town officer for that purpose designated by resolution or ordinance of such governing body; . . See also § 57-5-4, which states: Such maps and plats, when made, acknowledged, filed and recorded, shall operate as a dedication of all such streets, alleys and other public places, and shall vest the fee of such parcels of land as are therein expressed, named or intended for public uses in such county, city or town for the public for the uses therein named or intended. [20] Bohn v. Salt Lake City, supra, note 8; Lark v. Whitehead, supra, note 9. [21] Supra, note 7. [22] American Fork City v. Robinson, et al., supra, note 10 at 77 Utah 171, 292 P. 250. Accord, Bohn v. Salt Lake City, supra note 8. [23] Supra, note 9. [24] Id. at 28 Utah 2d 346, 502 P.2d 559. Accord, Allgood v. Larson, Utah, 545 P.2d 530 (1976). [25] Supra, note 11. [26] Noland v. St. Louis County, Mo., 478 S.W.2d 363, 366 (1972). [27] Reps & Smith, Control of Urban Land Subdivision, 14 Syracuse L.Rev. 417, 407 (Spring 1963). [28] Yokley, The Law of Subdivisions, § 116 (1963). (Although this text is updated with a 1979 pocket part, Yokley had noted no new developments or changes to his stated position on Utah law in the 1963 text.) [29] 4 Anderson, The American Law of Zoning, § 23.39, p. 141 (1977); see generally §§ 23.05, 23.08, 23.26, and 23.39. [30] Sections 10-9-19 to 30. [31] 6 McQuillin, supra, note 17, § 22.31. [32] 105 Utah 111, 141 P.2d 704 (1943). [33] Id. see also Gibbons & Reed Co. v. North Salt Lake City, 19 Utah 2d 329, 431 P.2d 559 (1967). [34] 18 N.Y.2d 78, 271 N.Y.S.2d 955, 218 N.E.2d 673 (1966). [35] 4 Cal.3d 633, 94 Cal. Rptr. 630, 484 P.2d 606 (1971). [36] Cal.Govnt.Code § 66477-80 (West). [37] 26 Utah 2d 215, 487 P.2d 866 (1971). [38] Id. at 26 Utah 2d 218, 487 P.2d 868.

95 P.3d 757 (2004) 194 Or.App. 329 STORMER v. MORROW A118606. Court of Appeals of Oregon. July 30, 2004. Affirmed from the bench.

United States Court of Appeals Fifth Circuit F I L E D IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT August 20, 2003 Charles R. Fulbruge III Clerk No. 03-50141 Conference Calendar UNITED STATES OF AMERICA, Plaintiff-Appellee, versus JOSE MANUEL FLORES-PRECIADO, Defendant-Appellant. -------------------- Appeal from the United States District Court for the Western District of Texas USDC No. DR-02-CR-479-1-WWJ -------------------- Before JONES, WIENER, and BENAVIDES, Circuit Judges. PER CURIAM:* Jose Manuel Flores-Prediado appeals the sentence imposed following his guilty plea conviction of being found in the United States after deportation/removal in violation of 8 U.S.C. § 1326. Flores contends that 8 U.S.C. § 1326(a) and 8 U.S.C. § 1326(b) define separate offenses. He argues that the prior conviction that resulted in his increased sentence is an element of a separate offense under 8 U.S.C. § 1326(b) that should have been alleged in his indictment. Flores maintains that he pleaded * 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. 03-50141 -2- guilty to an indictment which charged only simple reentry under 8 U.S.C. § 1326(a). He argues that his sentence exceeds the two-year maximum term of imprisonment which may be imposed for that offense. In Almendarez-Torres v. United States, 523 U.S. 224, 235 (1998), the Supreme Court held that the enhanced penalties in 8 U.S.C. § 1326(b) are sentencing provisions, not elements of separate offenses. The Court further held that the sentencing provisions do not violate the Due Process Clause. Id. at 239-47. Flores acknowledges that his argument is foreclosed by Almendarez-Torres, but asserts that the decision has been cast into doubt by Apprendi v. New Jersey, 530 U.S. 466, 490 (2000). He seeks to preserve his argument for further review. Apprendi did not overrule Almendarez-Torres. See Apprendi, 530 U.S. at 489-90; United States v. Dabeit, 231 F.3d 979, 984 (5th Cir. 2000). This court must follow Almendarez-Torres “unless and until the Supreme Court itself determines to overrule it.” Dabeit, 231 F.3d at 984 (internal quotation marks and citation omitted). The judgment of the district court is AFFIRMED. The Government has moved for a summary affirmance in lieu of filing an appellee’s brief. In its motion, the Government asks that an appellee’s brief not be required. The motion is GRANTED. AFFIRMED; MOTION GRANTED. 

124 F.3d 193 Calvinv.Swisher County Dt. Center** NO. 97-10207 United States Court of Appeals,Fifth Circuit. Aug 15, 1997 Appeal From: N.D.Tex. ,No.2:95CV86 1 Affirmed. ** Conference Calendar

553 F.Supp.2d 800 (2008) Joyce J. CORUM, Executrix of the Estate of Charles H. Corum, Plaintiff v. HARTFORD LIFE AND ACCIDENT INSURANCE COMPANY, Defendant. Civil Action No. 07-35-KSF. United States District Court, E.D. Kentucky, Central Division, at Lexington. March 24, 2008. *801 Escum L. Moore, III, Joe C. Savage, Savage, Elliott, Houlihan, Moore, Mullins *802 & Skidmore, LLP, Lexington, KY, for Plaintiff. Robert L. Steinmetz, Gwin Steinmetz Miller & Baird PLLC, Louisville, KY, for Defendant. OPINION AND ORDER KARL S. FORESTER, Senior District Judge. This matter is before the Court on Plaintiffs Motion for Judgment Reversing Administrative Decision [DE # 20]; the issues having been fully briefed, it is ripe for consideration. The question is whether Hartford Life and Accident Insurance Company ("Hartford") acted arbitrarily and capriciously when it made an administrative determination that the estate of Charles Corum was not entitled to accidental death benefits under the terms of his ERISA policy. I. FACTUAL BACKGROUND AND PROCEDURAL HISTORY The essential facts in this case are not in dispute. Hartford issued Accidental Death and Dismemberment Policy No. ADD-9922 ("Policy") to the AFL-CIO Mutual Benefit Fund, and Charles Corum ("Corum") was a Covered Person under the Policy. [DE # 21, p. 2; Administrative Record ("AR") at "AR-175" through "AR-215"]. The Policy defined "Injury" as: bodily injury resulting directly from accident and independently of all other causes.... Loss resulting from: a) sickness or disease, except a pus-forming infection which occurs through an accidental wound; or b) medical or surgical treatment of a sickness or disease; is not considered as resulting from Injury. [AR 186]. Corum entered St. Joseph Hospital on March 4, 2005 for a catheterization procedure on two coronary arteries. His cardiologist found occlusions of the Left Anterior Descending (LAD) artery at its junction with a diagonal branch and used a Rotablator bur to remove the lesion. When he attempted to remove the bur, he reported: Angiography revealed very poor flow in the LAD. Attempts were made to withdraw the Rotablator bur through the guide using DynaGlide. This was complicated by tangling of the wire most likely due to wire rotation resulting from DynaGlide. This occurred despite the fact that the Roto clip was placed on the wire at all times. AR 113-114. Following removal of the Rotablator, three stents were placed in the LAD to improve blood flow, but blood flow continued to deteriorate. Corum was transferred to the operating room for emergent salvage coronary artery bypass grafting. Id.; AR 83-84. His condition did not improve, however, and he passed away the morning of March 6, 2005. AR 83-84. Hartford spins these facts differently. It says: "He was admitted to St. Joseph Hospital in Lexington, Kentucky on March 4, 2005. There he underwent catheterbased intervention following emergent salvaged coronary artery bypass grafting." [DE # 21, p. 2]. As the source for these facts, Hartford cites its denial letter and the medical report after the laceration of the artery. Id. Corum's widow filed a claim with Hartford for Accidental Death benefits, which was denied because "[i]t has been established that Mr. Corum's death was due to Multi-organ failure, Cardiogenic shock, Coronary artery disease, and Myocardial infarction." AR 35-37. The Death Certificate contains this information. AR 68. Accordingly, Hartford concluded that Corum's death was "due to sickness or disease or medical or surgical treatment of a sickness or disease." Id. *803 Counsel appealed the decision and advised that a lawsuit was pending in state court to determine whether Corum's death was caused by medical negligence or product failure. AR 9-10. He stated that "medical expert evidence will clearly establish that death was not due to the progression of Mr. Corum's underlying coronary artery disease." He advised that use of the Rotablator instead of bypass surgery under the circumstances was medical negligence, and that the malfunctioning Rotablator resulted in a large dissection of Corum's LAD. AR 9-10. He asked that the final decision on the insurance claim be held in abeyance pending the outcome of the underlying litigation. Hartford refused the request and issued a final denial on October 24, 2006, stating that under either outcome, Corum's "death resulted from sickness or disease; a Loss expressly excluded from coverage under this Policy." AR 5. Plaintiff filed this action against Hartford in Fayette Circuit Court. Hartford removed the case to this Court based upon diversity and federal question jurisdiction under ERISA. Plaintiff claims that death as a result of medical malpractice and death resulting from a malfunctioning Rotablator are both "accidental deaths" such that Corum's estate is entitled to payment under the Policy. [DE # 20, p. 3]. She argues that Coram did not die from coronary artery disease [DE # 20, p. 7]. She strenuously criticizes Hartford's claim that death "was caused by or resulted from complications of a number of very serious medical conditions including multi-organ failure, coronary artery disease (CAD) acute myocardial infarction (MI) and cardiogenic shock," since these cited conditions were "the end result of the destruction of the LAD." Id. She argues that Hartford's broad interpretation of an excluded loss resulting from "medical or surgical treatment of a sickness or disease" would bar a claim where death was caused by a head injury from falling off the operating table. Id. at 3. Likewise, she says its interpretation of "accident and independently of all other causes" would preclude coverage if death resulted from a driver running a red light and colliding with an ambulance transporting an insured. Id. at 2. Plaintiff notes that Hartford's position would lead to the conclusion that Corum "cannot die of an accident" because he was involved in treatment for coronary artery disease. Id at 3. Accordingly, Plaintiff argues the denial of benefits was arbitrary and capricious on the merits. Id at 4-8. Hartford responds that its conclusion "that Mr. Corum's death from either the disease or attempted treatment thereof is not a covered loss is supported by a reasoned explanation, and therefore must not be disturbed under the deferential review standard applicable here." [DE # 21, p. 2]. Hartford argues it is undisputed that Corum died "while being treated for coronary artery disease." Id. It rejects Plaintiffs argument that medical negligence or equipment failure is an Injury "notwithstanding the fact that both occurred during the course of treatment for coronary artery disease." Id. at 4. Hartford claims the definition of "Injury" in the Policy is such that "all risk from sickness or disease, including the treatment of it, whether medical or surgical, is not covered." Id. at 6. Hartford distinguishes death due to a ceiling collapse while in the hospital for treatment as having only a "coincidental" connection to medical treatment and, therefore, being an accidental death. Id. n. 1 (citing Swisher-Sherman v. Provident Life & Ins. Co., 37 F.3d 1500, 1994 WL 562050 at *2 (6th Cir.1994) and Senkier v. Hartford Life & Accident Ins. Co., 948 F.2d 1050 (7th Cir.1991)). Hartford applies a "but for" test to say Corum would not have been subjected to medical negligence or equipment failure except for his *804 illness and, thus, his death was not independent of all other causes. Id. at 6-7. Hartford further relies on Miller v. The Hartford Life Ins. Co., 348 F.Supp.2d 815 (E.D.Mich.2004), Swisher-Sherman, Pickard v. Transamerica Occidental Life Ins. Co., 663 F.Supp. 126 (E.D.Mich.1987), and cases from other jurisdictions holding that medical negligence is not an "accident" under similar policies. Id. at 7-8. Hartford notes that Miller upheld the denial of death benefits on the additional ground that the "sickness and disease" and "medical or surgical treatment" limitations applied. Id. at 9. Regarding the claim of equipment failure, Hartford argues that it is a known and accepted risk of medical treatment and can only occur during treatment for a sickness or disease, thus removing it from the meaning of accident. It also says the limitation that the injury be independent of all other causes applies here to exclude coverage. Id. at 11. Plaintiff replied that an accident can occur during medical treatment, such as the operating room ceiling falling. Hartford's "but for" test would exclude this accident from coverage. Plaintiff urges that the Policy is ambiguous and must mean the exclusion is for a "known risk of such treatment." She notes Hartford's reliance on the consent form and risks associated with surgery, and she counters that malpractice and product failure are not included in the consent form. [DE # 22, pp. 1-2]. Plaintiff distinguishes Swisher-Sherman as involving much broader policy language regarding a loss directly or "indirectly" resulting from treatment. She distinguishes Senkier because the court described the migration of a catheter was one of the "standard complications of standard medical treatments." Id. at 3-4. Plaintiff takes issue with Hartford's position that malpractice and failure of a product are "components" of medical treatment; she claims that manufacturers and doctors would disagree. She also distinguishes Hartford's equipment failure cases as involving either known risks or not involving equipment failure at all. Id. at 5. II. ANALYSIS A. The Record A district court's review of the decision of the Plan Administrator is "confined to the record that was before the Plan Administrator." Wilkins v. Baptist Healthcare System, Inc., 150 F.3d 609, 615 (6th Cir.1998). See also Cooper v. Life Ins. Co. of North America, 486 F.3d 157, 171 (6th Cir.2007) ("The court is to conduct its review `based solely upon the administrative record'"). B. Applicable Law Federal common law applies to benefit claims under ERISA. Pilot Life Ins. Co. v. Dedeaux, 481 U.S. 41, 56, 107 S.Ct. 1549, 95 L.Ed.2d 39 (1987); Criss v. Hartford Accident & Indemnity Co., 963 F.2d 373, 1992 WL 113370 *3 (6th Cir. 1992) (unpublished). C. Standard of Review The Policy gives Hartford discretion to determine eligibility for benefits and to interpret the Policy. It provides: "We have full discretion and authority to determine eligibility for benefits and to construe and interpret all terms and provisions of this Policy." [AR-180; Policy, p. 6]. Accordingly, the parties agree that the appropriate standard for review of this administrative decision is an arbitrary and capricious standard under Firestone Tire and Rubber Co. v. Bruch, 489 U.S. 101, 115, 109 S.Ct. 948, 103 L.Ed.2d 80 (1989), as interpreted and applied by the United States Court of Appeals for the Sixth Circuit. [DE # 18]. "The administrator's decision must be upheld if `it is the result of *805 a deliberate, principled reasoning process and if it is supported by substantial evidence.'" Whitaker v. Hartford Life and Accident Insurance Co., 404 F.3d 947, 949 (6th Cir.2005). "Under this deferential 'arbitrary and capricious' standard, we will uphold a benefit determination if it is `rational in light of the plan's provisions.'" University Hospitals of Cleveland v. Emerson Electric Co., 202 F.3d 839, 846 (6th Cir.2000) (quoting Yeager v. Reliance Standard Life Ins. Co., 88 F.3d 376, 381 (6th Cir.1996)). D. Whether Hartford's Denial of Accidental Death Benefits Was Arbitrary and Capricious Hartford bases its denial of benefits on two separate provisions of the policy: 1) death was not "the result of bodily injury caused by an accident, directly and independently of all other causes"; and 2) death was the result of "sickness or disease, or the medical or surgical treatment of sickness or disease." AR 5, 7. Hartford claims the plan sponsor in this case chose a policy defined so as to avoid "all risk from sickness or disease, including the treatment of it, whether medical or surgical." [DE # 21, pp. 5-6]. It relies on the plain language of the Policy and asserts that the benefits were rationally denied. 1. Interpretation of Accident, Directly and Independently of All Other Causes The Sixth Circuit recently noted that "the definition of the term `accident' has been heavily litigated throughout history" and cited numerous ERISA cases involving various fact patterns. Jones v. Metropolitan Life Ins. Co., 385 F.3d 654, 662-664 (6th Cir.2004). In interpreting a Personal Accident Insurance policy under ERISA, the court held that "federal common law—from pre-Erie diversity cases to present day ERISA cases—focuses upon the expectations and intentions of the insured." Id. at 664. Plaintiff Jones tore her medial meniscus when she bent down and squatted at work. The court concluded that "[b]ecause Jones presented evidence that her knee injury was neither subjectively expected nor objectively foreseeable, Jones has presented evidence that she suffered an accidental injury." Id. at 665. Even if Corum's death qualified as an accident under this definition, however, it would need to be independent of all other causes, as Hartford also distinguished it from other accidental deaths on this basis. [DE # 21, p. 7]. The Eleventh Circuit recently addressed the question of first impression: "whether, and to what extent, language in an ERISA policy may preclude recovery for accidental injury where some preexisting condition was a contributing factor." Dixon v. Life Ins. Co. of North America, 389 F.3d 1179, 1183 (11th Cir.2004). Dixon's car ran off the road and rolled over into an embankment, but the cause of his death was heart failure. A witness saw a pickup truck run the car off the road. There was no evidence of external injury to Dixon. Mrs. Dixon argued that the policy was ambiguous and that the phrase "from no other causes" must mean only other "direct" causes. Under her interpretation, if the auto accident was the "but for" cause of Mr. Dixon's death, she would be entitled to accidental death benefits. Id. at 1182. The court held that, even if the auto accident triggered the heart attack, Dixon's heart condition "substantially contributed" to his death, precluding recovery of accidental benefits. In reaching its decision, the Dixon court discussed the split in the circuits in interpreting "independently of all other causes" or similar language. Id. at 1183-84. First, it considered the decisions of the Tenth and Sixth Circuits. The Tenth Circuit held that the words "directly and independently *806 of all other causes" were not ambiguous. Pirkheim v. First Unum Life Ins., 229 F.3d 1008, 1010 (10th Cir.2000). In Pirkheim, a child died when the battery in his pacemaker was depleted, resulting in his suffering cardiac arrhythmia. Id. at 1008. The court agreed that this was an "accidental bodily injury," but held that it did not occur "directly and independently of all other causes." Id. at 1010-11. The child's pre-existing cardiac arrhythmia contributed toward his death. Id. at 1011. The Sixth Circuit reached a similar result in Criss v. Hartford Accident & Indent. Co., 963 F.2d 373, 1992 WL 113370 (6th Cir.1992) (unpublished) where the insured was injured in an auto accident and went into cardiac arrest during the third day of his hospitalization. The evidence was that he likely died from a combination of his auto accident injuries and heart disease. In a de novo review, the court said: These policies specifically exclude from coverage any loss resulting from sickness or disease. Their being no doubt that Mr. Criss's death occurred from a combination of the underlying heart disease and injuries sustained in the collision, the question of which one of these two factors triggered the fatal heart attack is immaterial. Clearly, one of the factors causing the loss was the heart disease, which the policy excluded from coverage. Dixon, 389 F.3d at 1183 (quoting Criss at *6). "Because his death was at least partially due to his pre-existing heart condition, the Sixth Circuit held that the unambiguous language in the policy precluded recovery by his beneficiary." Id. See also Lingerfelt v. Nuclear Fuel Services, Inc., 924 F.2d 1058 (Table), 1991 WL 11615 (6th Cir.1991) (benefits denied when the "proof shows that the plaintiffs severe and painful degenerative disc disease and arthritis combined and concurred with any injury he may have sustained in October of 1987"). The Fourth Circuit took a slightly different approach and held that "a pre-existing infirmity or disease is not to be considered as a cause unless it substantially contributed to the disability or loss." Adkins v. Reliance Standard Life Ins. Co., 917 F.2d 794, 797 (4th Cir.1990).[1] The Ninth Circuit agreed with Adkins if the restrictive language is conspicuous. McClure v. Life Ins. Co. of North America, 84 F.3d 1129, 1136 (9th Cir.1996) ("[W]e hold that if the exclusionary language here in question is conspicuous, it would bar recovery if a preexisting condition substantially contributed to the disability. This could result in a denial of recovery even though the claimed injury was the predominant or proximate cause of the disability."). The Eleventh Circuit adopted the Adkins test and agreed with the Fourth Circuit that an "overly strict interpretation of `directly and from no other causes' would provide... coverage only where the insured was in perfect health at the time of an accident." Dixon, 389 F.3d at 1184. These cases illustrate that "independently of all other causes" means the pre-existing condition was a contributing cause or substantial contributing cause of death. Hartford's authorities of Sangster v. Metropolitan Life Ins. Co., 54 F.Supp.2d 708 (E.D.Mich.1999) and Miller are consistent with these cases. In Sangster, death was caused by both a heart attack and an auto accident. [DE # 21, p. 11]. In Miller, the court said: "the death of Mrs. Miller was caused by an underlying condition." Miller, 348 F.Supp.2d at 822. *807 In record in the present case is not as clear that Corum's pre-existing coronary artery disease was a contributing cause in his death. The medical record shows that Corum's artery was lacerated. AR 113-114. However, Hartford has some evidentiary support for its position in the Death Certificate. Under the deferential standard applicable here, "[w]hen it is possible to offer a reasoned explanation, based on the evidence, for a particular outcome, that outcome is not arbitrary or capricious." Spangler v. Lockheed Martin Energy Systems, 313 F.3d 356, 361 (6th Cir.2002) (quoting Davis v. Kentucky Finance Cos. Retirement Plan, 887 F.2d 689, 693 (6th Cir.1989)). Accordingly, Hartford's denial of benefits is affirmed on this ground. 2. Interpretation of Medical or Surgical Treatment The Seventh Circuit interpreted "accident" in the context of an ERISA accidental death policy in Senkier v. Hartford Life & Accident Ins. Co., 948 F.2d 1050 (7th Cir.1991). That policy also excluded "sickness or disease" and "medical or surgical treatment of a sickness or disease." Id. at 1051 While Senkier was being treated for Crohn's Disease, a catheter inserted for intravenous feeding became detached and punctured her heart, causing death. The court held that "a policy of accident insurance does not reach iatrogenic injuries, that is, injuries resulting from medical treatment." Id. Citing a number of mishaps that might occur during medical treatment, the court said: "All these injuries are accidental in the sense of unintended and infrequent. But they are not 'accidents' as the term is used in insurance policies for accidental injuries." Id. at 1052. In Swisher-Sherman v. Provident Life & Accident Ins. Co., 37 F.3d 1500, 1994 WL 562050 (6th Cir.1994)(unpublished), the court interpreted a policy that excluded "loss directly or indirectly result[ing] from: ... Bodily or mental infirmity, disease of any kind, or medical or surgical treatment for any such infirmity or disease." Id. at *1. Swisher was prescribed a heart medication, but died after ingesting the different drug that was erroneously dispensed to him. The court said: Every act of medical malpractice is to some extent an accident, if one equates "accident" with "unintended," because it is outside the course of the intended medical treatment. But the exclusion here focuses exclusively on the relationship aspect of the injury rather than its volitional component. To state the obvious, such medical mishaps can only occur during the course of treatment; and that's all the exclusionary provision here cares about. Id. at *2. The court held that the exclusion was unambiguous and precluded plaintiffs claim for accidental death benefits. Id. at *3. The Sixth Circuit cited Senkier's example of the ceiling caving in during surgery and quoted its rationale that coverage would be available because the "cause of death would be only adventitiously connected to the medical treatment." Id. at *2 (quoting Senkier, 948 F.2d at 1054). The Sixth Circuit also relied on several cases interpreting analogous exclusions outside the ERISA context, such as "Whetsell v. Mutual Life Ins. Co., 669 F.2d 955, 957 (4th Cir.1982) (claimant not entitled to additional benefits for death resulting from an infected I.V. needle; although use of infected needle was an accident, it occurred as part of medical treatment)"; "Pickard v. Transamerica Occidental Life Ins. Co., 663 F.Supp. 126, 127 (E.D.Mich. 1987) (death due to drinking of wrong solution in preparation for colonoscopy was the type of medically related mishap that exclusion in accidental death benefit policy *808 for loss resulting from medical treatment was intended to cover)"; and "Reid v. Aetna Life Ins. Co., 440 F.Supp. 1182, 1183-84 (S.D.Ill.1977) (accidental injection of lethal drug was direct consequence of medical treatment and therefore barred by exception in accidental death policy for death caused by medical and surgical treatments), aff'd, 588 F.2d 835 (7th Cir. 1978)." Most recently within the Sixth Circuit, the exclusion was interpreted in Miller v. The Hartford Life Ins. Co., 348 F.Supp.2d 815 (E.D.Mich.2004), where the patient died from complications of a procedure to remove a gallstone. When seeking accidental death benefits, Miller's husband argued medical negligence was an accident, but the court rejected the claim. First, it said "[w]hen interpreting exclusionary language in a policy similar to the language here, courts routinely hold that medical malpractice is not an accident." Id. at 818. See also Jay M. Zitter, What Constitutes Medical or Surgical Treatment, or the Like, Within Exclusionary Clause of Accident Policy or Accidental-Death Feature of Life Policy, 56 A.L.R.5th 471. At first blush, it would seem that injuries resulting from malpractice would be clearly covered as accidental injuries and would not be excepted as "medical treatment" since, by definition, there was an absence of proper "treatment." Nevertheless, a large number of cases have found that injuries as a result of malpractice are in fact within the exception (§ 9), with the courts often relying on the clear language of the policy, or reasoning that to exclude malpractice would render the clause meaningless. Id. at § 2(a). Accordingly, the Miller court held that the injuries "from alleged medical malpractice were not accidents under the policy." Id. at 819. It continued: "Supposing that surgical error caused the peritonitis, the cases above demonstrate that medical malpractice does not prevent the application of an exclusion for medical or surgical treatment." Id. at 824. Hartford's "but for" test proves too much, as it would deny benefits when the operating room ceiling fell, a car hit the ambulance, and the like. However, the foregoing cases illustrate a substantial body of law holding that medical malpractice is not an accident for purposes of an accidental death or injury policy, and that the exclusion for medical or surgical treatment is applicable. Likewise, it is "rational in light of the plan's provisions" to conclude that death caused by a malfunctioning medical product used in the treatment, such as the pacemaker in Pirkheim v. First Unum Life Ins., 229 F.3d 1008, 1010 (10th Cir.2000), is excluded under the medical or surgical treatment exclusion. Spangler v. Lockheed Martin Energy Systems, 313 F.3d 356, 361 (6th Cir. 2002) (quoting Daniel v. Eaton Corp., 839 F.2d 263, 267 (6th Cir.1988)). Accordingly, the Plan Administrator's denial of benefits is affirmed. III. CONCLUSION The Court, being otherwise fully and sufficiently advised, HEREBY ORDERS that Plaintiffs Motion for Judgment Reversing Administrative Decision [DE # 20] is DENIED. A Judgment in conformity with the Opinion will be entered contemporaneously. NOTES [1] Interestingly, in another unpublished opinion, the Sixth Circuit adopted the construction in Adkins when reviewing a denial of benefits de novo. Tolley v. Commercial Life Ins. Co., 14 F.3d 602 (Table), 1993 WL 524284 (6th Cir.1993).

540 F.3d 433 (2008) 216 JAMAICA AVENUE, LLC, Plaintif-Appellant, v. S & R PLAYHOUSE REALTY CO., Defendant-Appellee. No. 07-3967. United States Court of Appeals, Sixth Circuit. Argued: June 12, 2008. Decided and Filed: August 27, 2008. *434 ARGUED: David H. Thompson, Cooper & Kirk, PLLC, Washington, D.C., for Appellant. Gary Lee Walters, Thompson Hine, LLP, Cleveland, Ohio, for Appellee. ON BRIEF: David H. Thompson, Charles J. Cooper, Dean J. Sauer, Cooper & Kirk, PLLC, Washington, D.C., for Appellant. Gary Lee Walters, Stephen D. Williger, Thompson Hine, LLP, Cleveland, Ohio, for Appellee. Before: KEITH and SUTTON, Circuit Judges; ACKERMAN, District Judge.[*] OPINION SUTTON, Circuit Judge. At stake in this case is the enforceability of a "gold clause" contained in a 1912 lease agreement. I. In 1912, Salmon and Samuel Halle leased a parcel of land in downtown Cleveland from its owner, Realty Investment Corporation. The term of the lease was 99 years (through March 31, 2011), and the Halle brothers and their successors in interest retained the option of renewing the *435 lease for another 25, 50 or 99 years (through as late as March 31, 2110). The lease agreement fixed the annual rent at $10,000 for the first two years, then increased the rent in periodic intervals until it reached $35,000 in the eleventh year, where it remained until the end of the lease. The lease also contained a "gold clause," which provided that "[a]ll of said rents shall be paid in gold coin of the United States of the present standard of weight and fineness." JA 125. At that time and up through the Depression, such clauses commonly appeared in long-term leases "as a sort of price-indexing mechanism to protect a lessor from the effects of inflation." Trostel v. Am. Life & Cas. Ins. Co., 92 F.3d 736, 738 (8th Cir.1996) (Trostel I), vacated on other grounds, 519 U.S. 1104, 117 S.Ct. 939, 136 L.Ed.2d 829 (1997), reinstated by 133 F.3d 679 (8th Cir.1998) (Trostel II). In the early 1930s, as part of a series of measures designed to implement the Roosevelt Administration's overhaul of American monetary policy, Congress withdrew gold from circulation and banned nearly all private ownership of it. See id. at 738; see also Kenneth W. Dam, From the Gold Clause Cases to the Gold Commission: A Half Century of American Monetary Law, 50 U. Chi. L.Rev. 504, 509-514 (1983). And in 1933, Congress passed a Joint Resolution that declared gold clauses to be "against public policy," barred their inclusion in any future contract and suspended the operation of existing gold clauses by allowing all contract obligations to be paid in paper currency instead. See Joint Resolution of June 5, 1933, § 1, 48 Stat. 112, 113 (originally codified at 31 U.S.C. § 463, recodified as amended at 31 U.S.C. § 5118(d)(2)) (providing that no gold clause "shall be contained in or made with respect to any obligation hereafter incurred" and that "[e]very obligation, heretofore or hereafter incurred, whether or not any such provision is contained therein or made with respect thereto, shall be discharged upon payment, dollar for dollar, in any coin or currency which at the time of payment is legal tender for public and private debts"). Four decades later, Congress changed course. It repealed the ban on private ownership of gold in 1975. And in 1977, it amended the 1933 Joint Resolution, providing that the resolution "shall not apply to obligations issued on or after" the amendment's date of enactment. Act of Oct. 28, 1977, Pub.L. No. 95-147, § 4(c), 91 Stat. 1227, 1229 (originally codified at 31 U.S.C. § 463 note, recodified as amended at 31 U.S.C. § 5118(d)(2)); see also Trostel I, 92 F.3d at 738-39. Although the amendment made clear that parties could include gold clauses in contracts formed after 1977, Congress's choice of words (authorizing "obligations issued . . . after" the amendment) generated a small stream of litigation regarding the amendment's effect on gold clauses contained in contracts made prior to 1977 but transferred after that date. See, e.g., Trostel I, 92 F.3d 736; Grand Ave. Partners, L.P. v. Goodan, 25 F.Supp.2d 1064 (C.D.Cal.1996), aff'd, 160 F.3d 580 (9th Cir.1998); Fay Corp. v. BAT Holdings I, Inc., 646 F.Supp. 946 (W.D.Wash.1986), aff'd sub nom. Fay Corp. v. Frederick & Nelson Seattle, Inc., 896 F.2d 1227 (9th Cir.1990) (per curiam); Nebel, Inc. v. Mid-City Nat'l Bank of Chicago, 329 Ill.App.3d 957, 263 Ill.Dec. 843, 769 N.E.2d 45 (2002); Wells Fargo Bank, N.A. v. Bank of Am. NT & SA, 32 Cal.App.4th 424, 38 Cal.Rptr.2d 521 (1995). In an effort to clarify the matter, Congress passed a law in 1996 saying that owners could enforce pre-1977 gold clauses only if the parties to a new obligation issued after 1977 "specifically agree[d] to include a gold clause" in their new agreement. Economic Growth and Regulatory *436 Act of 1996, Pub.L. No. 104-208, § 2609, 110 Stat. 3009, 3009-475 (Sept. 30, 1996). Just over a year later, however, Congress repealed the 1996 statute. See Treasury and General Government Appropriations Act of 1998, Pub.L. No. 105-61, § 641, 111 Stat. 1272, 1318 (Oct. 10, 1997). So far as the record is concerned, the gold clause in this contract never attracted anyone's attention or at least never generated any disputes during the first 90 years of its existence. Since 1982, when the current lessee, S & R Playhouse Realty, assumed the lease, it has paid annual rent of $35,000 in American currency. And there is no indication in the record that either the original lessees, the Halle brothers or the other lessees prior to S & R paid more than $35,000 in the preceding 70 years. Nor is there any indication that the previous owners ever demanded more than $35,000. That changed in 2006, when the current owner, 216 Jamaica Avenue, purchased the land for $845,000, then sought to enforce the gold clause, demanding rent equivalent to the value of 35,000 1912 gold dollar coins. The current lessee, S & R, balked at the prospect of paying several multiples of what it had been paying, prompting 216 Jamaica Avenue to file this breach-of-contract action in federal court premised on diversity jurisdiction. After the parties filed cross-motions for summary judgment, the district court ruled for the lessee, refusing to enforce the clause. II. The parties share considerable common ground about how to resolve this dispute. They agree that the question at hand is whether the gold clause constitutes an "obligation[ ] issued . . . after" October 1977. Act of Oct. 28, 1977, § 4(c), 91 Stat. at 1229. They agree (or at least do not seriously dispute) that a gold clause may be an "obligation[ ] issued . . . after" 1977 either because it is part of a contract written and signed after that date or because it is part of an earlier contract incorporated into a new contract formed after that date. They agree that the previous owner assigned the underlying lease to the current lessee in 1982. They agree (or at least do not seriously dispute) that an assignment under state law by itself ordinarily would not suffice to make the gold clause enforceable. And they agree that an assignment combined with a novation, which substitutes a new agreement for a prior one and releases the obligations of the prior lessee, would suffice to satisfy the obligation-issued-after requirement. What the case boils down to, then, is whether the 1982 transfer of the lessee's interest to S & R amounted to a novation. Under Ohio law, "[a] contract of novation is created where a previous valid obligation is extinguished by a new valid contract, accomplished by substitution of parties or of the undertaking, with the consent of all the parties, and based on valid consideration." Chicago Title Ins. Corp. v. Magnuson, 487 F.3d 985, 994 (6th Cir.2007) (internal quotation marks omitted, alteration in original); see also Lexford Prop. Mgmt., LLC v. Lexford Prop. Mgmt., Inc., 147 Ohio App.3d 312, 770 N.E.2d 603, 607 (2001). The party invoking a novation (here, the current owner, 216 Jamaica) bears the burden of establishing its existence. See Chicago Title, 487 F.3d at 994. Neither party disputes that the 1982 assignment amounted to a valid new contract supported by adequate consideration. What divides them is whether the owner at that time agreed to release the prior lessee (Halle Bros. Co.) from its obligations under the lease and to substitute the new lessee (S & R) in its place. Under *437 Ohio law, the parties' consent to a novation need not be express, see McGlothin v. Huffman, 94 Ohio App.3d 240, 640 N.E.2d 598, 601 (1994), but may be implicit "from the circumstances or a party's conduct," id. The key piece to the puzzle, it seems to us, is that the underlying 1912 lease agreement lays out the rules by which the owner agrees in advance to permit the substitution of a new lessee under the contract for the old lessee—the central benchmark of a novation. See Hunter v. BPS Guard Servs., Inc., 100 Ohio App.3d 532, 654 N.E.2d 405, 411 (1995); Miller v. C.K.L., Inc., No. 84-CA-26, 1985 WL 9401, at *2 (Ohio Ct.App. July 19, 1985); Restatement (Second) of Contracts § 280 cmt. d (1979). Under the agreement, the lessee may "assign or transfer" the lease in one of two ways: either by obtaining the owner's written consent or by satisfying four conditions: (1) paying all rents and charges then due and satisfying all other relevant promises under the lease; (2) establishing that the new lessee has "expressly assume[d] the lessee's engagements" under the lease; (3) recording the instrument of assignment in the appropriate recorder's office; and (4) "plac[ing] in the hands of the lessor for inspection during a period of ten (10) days a legal and sufficient instrument of assignment and acceptance." JA 127. If the existing lessee satisfies one of these two routes for assigning the lease, the underlying agreement not only allows the assignment, but it also expressly releases the prior lessee from its obligations. "[A]ll personal liability of the lessees upon this lease and for the performance of the covenants herein contained," it says, "shall cease and determine upon an assignment hereof." Id. A permitted assignment, the contract makes clear, also operates as a permitted novation. No doubt, an assignment under Ohio law by itself normally would not establish that a novation occurred. A lessee might sublet a property and still remain obligated under the original lease, acting in effect as a surety or guarantor of the underlying lease obligations. See House of LaRose Cleveland, Inc. v. Lakeshore Power Boats, Inc., No. 60904, 1992 WL 140074, at *4 (Ohio Ct.App. June 18, 1992). That is not a novation. But here we have a lease agreement that prohibits any assignment unless it satisfies certain criteria, and the agreement establishes that an assignment that meets these criteria not only is permitted but also serves to release the original lessee from its obligations under the contract. What we have in other words is a lease agreement that prohibits an assignment unless it is a novation. Neither party, unsurprisingly, takes the position that the 1982 transaction did not amount to a permitted assignment. S & R does not say that its acquisition of this lease interest 26 years ago was invalid, and it does not say that the prior lessee remains obligated to make the lease payments or to guarantee them. And 216 Jamaica, like its predecessor lessor, repeatedly has accepted the validity of the 1982 assignment and declined to contest its validity. Because the 1912 lease authorized the 1982 assignment, the assignment also served to release the prior owner from its obligations under the contract— or, in the words of the agreement, to terminate "all personal liability" of the assignor under the contract. JA 127. In reaching a contrary conclusion, the district court reasoned that 216 Jamaica had not shown that the 1982 assignment was valid. There was no evidence that the prior lessor had consented in writing to the assignment, it observed, and it appeared that only three of the four other prerequisites for an assignment had been *438 established. Namely, while the 1982 assignment agreement and surrounding documentation indicated that the lessee was current on payments, that the proposed new lessee had agreed to accept all of the obligations under the 1912 agreement and that the assignment was recorded, 216 Jamaica did not show that the pre-1982 lessee provided the assignment instrument to the lessor for the ten-day inspection period required by the lease. In the absence of evidence by 216 Jamaica that this condition had been satisfied, the court concluded that there could not be a novation. But these four requirements go not to whether there was a novation but to whether there was a permitted assignment. And all agree, one way or another, that an assignment occurred—which is why, ever since 1982, all parties to the agreement have accepted the validity of the assignment that occurred that year and why, in accordance with the underlying agreement, no one takes the position that S & R's predecessor in interest remains on the hook for the lease payments or for any other obligation under the lease. The box in which S & R finds itself is that the only permissible assignment under this lease was a novation. Either there was a valid assignment (and novation) or there was not, because the underlying lease offered no middle ground. And given the release of the prior lessee's obligations, the company cannot tenably maintain that a novation under this agreement is somehow just an assignment. S & R, moreover, offers no reason why it ought to be able to challenge the validity of the 1982 assignment at this late date, and we can think of none. At this point, surely any interest in enforcing the 10-day review period has come and gone, and the provision at any rate was designed to benefit the lessor, nor the lessee (S & R), and neither 216 Jamaica nor its predecessor in interest has ever sought to enforce it. Cf. Finkbeiner v. Lutz, 44 Ohio App.2d 223, 337 N.E.2d 655, 658 (1975). If, in short, the 1982 assignment was valid or if any potential objections to it have long been waived by the party with a right to waive them, that leaves us with a 1912 lease agreement that treats any such assignment as having the characteristics of a novation—most pertinently that the lessor releases the old lessee in return for accepting the new lessee as the party responsible for meeting the lease obligations. The 1912 agreement also defeats the argument that one cannot establish a novation merely by showing that the lessor has accepted payments from the new lessee. See Wenner v. Marsh USA, Inc., No. 01AP-1211, 2002 WL 826021, at *3 (Ohio Ct.App. May 2, 2002) (concluding that no novation occurred where the only evidence of an obligee's consent to assignment and release of the original obligor was its acceptance of payment without objection from the assignee). The key point here is not that 216 Jamaica's predecessor in interest accepted lease payments from the new lessee, S & R, after 1982; it is that the 1912 agreement permitted just one kind of assignment, one that released the prior lessee from its obligations and one that thus established a novation. S & R objects that the 1912 agreement cannot establish the lessor's consent to the assignment because that consent was not contemporaneous with the novation. But why that is so is never explained or supported. There is nothing exceptional about permitting two parties to a contract to establish ahead of time the ground rules for consenting to the substitution of one party to the contract for another. And with respect to long-term contracts, that may well be the most efficient and fair way to do business: What long-term lessee would prefer to give the lessor a long-term *439 veto power over any requests to be released from the lease? Why not permit the parties to negotiate up front the rules for permitting the lessee to be released from its obligations under the lease? The parties to a contract are free to structure it however they wish, so long as they do not offend a constitutional, statutory or common-law prohibition. Yet S & R offers no constitutional or statutory reason why the original parties were prohibited from drawing up the 1912 lease in this way, and none of the common-law cases upon which it relies turns on this point, much less establishes such a restrictive principle. In Bahner's Auto Parts v. Bahner, No. 97-CA-2538, 1998 WL 470494 (Ohio Ct.App. July 23, 1998), the court held that no novation occurred because the parties never extinguished their obligations under the prior agreement, see id. at *7-8. In Scioto Savings Ass'n v. Porter, No. 77AP-788, 1978 WL 216705 (Ohio Ct.App. Mar. 2, 1978), the court held that no novation occurred because the transfer at issue did not release the previously obligated party, see id. at * 1-2. And in Baker v. All States Life Insurance Co., 96 N.E.2d 787 (Ohio Ct.App.1950), the court held that no novation occurred because the agent who signed the second agreement lacked authority to do so, see id. at 793. S & R offers no other case—and we have identified none—in which an Ohio court has embraced this proposed requirement. The authority we have found all goes the other way. The commentary to the provision in the Restatement (Second) of Contracts dealing with novations observes that "[i]t is not necessary . . . that all of the parties to the novation manifest their assent simultaneously nor that they all be in the same place," so long as "their manifestations of assent . . . have reference to one another." Id. § 280 cmt. c; see Rockwell Int'l Corp. v. Reg'l Emergency Med. Servs. of Nw. Ohio, 688 F.2d 29, 31 n. 1 (6th Cir.1982) (relying on Restatement (Second) § 280); Pilkington N. Am., Inc. v. Travelers Cas. & Sur. Co., 112 Ohio St.3d 482, 861 N.E.2d 121, 128 (2006) (relying on the Restatement (Second)). Williston and Corbin come to the same conclusion. See 30 R.A. Lord, Williston on Contracts § 76:18 (4th ed.1990) (noting that contracting parties may provide advance consent to a novation); 13 Joseph M. Perillo, Corbin on Contracts § 71.3 (rev. ed.2003) (noting that advance consent is permissible). Several cases have addressed the issue in this precise context—alleged novations stemming from an agreement containing a gold clause and a previously negotiated method for releasing an original obligee to the contract. All of them permitted the novation. See Trostel I, 92 F.3d at 741 n. 8 (concluding that the terms of a pre-1933 lease established the owner's consent to a post-1977 transfer and sufficed to establish a novation); Fay Corp., 646 F.Supp. at 951-52 (finding prior consent in the lease sufficient for a novation); Wells Fargo, 38 Cal.Rptr.2d at 525 (noting that advance consent in the underlying contract may suffice to authorize a subsequent novation). The terms of the 1982 assignment agreement answer another objection raised by S & R: How could the assignment resuscitate the 1912 gold clause, which no party to the lease had been able to enforce since 1933? In accordance with the express terms of the 1982 assignment agreement, S & R "assume[d] and agree[d] to perform each and all of the covenants, obligations, and engagements of the Assignor and lessee under said Lease and all other terms and provisions thereof on the part of lessee to be observed and performed after the date hereof." JA 132 (emphasis added). The agreement also clarifies that the assignment was made "subject . . . to the payment of the rents and the observance *440 of all and singular the covenants, conditions, terms and agreements in said Lease contained." JA 132 (emphasis added). The assignment agreement, in short, says it all: It explicitly incorporates all of the terms of the 1912 lease, including the gold clause. S & R insists that the 1982 assignment could not revive the gold clause because it had lain "dormant" since 1933. Appellee Br. at 2, 22-24. Whether S & R means to argue that it agreed to take on only the obligations performed by the most recent assignor or that the 1933 Joint Resolution operated to erase the gold clause from the lease, it is mistaken either way. As to the first possibility, S & R expressly took on responsibility for all of the lessee's obligations specified in the original lease, gold clause and all. One of the four requirements for an assignment under the 1912 lease (absent written consent from the lessor) was that the assignee accept all of the lessee's obligations under the 1912 agreement, not merely those obligations then being performed by the lessee. Nor can S & R deny that it was on notice of this requirement, as the entire paragraph from the 1912 lease agreement setting forth those four requirements was reprinted verbatim in the 1982 assignment. Other appellate courts faced with this issue have come to the same conclusion. See Trostel II, 133 F.3d at 682; Wells Fargo, 38 Cal. Rptr.2d at 528-29. As to the second possibility, the 1933 federal statute did not purport to, and did not in effect, delete the gold clause permanently from the lease agreement. The law, sure enough, made existing clauses unenforceable by providing obligors an alternative route for satisfying gold-denominated obligations, by declaring them to be against public policy and by forbidding their inclusion in future contracts. See Joint Resolution of June 5, 1933, § 1, 48 Stat. at 113. But it stopped short of voiding or invalidating existing gold clauses, and it did nothing to prevent parties from reviving those clauses after the 1977 amendment. As the Eighth Circuit correctly explained, "[t]he 1933 act did not magically erase the gold clause from the [pre-1933] lease." Trostel I, 92 F.3d at 742. Fine, S & R responds: But even if the 1933 Joint Resolution did not remove the gold clause from the 1912 agreement, the several-decades bar on enforcing the clause precluded the parties to the 1982 assignment agreement from having any meeting of the minds over this obligation. No one contemplated the possibility, it explains, that a lease establishing a flat $35,000 in annual rent secretly obligated S & R to pay many times that figure, permitting the current owner to spin this paper obligation into gold at S & R's unforeseen and unintended expense. But to many a law student's confusion, the meeting-of-the-minds formulation often requires far less than it suggests. As in most jurisdictions, Ohio law does not require contracting parties to share a subjective meeting of the minds to establish a valid contract; otherwise, no matter how clearly the parties wrote their contract, one party could escape its requirements simply by contending that it did not understand them at the time. What it does require is that the terms of the agreement establish an objective meeting of the minds, which is to say that the contract was clear and unambiguous. See Nilavar v. Osborn, 127 Ohio App.3d 1, 711 N.E.2d 726, 733 (1998); cf. Kreller Group, Inc. v. WFS Fin., Inc., 155 Ohio App.3d 14, 798 N.E.2d 1179, 1186 (2003). Here, the parties entered into an assignment agreement under which S & R expressly took on all of the original lease obligations for the next three (and, at its option, up to thirteen) *441 decades, and the written instrument not only refers to and incorporates the underlying lease but quotes it at length. That clarity precludes S & R from establishing that the parties failed to have an objective meeting of the minds. Were the 1982 assignment agreement unclear, that would be another matter, one that might permit them to introduce extrinsic evidence of their intent in signing the contract. But there is nothing unclear about the relevant terms of this contract. As a final matter, it is worth addressing the parties' respective efforts to cast themselves as victims in this nearly century-long saga. As S & R sees things, it took on a lease obligation of $35,000 a year and now is being asked to pay several multiples of that. As 216 Jamaica sees things, S & R had every reason to know this risk. The 1977 legislation permitted gold clauses to be enforced; the 1912 agreement contained a gold clause; the 1982 assignment required S & R to accept each of these obligations; and S & R chose not to condition acceptance of the assignment on removing the gold clause. And, what is more, S & R wishes to pay $35,000 per year for space that is worth multiples of that and wants that option not just through 2011 but presumably for 99 more years—through 2110. The record does not say how much comparable space rents for in Cleveland, but one can certainly assume that it is more valuable than it was in 1912 without having to accept the truth of 216 Jamaica's assertion that it is worth more than 75 times what S & R currently pays for it. Reply Br. at 3-4 & n. 2. As a matter of sheer economics, it is hard to say which party has the sharper elbows. Either way, in light of this ruling, the parties now know one of the effects of the 1982 assignment. By March 31, 2011, S & R will decide whether it wishes to exercise its option to renew the lease. In the interim, the case needs to be remanded to the district court. Because the court found that the gold clause was not enforceable under the 1933 statute, it did not reach the question of the gold clause's effect on the rent owed under the lease. Because we conclude that the clause is enforceable, we thus remand the case to the district court to interpret the clause, to determine the obligation it imposes on S & R and to address any other defenses the district court has not yet had an opportunity to address in the first instance, including S & R's estoppel-by-deed and waiver defenses. III. For these reasons, we reverse and remand for further proceedings. NOTES [*] The Honorable Harold A. Ackerman, Senior United States District Judge for the District of New Jersey, sitting by designation.

338 N.W.2d 838 (1983) LONG PRAIRIE PACKING COMPANY, Plaintiff and Respondent, v. UNITED NATIONAL BANK, SIOUX FALLS, South Dakota, Defendant and Respondent, and concerning Marshall Chernin, Ida Raye Chernin, a/k/a Ida Raye Rabhan, Adam Chernin, Alex Chernin, and Lisa Chernin, Applicants. No. 14164. Supreme Court of South Dakota. Argued May 26, 1983. Decided October 5, 1983. Richard L. Johnson, Sioux Falls, for plaintiff and respondent. William Taylor of Woods, Fuller, Shultz & Smith, P.C., Sioux Falls, for applicants. WOLLMAN, Justice. This is an original action pursuant to a writ of certiorari in which applicants are seeking to set aside a temporary restraining order entered by the circuit court on November 8, 1982, and continued by that court on November 16, 1982, January 21, 1983, and January 24, 1983. We grant the relief requested. Marshall Chernin, one of the applicants in this action, was hired in 1978 by respondent, Long Prairie Packing Company (Long Prairie), to operate its plant in Long Prairie, Minnesota. Chernin was discharged in early November of 1982 for allegedly embezzling in excess of one million dollars from Long Prairie. On November 8, 1982, the circuit court issued an ex parte temporary restraining order that prevented the United National Bank (United National) in Sioux Falls from *839 permitting any withdrawal of funds from any account on which Marshall Chernin, his wife, and their three children (applicants), had the right to withdraw funds and enjoined United National from permitting removal of any document in which any of the applicants had interest. The documents in support of the application for the temporary restraining order were an attorney's certificate from Long Prairie's South Dakota counsel and an affidavit of Long Prairie's Minnesota counsel, to which was attached a copy of an affidavit of a special agent of the Federal Bureau of Investigation. United National was the only defendant named on the caption of the temporary restraining order, which fixed November 16, 1982, as the hearing date for United National to show cause why the court should not enter a preliminary injunction. Both United National and Marshall Chernin were served with copies of the temporary restraining order and related documents on November 9, 1982. On November 10, 1982, Long Prairie filed a complaint in an action in Minnesota against Marshall Chernin for the wrongful diversion of its funds. On November 15, 1982, Long Prairie filed a summons and complaint in an action in South Dakota against United National. The complaint in this action requested that United National be temporarily enjoined from permitting withdrawal of funds from applicants' accounts. This complaint was amended on December 8, 1982, to include applicants as defendants. At the November 16, 1982, hearing, Marshall Chernin contested jurisdiction and moved to dissolve the temporary restraining order. The trial court apparently orally ordered that the temporary restraining order be continued until further order of the court. On January 21, 1983, the trial court ordered that United National Bank as a mere stakeholder was entitled to be dismissed from the lawsuit. On January 24, 1983, the trial court modified the temporary restraining order to permit the release of $61,299 from applicants' account, this amount having been deposited before Marshall Chernin was employed by Long Prairie. The order also ordered that the remaining balance be held by United National until further order of the court. SDCL ch. 21-8, part of Title 21, Judicial Remedies, provides for the remedy of injunctive relief, including temporary restraining orders. SDCL 15-6-65(b), part of the rules of civil procedure, governs the issuance of a temporary restraining order without notice. Until July 1, 1978, SDCL 15-6-65 provided that "[t]he procedure for granting restraining orders and temporary and permanent injunctions shall be as provided by the rules of practice and procedure now existing or hereafter adopted." Through Chapter 155 of the 1978 Session Laws, the legislature amended SDCL 15-6-65 by providing detailed procedures by which preliminary injunctions and temporary restraining orders might be granted (why this was done by the legislature and not by this court is not clear).[*] *840 Applicants maintain that the temporary restraining order was illegally issued because of the nonexistence of an underlying action. We agree, for we conclude that the language of SDCL 15-6-65(b), as well as the language of other statutes governing injunctive relief, presupposes the existence of an underlying action as a condition precedent to the application for injunctive relief. SDCL 15-6-65(b) authorizes the issuance of a temporary restraining order without notice "to the adverse party or his attorney... if (1) it clearly appears from specific facts shown by affidavit or by the verified complaint that immediate and irreparable injury, loss, or damage will result to the applicant before the adverse party or his attorney can be heard in opposition." (emphasis added) Turning to SDCL Title 21, Judicial Remedies, we find that injunctive relief is authorized by Chapter 21-8. SDCL 21-8-6 provides: When, during the pendency of an action, it appears by affidavit that a party to the action threatens, or is about to remove or dispose of his property, with intent to defraud his creditors, a temporary restraining order or preliminary injunction may be granted to restrain such removal or disposition. (emphasis added) SDCL 21-8-9 provides: If a complaint or other pleading is served, it may, if sufficient, be used as part of or in lieu of the affidavit for a temporary restraining order or preliminary injunction, so far as applicable, but this shall not restrict such showing by affidavit as the applicant elects to make. A copy of the complaint or other pleading, if intended as part of the showing, and a copy of any affidavit, so intended, must be served with the restraining order or injunction. (emphasis added) SDCL 21-8-12 provides: "An order granting a temporary restraining order or preliminary injunction may be made by the court in which the action is brought, or by a judge thereof, and when made by a judge may be enforced as an order of the court." (emphasis added) Putting aside any question of the constitutionality of the remedy of attachment provided by SDCL ch. 21-17, we note that SDCL 21-17-2 provides in part: The plaintiff in a civil action, at the time of issuing the summons or at any time thereafter, may have the property of the defendant attached, in the manner hereinafter prescribed, as security for the satisfaction of such judgment as the plaintiff may recover, in any of the following cases: ..... (4) When the defendant, either person or corporation, has removed or is about to remove any of his or its property from this state, with intent to defraud or delay his or its creditors; ..... (emphasis added) The message, both implicit and explicit, of the foregoing statutes is clear: Injunctive relief, whether by way of temporary restraining order or otherwise, posits the existence of an underlying action by the applicant for such relief against the party to be affected by the proposed restraint. That this should be so follows from the very *841 purpose of a temporary restraining order. As we pointed out in Golden v. Oahe Enterprises, Inc., 90 S.D. 263, 279, 240 N.W.2d 102, 111 (1976), "The recognized purpose of a temporary restraining order is to suspend proceedings until the court can determine whether an injunction should issue." In the same vein, a temporary restraining order "is only an ancillary remedy for the purpose of preserving the status quo or restoring a status wrongfully disturbed pending the final determination of the action.... It is not a cause of action or a lawsuit in and of itself." Hutchins v. Stanton, 23 N.C.App. 467, 469, 209 S.E.2d 348, 349 (1974) (citation omitted). We conclude, therefore, a temporary restraining order may not be issued pursuant to the provisions of SDCL 15-6-65(b) in the absence of a contemporaneous action against the party or parties whose actions are sought to be restrained. Long Prairie argues that even if an underlying action against applicants was a condition precedent to the issuance of the temporary restraining order against United National, the failure to have commenced such an action was at most a technical lack of compliance with law that was cured by the subsequent commencing of the action against applicants. We are not disposed to so hold. Rather, we agree that [b]ecause a temporary restraining order may be issued ex parte, the device is vulnerable to abuse; indeed, the propriety of a court issuing any order that would subject a person to injunctive restraint without his knowledge has been questioned. To insure that the rights of all concerned are protected, Rule 65(b) prescribes certain safeguards for the issuance of temporary restraining orders that must be scrupulously honored. (footnotes omitted) 11 C. Wright & A. Miller, Federal Practice and Procedure: Civil § 2952. See also Leslie v. Penn Central R.R. Co., 410 F.2d 750 (1969); Austin v. Altman, 332 F.2d 273 (1964). Granted, the safeguards referred to include the requirements of a clear showing of irreparable injury, written, specific justification for the granting of the order without notice, and a brief life for the order and a prompt hearing thereon, nonetheless we think the same scrupulous adherence should be given to the requirement of the existence of a contemporaneous action. We hold, therefore, that in the absence of such an underlying contemporaneous action against United National and applicants, the trial court was without jurisdiction to issue the temporary restraining order in question. In view of our holding on the procedural issue, we need not rule on applicants' contention that the temporary restraining order violated their constitutional rights to due process of law. We note in passing, however, that temporary restraining orders issued without notice to the adverse party have survived constitutional attack. See, e.g., United States v. Spilotro, 680 F.2d 612 (9th Cir.1982); State v. B Bar Enterprises, Inc., 649 P.2d 978 (Ariz.1982). See also State v. Marsh, 626 S.W.2d 223 (Mo.1982). As the United States Supreme Court has observed: Ex parte temporary restraining orders are no doubt necessary in certain circumstances, cf. Carroll v. President and Comm'rs of Princess Anne, 393 U.S. 175, 180 [89 S.Ct. 347, 351, 21 L.Ed.2d 325] (1968), but under federal law they should be restricted to serving their underlying purpose of preserving the status quo and preventing irreparable harm just so long as is necessary to hold a hearing, and no longer. (footnote omitted) Granny Goose Foods, Inc. v. Teamsters, 415 U.S. 423, 439, 94 S.Ct. 1113, 1124, 39 L.Ed.2d 435, 450 (1974). The writ of certiorari is made final, and an order will be entered dissolving the temporary restraining order of November 8, 1982, and all extensions thereof. DUNN, MORGAN and HENDERSON, JJ., concur. FOSHEIM, C.J., disqualified. NOTES [*] SDCL 15-6-65(b) provides: Where no provision is made by statute, a temporary restraining order may be granted without written or oral notice to the adverse party or his attorney only if (1) it clearly appears from specific facts shown by affidavit or by the verified complaint that immediate and irreparable injury, loss, or damage will result to the applicant before the adverse party or his attorney can be heard in opposition, and (2) the applicant's attorney certifies to the court in writing the efforts, if any, which have been made to give the notice or the reasons supporting his claim that notice should not be required. Every temporary restraining order granted without notice shall be indorsed with the date and hour of issuance; shall be filed forthwith in the clerk's office and entered of record; shall define the injury and state why it is irreparable and why the order was granted without notice; and, except in actions arising under chapters 25-3 and 25-4, shall expire by its terms within such time after entry, not to exceed ten days, as the court fixes, unless within the time so fixed the order, for good cause shown, is extended for a like period or unless the party against whom the order is directed consents that it may be extended for a longer period. The reasons for the extension shall be entered of record. In case a temporary restraining order is granted without notice, the motion for a preliminary injunction shall be set down for hearing at the earliest possible time and takes precedence over all matters except older matters of the same character. When the motion comes on for hearing the party who obtained the temporary restraining order shall proceed with the application for a preliminary injunction and, if he does not do so, the court shall dissolve the temporary restraining order. On two days' notice to the party who obtained the temporary restraining order without notice or on such shorter notice to that party as the court may prescribe, the adverse party may appear and move its dissolution or modification and in that event the court shall proceed to hear and determine such motion as expeditiously as the ends of justice require. Temporary restraining orders by their very nature may not be appealed. (emphasis added) SDCL 15-6-65(c) and 15-6-65(d) also address requirements of a temporary restraining order.

607 F.Supp.2d 709 (2009) GLASSHOUSE SYSTEMS, INC., Plaintiff. v. INTERNATIONAL BUSINESS MACHINES CORPORATION, Defendant. Civil Action No. 08-2831. United States District Court, E.D. Pennsylvania. March 16, 2009. *711 Timothy C. Russell, Spector Gadon & Rosen PC, Philadelphia, PA, for Plaintiff. Robert N. Feltoon, Aaron Starr, Conrad, O'Brien, Gellman & Rohn, PC, Philadelphia, PA, for Defendant. MEMORANDUM AND ORDER ANITA B. BRODY, District Judge. I. INTRODUCTION This case arises from a dispute between the computer company International Business Machines Corporation ("IBM") and a company authorized to sell IBM's products. GlassHouse Systems, Inc., ("Glass-House") complains that IBM promised to give it exclusive favorable pricing, induced it to expend resources cultivating a major client, and then scuttled GlassHouse's imminent deal with that client by giving favorable pricing to another seller. The Complaint asserts claims of promissory estoppel, breach of fiduciary duty, negligent misrepresentation, equitable estoppel, intentional interference with business advantage, and unjust enrichment. New York law applies to the adjudication of these claims.[1] Subject matter jurisdiction is exercised under 28 U.S.C. § 1332.[2] IBM has moved to dismiss the Complaint under Fed. R. Civ. Pro. 12(b)(6) for failure to state a claim upon which relief can be granted (Doc. #4). I will grant this motion in part. The claims of breach of fiduciary duty, negligent misrepresentation, and unjust enrichment (counts II, III, and VI) should be dismissed because they are precluded by a contract between IBM and GlassHouse. The claim of intentional interference with business advantage (count V) should be dismissed because the Complaint makes insufficient factual allegations. *712 But the claims of promissory estoppel and equitable estoppel (counts I and III) should not be dismissed because IBM's promise of exclusive favorable pricing may have been extraneous to the contract. II. BACKGROUND[3] IBM is a major technology company that makes and sells computer products and offers related services. Over ten years ago, GlassHouse and IBM entered into a contract ("Agreement") whereby GlassHouse became an IBM Business Partner ("BP") authorized to sell IBM products and services as an independent contractor.[4] (See Pl.'s Resp. Ex. A [hereinafter "Agr'm."].) IBM has nearly identical contracts with other BPs. The Agreement describes IBM's relationship with GlassHouse and explains how IBM determines and communicates the terms and prices at which BPs may market and sell IBM products and services. (Agr'm. 10, 19, 25; Compl. ¶ 15.) Here are some material provisions: • "Business Partner is a business entity which is approved by us to market Products and Services under this Agreement." (Agr'm. 8.) • "[B]oth of us are independent contractors, and this Agreement is nonexclusive.... [E]ach of us is responsible for our own expenses regarding fulfillment of our responsibilities and obligations under the terms of this Agreement." (Agr'm. 10.) • "As our IBM Business Partner ... we approve you to market on our behalf at prices and terms established by IBM.... You agree to ... actively market Products and Services." (Agr'm. 19.) • "The price, charge and discount if we specify one, for each Product and Service will be made available to you in a communication which we provide to you in published form or through our electronic information systems or a combination of both." (Agr'm. 25.) • "You earn your fee on the date of our invoice to the End User.... You are only entitled to compensation for orders IBM accepts during the contract duration." (Agr'm. 20.) Although each BP must "actively market Products and Services," the Agreement also provides that IBM may offer special incentives such as letting a BP offer special pricing to customers. (Agr'm. 12, 19; Compl. ¶ 15.) The Agreement states: "We may provide marketing funds and promotional offerings to you. If we do, you agree to use them according to our guidelines." (Agr'm. 12.) Several times before 2005 in publications and at conferences, IBM communicated to GlassHouse and others that when a BP has performed a certain amount of selling and marketing to develop an account with a customer, that BP will receive more favorable pricing for that customer than other BPs who have not performed such activities. *713 Crucially, the Complaint does not specify whether this promise was made pursuant to the Agreement. From 2002 to 2006, GlassHouse cultivated an account with SEI Investments, Inc., ("SEI") a company that provides financial services to individuals and businesses. Initially, SEI used non-IBM central processing units ("CPUs").[5] SEI became an IBM mainframe customer in 2006 when GlassHouse sold it new CPUs and mainframe technology made by IBM. In October 2006, GlassHouse had several meetings with SEI about "migrating" to more advanced technology. On October 19, 2006, IBM approved GlassHouse's request to offer SEI special pricing for the migration. In December 2006, SEI agreed to buy the new technology. On December 14, 2006, IBM approved GlassHouse's second request for special pricing. These approvals indicated to GlassHouse that no other BP had cultivated an account with SEI. After SEI canceled the planned migration to conduct more studies, GlassHouse continued selling and marketing to SEI from January 2007 into the summer. GlassHouse also discussed with IBM the proposed migration, and IBM stressed how important the SEI account was. In July and August 2007, IBM approved multiple requests by GlassHouse to offer special pricing to SEI. GlassHouse then submitted a bid to SEI for the migration. SEI responded with a concern about pricing. In August 2007, GlassHouse learned that another BP Mainline Information Systems, Inc., ("Mainline") planned to compete for the SEI account. GlassHouse emailed Mainline to ask whether it planned to seek special pricing from IBM, but Mainline never responded. On August 14, 2007, GlassHouse asked IBM whether Mainline would receive special pricing. IBM responded: "Mainline has responded that they don't qualify for [special pricing] at SEI." (Compl. ¶ 35.) GlassHouse was thus the only BP qualified to offer special pricing to SEI. On September 13, 2007, IBM gave Mainline permission to offer special pricing to SEI. This allowed Mainline to free-ride on GlassHouse's prolonged efforts to cultivate SEI. Mainline then submitted a bid lower than GlassHouse's bid. GlassHouse submitted another competing bid, but ultimately SEI went with Mainline. III. STANDARD According to Rules 8(a) and 12(b)(6), a complaint must "mak[e] a sufficient showing of enough factual matter (taken as true) to suggest the required elements" for each claim asserted. Phillips v. County of Allegheny, 515 F.3d 224, 235 (3d Cir.2008). The allegations "must be enough to raise a right to relief above the speculative level, on the assumption that all the allegations in the complaint are true (even if doubtful in fact)." Bell Atl. Corp. v. Twombly, 550 U.S. 544, 127 S.Ct. 1955, 1965, 167 L.Ed.2d 929 (2007). "This `does not impose a probability requirement at the pleading stage,' but instead `simply calls for enough facts to raise a reasonable expectation that discovery will reveal evidence of the necessary element.'" Phillips, 515 F.3d at 234 (3d Cir.2008) (quoting Twombly, 127 S.Ct. at 1965). When deciding a 12(b)(6) motion a court must "construe the complaint in the light most favorable to the plaintiff, and determine whether, under any reasonable reading of the complaint, the plaintiff may be entitled *714 to relief." Phillips, 515 F.3d at 233 (internal quotations omitted). IV. DISCUSSION The Complaint asserts claims of promissory estoppel (count I), breach of fiduciary duty (count II), negligent misrepresentation (count III), equitable estoppel (count IV), intentional interference with business advantage (count V), and unjust enrichment (count VI). Notably, GlassHouse does not assert a claim for breach of contract. Only tort or quasi-contract claims are asserted. IBM argues that all six claims must be dismissed because in New York only a breach-of-contract claim may be asserted where a dispute occurs within a contractual relationship. (Def.'s Br. 5-10.) Contract, quasi-contract, and tort claims all assert breaches of duty, but they involve different policies and sources of duty. Private agreement creates the duty involved in a contract claim, whereas statute or case law creates the duty involved in a quasi-contract or tort claim. See Bradkin v. Leverton, 26 N.Y.2d 192, 309 N.Y.S.2d 192, 257 N.E.2d 643, 645 n. 2 (1970) (noting that quasi-contract and tort duties are imposed by law regardless of consent). Moreover, contract and quasi-contract duties both concern a relationship of mutual exchange, whereas tort duties concern other policies. See id., 309 N.Y.S.2d 192, 257 N.E.2d at 645 ("Quasi contracts are not contracts at all, although they give rise to obligations more akin to those stemming from contract than from tort."); 66 Am.Jur.2d Restitution and Implied Contracts § 2 (2008) ("Contracts implied in law [i.e., quasi-contracts] are fictions of law adapted to enforce legal duties by actions of contract."). Because of these differences, New York courts have developed two doctrines that preclude a plaintiff from asserting a quasi-contract or tort claim based on events that occurred within a contractual relationship. New York's highest court explained both doctrines in Clark-Fitzpatrick, Inc. v. Long Island R.R. Co., 70 N.Y.2d 382, 521 N.Y.S.2d 653, 516 N.E.2d 190, 193-94 (1987). First, a person cannot sue in quasi-contract for a dispute that occurred within a contractual relationship. Id., 521 N.Y.S.2d 653, 516 N.E.2d at 193. Specifically, "[t]he existence of a valid and enforceable written contract governing a particular subject matter ordinarily precludes recovery in quasi contract for events arising out of the same subject matter." Id. "It is impermissible ... to seek damages in an action sounding in quasi contract where the suing party has fully performed on a valid written agreement, the existence of which is undisputed, and the scope of which clearly covers the dispute between the parties." Id. See also Goldman v. Metro. Life Ins. Co., 5 N.Y.3d 561, 572-73, 807 N.Y.S.2d 583, 587-88, 841 N.E.2d 742 (N.Y.2005) (holding that buyers of life insurance who sued because their contract required payment before coverage began could not assert a quasi-contract claim because "the disputed terms and conditions fall entirely within the insurance contract"). Second, a person cannot sue in tort for a breach of contract. Clark-Fitzpatrick, 521 N.Y.S.2d 653, 516 N.E.2d at 193. "[A] simple breach of contract is not to be considered a tort unless a legal duty independent of the contract itself has been violated." Id. "This legal duty must spring from circumstances extraneous to, and not constituting elements of, the contract, although it may be connected with and dependent upon the contract." Id. at 194. The court later explained: A legal duty independent of contractual obligations may be imposed by law as an incident to the parties' relationship. *715 Professionals, common carriers and bailees, for example, may be subject to tort liability for failure to exercise reasonable care, irrespective of their contractual duties. In these instances, it is policy, not the parties' contract, that gives rise to a duty of due care. Sommer v. Fed. Signal Corp., 79 N.Y.2d 540, 551-52, 583 N.Y.S.2d 957, 593 N.E.2d 1365 (N.Y.1992). "In disentangling tort and contract claims," courts also consider "the nature of the injury, the manner in which the injury occurred and the resulting harm." Id. at 552, 583 N.Y.S.2d 957, 593 N.E.2d 1365. In short, "[w]here a plaintiff is essentially seeking enforcement of the bargain, the action should proceed under a contract theory."[6]Id. Together, these doctrines provide that a plaintiff cannot support quasi-contract or tort claims with circumstances that are covered by a contract. Only a dispute not arising from a contract's subject matter or clearly covered by a contract's scope can support a quasi-contract claim, and only "circumstances extraneous to, and not constituting elements of, [a] contract" can support a tort claim. Clark-Fitzpatrick, 521 N.Y.S.2d 653, 516 N.E.2d at 193-94. For this reason, I cannot consider allegations of circumstances that are covered by the Agreement in evaluating the Complaint under Rule 12(b)(6). With this in mind, I consider each claim below. A. Promissory Estoppel and Equitable Estoppel (Counts I and IV) IBM does not dispute the sufficiency of GlassHouse's allegations for the promissory-estoppel and equitable-estoppel claims but simply argues that these claims must be dismissed under Clark-Fitzpatrick. (Def.'s Br. 10-12, 16-17; Def.'s Reply 9, 15.) Both claims turn on IBM's promise to give GlassHouse exclusive favorable pricing.[7] IBM maintains that these claims must be dismissed under Clark-Fitzpatrick because the promise was made pursuant to the Agreement.[8] Because these are tort claims, I must determine whether IBM's promise was "extraneous to, and not constituting [an] element[] of," the Agreement. Clark-Fitzpatrick, 521 N.Y.S.2d 653, 516 N.E.2d at 194. Unfortunately, the Complaint makes this question hard to answer. One allegation may suggest that IBM's promise was made outside the Agreement. The Complaint states that "IBM representatives expressly communicated" the promise "in various IBM trade publications, and at conferences with IBM." (Compl. ¶ 21.) But other allegations may suggest the opposite. Describing the promise, the Complaint states that "IBM provides its BP's [sic] with written rules, policies and protocols setting forth the conditions on which a *716 BP will be awarded special pricing." (Compl. ¶ 19.) Then it explains: "These rules, policies and protocols constitute representations or promises from IBM as to how it will conduct its relationships with its BP's [sic]." (Compl. ¶ 20.) The Agreement does not provide any better guidance. It never mentions the promise explicitly but does contain relevant language. It provides: "We may provide marketing funds and promotional offerings to you. If we do, you agree to use them according to our guidelines." (Agr'm. 12.) The Agreement also provides: "The price, charge and discount if we specify one, for each Product and Service will be made available to you in a communication." (Agr'm. 25.) Given such uncertainty, the precise requirements of Rules 8 and 12(b)(6) are critical. On one hand, a complaint must "mak[e] a sufficient showing of enough factual matter (taken as true) to suggest the required elements." Phillips, 515 F.3d at 235. It cannot merely leave "open the possibility that a plaintiff might later establish some set of [undisclosed] facts to support recovery." Id. at 233 (quoting Twombly, 127 S.Ct. at 1968 (alteration in original)). On the other hand, a court must "construe the complaint in the light most favorable to the plaintiff, and determine whether, under any reasonable reading of the complaint, the plaintiff may be entitled to relief." Phillips, 515 F.3d at 233 (internal quotations omitted). Once given the most favorable construction that reason allows, the Complaint may be read to allege that IBM's promise of exclusive favorable pricing was made outside the Agreement. I find most dispositive that the Agreement does not mention such a promise and that the Complaint alleges the promise to have been made "in various IBM trade publications, and at conferences with IBM." (Compl. ¶ 21.) Therefore, counts I and IV should not be dismissed. B. Breach of Fiduciary Duty and Negligent Misrepresentation (Counts II and III) GlassHouse's claims for breach of fiduciary duty and negligent misrepresentation both require a special relationship between GlassHouse and IBM.[9] IBM argues that they must be dismissed under Clark-Fitzpatrick because the alleged circumstances offered to show this relationship are covered by the Agreement. (Def.'s Br. 12-16; Def.'s Reply 9, 14.) Once again, I must determine whether these circumstances were "extraneous to, and not constituting elements of," the Agreement. Clark-Fitzpatrick, 521 N.Y.S.2d 653, 516 N.E.2d at 194. To show the requisite special relationship, the Complaint alleges that IBM determined "the pricing structure" that a BP can offer to customers, which BP will receive special pricing, and which BP will service a particular account. (Compl. ¶ 15.) These circumstances clearly arise from the Agreement, which states the following: • "As our IBM Business Partner ... we approve you to market on our behalf *717 at prices and terms established by IBM." (Agr'm. 19.) • "The price, charge and discount if we specify one, for each Product and Service will be made available to you in a communication." (Agr'm. 25.) • "You are only entitled to compensation for orders IBM accepts during the contract duration." (Agr'm. 20.) Because it was the Agreement that created the requisite special relationship alleged in the Complaint, GlassHouse's claims for breach of fiduciary duty and negligent misrepresentation cannot proceed. See Clark-Fitzpatrick, 521 N.Y.S.2d 653, 516 N.E.2d at 193 ("[A] simple breach of contract is not to be considered a tort unless a legal duty independent of the contract itself has been violated."). Therefore, counts II and III must be dismissed. C. Intentional Interference with Business Advantage (Count V) New York law recognizes a cause of action for "interfering with a nonbinding `economic relation.'"[10]Carvel Corp. v. Noonan, 3 N.Y.3d 182, 189, 785 N.Y.S.2d 359, 818 N.E.2d 1100 (N.Y.2004). This requires a plaintiff to prove "that (1) it had a business relationship with a third party; (2) the defendant knew of that relationship and intentionally interfered with it; (3) the defendant acted solely out of malice, or used dishonest, unfair, or improper means; and (4) the defendant's interference caused injury to the relationship." Kirch v. Liberty Media Corp., 449 F.3d 388, 400 (2d Cir.2006) (stating New York law). Regarding the third element, "the defendant's conduct must amount to a crime or an independent tort" and must be "directed not at the plaintiff ... but at the party with which the plaintiff has or seeks to have a relationship." Carvel, 3 N.Y.3d at 190, 192, 785 N.Y.S.2d 359, 818 N.E.2d 1100. GlassHouse has not alleged facts that satisfy the third element. IBM's only conduct possibly directed at SEI was allowing Mainline to offer special pricing. In other words, IBM might have persuaded SEI to buy from Mainline by allowing this special pricing. But this cannot be considered a crime or independent tort. Reaching the same conclusion, Carvel held that a distributor that sold its product through franchised stores did not unlawfully interfere with the franchisees' business relations with potential customers when it began also selling its product through supermarkets. Id. at 2-7. The court explained: "all Carvel did to the franchisees' customers was to make Carvel goods available in supermarkets at attractive prices; this ... was not `pressure' on these third parties but legitimate `persuasion,' and thus tortious interference with economic relations was not established." Id. at 5. Because GlassHouse's allegations are insufficient, count V must be dismissed. D. Unjust Enrichment (Count VI) A valid contractual relationship covering a particular subject matter precludes an unjust-enrichment claim for events arising out of that subject matter. Clark-Fitzpatrick, 521 N.Y.S.2d 653, 516 N.E.2d at 193. Regarding this claim, the Complaint alleges that IBM benefited from GlassHouse's services because from 2002 to 2006 GlassHouse conducted marketing and selling activity toward SEI and encouraged it migrate to new IBM technology. (Compl. ¶¶ 74-75.) These *718 events are plainly covered by the Agreement, which dictates when and how GlassHouse should market and sell to customers such as SEI. It also provides: "[E]ach of us is responsible for our own expenses regarding fulfillment of our responsibilities and obligations under the terms of this Agreement." (Agr'm. 10.) Finally, no one disputes the Agreement's existence and validity. Therefore, count VI must be dismissed. V. CONCLUSION Counts II, III, and VI must be dismissed because they are precluded by the Agreement. Count V must be dismissed because GlassHouse has not alleged sufficient facts to suggest interference with business relations. Finally, counts I and IV should not be dismissed because they depend on allegations not clearly covered by the Agreement, and IBM has offered no other reason to dismiss them. ORDER AND NOW, this 16th day of March, 2009, it is ORDERED that Defendant International Business Machines Corporation's Motion to Dismiss the Complaint of Plaintiff GlassHouse Systems, Inc., (Doc. # 4) is GRANTED as to Counts II, III, V, and VI, and DENIED as to Counts I and IV. NOTES [1] Based on a choice-of-law provision in a contract between IBM and GlassHouse, both sides agree that New York law should govern the dispute. (Def.'s Br. 1; Pl.'s Resp. 3 n. 1.) [2] Complete diversity exists because IBM was incorporated in New York and has its principal place of business in New York, whereas GlassHouse was incorporated in Vermont and has its principal place of business in Illinois. The amount in controversy far exceeds $75,000. [3] In deciding a 12(b)(6) motion, a court must "accept all factual allegations as true [and] construe the complaint in the light most favorable to the plaintiff." Pinker v. Roche Holdings Ltd., 292 F.3d 361, 374 n. 7 (3d Cir.2002). Thus, the facts are stated in the light most favorable to GlassHouse. [4] Relevant portions of the Agreement were filed along with GlassHouse's responsive pleading. Both sides agree that I may consider them under Rule 12(b)(6). (Def.'s Br. 2 n. 1; Pl.'s Resp. 4 n. 2.) See Angstadt v. Midd-West Sch. Dist., 377 F.3d 338, 342 (3d Cir. 2004) ("[A]lthough a district court may not consider matters extraneous to the pleadings, a document integral to or explicitly relied upon in the complaint may be considered without converting the motion to dismiss into one for summary judgment.") (internal quotations omitted). [5] Also called "processors," CPUs are computer hardware that execute operations dictated by computer software. [6] Notably, a contractual relationship may preclude a tort claim even when a court finds the alleged contract invalid, see, e.g., Papa v. N.Y. Tel. Co., 72 N.Y.2d 879, 881, 532 N.Y.S.2d 359, 528 N.E.2d 512 (N.Y.1988), or when a plaintiff does not assert a breach-of-contract claim, see, e.g., Internationale Nederlanden Capital Corp. v. Bankers Trust Co., 261 A.D.2d 117, 689 N.Y.S.2d 455, 459 (N.Y.App.Div. 1999). [7] Promissory estoppel requires "a clear and unambiguous promise, reasonable and foreseeable reliance by the party to whom the promise is made, and an injury sustained in reliance on that promise." Williams v. Eason, 49 A.D.3d 866, 854 N.Y.S.2d 477, 479 (N.Y.App.Div.2008). Equitable estoppel was designed to "prevent the infliction of unconscionable injury and loss upon one who has relied on the promise of another." Am. Bartenders Sch., Inc. v. 105 Madison Co., 59 N.Y.2d 716, 718, 463 N.Y.S.2d 424, 450 N.E.2d 230 (N.Y. 1983). [8] IBM does not argue that the Agreement covers the circumstances alleged to show reliance, namely, GlassHouse's marketing and selling to SEI. Thus, I have not considered this. [9] Breach of fiduciary duty requires a "fiduciary relationship," which "exists between two persons when one of them is under a duty to act for or to give advice for the benefit of another upon matters within the scope of the relation," and which "is grounded in a higher level of trust than normally present in the marketplace between those involved in arm's length business transactions." EBC I, Inc. v. Goldman Sachs & Co., 5 N.Y.3d 11, 19, 799 N.Y.S.2d 170, 832 N.E.2d 26 (N.Y.2005). Negligent misrepresentation requires a "special relationship" that "is akin to a fiduciary duty, but need not rise to that same level." Lehman Bros. Commercial Corp. v. Minmetals Int'l Non-Ferrous Metals Trading Co., 179 F.Supp.2d 118, 153 (S.D.N.Y.2000). [10] "Courts refer to this cause of action by a number of different names, including prospective economic advantage, beneficial business relations, prospective business advantage, and business or economic relations." Henneberry v. Sumitomo Corp. of Am., 532 F.Supp.2d 523, 547 n. 12 (S.D.N.Y.2007).

543 U.S. 1004 SHIPSEYv.UNITED STATES. No. 04-554. Supreme Court of United States. November 29, 2004. 1 C. A. 9th Cir. Certiorari denied. Reported below: 363 F. 3d 962.

165 So.2d 84 (1964) Betty Jean STANLEY v. Wilson HAYES, as Adm'r. 1 Div. 110. Supreme Court of Alabama. May 28, 1964. *85 Jas. R. Owen, Bay Minette, for appellant. Chason & Stone, Bay Minette, for appellee. PER CURIAM. Plaintiff, Betty Jean Stanley, appeals from a judgment for the defendant following a verdict directed by the trial court in favor of defendant. The complaint as amended alleges that plaintiff "* * * was a guest passenger in a vehicle owned and operated by Defendant's intestate and which said vehicle was being driven at said time * * * on a public highway in Alabama, * * * the Defendant's intestate did wantonly injure the Plaintiff by driving her said automobile at a wantonly excessive rate of speed and wantonly causing, allowing or permitting the said vehicle to turn over on said road several times, and as a direct and proximate cause of said willfulness and wantonness the Plaintiff was willfully and wantonly injured in this: (injuries are here catalogued)." The plaintiff undertook to prove her allegation that defendant's intestate was driving the vehicle at the time by questions to plaintiff as follows: "Have you ever driven this automobile that was involved in the accident?" and, "Who was in the automobile with you?" The trial court sustained objections to these questions presumably on the ground that the plaintiff was disqualified to answer because of § 433, Title 7, Code 1940, often referred to as the "dead man's statute," which reads as follows: "In civil suits and proceedings, there must be no exclusion of any witness because *86 he is a party, or interested in the issue tried, except that no person having a pecuniary interest in the result of the suit or proceeding shall be allowed to testify against the party to whom his interest is opposed, as to any transaction with, or statement by, the deceased person whose estate is interested in the result of the suit or proceeding, or when such deceased person, at the time of such transaction or statement, acted in any representative or fiduciary relation whatsoever to the party against whom such testimony is sought to be introduced, unless called to testify thereto by the party to whom such interest is opposed, or unless the testimony of such deceased person in relation to such transaction or statement is introduced in evidence by the party whose interest is opposed to that of the witness, or has been taken and is on file in the cause. No person who is an incompetent witness under this section shall make himself competent by transferring his interest to another." As said in Southern Natural Gas Co. v. Davidson, 225 Ala. 171, 142 So. 63 (3, 4), this section applies, among other conditions, when (1) the witness has a pecuniary interest in the result of the suit, and (2) the deceased acted in a representative relation to the party against whom the evidence is offered, and (3) he testifies to a transaction with the deceased. The facts in the case at bar show the existence of (1) and there is no contention that (2) is involved. The question is whether the allegations of the complaint, if so, show a transaction with deceased. An application of this statutory exclusion was made in the case of Southern Natural Gas Co. v. Davidson, supra, but denied in the case of Gibson v. McDonald, Admr., 265 Ala. 426, 91 So.2d 679. In this latter case, this court summarized the situation by observing that there was an automobile accident at a street intersection in Birmingham, in the early hours of January 28, 1953, to which there were no eyewitnesses except the drivers of the two cars, both of whom were killed, and Ruby Gibson (appellant), who was riding as a guest in the Buick car driven by Josephus Perry. The other vehicle was driven by one Fortenberry, intestate of defendant. In the Gibson case, we observed: "* * * To put it another way, does the testimony sought to be introduced fall within the category of testimony `as to any transaction with, or statement by, the deceased person whose estate is interested in the result of the suit or proceeding?'" (265 Ala. 428, 91 So.2d 681). We said in the Davidson case, supra: "* * * that to come within the influence of the statute (dead man's statute) the testimony `must be [of] some act done by the deceased, or in the doing of which he personally participated.' In both of these cases [previously cited] the evidence related to what was called `collateral facts,' but there is excluded all `negotiations, interviews and actions between the parties.' It was also shown that a `transaction' involved the idea that `something (was) done by both parties acting in concert, in which both took part,' and does not include matter which did not come to his knowledge by personal dealings with the deceased. (Cases cited) * * * * * * "It is said in 5 Jones on Evidence, §§ 2228 and 2261, that such a rule of exclusion as our section 7721 applies to tort actions as well as others. Our cases make no distinction. The authorities do not seem to be influenced by the kind of suit, but the character of the incidents related by the witness. Our cases exclude conversations, orders, and all forms of communications between the parties, and all their personal dealings and conduct. The evidence of matter which is open and public *87 is not the test. But the test is that it relates to some personal dealings whether others have equal opportunity to see and observe or not. The concurring conduct of the participants constituting the res gestae of a personal conflict or encounter between them has been held to be a transaction within the effect of such a statute. (Cases cited) "The conduct of Ed Green constituting that which is alleged to have been negligent and a breach of duty to plaintiff causing his injuries and damage, which occurred in his presence, and a part of the res gestae of such negligent conduct was of the nature of personal dealings with plaintiff under the rule, and constituted a `transaction' within the meaning of our statute. Appellant duly excepted to the rulings of the court as to such evidence, and we think that in this there was reversible error." (Emphasis supplied.) (225 Ala. 173-174, 142 So. 64-65.) Adverting again to the case of Gibson v. McDonald, supra, decided by this court since the Davidson case, supra, we made some distinctions and observations which we think are pertinent and have application to the case at bar. "* * * She (Ruby Gibson) had no supervision or control over what he did or failed to do in the operation of this car. Under these circumstances, even if Josephus Perry was guilty of any negligence, such negligence could not be attributed to Ruby Gibson. She was not occupying the automobile driven by defendant's intestate, Howard Wallace Fortenberry, nor was he driving his car as her servant, agent or employee and it was not being operated under her supervision or control. In short, she was free from any fault in connection with this accident. She was innocent of the result which took place outside of her control. She took no part in the occurrence other than to be present in the car of Josephus Perry when the collision occurred. She was more or less an observer of the accident and had no dealings with defendant's intestate pertaining to any phase of this accident. She did not mutually participate in it with him. He made no statements to her and she made no statements to him about anything pertaining to the accident. Ruby Gibson endeavored to testify to facts and circumstances regarding this accident within her own observation and knowledge. She attempted to state to the court what she saw take place between the car driven by defendant's intestate and a third party. This testimony the court refused to allow her to give. Suppose Ruby Gibson had been standing on the sidewalk at the time of the collision and was injured by reason of the collision. Could it be said that by reason of this statute she was barred from giving her version of the circumstances and details of the accident as she saw them? Plainly we think that she was not so barred. If this is true, what is the difference between a situation where she received injuries on the sidewalk and a situation where she received injuries simply riding in the car driven by Josephus Perry involved in an accident, as in the case at bar? It seems to us that there can be no valid distinction between the two situations and that the view here expressed is supported not only by the Alabama authorities which have construed the Alabama statute but by authorities from other jurisdictions. * * * * * * "In Warner v. Warner, 248 Ala. 556, 28 So.2d 701, 702, the rule was reaffirmed that the statutory rule disqualifying a witness who is interested in the result of a suit from testifying to facts coming to his knowledge through personal dealings with decedent whose estate *88 is affected by the issue, is limited to personal dealings in which both parties participated. "The above cited cases show that while the word `personal' does not appear in § 433, Title 7, Code of 1940, the statute has been construed by the Supreme Court of Alabama to require that the transaction sought to be excluded must be a personal one. As shown by the facts which we have recited above, how can it be said that the transaction between Ruby Gibson and Howard Wallace Fortenberry, was a personal transaction? Obviously it could not be so." (Emphasis supplied) (265 Ala., 429-431, 91 So.2d 682-683). Thereupon, we adverted, with approval, to the case of Seligman v. Hammond (Orth), 205 Wis. 199, 236 N.W. 115, 117, wherefrom we quoted: "We do not regard these questions and answers as dealing with a personal transaction or communication with decedent. They are the history of an event in which the decedent, with others, was involved, but not one personal between him and the witness. It was partly, also, a description of what the driver of the other car was doing, and in part a description of the place where the accident occurred, and of the individual acts of the defendant in driving his car and in seeking to avert an accident. The defendant was competent to testify to any relevant matter, not being a transaction with the decedent personally." We also quoted with approval from the case of Krantz v. Krantz, 211 Wis. 249, 248 N.W. 155, 157, as follows: "This case again squarely presents the question as to whether a passenger, who did not participate in the operation or control of an automobile at the time of an accident, is competent, notwithstanding the death of the driver, and the provisions of section 325.16, Stats, to testify as to his observations of the driver's movements and actions in operating and controlling the automobile. That question was given extended consideration recently in Waters v. Markham, 204 Wis. 332, 235 N.W. 797, and Seligman v. Hammond, 205 Wis. 199, 236 N.W. 115, 117. There are conflicts in the results at which courts have arrived, under the statutes, on this subject in other states. To some extent those conflicts are due to differences in the wording of the statutes involved. Under section 325.16, Wis. Stats., the prohibition as to a party (or other person included in the class described in the statute) testifying is solely that he shall not testify `in respect to any transaction or communication by him personally with a deceased or insane person,' etc. When due significance is accorded the italicized words, `by him personally with,' the transaction meant in that statute is, as we held in Seligman v. Hammond, supra, a mutual transaction between the deceased and the witness who survives, in which both, the survivor, as well as the deceased, actively participated. The statute `does not prohibit the survivor from describing an event or physical situation, or the movements or actions of a deceased person, quite independent and apart, and in no way connected with, or prompted or influenced by reason of, the conduct of the party testifying.' Seligman v. Hammond, supra. Thus construed, the statute did not bar the testimony of plaintiff as to his observations and description of the physical situation, and the movements and actions of the driver at the time of the accident." (Emphasis supplied) Again quoting from Gibson v. McDonald, supra, we said: "It will be noted from the last cited authority (Krantz v. Krantz) that under the Wisconsin Statute the prohibition is that the witness `shall not testify "in respect to any transaction or communication *89 by him personally with the deceased or insane person."' The word `personally' is emphasized in the opinion, but as we have pointed out while the word personally is not in the Alabama Statute the Alabama Statute has been construed to mean a transaction which the witness has had personally with a deceased person. 70 C. J., § 398. See also Hardison v. Gregory, 242 N.C. 324, 88 S.E.2d 96." If the plaintiff was only a guest or passenger in the automobile, was not exercising any supervision or control over what the driver did or failed to do in the operation of the car, was free from any active fault in connection with such operation, and took no part in the occurrence other than to be present in the car as a guest or passenger when the accident occurred, we think she was in a situation factually parallel to the plaintiff in the Krantz case, supra, and should be permitted to testify that Mrs. Shores was driving at the time of the accident, and to answer the aforequoted questions to her, which are negative but of like import. Also she should be permitted to testify to facts and circumstances regarding the accident, the driver's movements and actions in operating and controlling the automobile, all within her observation and knowledge, but not to statements by or conversations with her. If it should appear, however, from the evidence without dispute that plaintiff was not a mere guest or passenger, or if either, she did exercise supervision or control as outlined above, or was not free from active fault in connection with such operation, and took some part as a participant in the occurrence, the trial judge should exclude from the jury on motion the evidence of the witness so admitted. If such facts and circumstances relate to the participation vel non of the plaintiff in and about the supervision or the operation of the automobile, or as to plaintiff's status as a guest or passenger, and the jury is reasonably satisfied from the evidence that the plaintiff did supervise or control the operation of the car, or that plaintiff's status was not that of a mere guest or passenger, then the court should instruct them to disregard such testimony of the plaintiff, and, if there is no other admissible testimony as to the identity of the driver, to return a verdict for the defendant. We held in Qualls v. Monroe County Bank, 229 Ala. 315, 156 So. 846(2), that both negative and affirmative testimony are within the rule prohibiting a witness from testifying as to statements or transactions with a decedent whose estate is interested in the result of a suit. The questions propounded to the witness in the case at bar sought negative testimony that in our opinion was not precluded by the "dead man's statute." The court committed reversible error in sustaining objections thereto. Mrs. Robert Hagel, a witness for plaintiff, testified that on September 27, 1961, she heard a loud crash about 2:00 or 3:00 o'clock in the morning near her home; that she ran outside immediately, where she saw a wrecked car and two women, one of whom was lying in the middle of the road and the other (plaintiff) in the ditch on the grass; that she ran back to her home, called the telephone operator, and told her to notify the police. In just a few minutes Officer Osburn arrived, followed shortly by an ambulance. She also testified that there was a warning or blinker light in operation close to the scene of the accident. Also she stated that she went immediately to the scene of the wreck after the crash, and that she saw no one there other than the two women involved in the wreck until the officer and the ambulance arrived. Frank Osburn, a witness for plaintiff, testified that he was at the time Assistant Chief of Police of Foley, and had served as police officer for sixteen years. We will not detail the training and experience which the witness testified he had had with respect to investigating automobile accidents, *90 but it suffices to say that the training he stated he had received, together with his experience, was in our opinion ample to qualify him as an expert on the subject of such accidents and details relating thereto, including speed of automobiles involved in collisions as shown by skid marks and kindred physical signs. The witness stated that at the time of the accident there were present on the highway at the scene of the accident two thirty-mile-an-hour speed zone signs, a horizontal S curve sign, and two slow signs on the right hand side of the blacktop; and also a "reduce speed" sign; that the character of the road some 700 feet towards Elberta to the place where he found the automobile was on a rise; that it was an S curve for a distance of some 700 feet. He also testified that when he arrived at the scene of the accident he found a 1961 Comet automobile in the left lane of the road at the west end of the curve; that the car blocked the right lane going east. He also described the condition of the Comet car at the scene of the accident. He further observed that he found skid marks leading east to west 657 feet that lead up to the place where he found the wrecked car; also that the skid marks started 632 feet "back here coming into the curve in here," Also he stated that he found "debris from the car" scattered all over this lane, to where the car stopped on the blacktop. "Q. What is the distance from the point where you first observed the skid marks back towards Elberta to where the skid marks ended?— Will you refer to your notes and tell the Court and jury that? "A. To where the skid marks ended? "Q. Yes sir? "A. That was 432 feet. "Q. How far was it from where the skid marks ended up to the place you found the automobile? "A. 225 feet. * * * * * * "Q. Getting back to where these skid marks ended—the 225 feet between where the skid marks ended and the place where you found the automobile, did you find anything between those two points? "A. Yes, I found a lot of debris from the car; found dug-out holes where the car top dug out in the ground. "Q. Did you find any glass? "A. I did sir." The witness then testified that when he arrived at the scene three ladies were present—Mrs. Hagel, the plaintiff, and Evelyn Shores; that Mrs. Shores was on the east side of the 1961 Comet on the driver's side right even—her feet right even with the door—lying on the blacktop; she was completely out of the automobile with her head close to the center line of the blacktop. Mrs. Stanley was down in the ditch west of the car. Both were injured. Also he testified that he found some lady's shoes under the accelerator of the Comet car and that Mrs. Stanley had on her shoes. We think under the facts and circumstances here presented that the witness Osburn should have been allowed to give his judgment as to the speed of the automobile at the time of the accident. The record is not clear to us on what grounds the court sustained objection thereto. There is evidence as to lengthy skid marks (432 feet) made before the automobile presumably turned over; that was no inference or evidence that the car hit a moving object, so as to make it "behave in a manner which seemingly defies all laws of physics." Mobile City Lines v. Alexander, 249 Ala. 107, 112, 30 So.2d 4, 8; Jowers v. Dauphin, 273 Ala. 567, 143 So.2d 167. We hold the rule enunciated in Jackson v. Vaughn, 204 Ala. 543, 86 So. 469(3), here applies. It sustains the principle that one *91 shown to be an expert, as here, may express an opinion as to the speed of an automobile predicated on the distance the tires "skidded" or were dragged along the highway before impact. This case was cited with approval in Johnson v. Battles, 255 Ala. 624, 52 So.2d 702. The trial court admitted in evidence, over the objection of defendant, a copy of a license tag receipt issued to Mrs. George P. Shores for a 1961 two-door Comet, bearing license tag No. 5-1608. This copy was duly certified by the Probate Judge of Baldwin County as a full, true and correct copy of the 1962 License Tag Receipt No. 5-1608 as it appears of record in his office. This license receipt copy, when properly shown that the licensee and Evelyn Shores, the decedent, were one and the same person, was admissible in evidence, and created a rebuttable presumption that Mrs. Shores was the owner of the Comet car involved in the wreck. Cox v. Roberts, 248 Ala. 372, 27 So.2d 617(3); Shipp et al. v. Davis, 25 Ala.App. 104, 141 So. 366; Ford v. Hankins, 209 Ala. 202, 96 So. 349(1). Appellant contends that the rebuttable presumption of ownership created by the issuance of a license tag receipt and tag to the decedent, Mrs. Shores, gives birth to a rebuttable presumption that she was driving the automobile at the time of the accident. Appellee contends that no such presumption obtains because it would be contrary to the rule that an inference cannot be predicated on another inference. The Alabama rule is that where a driver of an automobile is involved in an accident, a rebuttable presumption of agency exists between him and the owner of the car on proof of an administrative presumption of ownership or other competent proof of such ownership. It is further proof that such agent was acting within the line and scope of his authority, but subject to rebuttal. Barber Pure Milk Co. v. Holmes, 264 Ala. 45, 84 So.2d 345. This court being committed to the rule that a rebuttable presumption of agency exists between the driver and the owner of the vehicle involved in an accident on proof that defendant's name appears on the vehicle, or that the vehicle is licensed or registered for a license plate in his name, we think it logically follows, and we so hold, that proof of such ownership also raises a presumption, in automobile injury cases, that the machine was at the time of the accident, the owner being then and there present, under the owner's control or was being driven by him, and the burden of rebutting this presumption passes to such owner. Robinson v. Workman, 9 Ill.2d 420, 137 N.E.2d 804(9); Kavale v. Morton Salt Co., 329 Ill. 445, 160 N.E. 752; Watt v. Yellow Cab Co. et al., 347 Ill.App. 307, 106 N.E.2d 760; Rose v. Ruan Transport Corp., (7 Cir.), 214 F.2d 583(1, 2); 61 C.J.S. Motor Vehicles § 511(5)b (b), p. 218, and cases cited; Renner v. Pennsylvania R. Co., Ohio App., 103 N.E.2d 832(7); Rodney v. Staman, 371 Pa. 1, 89 A.2d 313(6, 7), 32 A.L.R. 2d 976. We conclude the evidence as to the physical condition of the road at the time, the distance the car skidded, and its physical condition after it came to rest, and the presence of warning signs on the side of the road, together with the estimated speed of the car at the time, would be admissible for the jury to determine whether or not the driver of the car was guilty of wantonness in its operation as charged in the complaint. Shirley v. Shirley, 261 Ala. 100, 73 So.2d 77(14, 15). We pretermit any discussion of the averment that defendant's intestate willfully and wantonly injured plaintiff. When such averment is in the conjunctive, as here, proof of willfulness or design or purpose is necessary. Dickey v. Russell, 268 Ala. 267, 105 So.2d 649(3). We cannot say what the evidence of plaintiff would have been had she been allowed to testify as to the operation of the *92 car. Hence, we cannot sustain a directed verdict for failure of such proof under the circumstances here presented. The trial court committed reversible error as herein observed, and also in directing the jury to return a verdict for the defendant. It is ordered that the judgment be reversed and the cause remanded for further proceedings. The foregoing opinion was prepared by B. W. SIMMONS, Supernumerary Circuit Judge, and was adopted by this court as its opinion. Reversed and remanded. LIVINGSTON, C. J., and GOODWYN, COLEMAN and HARWOOD, JJ., concur.

U NITED S TATES AIR F ORCE C OURT OF C RIMINAL APPEALS ________________________ Misc. Dkt. No. 2020-02 ________________________ UNITED STATES Appellant v. Matthew C. HARRINGTON Senior Airman (E-4), U.S. Air Force, Appellee ________________________ Appeal by the United States Pursuant to Article 62, UCMJ Decided 26 August 2020 1 ________________________ Military Judge: Christopher M. Schumann (arraignment); Bryan D. Watson. GCM convened at: Nellis Air Force Base, Nevada. For Appellant: Major Dayle P. Percle, USAF (argued); Colonel Shaun S. Speranza, USAF; Mary Ellen Payne, Esquire. For Appellee: Captain Alexander A. Navarro, USAF (argued); Mark C. Bruegger, Esquire. Before J. JOHNSON, POSCH, and KEY, Appellate Military Judges. Chief Judge J. JOHNSON delivered the opinion of the court, in which Senior Judge POSCH and Judge KEY joined. ________________________ This is an unpublished opinion and, as such, does not serve as precedent under AFCCA Rule of Practice and Procedure 30.4. ________________________ 1 We heard oral argument in this case in a closed session on 24 July 2020.  United States v. Harrington, Misc. Dkt. No. 2020-02 J. JOHNSON, Chief Judge: One Charge and Specification alleging Appellee committed sexual assault in violation of Article 120, Uniform Code of Military Justice (UCMJ), 10 U.S.C. § 920, were referred for trial by general court-martial on 13 May 2019. 2 Appel- lee was arraigned on 7 June 2019; the military judge presided over a motions hearing on 15 and 16 October 2019; and the court-martial resumed on 9 March 2020. On 10 March 2020, the military judge dismissed the Charge and Speci- fication, with prejudice, finding a violation of Appellee’s Sixth Amendment 3 right to speedy trial. The Government brings this interlocutory appeal under Article 62, UCMJ, 10 U.S.C. § 862, challenging the military judge’s ruling on the grounds that he erred in finding a violation of Appellee’s Sixth Amendment right to a speedy trial. We agree. I. BACKGROUND The court-martial that is the subject of this appeal represents the Govern- ment’s second attempt to prosecute Appellee for this particular Charge and Specification. In November 2016, a general court-martial convicted Appellee for this offense, contrary to his pleas, but on 25 September 2018 this court set aside the findings and sentence and authorized a rehearing. United States v. Harrington, No. ACM 39223, 2018 CCA LEXIS 456 (A.F. Ct. Crim. App. 25 Sep. 2018) (unpub. op.) (Harrington I). A fuller account of the events that gave rise to the Charge and Specification and of the first court-martial are set forth in that opinion. For purposes of the present appeal, a more abbreviated account is sufficient. A. Factual Background 4 In January 2016, Appellee and Staff Sergeant (SSgt) FC 5 were co-workers stationed at Creech Air Force Base (AFB), Nevada. On 30 January 2016, SSgt 2Unless otherwise noted, references to the punitive articles of the Uniform Code of Military Justice (UCMJ) are to the Manual for Courts-Martial, United States (2012 ed.); all other references to the UCMJ, the Rules for Courts-Martial, and the Military Rules of Evidence are to the Manual for Courts-Martial, United States (2016 ed.). 3 U.S. CONST. amend. VI. 4The background is drawn from the record of the first court-martial and this court’s opinion in Harrington I. 5SSgt FC was a senior airman (SrA) at the time of the alleged offense, but a SSgt at the time of the rehearing. 2  United States v. Harrington, Misc. Dkt. No. 2020-02 FC attended a party at the off-base residence of another co-worker, Technical Sergeant (TSgt) KW. 6 Appellee and several other individuals, mostly Airmen, also attended the party. SSgt FC and Appellee had no prior romantic or sexual relationship. Appellee, SSgt FC, and several others played adult party games. One game was an “adult” or “drinking” version of Jenga, a game that involves removing individual blocks from a tower of blocks. In this version, each block had an instruction printed on it for the participant to perform, often of a titillating nature—for example, removing an article of clothing or electing to take a “body shot” of alcohol from a location on another player’s body. In the course of the game, SSgt FC lowered or removed her pants, and Appellee elected to take “body shots” from SSgt FC’s mouth, from her cleavage, and from between her buttocks. SSgt FC permitted Appellee to do so as part of the game. TSgt KW and another attendee, LB, 7 were among those present during the Jenga game. Most of the partygoers consumed alcohol before and during the games, and SSgt FC became highly intoxicated. She had to leave the games at certain points because she felt sick. Eventually, TSgt KW and another individual put SSgt FC to bed in an upstairs bedroom to sleep as the party continued down- stairs. SSgt FC testified at the first trial that when she awoke sometime later, her pants were lowered to around her thighs, and Appellee was lying behind her with his penis inside her and his hand on her hip. As SSgt FC initially lay immobile, Appellee “thrusted a few times” and kissed her on the shoulder. When SSgt FC moved slightly, Appellee withdrew and moved away from her on the bed. When Appellee stopped moving, SSgt FC arose, pulled her pants up, and left the room. B. First Court-Martial and Harrington I Appellee was charged with a single specification of sexual assault by caus- ing bodily harm to SSgt FC in violation of Article 120, UCMJ. Before the first trial, the Defense filed a motion to admit certain evidence regarding SSgt FC under Mil. R. Evid. 412, including inter alia SSgt FC’s behavior during the Jenga game. The Defense contended this evidence was admissible as both evi- dence of prior sexual behavior with the Appellee under Mil. R. Evid. 412(b)(1)(B) and was constitutionally required evidence under Mil. R. Evid. 6TSgt KW was a SSgt at the time of the alleged offense, but a TSgt at the time of the rehearing. 7 LB was a SrA at the time of the party, but separated from the Air Force between the time of the original trial and the rehearing. 3  United States v. Harrington, Misc. Dkt. No. 2020-02 412(b)(1)(C), in support of defenses based on both actual consent and reasona- ble mistake of fact as to consent. The Government and SSgt FC—through her Special Victims’ Counsel (SVC)—opposed the motion. The military judge who presided over the first court-martial conducted a closed Article 39a, UCMJ, 10 U.S.C. § 839(a), session where he received evi- dence and heard argument. Both LB and TSgt KW testified at this hearing. LB testified, inter alia, that SSgt FC lowered her pants during the Jenga game, and that Appellee took shots from SSgt FC’s buttocks and between her breasts. TSgt KW testified, inter alia, that she remembered Appellee took a shot from SSgt FC’s mouth during the Jenga game. The military judge ruled the evidence of SSgt FC’s behavior with Appellee during the Jenga game was not admissible under Mil. R. Evid. 412(b)(1)(B) or (C). He allowed evidence that SSgt FC, Ap- pellee, and other attendees played party games that involved drinking alcohol, but he did not permit references to anyone’s specific behavior during the games. The Defense repeatedly requested reconsideration of this ruling through- out the trial, but the military judge denied each request. On 20 November 2016, the court members convicted Appellee as charged. The sentence ap- proved by the convening authority included a dishonorable discharge, forfei- ture of $1,066.00 pay per month until completion of appellate review, reduction to E-1, and a reprimand. On 25 September 2018, a divided panel of this court found the military judge erred by excluding the Mil. R. Evid. 412 evidence of the interactions be- tween Appellee and SSgt FC during the Jenga game. Harrington I, unpub. op. at *12–22. The court set aside the findings and sentence, returned the record of trial, and authorized a rehearing. Id. at *22. C. Toward a Rehearing On 25 October 2018, the Government moved this court for reconsideration. On 26 October 2018, the Military Justice Division at Joint Base Andrews, Mar- yland, returned the record of trial to the legal office at Nellis AFB—prema- turely, in light of the pending motion at the Court of Criminal Appeals. After the record arrived at Nellis AFB, the legal office sent it back to the Military Justice Division pending resolution of the motion for reconsideration and a possible appeal to the United States Court of Appeals for the Armed Forces (CAAF). On 19 November 2018, this court denied the motion for reconsideration. The Judge Advocate General elected not to refer Harrington I to CAAF, and the record was ultimately returned to the Nellis AFB legal office on 4 February 2019. At some point between 19 and 22 February 2019, the Government deter- mined SSgt FC was willing to participate in a rehearing and did not support 4  United States v. Harrington, Misc. Dkt. No. 2020-02 an alternative disposition of the case. Over the next several weeks, various individuals and offices at Nellis AFB and elsewhere coordinated in order to return Appellee to duty for a rehearing. As of 23 April 2019, Appellee had re- ported to Creech AFB and was represented by an Area Defense Counsel (ADC). On 13 May 2019, the convening authority referred the Charge and Specifica- tion to a general court-martial for a rehearing. The trial was originally set for 19 August 2019. On 30 May 2019, Appellee’s ADC submitted on behalf of Appellee a request for individual military defense counsel (IMDC) in order to be represented by Appellee’s trial defense counsel from the first court-martial, who had changed positions and was serving as a senior trial counsel. Appellee was arraigned on 7 June 2019, while the IMDC request was pend- ing. Appellee deferred forum selection, motions, and pleas at that time. On 12 June 2019, the Defense made a written demand for speedy trial in conjunction with a discovery request. The IMDC request was denied on 24 July 2019. On 31 July 2019, a circuit defense counsel (CDC) was detailed to join the ADC in representing Appellee, and on 5 August 2019 the Defense moved for a continuance in order to give the CDC time to prepare. The military judge granted the continuance and set 15 October 2019 as the new trial date. On 27 September 2019, as the new trial date approached, the Government moved to have LB declared unavailable for purposes of testifying at the rehear- ing. In support of its motion, the Government attached an email that a parale- gal sent LB in June 2019 requesting that LB call the paralegal regarding the rehearing. The Defense opposed the motion, and the military judge denied it, finding the Government had provided insufficient evidence of LB’s unavaila- bility. On 11 October 2019, the Government informed the Defense it could not find LB and would be unable to arrange for him to travel to the rehearing. The Defense then moved for a continuance and to compel the Government to pro- duce LB. On 13 October 2019, the military judge granted the defense request for a continuance and set a new trial date of 9 March 2020. The military judge held a motions hearing on 15 October 2019, the previously scheduled trial date. D. Speedy Trial Motion and Rulings The motions hearing continued into 16 October 2019, when the Defense moved to dismiss the Charge and Specification for violation of Appellee’s right to speedy trial under both R.C.M. 707 and the Sixth Amendment. The military 5  United States v. Harrington, Misc. Dkt. No. 2020-02 judge denied the motion to dismiss in a written ruling dated 28 October 2019. 8 With respect to the Sixth Amendment, the military judge applied the four fac- tors from Barker v. Wingo, 407 U.S. 514, 530–33 (1972). First, he found the length of the delay was facially unreasonable under the circumstances and warranted a full Barker analysis; in particular, he found very little progress was made in bringing Appellee to trial between 4 February 2019 and the ar- raignment on 7 June 2019. The military judge noted that because this was a rehearing, the investigation was already complete, no Article 32, UCMJ, 10 U.S.C. § 832, hearing was required, and the Charge and Specification were the same as previously litigated. Second, he found the reasons for the delay were “nearly all . . . primarily attributable to the Government’s processing of this case, or . . . derived immediately therefrom.” He particularly noted the record disclosed little explanation for the delay between 4 February 2019 and referral on 13 May 2019, and again noted that because this was a rehearing, the inves- tigation was already complete and no Article 32, UCMJ, hearing was required. Third, the military judge found the June 2019 demand for speedy trial tipped that factor in the Defense’s favor, but “only very slightly.” Finally, and at this point decisively, the military judge found no demonstrated prejudice to Appel- lee at that time. In particular, he found that because the Defense’s requested witnesses had not been produced or provided testimony, he could not assess whether the Defense’s case at trial had been impaired. Accordingly, he denied the motion to dismiss at that point, but enjoined the parties to be “vigilant for evidence of prejudice to the Accused as this case progresses toward trial.” The court-martial reconvened on 9 March 2020. The Defense orally moved for reconsideration of its motion to dismiss for violation of Appellee’s right to a speedy trial, specifically under the Sixth Amendment. The military judge con- ducted a hearing at which LB and TSgt KW testified. LB testified, inter alia, that even after reviewing his prior motion testimony from the original trial, he could no longer remember some details of the night of the party, and of the Jenga game in particular. Although he now remembered Appellee taking a body shot from SSgt FC’s belly (and vice versa), he could not remember Appel- lee taking shots from SSgt FC’s breasts or buttocks. LB also acknowledged he had “dodged” the Government’s efforts to contact him prior to October 2019. TSgt KW testified that in June 2017 she began to experience symptoms of ep- ilepsy, and in June 2019 she was formally diagnosed with that disorder. She testified this condition had dramatically impaired her short-term and long- 8With respect to the requirement in Rule for Court-Martial (R.C.M.) 707 that the Gov- ernment bring Appellee to trial within 120 days, the military judge found the 120 days began running on 4 February 2019; with excludable time excluded, he found the Gov- ernment arraigned Appellee within the 120-day requirement. 6  United States v. Harrington, Misc. Dkt. No. 2020-02 term memory. As of March 2020, TSgt KW barely recalled the night of the party and remembered nothing of the Jenga game. On 10 March 2020, the military judge granted the defense motion to dis- miss with prejudice. He again assessed the Barker factors, reaching similar findings and conclusions with respect to the length of the delay, reasons for the delay, and demand for speedy trial as he had in his 28 October 2019 ruling. He added that the reason the trial had been continued until 9 March 2020 was that until that point the Government’s efforts to secure the presence of LB had been “wholly inadequate.” As to the fourth Barker factor, prejudice, the mili- tary judge now found Appellee’s ability to defend himself at trial had been im- paired due to the lost memories of LB and TSgt KW. He included in his findings of fact the conclusion “that if the United States had proceeded expeditiously with bringing this case to a rehearing, it is likely that at least some of the exculpatory evidence which [the Court of Criminal Appeals] directed to be ad- mitted at this hearing[ 9] (and which the Defense seeks to introduce) would have been available.” The military judge rejected the Government’s arguments that admitting LB’s and TSgt KW’s prior testimony from the first trial under either Mil. R. Evid. 803(5) or Mil. R. Evid. 804(b)(1) would be an adequate substitute. With regard to Mil. R. Evid. 804(b)(1), the military judge found the prior trial de- fense team did not have a sufficiently similar motive for presenting testimony at a Mil. R. Evid. 412 motion hearing as the current defense team would have in using the testimony for findings, given the respective burdens and purposes involved. With regard to Mil. R. Evid. 803(5), the military judge acknowledged that although the Defense would be permitted to avail itself of that rule, he would not require the Defense to “rely nearly-exclusively upon this rule as the sole source of the very information which the [Court of Criminal Appeals] has directed should now be admissible, while simultaneously leaving the Govern- ment free to attempt to prove its own case with live witnesses.” E. Reconsideration The Government promptly moved for reconsideration, which the military judge agreed to entertain. The Government offered additional evidence in sup- port of its motion. First, it attached numerous emails from the period between 9 This characterization of Harrington I is inaccurate. The court’s opinion did not “di- rect” that any evidence be admitted at a rehearing; it directed only that the findings and sentence of the first court-martial were set aside due to an error, and that the record be returned, and a rehearing authorized. Harrington I, unpub. op. at *22. 7  United States v. Harrington, Misc. Dkt. No. 2020-02 4 February 2019 and 28 May 2019 indicating the administrative steps the Gov- ernment was taking to bring Appellee to a rehearing. Second, it called SSgt SC, another individual who attended the January 2016 party, to provide mo- tion testimony. 10 SSgt SC testified that he recalled Appellee taking body shots from SSgt FC’s mouth, belly, and rear. He could not recall whether someone took a shot from SSgt FC’s chest. After SSgt SC testified, the military judge noted for the record his observations of SSgt SC’s demeanor when he testified. The military judge observed that SSgt SC appeared “thoughtful” and “careful with his words,” but “hesitant” and “halting” when he was “trying to recollect.” During argument on the reconsideration motion, the Government offered to stipulate to the relevant facts; however, when the military judge asked the De- fense whether it would agree to such a stipulation, the Defense declined to do so. After receiving argument, the military judge denied the Government’s re- consideration motion orally and in writing. The military judge adopted the findings of fact from his 10 March 2020 ruling dismissing the Charge and Spec- ification with prejudice, but accepted the Government’s recitation of the ad- ministrative steps the Government took to retry Appellee. The military judge found SSgt SC’s testimony to be an insufficient substitute for the lost memories of LB and TSgt KW. He found SSgt SC’s memory was “flawed, . . . due, in some part, to the passage of time,” and that SSgt SC’s “reliability as a witness [was] low.” In addition, SSgt SC could not remember Appellee taking a shot from SSgt FC’s breasts, as LB had previously testified to. The military judge further commented that under the circumstances he would “not force” Appellee to agree to a stipulation of fact. With regard to the Government’s evidence of ad- ministrative steps, the military judge stated: [T]he United States has provided insufficient information that would, in any way, excuse the amount of time that the United States took in order to bring [Appellee] properly before this re- hearing. The obvious delay in getting the case referred to trial, about 100 days, from receipt of the requisite materials until the actual referral, plus the amount of time that passed as a result of the continuance necessitated by the inadequacy of the Gov- ernment’s action to locate [LB], totals approximately 246 days. .... Regarding . . . the period from late January through May of 2019, the Court notes that the Government’s filing contains numerous 10 SSgt SC did not testify at Appellee’s first court-martial. 8  United States v. Harrington, Misc. Dkt. No. 2020-02 references to a list of administrative tasks which had to be ac- complished by military personnel . . . . However, . . . [a]ccording to that list of activities, apparently lit- tle or no effort was made during this timeframe in order to actu- ally interview, prepare, or even locate actual live witnesses for this rehearing. [ ] The Court is well aware of the various administrative tasks required in order to bring an Accused onto active duty for a re- hearing. . . . However, that is not the point of this Motion to Dis- miss. Had the Government begun preparing this case for actual litigation, the Government’s representatives would have had the opportunity to detect the memories which were degrading, along with [TSgt KW’s] worsening medical condition. . . . Because the Government was, apparently, not actually preparing for court- room litigation during this timeframe, these issues went unde- tected for months. . . . The military judge reiterated that preparing Appellee’s rehearing should have been simplified by the fact that the Charge, Specification, and witnesses were the same as for the prior trial, and the Government provided “no evi- dence” that any of the witnesses were actually difficult to locate—to include LB after the military judge’s “intervention in October 2019.” The military judge continued: Upon reconsidering this matter, this Court must continue to ar- rive at the conclusion that the United States, even if it has not been derelict or negligent, has nonetheless fallen short in its ob- ligations in bringing this case to a rehearing, and the Defense has been directly and substantially prejudiced as a result. All of this has had the ultimate result of thwarting the express intent of [the Court of Criminal Appeals] when it authorized a rehear- ing in this case. .... [ ] If the United States had proceeded expeditiously and effec- tively with bringing this case to a rehearing, it is likely that at least some of the exculpatory evidence which [the Court of Crim- inal Appeals] specifically directed to be admitted at this rehear- ing, and which the Defense seeks to introduce, would have been available for [Appellee’s] use. On 13 March 2020, the Government provided timely notice of its intent to appeal. The record was delivered to the court on 31 March 2020. 9  United States v. Harrington, Misc. Dkt. No. 2020-02 II. DISCUSSION A. Law 1. Jurisdiction and Standard of Review This court has jurisdiction to hear this appeal under Article 62(a)(1)(A), UCMJ, 10 U.S.C. § 862(a)(1)(A), which authorizes the Government to appeal “[a]n order or ruling of the military judge which terminates the proceedings with respect to a charge or specification.” When the Government appeals a ruling under Article 62, UCMJ, this court reviews the military judge’s decision “directly and reviews the evidence in the light most favorable to the party which prevailed at trial.” United States v. Lewis, 78 M.J. 447, 453 (C.A.A.F. 2019) (quoting United States v. Pugh, 77 M.J. 1, 3 (C.A.A.F. 2017)). Because this issue is before us pursuant to a Government appeal, we may act only with respect to matters of law. Article 62(b), UCMJ, 10 U.S.C. § 862(b). We may not make findings of fact, as we are limited to determining whether the military judge’s factual findings are clearly erroneous or unsupported by the record. United States v. Gore, 60 M.J. 178, 185 (C.A.A.F. 2004). We review Sixth Amendment speedy trial issues de novo. United States v. Danylo, 73 M.J. 183, 189 (C.A.A.F. 2014) (citing United States v. Cooper, 58 M.J. 54, 58 (C.A.A.F. 2003)). “In analyzing an appellant’s speedy trial right, we ‘giv[e] substantial deference to the military judge’s findings of fact unless they are clearly erroneous.’” Id. (alteration in original) (quoting United States v. Thompson, 68 M.J. 308, 312 (C.A.A.F. 2010)). 2. Speedy Trial An accused’s right to speedy trial is protected by statute, by regulation, and by the Constitution. United States v. Tippit, 65 M.J. 69, 72 (C.A.A.F. 2007); see also United States v. Reed, 41 M.J. 449, 451 (C.A.A.F. 1995)). For military ser- vicemembers, the Sixth Amendment right to speedy trial is triggered by the preferral of charges or the imposition of pretrial restraint. Reed, 41 M.J. at 451. “In determining whether an appellant has been denied his right to a speedy trial under the Sixth Amendment, this Court considers the following factors: ‘(1) the length of the delay; (2) the reasons for the delay; (3) whether the appel- lant made a demand for a speedy trial; and (4) prejudice to the appellant.’” Danylo, 73 M.J. at 186 (quoting United States v. Mizgala, 61 M.J. 122, 129 (C.A.A.F. 2005) (citing Barker, 407 U.S. at 530)). However, “none of the four factors . . . [i]s either a necessary or sufficient condition to the finding of a dep- rivation of the right of speedy trial. Rather, they are related factors and must be considered together with such other circumstances as may be relevant.” Barker, 407 U.S. at 533. With regard to prejudice, the Court in Barker ex- plained: 10  United States v. Harrington, Misc. Dkt. No. 2020-02 Prejudice, of course, should be assessed in the light of the inter- ests of defendants which the speedy trial right was designed to protect. This Court has identified three such interests: (i) to pre- vent oppressive pretrial incarceration; (ii) to minimize anxiety and concern of the accused; and (iii) to limit the possibility that the defense will be impaired. Of these, the most serious is the last, because the inability of a defendant adequately to prepare his case skews the fairness of the entire system. If witnesses die or disappear during a delay, the prejudice is obvious. There is also prejudice if defense witnesses are unable to recall accu- rately events of the distant past. Id. at 532. An accused who asserts a violation of the Sixth Amendment right to speedy trial bears the burden of persuasion to demonstrate the existence of prejudice. See R.C.M. 905(c)(2)(A); Danylo, 73 M.J. at 189. In contrast to the Sixth Amendment, the Fifth Amendment 11 speedy trial guarantee applies even before an accused is formally charged or subjected to pretrial restraint. See Reed, 41 M.J. at 451 (analyzing alleged violation of speedy trial under Fifth Amendment because “Sixth Amendment speedy-trial protection does not apply to pre-accusation delays where there has been no restraint”) (citations omitted). However, “[a]bsent restraint, the ‘primary guar- antee’ . . . against pre-accusation delay is the statute of limitations.” Id. (quot- ing United States v. Marion, 404 U.S. 307, 322 (1971)). In order to demonstrate a speedy trial violation under the Fifth Amendment, “the defendant has the burden of proof to show an egregious or intentional tactical delay and actual prejudice.” Id. at 452. For example, “[t]here may be a due process violation when [delay is] ‘incurred in wreckless [sic] disregard of circumstances, known to the prosecution, suggesting that there existed an appreciable risk that delay would impair the ability to mount an effective defense.’” Id. (quoting United States v. Lovasco, 431 U.S. 783, 795 n.17 (1977)). 3. Exceptions to the Hearsay Rule Hearsay, defined as an out-of-court statement offered for the truth of the matter asserted in the statement, is generally inadmissible unless an excep- tion applies. Mil. R. Evid. 801(c); Mil. R. Evid. 802. One such exception is Mil. R. Evid. 803(5), which provides that a record “on a matter the witness once knew about but now cannot recall well enough to testify fully and accurately,” “was made or adopted by the witness when the matter was fresh in the wit- ness’s memory,” and “accurately reflects the witness’s knowledge,” is not ex- cluded by the rule against hearsay and may be read into evidence. 11 U.S. CONST. amend. V. 11  United States v. Harrington, Misc. Dkt. No. 2020-02 Mil. R. Evid. 804(b)(1) provides another exception to the rule against hear- say for, inter alia, former testimony that: (A) was given by a witness at a trial, hearing, or lawful deposi- tion, . . . and (B) is now offered against a party who had an op- portunity and similar motive to develop it by direct, cross-, or redirect examination. . . . [A] record of testimony given before a court-martial, court of inquiry, military commission, other mili- tary tribunal, or preliminary hearing under Article 32 is admis- sible . . . if the record of the testimony is a verbatim record. B. Analysis Although Appellee has not been confined, the Charge and Specification have never been dismissed and have remained pending since Harrington I was decided. Accordingly, Appellee’s Sixth Amendment right to speedy trial has remained in effect throughout the time period relevant to the instant appeal. 12 See Reed, 41 M.J. at 451. Therefore, we turn to the military judge’s assessment of the Barker factors. 1. Length of Delay The military judge focused on two particular periods to find facially unrea- sonable delay: the “about 100 days” that elapsed between 4 February 2019, when the record was returned to Nellis AFB, and 13 May 2019, when the con- vening authority referred the Charge and Specification to trial; 13 and the 146 days that elapsed between the 15 October 2019 scheduled trial date and the rescheduled date of 9 March 2020 resulting from the granted defense motion for a continuance. 14 With respect to the delay between 4 February 2019 and 13 May 2019, we agree with the military judge in certain respects. First, based on the record before us, it appears the Government approached the steps required to retry Appellee in a sequential manner, focusing first on contacting SSgt FC, then on the process to return Appellee to duty for trial, then on routing the referral to 12Because Appellee fails in his burden to demonstrate prejudice to prevail under a Sixth Amendment analysis, we find it unnecessary to analyze the higher threshold to demonstrate a Fifth Amendment violation. See Reed, 41 M.J. at 452. 13 The exact period is 98 days. 14To a lesser extent, the military judge also suggested the Government contributed to the first defense request for a continuance from 19 August 2019 until 15 October 2019 in order to give the newly appointed senior defense counsel time to prepare, because Appellee’s 30 May 2019 IMDC request was not denied until 24 July 2019. However, the military judge does not appear to have factored this period in the “approximately 246 days” of delay he specified in his ruling on the motion for reconsideration. 12  United States v. Harrington, Misc. Dkt. No. 2020-02 the convening authority. According to the Government’s own chronology, peri- ods of up to a week or more passed without discernible progress toward the rehearing; there is little doubt the case could have been processed faster than it was. In addition, we agree with the military judge that, other than contacting SSgt FC through SVC channels to determine if she was willing to participate in a rehearing, it appears that prior to June 2019 the Government did little to prepare for actual litigation—for example, locating or contacting other wit- nesses. Furthermore, we agree with the military judge that in some respects the rehearing on the same Charge and Specification should have been simpler to prepare than the original trial, because it had been done before and no Ar- ticle 32, UCMJ, hearing was required. Moreover, we disagree with the Government’s reliance on R.C.M. 707’s 120- day deadline for bringing an accused to arraignment as establishing the stand- ard for a presumptively unreasonable delay in a Sixth Amendment context. As the Court explained in Barker, the Sixth Amendment right to speedy trial is not amenable to bright-line rules, and “is necessarily dependent upon the pe- culiar circumstances of the case.” 407 U.S. at 530–31. The Government would have us apply the R.C.M. 707 standard out of its intended context—as an ad- ditional rule-based requirement for the Government to meet—and use it to limit an accused’s ability to invoke the constitutional protections of the Sixth Amendment. We are not persuaded R.C.M. 707 is intended to shield the Gov- ernment from scrutiny for what is an otherwise facially unreasonable delay. However, we are also mindful that “[w]hile justice should be administered with dispatch, the essential ingredient is orderly expedition and not mere speed.” Smith v. United States, 360 U.S. 1, 10 (1959). There was a certain logic to how the Government proceeded through the steps of bringing Appellee to a rehearing. Ascertaining SSgt FC’s willingness to participate was a legitimate starting point, and returning an accused from civilian life to active duty for trial may be a relatively unusual situation for a legal office to navigate. Alt- hough the Government was certainly not swift, even the military judge implied he did not find it had been “derelict or negligent” in its responsibilities. Turning to the continuance from 15 October 2019 to 9 March 2020, the 146- day delay is certainly significant. However, whether it is “unreasonable” re- quires some consideration of what the delay was for. On the surface, the delay was requested by the Defense in order to secure the presence of LB, a witness the Defense desired. In addition, the specific date of 9 March 2020 appears to have been driven at least in part by trial defense counsel’s availability. Nevertheless, the military judge placed responsibility squarely on the Gov- ernment’s “wholly inadequate” efforts to secure the presence of LB. It is true the Government provided scant evidence of its pre-October 2019 efforts in that 13  United States v. Harrington, Misc. Dkt. No. 2020-02 regard. Moreover, in its response to the Defense’s motion to dismiss, the Gov- ernment “freely acknowledge[d] that the second Defense continuance was largely the result of the Government’s inability to secure a necessary witness.” Yet there is also little evidence that the Defense specifically requested LB’s presence prior to its motion to compel on 11 October 2019. The Defense had evidently relied on the fact that LB was on the Government’s list of anticipated witnesses; however, the Government was under no obligation to call LB at trial or to keep him on its witness list. Although the military judge repeatedly as- serted in his rulings that this court’s opinion in Harrington I had “directed” that LB’s testimony be admitted at the rehearing, this court’s opinion did not require the admission of any evidence or the production of any witnesses. Ra- ther, this court directed only that the findings and sentence of the first court- martial be set aside due to an error, that the record be returned, and a rehear- ing was authorized. Harrington I, unpub. op. at *22. Whether there would be a rehearing, and what evidence would be admitted at it, of course depended on subsequent decisions by the relevant authorities and upon the parties them- selves. In summary, we are less certain than the military judge of the existence of a facially unreasonable delay. Nevertheless, for purposes of our analysis we will assume the military judge did not err in this respect, that there was suffi- cient facially unreasonable delay to warrant an analysis of all the Barker fac- tors, and that this factor weighs in Appellee’s favor. 2. Reasons for Delay Any facially unreasonable delay between 4 February 2019 and 13 May 2019 must be attributed to the Government, as the processing of the case was en- tirely in the Government’s hands. There is no indication that Appellee resisted or obstructed the process of being returned to duty for trial. Similarly, as dis- cussed above, although we find the Government’s actions less patently offen- sive to the Sixth Amendment than the military judge evidently did, we assume for purposes of our analysis that the Government also bore primary responsi- bility for the delay from 15 October 2019 until 9 March 2020. Accordingly, we weigh this factor moderately in Appellee’s favor. 3. Demand for Speedy Trial The third factor is “[w]hether the appellant made a demand for a speedy trial.” Mizgala, 61 M.J. at 129 (citing Barker, 407 U.S. at 530) (additional cita- tion omitted). As the Government conceded in its response to the defense mo- tion to dismiss, Appellee included a demand for speedy trial with a discovery request on 12 June 2019. Accordingly, we agree with the military judge’s as- sessment that Appellee “met the minimum threshold,” and this factor weighs in his favor, albeit “only very slightly.” 14  United States v. Harrington, Misc. Dkt. No. 2020-02 4. Prejudice It is with respect to the final Barker factor that we find the military judge erred. As an initial matter, we note that the burden to demonstrate the exist- ence of prejudice rested with the Defense at trial. See R.C.M. 905(c)(2)(A); Danylo, 73 M.J. at 189. In addition, Appellee was not confined at any point, and we agree with the military judge that Appellee has not demonstrated spe- cific anxiety or concern distinguishable from that experienced by other ac- cuseds awaiting trial. See Danylo, 73 M.J. at 188–89. However, the military judge’s conclusion that Appellee’s ability to defend himself at the rehearing was impaired as a result of the delay was erroneous in two significant respects. a. Finding of “Fact” that Delay “Likely” Caused Loss of Evidence The first error is the military judge’s purported finding of fact that “if the United States had proceeded expeditiously with bringing this case to a rehear- ing, it is likely that at least some of the exculpatory evidence which the [Court of Criminal Appeals] directed to be admitted at this hearing . . . would have been available for [Appellee’s] use at this rehearing.” We question whether the finding that something is “likely”—that is, a possibility—is a finding of “fact”— that is, something that actually exists—by the military judge for purposes of our review. See United States v. Cossio, 64 M.J. 254, 257 (C.A.A.F. 2007) (“Mil- itary judges must be careful to restrict findings of fact to things, events, deeds or circumstances that ‘actually exist’ as distinguished from ‘legal effect, conse- quences, or interpretation.’”). The evidence before the military judge simply did not establish at what point between the first trial in November 2016 and the motion hearing on 9 March 2020 either LB or TSgt KW lost their memories of the events during the Jenga game to which they previously testified. To be clear, the point is not that the military judge could not reach any conclusion regarding the existence of prejudice based on the limited evidence before him; our point is simply that we doubt that a finding that something was possible, even “likely,” is a determination of “fact” which we are bound to review under a clear error standard. Moreover, even assuming that a finding that something is “likely” is a find- ing of fact, we conclude the military judge’s finding that “it is likely that at least some” of the lost evidence might have been preserved had the Govern- ment proceeded “expeditiously” is not supported by the record. With regard to TSgt KW, the record indicates that in November 2016 she remembered the January 2016 party and the Jenga game generally, and specifically remem- bered Appellee took a shot from SSgt FC’s mouth. In June 2017, TSgt KW be- gan experiencing symptoms of epilepsy. In June 2019, she was formally diag- nosed with the disorder, a side effect of which can be a dramatic impairment of long-term memory. On 9 March 2020, TSgt KW remembered “almost noth- 15  United States v. Harrington, Misc. Dkt. No. 2020-02 ing” about the party, and could not remember the Jenga game at all. For pur- poses of analysis, even if we subtract the full 246 days the military judge refers to in his ruling on reconsideration—which effectively assumes the convening authority referred the case on the same day the record was returned to Nellis AFB—the rehearing would have convened around 7 July 2019, after TSgt KW’s epilepsy had set in and, in any event, more than two and a half years after her previous testimony. We conclude any finding of fact that at some point between 7 July 2019 and 9 March 2020, and not earlier, it is “likely” TSgt KW lost the specific memory of Appellee taking a shot from SSgt FC’s mouth is speculative and unsupported by the record. Although the passage of time has had a less dramatic impact on LB’s memory in general, our analysis is similar. In November 2016, LB testified that during the Jenga game SSgt FC lowered her pants, and that Appellee took shots from SSgt FC’s buttocks and between her breasts. On 9 March 2020, LB still had some memory of the Jenga game, and remembered Appellee took a shot from SSgt FC’s belly and vice versa, but he did not recall SSgt FC lowering her pants or the shots from her buttocks and breasts. The record provides no basis to conclude it is “likely” these memories were lost during the eight months between July 2019 and March 2020. Rather, it is equally if not more likely these memories were lost during the more than 31 months that elapsed between the first trial in November 2016 and July 2019—and again, this es- sentially assumes the case could have been referred as soon as it returned to Nellis AFB, which is not necessarily what “orderly expedition” required under the circumstances. See Smith, 360 U.S. at 10. The record does not support a finding of “fact” that memories were “likely” lost as a result of the Government’s facially unreasonable delay. Moreover, our review of the evidence indicates the Defense did not carry its burden to demon- strate that the memories were lost as a result of the facially unreasonable de- lay. See Danylo, 73 M.J. at 189 (citing Doggett v. United States, 505 U.S. 647, 654 (1992)). b. Prejudice from LB’s and TSgt KW’s Lost Memories Equally significant, we find the military judge erred in his conclusion that Appellee was actually prejudiced by the lost memories of LB and TSgt KW. At trial and on appeal, the Government contends that the record of the prior testimony of TSgt KW and LB regarding the now-forgotten shots from SSgt FC’s mouth, buttocks, and breasts, and the lowering of her pants, will be ad- missible under Mil. R. Evid. 803(5) and Mil. R. Evid. 804(b)(1). Therefore, the substance of the specific evidence that this court found in Harrington I had been erroneously excluded from Appellee’s first trial will be available to the 16  United States v. Harrington, Misc. Dkt. No. 2020-02 Defense at the rehearing. The military judge did not deny that the prior testi- mony would be admissible under Mil. R. Evid. 803(5). 15 However, he “refuse[d] to require the Defense to use . . . [Mil. R. Evid.] 803(5) in order to mount their defense of [Appellee].” He explained his reasoning as follows: While the witness’ [sic] former testimony may meet the defini- tion of recorded testimony in order to permit its admissibility, this Court will not require that the Defense rely nearly-exclu- sively upon this rule as the sole source of the very information which the [Court of Criminal Appeals] has directed should now be admissible, while simultaneously leaving the Government free to attempt to prove its own case with live witnesses. . . . [T]his Court specifically notes that this Accused attempted to introduce substantial amounts of [Mil. R. Evid.] 412 evidence at his 2016 trial in an effort to show his own innocence. The Gov- ernment opposed that effort, and was successful in having the potentially exculpatory evidence kept from the members. This Court will require the Government to live with its own success. [ ] This is because the Government’s success was error, as the Air Force Court of Criminal Appeals has clearly instructed us through its unpublished opinion that authorized the instant re- hearing. [ ] Now, the Government persists in attempting to further bene- fit from its own erroneous success, to the specific detriment of [Appellee] and despite [Appellee’s] best efforts to the contrary at his first trial. If the Government were to prevail on the motion now before this Court, the outcome would be that [Appellee] would be forever foreclosed from presenting the exact evidence which (a) he was capable of presenting at his first trial, (b) he was prevented by the Government from presenting, and (c) the 15The parties and military judge have devoted considerable attention to whether the prior testimony would also be admissible under Mil. R. Evid. 804(b)(1). In particular, the Government challenges the military judge’s conclusion that the original trial de- fense team had an insufficiently similar motive to develop TSgt KW’s and LB’s testi- mony during the Mil. R. Evid. 412 motion hearing, as compared to the current defense team’s intended use of the testimony on the merits at the rehearing. See Mil. R. Evid. 804(b)(1); United States v. Hutchins, No. 200800393, 2018 CCA LEXIS 31, at *51 (N.M. Ct. Crim. App. 29 Jan. 2018) (unpub. op.) (quoting United States v. DiNapoli, 8 F.3d 909, 914–15 (2d Cir. 1993)). However, the military judge apparently concluded the ev- idence would be admissible under Mil. R. Evid. 803(5), and we agree, which moots the question of admissibility under Mil. R. Evid. 804(b)(1). Accordingly, we need not re- solve this question. 17  United States v. Harrington, Misc. Dkt. No. 2020-02 Air Force Court of Criminal Appeals has found to be so im- portant that it set aside his resulting conviction. [A]llowing this case to proceed against [Appellee], in the absence of any wrongdoing on the part of the Defense, would compound the Government’s error even further. Moreover, it would specif- ically violate [Appellee’s] Sixth Amendment rights and would permanently skew the fairness of this entire proceeding. We find the military judge’s reasoning problematic in several respects. First, it appears the military judge implicitly considered live testimony would be superior to recorded prior testimony, but he did not explain why this is so, and we are not convinced this is necessarily the case. The record of the prior motion testimony, which is the very evidence that prompted this court to set aside the original conviction, remains available to the Defense. Neither Appel- lee nor the military judge has identified any piece of relevant evidence of which the substance has been lost to the Defense as a result of the delay. Second, as discussed above, this court’s opinion in Harrington I did not mandate that any particular evidence must be admitted at a rehearing, or that Appellee was necessarily entitled to live testimony. Harrington I merely deter- mined that Appellee had been prejudiced by the erroneous exclusion of evi- dence in the context of that particular trial. Third, the military judge appears to lay at least some degree of responsi- bility for the erroneous exclusion of evidence at the first trial on the Govern- ment. This is unwarranted. Regardless of whether the Government opposed the introduction of the evidence, SSgt FC opposed it through her SVC, and the military judge was obliged to conduct a hearing and make an independent de- termination of admissibility. See Mil. R. Evid. 412(c)(2). The prior error was made by the previous military judge, not by the Government. We see nothing inappropriate in the Government having litigated the Mil. R. Evid. 412(c)(2) motion in good faith, such that equity somehow now favors Appellee as a result. Nor do we perceive that the Government is “persist[ing]” in pursuing any im- proper benefit, where it fully agrees with the admissibility of the prior testi- mony, and has expressed its willingness to stipulate to the prior testimony as fact. 16 Fourth, in assessing the prejudice to Appellee’s defense, it is appropriate to consider that the prior testimony of TSgt KW and LB does not stand alone. The prior testimony is part of a larger body of evidence available to the Defense to 16Of course, this is not to suggest the Defense was under any obligation whatsoever to agree to such a stipulation. The point is simply that the Government’s offer is some evidence that it was not seeking to capitalize on the previous error. 18  United States v. Harrington, Misc. Dkt. No. 2020-02 portray what happened between SSgt FC and Appellee during the Jenga game. In addition to the prior testimony regarding shots from the mouth, buttocks, and breasts, and SSgt FC lowering her pants, as of 9 March 2020, LB was able to testify Appellee took a shot from SSgt FC’s belly, and SSgt FC from Appel- lee’s. In addition, as of 9 March 2020, SSgt SC could testify that he saw Appel- lee take a shot from SSgt FC’s mouth, buttocks, and “stomach.” It is true that the military judge found SSgt SC’s reliability as a witness to be “low,” based on his in-court observations; but SSgt SC’s testimony need not stand alone. In combination, the prior testimony of TSgt KW and LB, LB’s testimony at the rehearing, and SSgt SC’s testimony at the rehearing offer a fairly clear por- trayal of the nature of the interactions between SSgt FC and Appellee during the Jenga game, a portrayal that goes beyond the evidence this court found relevant and admissible in Harrington I. For the reasons stated above, we find the military judge erred in concluding that the Defense demonstrated prejudice. 5. Summary of Barker Factors In summary, for purposes of our analysis we assume the existence of a fa- cially unreasonable delay and we weigh the length of delay in Appellee’s favor; we weigh the reasons for delay moderately in Appellee’s favor; and we weigh the demand for speedy trial very slightly in Appellee’s favor. However, for the reasons stated above, we do not find prejudice resulting from the delay because (1) Appellee has failed to demonstrate TSgt KW and LB lost their memories during the period of facially unreasonable delay, and (2) Appellee has failed to demonstrate the lost memories of TSgt KW and LB have actually prejudiced his defense at trial, in light of the availability of their prior testimony and other testimony that remains available. Moreover, weighing the factors together, we consider the absence of prejudice to outweigh the remaining factors that, taken together, only moderately favor Appellee. Accordingly, we find the military judge erred in granting the defense motion to dismiss. III. CONCLUSION The appeal of the United States under Article 62, UCMJ, 10 U.S.C. § 862, is GRANTED. The military judge’s ruling to grant the defense motion to dis- miss for violation of Appellee’s right to speedy trial is REVERSED. 19  United States v. Harrington, Misc. Dkt. No. 2020-02 The record is returned to The Judge Advocate General for remand to the military judge for action consistent with this opinion. FOR THE COURT CAROL K. JOYCE Clerk of the Court 20 

405 F.3d 244 Ruben Ramirez CARDENAS, Petitioner-Appellant,v.Doug DRETKE, Director, Texas Department of Criminal Justice, Correctional Institutions Division, Respondent-Appellee. No. 03-41425. United States Court of Appeals, Fifth Circuit. March 29, 2005. COPYRIGHT MATERIAL OMITTED COPYRIGHT MATERIAL OMITTED Robin Norris, Hart & Norris, El Paso, TX, Charles August Banker, III, McAllen, TX, for Cardenas. Margaret L. Schmucker, Austin, TX, for Dretke. Appeal from the United States District Court for the Southern District of Texas. Before BARKSDALE, GARZA and DENNIS, Circuit Judges. EMILIO M. GARZA, Circuit Judge: 1 Petitioner Ruben Ramirez Cardenas ("Cardenas"), a Mexican national, was convicted of capital murder and sentenced to death. Cardenas filed a petition for a writ of habeas corpus in the United States District Court for the Southern District of Texas pursuant to 28 U.S.C. § 2254. The district court denied the petition as well as Cardenas' request for a certificate of appealability ("COA"). Cardenas now requests a COA from this court on four issues pursuant to 28 U.S.C. § 2253(c)(2). He claims that: (1) the trial court violated his constitutional rights by excluding venire members opposed to the death penalty; (2) his counsel provided ineffective assistance by failing to oppose the exclusion of venire members opposed to the death penalty; (3) the trial court violated the Constitution by refusing to allow discussion of his parole eligibility during sentencing; and (4) the failure to advise him of his right to consular assistance under the Vienna Convention on Consular Relations ("Vienna Convention") requires review by the district court to determine if it prejudiced the fairness of his trial. 2 * On the morning of February 22, 1997 the parents of Mayra Laguna reported to the police that their daughter was missing. In the course of investigating Mayra's whereabouts, the police spoke with Cardenas, Mayra's first cousin, who voluntarily went to the police station. For more than ten hours, Cardenas remained at the police station and was interrogated by nine different law enforcement officers about Mayra's disappearance. Although a Mexican national, Cardenas was never advised by authorities of his right to consular access. Cardenas was thereafter arrested when his friend, and later co-defendant, implicated him in the crime. After his arrest, Cardenas gave a statement to authorities wherein he admitted that he had killed Mayra and led police to the scenes where he raped the victim and disposed of her body.1 3 Cardenas was convicted of capital murder and sentenced to death. His conviction was affirmed by the Texas Court of Criminal Appeals and his habeas appeal was denied. Cardenas' federal habeas petition and subsequent application for COA were also denied. II 4 To receive a COA, Cardenas must make a substantial showing of the denial of a constitutional right. 28 U.S.C. § 2253(c)(2). When a district court rejects a claim on the merits, "[t]he petitioner must demonstrate that reasonable jurists would find the district court's assessment of the constitutional claims debatable or wrong." Slack v. McDaniel, 529 U.S. 473, 484, 120 S.Ct. 1595, 146 L.Ed.2d 542 (2000). In capital cases, doubts about whether the petitioner has met the standard must be resolved in favor of the petitioner. Clark v. Johnson, 202 F.3d 760, 764 (5th Cir.2000). When a petition is dismissed on procedural grounds, the petitioner must show 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." Slack, 529 U.S. at 484, 120 S.Ct. 1595 (emphasis added). 5 At the COA stage, a court should "limit its examination to a threshold inquiry into the underlying merit of his claims." Miller-El v. Cockrell, 537 U.S. 322, 327, 123 S.Ct. 1029, 154 L.Ed.2d 931 (2003) (citing Slack, 529 U.S. at 481, 120 S.Ct. 1595). We do not fully consider "the factual or legal bases adduced in support of the claims," and a petitioner need not show that an appeal will succeed in order to be entitled to a COA. Id. at 336-37, 123 S.Ct. 1029. "The question is the debatability of the underlying constitutional claim, not the resolution of that debate." Id. at 342, 120 S.Ct. 1595. 6 The district court should evaluate the habeas petition to see if the state court's determination "resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court." 28 U.S.C. § 2254(d)(1). A decision adjudicated on the merits in a state court and based on a factual determination will not be overturned on factual grounds unless it "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)(2). In addition, a state court's findings of fact are entitled to a presumption of correctness unless the petitioner rebuts that presumption with "clear and convincing evidence." 28 U.S.C. § 2254(e)(1). Thus, when evaluating a COA petition, we consider only whether the district court's application of Antiterrorism and Effective Death Penalty Act ("AEDPA") deference to the petitioner's claim is debatable among jurists of reason. Miller-El, 537 U.S. at 341, 123 S.Ct. 1029. 7 New constitutional rules of criminal procedure are generally not applied retroactively to cases that become final before a new rule is announced. Teague v. Lane, 489 U.S. 288, 310, 109 S.Ct. 1060, 103 L.Ed.2d 334 (1989). "Teague remains applicable after the passage of the AEDPA." Robertson v. Cockrell, 325 F.3d 243, 255 (5th Cir.2003) (citing Horn v. Banks, 536 U.S. 266, 272, 122 S.Ct. 2147, 153 L.Ed.2d 301 (2002)). III 8 * Cardenas argues initially that the trial court improperly excused several potential jurors because they were categorically opposed to the death penalty, but failed to ascertain whether they could discharge their duties according to the trial court's instructions and their oath of office. 9 Cardenas' claim is procedurally barred from federal review because he failed to raise a contemporaneous objection to the jurors' exclusion. Fisher v. State, 169 F.3d 295, 300 (5th Cir.1999). Failure to object to the exclusion of a prospective juror waives any error. See Ladd v. State, 3 S.W.3d 547, 562 (Tex.Crim.App.1999). The doctrine of independent and adequate state ground applies not only when federal courts review a state court judgment, "but in deciding whether federal district courts should address the claims of state prisoners in habeas corpus actions. . . . The doctrine applies to bar federal habeas when a state court declined to address a prisoner's federal claims because the prisoner had failed to meet a state procedural requirement. In these cases, the state judgment rests on independent and adequate state procedural grounds."2 Coleman v. Thompson, 501 U.S. 722, 729-30, 111 S.Ct. 2546, 115 L.Ed.2d 640 (1991). The Texas contemporaneous objection rule constitutes an adequate and independent state ground that procedurally bars federal habeas review of Cardenas' claim. Fisher, 169 F.3d at 300. The state habeas court found that this claim was procedurally defaulted because Cardenas' attorney failed to object to the rulings excusing potential jurors and even made remarks agreeing with the prosecution's challenges in several cases, thus failing to preserve any alleged error in regard to these jury selection issues for review. We agree. Id.; Ex parte Gardner, 959 S.W.2d 189, 199 (Tex.Crim.App.1996). Cardenas has not shown that the district court's ruling on the procedural ground is debatable. 10 The state habeas court's discussion of the merits as an alternative reason for its holding does not nullify its procedural ruling. See Corwin v. Johnson, 150 F.3d 467, 473 (5th Cir.1998). Furthermore, even if this court were to address the merits of Cardenas' claim, he has not demonstrated that the state habeas court's finding that the exclusion of venire members because of their inability to consider the death penalty was objectively unreasonable. See 28 U.S.C. § 2254(d)(2). The general rule states that prospective jurors may be excluded if they "would automatically vote against the imposition of capital punishment without regard to any evidence that might be developed at the trial of the case before them, or. . . that their attitude toward the death penalty would prevent them from making an impartial decision as to the defendant's guilt." Witherspoon v. Illinois, 391 U.S. 510, 522 n. 21, 88 S.Ct. 1770, 20 L.Ed.2d 776 (1968). A jury, however, may not be chosen by excluding veniremen for cause simply because they may be "hesitant in their ability to sentence a defendant to death." Morgan v. Illinois, 504 U.S. 719, 732, 112 S.Ct. 2222, 119 L.Ed.2d 492 (1992) (citing Witherspoon, 391 U.S. at 522, n. 21, 88 S.Ct. 1770). The trial court in this case first inquired into each juror's general opinion of capital punishment and then made more specific inquiries required by federal law. The trial court specifically examined whether this view would prevent or substantially impair each juror's performance given any instructions received. Potential jurors who were excluded expressed views that indicated their opposition to the death penalty was so strong that it would "prevent or substantially impair the performance of their duties as jurors at the sentencing phase of the trial." Lockhart v. McCree, 476 U.S. 162, 165, 106 S.Ct. 1758, 90 L.Ed.2d 137 (1986). The trial court's finding of juror bias is entitled to a presumption of correctness and the petitioner has the burden of rebutting these determinations by clear and convincing evidence. See 28 U.S.C. § 2254(e)(1); Fuller v. Johnson, 114 F.3d 491, 500-01 (5th Cir.1997). Cardenas has not shown that the district court's ruling on the merits is debatable. B 11 Cardenas argues next that his trial counsel's failure to oppose the exclusion of so many prospective jurors opposed to capital punishment violated his Sixth Amendment right to effective assistance of counsel. In order to prevail on a claim of ineffective assistance of counsel, Cardenas must show that (1) his counsel's performance was so deficient as to fall below an objective standard of reasonableness, and (2) that he was prejudiced by counsel's conduct. Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). As discussed above, any objection to the exclusion of the prospective jurors would have been unnecessary and baseless because the jurors were properly excluded. Therefore, it is not debatable among jurists of reason that the conduct of Cardenas' counsel was neither objectively unreasonable nor was he prejudiced by his counsel's conduct. C 12 Cardenas also argues that his rights under the due process clause, the cruel and unusual punishment clause, and the compulsory process clause of the Constitution were violated by the trial court's refusal to permit any discussion of the possibility of parole at trial. 13 Cardenas concedes that the Constitution only requires that jurors be told when a defendant who could receive a life-imprisonment sentence is ineligible for parole. See Simmons v. South Carolina, 512 U.S. 154, 168-69, 114 S.Ct. 2187, 129 L.Ed.2d 133 (1994). In Ramdass v. Angelone, 530 U.S. 156, 166, 120 S.Ct. 2113, 147 L.Ed.2d 125 (2000) the Supreme Court stated that Simmons only requires the introduction of parole evidence when the defendant could be given a life sentence and is ineligible for parole under state law. This court has consistently held that Simmons does not apply to Texas because it does not have an alternative of life-without-parole to the death penalty. See Tigner v. Cockrell, 264 F.3d 521, 525 (5th Cir.2001) (citing Simmons, 512 U.S. at 168 n. 8, 114 S.Ct. 2187), cert. denied, 534 U.S. 1164, 122 S.Ct. 1177, 152 L.Ed.2d 120 (2002). Furthermore, this court is barred from granting habeas relief based on the non-retroactivity principle of Teague v. Lane, 489 U.S. 288, 109 S.Ct. 1060, 103 L.Ed.2d 334 (1989), which states that a "federal court may not create [a] new constitutional rule of criminal procedure on habeas review." See Wheat v. Johnson, 238 F.3d 357, 361 (5th Cir.2001) (finding that any extension of Simmons violated Teague). 14 Cardenas' argument that the trial court's refusal to inform the jury of the parole implications of a life sentence violated the Eighth Amendment's prohibition against cruel and unusual punishment also fails. This court has consistently found that the Eighth Amendment does not require that a jury be informed of parole eligibility. See Tigner, 264 F.3d at 525. 15 Cardenas claims further that the compulsory process clause of the Sixth Amendment allows him the right to present a "complete defense," including the presentation of parole-eligibility information. Cardenas concedes that this argument has not been addressed by either the Supreme Court or this court, but argues that in construing and applying Teague, the extension of old case law to new facts only establishes a "new rule" when the extension is necessarily controversial, but not when it is an unremarkable application under existing precedent. Cardenas argues that United States v. Scheffer, 523 U.S. 303, 118 S.Ct. 1261, 140 L.Ed.2d 413 (1998) controls all instances where relevant evidence of great probative value to a criminal defendant has been excluded, whether or not the constitutionality of excluding such evidence has been determined under the Sixth Amendment by the Supreme Court. Cardenas cites no Supreme Court authority interpreting Scheffer to require state courts to allow discussion of parole eligibility during the trial proceedings. Thus, no reasonable jurist would have felt compelled by Scheffer to conclude that the rule Cardenas seeks was required by the Constitution. See Goeke v. Branch, 514 U.S. 115, 118, 115 S.Ct. 1275, 131 L.Ed.2d 152 (1995). Moreover, Cardenas' claim would require a new rule of constitutional law foreclosed by Teague. D 16 Cardenas' final argument is that a COA should be granted because, as a Mexican national, the state should have advised him of his right to consular assistance under the Vienna Convention. The Vienna Convention is a 79-article multilateral treaty negotiated in 1963 and ratified by the United States in 1969 of which Mexico is a signatory nation. United States v. Jimenez-Nava, 243 F.3d 192, 195 (5th Cir.2001). The Vienna Convention, Article 36, paragraph (1)(c), guarantees that a consular officer of a signatory state shall have the right to visit one of its citizens who has been detained in another signatory state in order "to converse and correspond with him and to arrange for his legal representation." Vienna Convention on Consular Relations, April 24, 1963, art. 36, 21 U.S.T. 77, 596 U.N.T.S. 261. Article 36, paragraph (1)(b), also provides that the detaining state "shall inform the person concerned without delay of his rights," including the assistance of his consul in responding to the fact of his detention. Id. The state concedes that Cardenas was never informed of his consular rights under the Vienna Convention prior to his confession. 17 Cardenas asserts that had he been informed of his consular rights prior to his confession, he would have invoked them. Cardenas argues that the Mexican Consulate would have explained to him the significance and importance of the right to counsel as an intermediary in the custodial setting, arranged to have a lawyer present, and advised him not to speak to police except on advice from his lawyer. Cardenas thus concludes that he was prejudiced because he would not have confessed had he been made aware of his Vienna Convention rights. 18 In March 2004, the International Court of Justice ("ICJ") issued its judgment in Avena and other Mexican Nationals (Mex. v. U.S.), 2004 I.C.J. 128 (Mar. 31) ("Avena") a proceeding initiated by the Government of Mexico against the United States alleging that the United States had violated the consular notification provisions of the Vienna Convention in the case of Cardenas and 53 other Mexican nationals facing the death penalty. The ICJ concluded in Avena that the United States had breached its obligations under Article 36, paragraph 1(b), of the Vienna Convention by failing to inform Cardenas of his rights under this paragraph and by failing to notify the Mexican consular post of Cardenas' detention. Avena, paras. 106(1), (2). The ICJ concluded that "the United States also violated the obligation incumbent upon it under Article 36, paragraph 1(a), of the Vienna Convention to enable Mexican consular officers to communicate with and have access to their nationals, as well as its obligation under paragraph 1(c) of that Article regarding the right of consular officers to visit their detained nationals." Id. at para. 106(3). However, the ICJ determined that in Cardenas' case, the United States did not breach its obligation under paragraph 1(c) to enable Mexican consular officers to arrange for legal representation of Cardenas.3 Id. at para. 106(4). 19 The ICJ thus held that the Mexican nationals whose rights under Article 36 of the Vienna Convention were violated were entitled to full judicial review of their capital murder convictions and death sentences. Id. at para. 138. The ICJ mandated that the "review and reconsideration" of the case be "effective" and "`take account of the violation of the rights set forth in [the Vienna] Convention' and guarantee that the violation and the possible prejudice caused by that violation be fully examined". Id. (emphasis added). The ICJ, however, "left to the United States the choice of means as to how review and reconsideration should be achieved, especially in light of the procedural default rules. . . . [R]econsideration should occur within the overall judicial proceedings relating to the individual defendant concerned." Id. at para. 141. Cardenas believes that in order for this violation to be fully examined there must be an evidentiary hearing on the Vienna Convention violations evaluating his conviction and death sentence. 20 Cardenas' Vienna Convention claim, however, has been procedurally defaulted because he failed to raise the issue at the trial stage.4 See Fisher, 169 F.3d at 300-01. The Supreme Court held in Breard v. Greene that Vienna Convention claims, like Constitutional claims, can be procedurally defaulted, even in a death penalty case. 523 U.S. 371, 375-76, 118 S.Ct. 1352, 140 L.Ed.2d 529 (1998). Although Avena held that procedural default rules cannot bar review of a petitioner's Vienna Convention claim, this court cannot disregard the Supreme Court's holding in Breard that ordinary default rules can bar such claims. See Medellin v. Dretke, 371 F.3d 270, 280 (5th Cir.2004), cert. granted, ___ U.S. ___, 125 S.Ct. 686, 160 L.Ed.2d 518 (U.S.). "If a precedent of [the Supreme Court] has direct application in a case [. . .], the Court of Appeals should follow the case which directly controls, leaving to [the Supreme Court] the prerogative of overruling its own decision." Rodriquez de Quijas v. Shearson/Am. Exp., Inc., 490 U.S. 477, 484, 109 S.Ct. 1917, 104 L.Ed.2d 526 (1989). 21 Even if Cardenas were not procedurally barred, his claim fails because this court has determined in the past that the Vienna Convention does not confer individually enforceable rights. See Jimenez-Nava, 243 F.3d at 198 ("The sum of [Cardenas'] arguments fails to lead to an ineluctable conclusion that Article 36 creates judicially enforceable rights of consultation between a detained foreign national and his consular office. Thus, the presumption against such rights ought to be conclusive."); Medellin, 371 F.3d at 280. We are bound by this court's holding in Jimenez-Nava, the subsequent decision in Avena notwithstanding, until either this court sitting en banc or the Supreme Court says otherwise. See United States v. Smith, 354 F.3d 390, 399 (5th Cir.2003). 22 As noted, the Supreme Court has granted certiorari in Medellin, 371 F.3d 270. However, Cardenas' case is distinguishable from Medellin because the ICJ determined that the United States did not violate its obligation to arrange for legal representation of Cardenas, as discussed supra. Avena, para. 106(4). Cardenas argues that the Mexican Consulate would have explained to him the significance and importance of his right to counsel, arranged to have a lawyer present, and advised him not to speak to the police outside of the presence of his lawyer. Thus, Cardenas concludes that the failure to advise him of his right to consular assistance under the Vienna Convention requires review by the district court to determine if it prejudiced the fairness of his trial. However, it is not disputed that Cardenas: (1) was given his Miranda warnings; (2) was advised of his right to legal representation before he confessed to killing Mayra Laguna; (3) voluntarily waived his right to advisement by an attorney; and (4) was provided with legal representation upon his request. The ICJ also determined that the Mexican consular authorities learned of Cardenas' detention in time to provide him assistance, but decided not to assist him with his legal representation. Cardenas thus fails to show that he was harmed by any lack of notification to the Mexican consulate concerning his arrest. Therefore, it is not debatable among jurists of reason whether Cardenas was prejudiced by the State's failure to advise him of his Vienna Convention right to consular assistance without delay. IV 23 Cardenas has not shown that reasonable jurists could disagree with the district court's denial of any of his claims. Accordingly, we AFFIRM the district court's denial of habeas relief and DENY a COA with respect to the issues raised by Cardenas. Notes: 1 Cardenas, however, maintained that he did not kill Mayra intentionally and that she had left her parents' house with him voluntarily 2 A procedural bar may be overcome, however, if the petitioner can show cause and prejudice, or that failure to consider the claim will result in a "fundamental miscarriage of justice."Coleman, 501 U.S. at 750, 111 S.Ct. 2546. Cardenas failed to allege, much less show, cause or prejudice. 3 The ICJ discussed Cardenas' argument on the importance of consular officers being able to arrange for legal representation before and during trial, especially at sentencing due to the severity of the penalty being opposed. Mexico also argued that it could provide financial and other assistance for investigating a defendant's family background and mental condition. The ICJ observed "that the exercise of the rights of the sending State under Article 36, paragraph 1(c), depends upon notification by the authorities of the receiving State. It may be, however, that information drawn to the attention of the sending State by other means may still enable its consular officers to assist in arranging legal representation for its national. In the following cases, the Mexican consular authorities learned of their national's detention in time to provide such assistance, either through notification by United States authorities (albeit belatedly in terms of Article 36, paragraph 1(b)) or through other channels: . . . [Cardenas]. . . ."Avena, para. 104. 4 Cardenas argued in his petition to the district court that his "counsel at trial failed to challenge the admissibility of his inculpatory statements on the ground that they were obtained without first advising him of his right to consular assistance under the Vienna Convention, a treaty of the United States, in violation of the Texas Code of Criminal Procedure, article 38.23." Cardenas makes the same argument to this court. The district court, however, treated this argument as an ineffective-assistance-of-counsel claim instead of a separate claimCardenas v. Cockrell, Civil Action # M-02-180 (S.D.Tex. Aug. 18, 2003). The district court concluded that the Vienna Convention did not create individual rights and that even if Cardenas' statements were taken in violation of the Vienna Convention, he failed to show prejudice. Id. DENNIS, Circuit Judge, specially concurring: 24 I concur, but I disagree with part of the majority opinion. Cardenas said that he would not have waived his Miranda rights, cooperated with the police interrogation, or given a confession had he been advised of his right to assistance by the Mexican consular officials. Consequently, I think that Cardenas made a showing that he was harmed by the state's failure to advise him of his Vienna Convention right to consular assistance without delay. Accordingly, I disagree with the majority's statement that it is not reasonably debatable whether Cardenas was prejudiced by the state's dereliction.

Electronically Filed Supreme Court SCPW-18-0000415 30-MAY-2018 01:08 PM SCPW-18-0000415 IN THE SUPREME COURT OF THE STATE OF HAWAI#I PATRICK PRESCOTT, Petitioner, vs. THE HONORABLE FA’AUUGA TO’OTO’O, JUDGE OF THE CIRCUIT COURT OF THE FIRST CIRCUIT, STATE OF HAWAI#I, Respondent Judge, and STATE OF HAWAI#I, Respondent. ORIGINAL PROCEEDING (S.P.P. NO. 14-1-1836-08) ORDER DENYING PETITION FOR WRIT OF MANDAMUS (By: Recktenwald, C.J., Nakayama, McKenna, Pollack, and Wilson, JJ.) Upon consideration of petitioner Patrick Prescott’s petition for writ of mandamus, filed on May 17, 2018, and the record, it appears that although the petition was filed almost nine months ago, there is no showing that the petition was served on the State of Hawai#i (“State”) or that petitioner is unable to effect prompt service of the petition on the State in order to trigger a response to the petition. See HRPP Rules 40(d), (f), and (g). Thus, petitioner fails to demonstrate that he has a clear and indisputable right to the requested relief or a lack of alternative means to seek relief at this time. See Kema v. Gaddis, 91 Hawai#i 200, 204, 982 P.2d 334, 338 (1999) (a writ of mandamus is an extraordinary remedy that will not issue unless the petitioner demonstrates a clear and indisputable right to relief and a lack of alternative means to redress adequately the alleged wrong or obtain the requested action; rather, it is meant to restrain a judge of an inferior court who has exceeded his or her jurisdiction, has committed a flagrant and manifest abuse of discretion, or has refused to act on a subject properly before the court under circumstances in which he or she has a legal duty to act). Accordingly, IT IS HEREBY ORDERED that the clerk of the appellate court shall process the petition for writ of mandamus without payment of the filing fee. IT IS HEREBY FURTHER ORDERED that the petition for writ of mandamus is denied. DATED: Honolulu, Hawai#i, May 30, 2018. /s/ Mark E. Recktenwald /s/ Paula A. Nakayama /s/ Sabrina S. McKenna /s/ Richard W. Pollack /s/ Michael D. Wilson 2 

568 P.2d 441 (1977) Marvin E. SCHLEIGER and Margaret Schleiger, Petitioners, v. STATE of Colorado, Colorado State Hospital, Charles E. Meredith, M.D., Superintendent, Respondents. No. C-906. Supreme Court of Colorado, En Banc. August 29, 1977. *442 Davis, Graham & Stubbs, Arthur E. Otten, Jr., Richard W. Daily, Denver, for petitioners. J. D. MacFarlane, Atty. Gen., Jean Dubofsky, Deputy Asst. Atty. Gen., Denver, Joe T. Ulibarri, Regional Asst. Atty. Gen., Pueblo, for respondents. CARRIGAN, Justice. We granted certiorari to consider whether the state may take into account one's insurance coverage in determining "ability to pay" for state hospitalization costs pursuant to sections 27-12-101, et seq., C.R.S. 1973. We hold that under the applicable statutes the state may do so, and therefore we affirm the decision of the Colorado Court of Appeals in State v. Schleiger, Colo. App., 547 P.2d 1295 (1975). The Schleigers' minor daughter, Pamela, was hospitalized at the Colorado State Hospital. During the period of hospitalization, Mrs. Schleiger, through her employer, was covered by group insurance which provided for reimbursement of hospitalization expenses incurred by her on behalf of her dependent children. She and her employer both contributed to the premiums for this insurance. The State Hospital, acting pursuant to the controlling statute,[1] determined that the actual costs incurred during Pamela's hospitalization were $5,240.86. Had the Schleigers been uninsured, the amount for which they would have been liable after determining their "ability to pay" according to the statute would have been $332.23.[2] Recognizing the Schleigers' insurance coverage, however, the state allowed certain credits not at issue here and then assessed them for $4,729.79. Although the Schleigers' insurance carrier was not a party to this action, as it certainly could have been, counsel conceded at oral argument that the company will honor its contract and pay the contested amount if the Schleigers are held liable. The Schleigers contend that their insurance coverage should not be considered in determining their "ability to pay." In other words, they insist that their insurance only indemnifies them for hospital expenses after they are incurred, and that no obligation is finally incurred until the state has (1) determined the actual costs of hospitalization, (2) determined their "ability to pay," taking into account income and other factors, but not insurance, and (3) assessed them according to that ability to pay. Thus they argue that since their ultimate liability—had they not had insurance—would have been $332.23, the state cannot assess them for more by reason of the insurance coverage, even though the insurance would cover the full hospitalization costs. Finally, the Schleigers assert that even if insurance coverage normally should be considered in determining "ability to pay," the policy at issue here should not be so considered because it specifically excludes coverage for any charges imposed solely because of the existence of the insurance. We cannot accept this reasoning. I. The Court of Appeals' analysis is the most reasonable rationale available within the statutory framework set out in sections 27-12-101, et seq., C.R.S. 1973, and that analysis needs little clarification by this Court. Simply stated, the statutory provisions establish the following process: 1. Liability to pay for the care of patients at the hospital is created by section 27-12-101, C.R.S. 1973. *443 2. An actual cost determination is made regarding each patient. Section 27-12-102, C.R.S. 1973. 3. In determining "ability to pay" for actual costs, or a portion of them, the department of institutions is required to consider as "available for payment" of the actual costs thus determined all "insurance and other benefits payable . . . ." Section 27-12-104(1), C.R.S. 1973. 4. The balance of those costs not covered by insurance are passed on to the patient and his spouse, who are assessed according to their ability to pay (determined by income and other factors). Section 27-12-104(2), C.R.S. 1973. 5. Any remaining costs not charged to the patient or spouse are charged to the patient's parents, based on their ability to pay. Section 27-12-104(3), C.R.S. 1973. 6. An assessment is to be made against persons found able to pay. Section 27-12-103, C.R.S. 1973. Thus, the initial liability is for the actual cost of the care provided, and is incurred as the day-to-day expenditures are made. Nevertheless, under the statutory scheme, the State forbears from collecting that portion of the actual costs which exceeds the ability to pay when there is no insurance. See Graham v. Reserve Life Insurance Co., 274 N.C. 115, 161 S.E.2d 485 (1968). The statute clearly provides, however, that when there is insurance, the available limits are to be exhausted for payment of all costs before the uninsured balance to be collected directly from the patient is reduced in consideration of the patient's limited ability to pay. This construction does not depart from our previous holding that these determinations and the assessments based upon them are conditions precedent to collection. Estate of Randall v. Colorado State Hospital, 166 Colo. 1, 441 P.2d 153 (1968). That case was decided before the statute required insurance to be taken into consideration in determining ability to pay. Here we are simply recognizing the statute's added requirement that the state apply insurance proceeds to the costs of hospitalization before reducing the patient's liability for payment. The rationale here approved not only carries out the obvious legislative intent,[3] but also applies a rule that is fair not only to the state, but to the insurer and the insured as well. There is no evidence in the record that the insurance carrier charged lower premiums to those with very limited financial resources and therefore very limited "ability to pay" if their insurance were not applicable. In effect the Schleigers seek an interpretation which would allow the company to provide less coverage under the same policy for poor persons than for wealthy persons. Yet the policy terms and premiums are apparently the same for both. The bottom line issue, therefore, is whether in circumstances such as those here presented, expenses of treatment at a state hospital are to be paid by the company which sold the policy or by the taxpayers. If the Schleigers' child had been treated in a private hospital rather than in the State *444 Hospital, there would be no question raised: the insurance company would pay to the extent of its coverage. That was its contract for which it accepted the premiums. The fortuitous circumstance that the child was treated in a state institution rather than a private one should not produce either a windfall for the company or a burden for the taxpayers. It seems obvious that the very purpose of the insurance was to provide the insured with an "ability to pay" hospitalization expenses. Therefore, it would be incongruous not to consider the existence of insurance in determining the insured's "ability to pay." II. The Schleigers also maintain that even if insurance proceeds were to be considered, nevertheless coverage was excluded in this case by the following clause in the policy: "No payment will be made under this policy for expenses incurred by an Employee or Dependent . . . . 5. for charges which the Employee or Dependant is not legally required to pay or for charges which would not have been made if no insurance coverage had existed . . . ." The Schleigers contend that the term "charges" (not defined in the policy) meant the assessment made pursuant to section 27-12-103, C.R.S. 1973, rather than the actual costs of the patient's treatment. The Court of Appeals thoroughly analyzed the policy language and correctly rejected the Schleigers' argument, leaving nothing to warrant further consideration of this issue here. Accordingly, the judgment of the Court of Appeals is affirmed. HODGES, KELLEY and LEE, JJ., dissent. KELLEY, Justice, dissenting: I respectfully dissent. The majority opinion imputes to sections 27-12-101, et seq., C.R.S. 1973, a state policy and legislative intent that were not present in the statute until the General Assembly enacted Colo.Sess.Laws 1976, ch. 47, 10-8-123 at 383, section 10-8-123, C.R.S. 1973 (1976 Supp.). If the General Assembly had intended that in determining ability to pay for costs of treatment at a state mental institution health insurance policies could not be excluded, it could as easily have expressed such a policy when it enacted sections 27-12-101, et seq. It did not elect to do so until it enacted section 10-8-123 in 1976, and I am reluctant to apply such an explicit intent retroactively, which is the effect of the majority opinion. Further, I would reverse the court of appeals on the basis of stare decisis. In Estate of Randall v. Colo. State Hospital, 166 Colo. 1, 441 P.2d 153 (1968), we held that this statute's predecessor was to be strictly construed as it was in derogation of the common law. The present statute contains no express or implicit statement of public policy abrogating the right of an insurance company to limit its liability where the insured or a dependent is a patient in a state hospital. Also, the majority opinion's interpretation of the statute results in the impairment of the insurance contract in violation of Article II, Sec. 11, of the Colorado Constitution. The exclusion clause in Schleiger's insurance policy provides: "No payment will be made under this policy for expenses incurred by an Employee or a Dependent "5. for charges which the Employee or Dependent is not legally required to pay or for charges which would not have been made if no insurance coverage had existed . . . ." This clause must be construed with the present statute, clear of the penumbra of section 10-8-123, C.R.S. 1973 (1976 Supp.). Therefore, I would reverse the court of appeals. Mr. Justice HODGES and Mr. Justice LEE have authorized me to say that they join in this dissent. NOTES [1] 1969 Perm.Supp., C.R.S. 1963, 71-7-2, now section 27-12-102, C.R.S. 1973. [2] The State admitted this during pre-trial discovery. [3] We are not unaware that the 1976 General Assembly clarified the law to assure that the interpretation we here reach will be applied from and after July 1, 1977. This was accomplished by Colo.Sess.Laws 1976, ch. 47, 10-8-123 at 383, in the following language: "Benefits at state institutions. (1) On and after July 1, 1977, no individual policy or group policy of sickness, health, or accident insurance delivered or issued for delivery to any person in this state which provides coverage for mental illness, mental retardation, or both shall exclude or be construed to diminish benefits for the payment of the direct costs, related directly to the treatment of such mental illness, mental retardation, or both provided by a state institution, including community clinics and centers for mental health and mental retardation services, if such charges for treatment of such mental illness, mental retardation, or both are customarily charged to nonindigent patients by such state institution. (2) Any policy issued on or after July 1, 1977 on a form approved prior to said date, containing any provisions in conflict with the provisions of this section shall be in effect only if there is attached to such policy at the time of issue a rider or endorsement amending such policy to conform to the provisions of this section." (Now section 10-8-123, C.R.S. 1973 (1976 Supp.)).

283 F.2d 551 127 U.S.P.Q. 306 AUDIO FIDELITY, INC., a corporation, Appellant,v.HIGH FIDELITY RECORDINGS, INC., a corporation, Appellee. No. 16733. United States Court of Appeals Ninth Circuit. Oct. 29, 1960. Harris, Kiech, Russell & Kern, Warren L. Kern, Charles E. Wills, Los Angeles, Cal., for appellant. Wright, Wright, Goldwater & Wright, Loyd Wright, Richard M. Goldwater, Edgar R. Carver, Jr., Andrew J. Davis, Los Angeles, Cal., for appellee. Before BARNES and JERTBERG, Circuit Judges, and BOWEN, District Judge. BARNES, Circuit Judge. 1 This is an appeal by plaintiff below in an action for unfair competition based on diversity of citizenship. 28 U.S.C. 1332(a)(1). The district court denied recovery. This court has jurisdiction on appeal. 28 U.S.C. 1291. 2 This case raises no question as to patent, copyright or trademark. Appellant records and distributes phonograph records which are universally sold in record jackets or sleeves, usually made of cardboard. The unfair competition alleged is not related to the contents of the record, but solely to the choice of language and the art work and format expressing that language choice used on record jackets. 3 The district court found (1) that the record jacket was functional, i.e., that it served a functional purpose, and hence no cause of action could exist under the teaching of Pagliero v. Wallace China Co., 9 Cir., 1952, 198 F.2d 339, (Finding 10); (2) that the appellant's record jacket was attractive and desirable, but not unique, arbitrary of fanciful (Finding 9); (3) that on the appellant's record jacket, the words including the term 'Railroad Sounds' and the picture appearing thereon have not serverally or in combination, acquired a secondary meaning (Finding 12); (4) that there has been no 'palming' of 'passing off' of appellee's record for appellant's (Finding 13); (5) that there has been no actual confusion between purchasers of the two records, and there exists no likelihood of confusion (Finding 15). 4 Because of the foregoing findings, the court concluded there had been no unfair competition between appellant and appellee, both as a matter of fact and law. 5 A dozen errors are charged by appellant, but we will consider that the five allegedly erroneous findings, as listed above, cover the real ultimate issues in this case. 6 Appellant produced the evidence of the commercial artist, Sloane, who had designed the jacket in New York. He had obtained the type for all the language on the front of the jacket, save the word 'Railroad,'1 from a type-house and arranged it to his design. Sloane had chosen and obtained the particular basic typographic style for the word 'Railroad' from the catalogue of a photocopy house, Lettering Inc., in New York City. Sloane had then 'embellished' this lettering 'by painting in an in-line letter * * * with a drop of shadow red.' With a transparency he combined the photograph of the locomotive, the type, and the photocopy as embellished by him into the 'finished black and white art work ready for the printer.' Mr. Sloane pointed out to the trial judge twenty-four 'irregularities' in his work, with respect to the word 'Railroad' as it appeared in appellant's end product, the jacket (Exhibit 1). Each of these 'irregularities' existed, precisely, in the word 'Railroad' appearing on appellee's alleged copy (Exhibit 2). 7 In addition, precisely the same colors were used in the word 'Railroad' on Exhibit 2 as on Exhibit 1-- yellow for the letters, red for the in-line emphasis, and black for the shadow of the letters. 8 The appellee's explanation for the similarity was that its art work had been entrusted to an itinerant artist named Chotiner, who had 'one day walked in the door * * *. He was just a boy who wanted to put together a sleeve.' He was paid in cash, his whereabouts were unknown to appellee, either at the time of trial or earlier; his local address was unknown; he had submitted a bill which was not found nor produced at the trial; no corporate record was kept of this item of expense; no effort had been made to ascertain if appellee kept a receipt for this work. On second thought, appellee's president thought 'Chotiner' was paid by a check, cashed on the spot, but no search was made for this check, and none was produced at the trial. 'Chotiner' was 'from Chicago or Detroit or some eastern city.' 9 In view of the decision below in favor of appellee, the court made no findings as to actual copying by appellee of appellant's jacket design. The court below, however, at the conclusion of the case, twice stated he was 'satisfied from the evidence that the defendant has copied the plaintiff's art work.' He later stated: 10 'The defendant, this witness who testified, Mr. Vaughn (president of defendant corporation and sole witness produced by defendant), is probably one of the most unsatisfactory witnesses I have had for a long, long time. However, from the testimony I am satisfied there was a copying. But copying is not enough, I don't think.' 11 It was the belief of the court below that despite the copying there could be no unfair competition, because the copied features were merely descriptive, or functional, and not fanciful, within the rule enunciated by this circuit in Pagliero v. Wallace China Co., supra. This being so, he stated he need not reach the questions as to 'palming off,' or misrepresentation, or secondary meaning or confusion, actual or likely. Nevertheless, in addition to finding the Wallace China case controlling, the district court found that there was no evidence of 'palming,' passing off, confusion, or secondary meaning. 12 This being a diversity case, the law of the forum state prevails. Pecheur Lozenge Co., Inc., v. National Candy Co., 1942, 315 U.S. 666, 62 S.Ct. 853, 86 L.Ed. 1103; Tas-T-Nut Co. v. Variety Nut & Date Co., 6 Cir., 1957, 245 F.2d 3, 8; Sunbeam Furniture Corp. v. Sunbeam Corp., 9 Cir., 1951, 191 F.2d 141; Jewel Tea Co., Inc. v. Kraus, 7 Cir., 1951, 187 F.2d 278, 282. 13 In California, the right to prevent unfair competition is well recognized. California Civil Code 3369.2 The 1933 revision of that section defined as unfair competition certain acts denounced by the California Penal Code,3 as well as any 'unfair or fraudulent business practice.' While the Penal Code sections were repealed in 1941, that same year the Business & Professions Code, 17,500 was enacted, making it unlawful for any person or corporation 14 'with intent * * * to dispose * * * of personal property * * * to make or disseminate * * * (by) any advertising device * * * or in any other manner or means whatever, any statement concerning such * * * personal property * * * or concerning any circumstance or matter of fact connected with the proposed * * * disposition thereof, which is untrue or misleading, and which is known, or which by the exercise of reasonable care should be known, to be untrue or misleading.' 15 This is broad language. It has been broadly interpreted by the California courts.4 16 Irrespective of its truth or falsity, any statement which is deceptive or merely misleading, without intent to deceive, violates the statute. People v. Wahl, 1940, 39 Cal.App.2d Supp. 771; 100 P.2d 550. The essence of the 'unfair competition' prohibited, lies in the simulation and imitation of goods of a rival or competitor with the purpose of deceiving an unwary public into buying imitations under the impression that it is purchasing goods of such competitor. American Philatelic Society v. Claibourne, 1935,3 Cal.2d 689, 46 P.2d 135. 17 While no patent, copyright or trademark is involved in this case,5 descriptive words and personal names, though not protected by statutes, 'are in common use as trade names, and the equities are just as strong for protecting them against the efforts of others to 'cash in' on the name as in cases where statutory protection is afforded.'6 18 With this slight excursion into the general California law of unfair competition, we consider the circumstances of this case. It was decided primarily on the district court's interpretation of this court's holding in Pagliero v. Wallace China Co., supra. With that in mind, we shall discuss the Wallace China case in some detail. 19 The Wallace China case, like this, involved alleged unfair competition and neither trade-mark infringement,7 patents, nor copyrights. Unlike this case with admitted diversity of citizenship, there was no diversity in Wallace China. For that reason, the federal court's jurisdiction was found in the Lanham Act (60 Stat. 441 (1946), 15 U.S.C.A. 1125, 1126 (1958)) and a 'substantial claim of federal right' thereunder. (198 F.2d 341.) 20 Under the Lanham Act, Judge Orr found that the 'specific acts and practices condemned by the conventions, Article 10 1/2 of the Paris Convention, and Article 21 of the Inter-American Convention (and prohibited in the Lanham Act by adoption from the conventions, 53 Stat. 1748; 46 Stat. 2907) do not include the acts charged against Tepco8 here.' Judge Orr pointed out that the term 'unfair competition' as used in 44(h) of the Lanham Act does not 'go further than the treaties'; that 'legislation specifically granting greater protection to designs has failed of passage in Congress in prior years'; and that the rationale of International News Service v. Associated Press, 1918, 248 U.S. 215, 39 S.Ct. 68, 63 L.Ed. 211, 'has not been extended to the design situation.' Recognizing a right of action under the Lanham Act 44(h), where the cause of action for unfair competition is based on secondary meaning, this court nevertheless held the designs in the Wallace China were 'functional.' Where such designs are functional, there is normally no right to relief. But, this court also held that this functional rule precluding relief is inapplicable where the 'form of dress for the goods (is) primarily adopted for purposes of identification and individuality * * *'. Under such circumstances, the opinion continuse, 'imitation may be forbidden where the requisite showing of secondary meaning is made. Under such circumstances, since effective competition may be undertaken without imitation, the law grants protection.'9 198 F.2d at page 343. 21 It should be noted that in the Wallace China case, the design was part of the china itself. Here the design of the word 'Railroad' was on the jacket, not in the record. In the Wallace China case, in support of the classification of the design as functional, one case was cited, Cheney Bros. v. Doris Silk Corp., 2 Cir., 1929, 35 F.2d 279. In Cheney, the design was likewise contained within the product, the silk itself. It was held functional, though Judge Learned Hand recognizes in his opinion the protection afforded by the doctrine of nonfunctional features, and indictates a desire to apply that doctrine to the Cheney case. But he does not do so. 22 We do not disagree with either Judge Hand in Cheney or Judge Orr in Wallace China. Under the particular factual circumstances of those cases, the design was functional and hence not subject to protection under the applicable law against unfair competition. But the facts in those cases do not appear in the instant case. Here the design was in the accompanying jacket, not in the product itself. Appellant could not prevent appellee from using railroad sounds in a record, but should be able to prevent the duplication of a 'form of dress * * * primarily adopted for purposes of identification and individuality,' and 'unrelated to basic consumer demands in connection with the product' (Wallace China, supra, 198 F.2d at page 343), as distinguished from basic consumer demands or preferences, or attention directed to the container rather than the product itself. A. Bauer & Co. v. Distillerie de la Liqueur Benedictine, 7 Cir., 1903, 120 F. 74; Lucien Lelong, Inc. v. George W. Button Corp., D.C.S.D.N.Y. 1943, 50 F.Supp. 708. 23 How is this public reliance on individuality and self-identification created? Here we think if appellee had confined itself to the use of the word 'Railroad' superimposed on a photograph of a steam engine on its record jacket, or used some entirely original and different language on it (perhaps the same language it had used on its jacket for the three years prior to its adoption and reproduction of appellant's 'Railroad Sounds'), it would have run no risk of fooling the public. But here appellant had produced, to a greater or lesser degree, what Judge Yankwich has described in another case as a 'fanciful conception' or 'whimsical representation'-- not a mere representation of a locomotive, but something resembling a trade-mark. Silvers v. Russell, D.C.S.D.Cal.1953, 113 F.Supp. 119, 122. It is true in the Silvers case the girl dancing on the phonograph record was trade-marked in California. But as that same decision points out-- it was not only 'a distinctive mark entitled to registration,' it 'culminated in proprietary right,' and the infringement of it would 'even in the absence of registration, be protected as unfair competition.' Id., at page 122. Cf. Doeskin Products v. United Paper Co., 7 Cir., 1952, 195 F.2d 356; American Automobile Ins. Co. v. American Auto Club, 9 Cir., 1950, 184 F.2d 407; Crescent Tool Co. v. Kilborn & Bishop Co., 2 Cir., 1917, 247 F. 299; Enterprise Mfg. Co. v. Landers, Frary & Clark, 2 Cir., 1904, 131 F. 240. 24 We mentioned above a distinction between Wallace China, supra, and the instant case. The former deals with the product; this, with the package in which the product reaches the market. This distinction was emphasized in a recent case: 25 'The basis of the appellant's present complaint, however, was not the appellee's use of packages constructed identically to its own, nor the appellee's use of a particular color or colors, but its deceptive imitation of the overall appearance of the appellant's trade dress in the arrangement, design, and collocation of printing and ornamentation. 26 '* * * The difference in the protection against imitation which will be accorded to an article of commerce on the one hand, and to a package in which the article is marketed on the other, was long ago noted. Writing for the Supreme Judicial Court of Massachusetts in Flagg Mfg. Co. v. Holway, 1901, 178 Mass. 83, 59 N.E. 667, that court's then Chief Justice Oliver Wendell Holmes pointed out that the law which permits one to market an identical copy of his competitor's product does not give him freedom to imitate the appearance of the package in which the article is sold. As there pointed out, the public policy which permits the imitation of an article of commerce is without relevance to the dress in which the article is marketed. '* * * The label or ornament is a relatively small and incidental affair, which would not exist at all, or at least would not exist in that shape but for the intent to deceive; whereas the instrument sold is made as it is, partly at least, because of a supposed or established desire of the public for instruments in that form.' 178 Mass. 91, 59 N.E. 667. 27 'The same point was recently made by the United States Court of Appeals for the Ninth Circuit in Pagliero v. Wallace China Co., 9 Cir., 1952, 198 F.2d 339.' Tas-T-Nut Co. v. Variety Nut & Date Co., 6 Cir., 1957, 245 F.2d 3 at pages 6-7. Cf. also Kellogg Co. v. National Biscuit Co., 1938, 305 U.S. 111, 59 S.Ct. 109, 83 L.Ed. 73; Neely v. Boland Mfg. Co., 8 Cir., 1960, 274 F.2d 195. 28 The immediate problem in all cases is whether the offending name or mark is used for a functional purpose. If not, then it must be determined whether the similarity is likely to result in confusion of source. Restatement, Torts, 716 (1938); Brooks Bros. v. Brooks Clothing, D.C.S.D.Cal. 1945, 60 F.Supp. 442, at pages 449-451, affirmed 9 Cir., 1947, 158 F.2d 798, certiorari denied 1947, 331 U.S. 824, 67 S.Ct. 1315, 91 L.Ed. 1840. 29 California follows the 'likelihood of confusion' test and does not require actual proof of confusion on the part of consumers. Winfield v. Charles, 1946, 77 CalApp.2d 64, 70, 175 P.2d 69. The sole question is: 'Is the public likely to be deceived?' National Van Lines v. Dean, 9 Cir., 1956,237 F.2d 688, at page 691; Family Record Plan v. Mitchell,, 1959, 172 CalApp.2d 235, 342 P.2d 10; MacSweeney Enterprises, Inc. v. Tarantino, 1951,106 Cal.App.2d 504, 512, 235 P.2d 266; McCord Co. v. Plotnick, 1951, 108 Cal.App.2d 392, 239 P.2d 32; Wood v. Peffer, 1942, 55 Cal.App.2d 116, 122, 130 P.2d 220. 30 But in addition to the existence of the 'likelihood of confusion' rule in California as the test of secondary meaning, we have here the uncontradicted testimony, completely satisfactory to the trial court, that there had been an actual copying. When that fact has been established, 'the inference is usually plain that the imitator intends such a result.' National Lead Co. v. Wolfe, 9 Cir., 1955, 223 F.2d 195, 202; Haeger Potteries, Inc. v. Gilner Potteries, D.C.S.D.Cal.1954, 123 F.Supp. 261, 269; Winfield v. Charles, supra. 31 Appellee chose to put on no evidence with respect to a lack of exact copying-- at best its evidence was that an itinerant commercial artist employed by it must have stolen the idea. This does not rebut the presumption that arises under the California cases and other cases above cited. 32 We are satisfied that the general impression given by the offending jacket produced by appellee (appellant's Exhibit 2) upon the eye of the ordinary purchaser was such as to make him believe it to be the original article (appellant's exhibit 1). Ordinarily, such a determination is one of fact, where it is one upon which reasonable minds might differ. Under such a circumstance we could not interpose our judgment for that of the trial court. Oriental Foods, Inc. v. Chun King Sales, 9 Cir., 1957, 244 F.2d 909. 33 But the trial court, having become convinced that exact copying by appellee of appellant's design had taken place, applied an improper theory of law in failing to rely on the inference created by such proof of copying. That proof, without any opposing proof, is sufficient to establish a secondary meaning to the jacket. There is no logical reason for the precise copying save an attempt to realize upon a secondary meaning that is in existence. National Van Lines v. Dean, supra. "(A) late comer who deliberately copies the dress of his competitors already in the field, must at least prove that his effort has been futile." National Lead Co. v. Wolfe, supra, 223 F.2d at page 202, quoting My-T Fine Corporation v. Samuels, 2 Cir., 1934, 69 F.2d 76, 77. 34 We hold that on the facts of this case, aided by a visual comparison, the use by appellee of the word 'Railroad' in the peculiarly designed type with the particular color, 'in-line lettering' and shading with which it was used, together with the capitalized word 'Sound,' all superimposed on a photograph of a steam engine (as disclosed in Exhibit 2), was likely to confuse and deceive the public and cause members thereof to be confused about such use. 35 We hold, therefore, that the matter must be remanded to the district court, to enter, at the very least, appropriate injunctive relief. 36 While we are not called upon and do not pass upon the matter, it appears to this court that the state of the present record is completely bare of adequate proof of substantial damage to appellant if any damage is to be awarded appellant. We recognize damage in a case of this kind is extermely difficult of proof. For how long a period does the public clamor to hear the stereophonic sound of steam engines? Was there not a saturation point in consumer demand reached sometime before or after the plagiarized jacket reached the market? On the other hand, is not the proof of the copying of the jacket the best evidence there was some substantial part of the market still left? 37 Irrespective of the difficulties inherent in determining actual loss of sales in a nonfungible commodity subject to wild gyrations of consumer choice, such difficulties cannot prevent the granting of injunctive relief (either absolute or with explanatory phrase), and the award of at least nominal damages, such as one dollar or one cent. By mentioning nominal damages, we do not imply, nor do we deny, that greater damages may be possible of proof. 38 The action is reversed and remanded, for consideration in accordance with this opinion. 1 Appellant's jacket face, in addition to the word 'Railroad' as described herein, superimposed over a photograph of a steam engine and the appellant's name and number in box in the upper right hand corner, bore the words on the left of the jacket: 'The Sounds of a Vanishing Era' in black, and to the right, below 'Railroad,' the words: 'Sounds; Steam and Diesel' in black, and at the bottom: 'a study in High Fidelity sound' in white Appellee's jacket face, in addition to the word 'Railroad' as described herein, superimposed over a photograph of a steam engine, and the appellee's name in the upper right hand corner, bore the words: 'I've been workin' on the' placed above 'Railroad' in white; '* * * A Farewell to Steam' to the right below 'Railroad' in white; and at the bottom: 'The Sound documentary of a 'steamer's' last run' in white. The largest type in appellant's Exhibit 1 was the word 'Railroad.' The same sized and largest type in Exhibit 2 was the word 'Railroad.' The second largest type in appellant's Exhibit 1 was the word 'Sounds.' The second largest type on Exhibit 2 was the word 'Sound.' 2 This section reads in part: '(2) Any person performing or proposing to perform an act of unfair competitin within this State may be enjoined in any court of competent jurisdiction. '(3) As used in this section, unfair competition shall mean and include unfair or fraudulent business practice and unfair, untrue or misleading advertising * * *'. 3 As contained in Penal Code 654a, 654b and 654c 4 As an example, the doctrine of 'unfair competition' is not confined to a case of actual market competition. Wood v. Peffer, 1942, 55 Cal.App.2d 116; 130 P.2d 220; Schwartz v. Slenderella Systems of California, 1954, 43 Cal.2d 107, 271 P.2d 857. And see discussion of liberal California rules generally, as compared to those of New York. Callman, Unfair Competition in Ideas and Title, 42 Calif.L.Rev. 77, particularly at 84. Cf. also Haeger Potteries, Inc. v. Gilner Potteries, D.C.1954, 123 F.Supp. 261 5 Although the appellant's jacket, Exhibit 1, had a copyright notice printed on it 6 40 Calif.L.Rev. 571, 572 7 Despite the title of the Wallace China complaint 8 Appellants Pagliero Brothers were doing business as Technical Porcelain & Chinaware Company, called Tepco 9 'Imitation of the physical details and designs of a competitor's product may be actionable, if the particular features imitated are 'nonfunctional' and have acquired a secondary meaning. Crescent Tool Co. v. Kilborn & Bishop Co., 2 Cir., 1917, 247 F. 299. But, where the features are 'functional' there is normally no right to relief. 'Functional' in this sense might be said to connote other than a trade-mark purpose. If the particular feature is an important ingredient in the commercial success of the product, the interest in free competition permits its imitation in the absence of a patent or copyright. On the other hand, where the feature or, more aptly, design, is a mere arbitrary embellishment, a form of dress for the goods primarily adopted for purposes of identification and individuality and, hence, unrelated to basic consumer demands in connection with the product, imitation may be forbidden where the requisite showing of secondary meaining is made. Under such circumstances, since effective competition may be undertaken without imitation, the law grants protection.' Pagliero v. Wallace China Co., 9 Cir., 198 F.2d 339, at page 343. Cf. Harold F. Ritchie, Inc. v. Chesebrough-Pond's, Inc., 2 Cir., 1960, 281 F.2d 755

88 Wn.2d 167 (1977) 558 P.2d 1350 BRADLEY LAVE BRESOLIN, Petitioner, v. CHARLES MORRIS, as Secretary of the Department of Social and Health Services, Respondent. No. 43846. The Supreme Court of Washington, En Banc. January 7, 1977. ROSELLINI, J. An inmate of the state's correctional institution at Walla Walla brought this action seeking mandamus to compel the Secretary of the Department of Social and Health Services to establish and maintain a drug rehabilitation program at the institution. In a previous hearing, we ordered the secretary to take steps to secure financing for isolated facilities for drug addicts, which were required under RCW 69.32.090, and to report to the court. Bresolin v. Morris, 86 Wn.2d 241, 543 P.2d 325 (1975). After three reports had been rendered, the legislature enacted Laws of 1975, 2d Ex. Sess., ch. 103, which repealed RCW 69.32.090, and made the establishment of a drug treatment and rehabilitation program discretionary rather than mandatory. *169 [1] In the meantime, we are advised that the petitioner has, in spite of his ineligibility, been transferred to Western State Hospital where he is enrolled in that institution's drug offender program. Since this was one of the alternative forms of relief which he sought in the original action, the case would appear to be moot. However, we are asked to consider the constitutional questions which were passed in the original opinion. The question of the constitutional duty of prison officials with respect to drug rehabilitation, we are told, is one of great public concern which will continue to recur in similar suits until the court answers the contentions raised. Being assured by the parties that this case is as well prepared and argued as any that is likely to come before the court in the near future, we will dispose of these questions. The petitioner contends that a prisoner has a right to treatment of his psychological dependence on drugs, for rehabilitative purposes, and that the denial of this right constitutes cruel and unusual punishment (forbidden by the eighth amendment to the United States Constitution and article 1, section 14, of the Washington State Constitution) as well as a deprivation of his liberty without due process of law and a denial of equal protection of the law. The authorities cited do not establish these contentions. None of them holds that a prisoner in a penal institution has a right to rehabilitation, and none holds that the failure to rehabilitate amounts to cruel and unusual punishment. It is established that prisoners do not lose all of their constitutional rights and that the due process and equal protection clauses of the Fourteenth Amendment follow them into prison and protect them there. Washington v. Lee, 263 F. Supp. 327, 331 (M.D. Ala. 1966), aff'd and approved, 390 U.S. 333, 19 L.Ed.2d 1212, 88 S.Ct. 994 (1968); accord, Smith v. Schneckloth, 414 F.2d 680 (9th Cir.1969). As the federal district court in the latter case said, however, it is also settled that correctional authorities have wide discretion in matters of internal administration and *170 that reasonable action within the scope of this discretion does not violate a prisoner's constitutional rights. [2] The petitioner cites Procunier v. Martinez, 416 U.S. 396, 404-06, 40 L.Ed.2d 224, 94 S.Ct. 1800 (1974), for the proposition that rehabilitation is a basic penal goal, and reasons that because it is a goal, punishment is cruel and unusual if it fails to substantially further such rehabilitation. The United States Supreme Court in Martinez was concerned with the censorship of prisoners' mail in a state institution. Before deciding that such prisoners have a right of free speech and a right of access to the courts, both of which are subject to reasonable restrictions in furtherance of legitimate governmental interests, the court summarized the role of courts in solving prison administration problems. While the language was directed primarily to the question of the intervention of federal courts in state penal matters, its import is equally valid with respect to the role of state courts in such matters, if it is borne in mind that such courts have also the duty of protecting statutory rights of prisoners.[1] The United States Supreme Court said: Traditionally, federal courts have adopted a broad hands-off attitude toward problems of prison administration. In part this policy is the product of various limitations on the scope of federal review of conditions in state penal institutions. More fundamentally, this attitude springs from complementary perceptions about the nature of the problems and the efficacy of judicial intervention. Prison administrators are responsible for maintaining internal order and discipline, for securing their institutions against unauthorized access or escape, and for rehabilitating, to the extent that human nature and inadequate resources allow, the inmates placed in their custody. The Herculean obstacles to effective discharge of these duties are too apparent to warrant explication. Suffice it to say that the problems of prisons in America are complex and intractable, and, more to the point, they are not readily susceptible of resolution by decree. Most *171 require expertise, comprehensive planning, and the commitment of resources, all of which are peculiarly within the province of the legislative and executive branches of government. For all of those reasons, courts are ill equipped to deal with the increasingly urgent problems of prison administration and reform. Judicial recognition of that fact reflects no more than a healthy sense of realism. Moreover, where state penal institutions are involved, federal courts have a further reason for deference to the appropriate prison authorities. But a policy of judicial restraint cannot encompass any failure to take cognizance of valid constitutional claims whether arising in a federal or state institution. When a prison regulation or practice offends a fundamental constitutional guarantee, federal courts will discharge their duty to protect constitutional rights. (Footnotes omitted.) The court in Martinez recognized that rehabilitation is a governmental interest. Procunier v. Martinez, supra at 412. It did not characterize it as a prisoner's right. The legislature in this state has also adopted rehabilitation as a penal goal. RCW 72.08.101.[2] But to say that the government has an interest in rehabilitation and that this is a legitimate institutional goal is one thing. To say that a prisoner has an enforceable right to such rehabilitation is another. The United States Supreme Court has spoken to that subject in a case not cited by the parties to this action but which we find to be directly in point and controlling. That court, in Marshall v. United States, 414 U.S. 417, 421, 38 L.Ed.2d 618, 94 S.Ct. 700 (1974), affirmed a holding of the Court of Appeals (Marshall v. Parker, 470 F.2d 34 (9th Cir.1972)) that "there is no `fundamental right' to rehabilitation ... at public expense after conviction of a crime". In that case, the petitioner claimed that the Narcotic Addict Rehabilitation Act of 1966, 18 U.S.C. §§ 4251-4255, *172 denied him due process and equal protection of the laws because it excluded persons in his situation from its benefits. Noting that no suspect classification was involved, the high court said that the correct standard to be applied was whether the statutory classification bore some relevance to the purpose for which the classification was made. The Congress, the court said, could reasonably find that some types of offenders were more likely to be susceptible and suitable to treatment than others, and could justifiably make classifications upon this basis. There is no contention here that the drug treatment program at the state correctional institution discriminates among prisoners; rather, the factual allegation of the petitioner is that it is inadequate. Certainly, if a legislative body may enact a statute which discriminates among prisoners (upon a nonsuspect basis) in providing drug treatment, and may deny such treatment to some prisoners, it may constitutionally decide that no drug rehabilitation program shall be required at all.[3] [3, 4] The petitioner relies upon federal cases which have held that a prisoner is entitled to essential or reasonable medical care. We have no quarrel with this concept; however, the cases generally recognize that the burden is on the complainant to show that his disease or condition is amenable to medical treatment. For example, in Smith v. Schneckloth, supra, it was held that under the federal Civil Rights Act, 42 U.S.C. 1983, a complaint can be maintained in federal court if it alleges that a state prisoner suffering an acute physical condition and having urgent need for medical care was refused such care and suffered tangible injury thereby. But as that court pointed out, implicit in the formulation is the requirement of proof that medical treatment in fact exists and is available to state officials, *173 before their refusal to provide it can be said to violate the Fourteenth Amendment. It should be emphasized that the petitioner is not contending that the institution withholds needed medication and medical treatment.[4] He makes no showing that there is an accepted method of treating psychological addiction, either within the confines of prison or without. At the same time, the respondent's authorities and affidavits stress the uncertainties which exist with respect to the efficacy of attempts to rehabilitate drug addicts, and particularly within the prison setting. That the entire concept of rehabilitation as a practical goal of confinement is under question can be appreciated by examining the current literature upon this subject. See, e.g., L. Pierce, Rehabilitation in Corrections: A Reassessment, 38 Fed. Prob. No. 2, p. 14 (1974); J. Wilks & R. Martinson, Is the Treatment of Criminal Offenders Really Necessary?, 40 Fed. Prob. No. 1, p. 3 (1976); N. Morris & G. Hawkins, Rehabilitation Rhetoric and Reality, 34 Fed. Prob. No. 4, p. 9 (1970).[5] Thus, the petitioner has not shown that there exists and is available to prison officials an accepted method of treating drug addiction in the prison environment. The respondent, on the other hand, has demonstrated that the department is not indifferent to the problems of drug addiction. In addition to its other rehabilitative programs, *174 the institution at Walla Walla (which is the institution here under attack) offers drug counseling to those who are willing to accept it. While this program may be termed minimal, the consensus of opinion appears to be that, as a practical matter, drug rehabilitative programs within the prison environment are nonproductive. Psychological assistance to motivated prisoners who are shortly to be released or paroled offers some hope of success, and to this end the program at Western State Hospital, to which the petitioner has been prematurely transferred, has been established. In the meantime, the Secretary and those charged with the responsibility of administering the prison system are constantly reexamining their programs and policies and the available and evolving alternatives, with a view to fulfilling to the best of their capacity the statutory goal of rehabilitation. The petitioner makes no showing that these efforts are pursued with less than good faith or that any superior alternatives to the existing programs and methods presently exist and are available to the respondent. We need not decide whether, if such a showing were made, judicial intervention would be appropriate. As the record stands, there is nothing here to indicate that the low incidence of drug rehabilitation is occasioned by any breach of duty on the part of the respondent. We find no constitutional violation in the failure to provide a more extended drug rehabilitation program within the institution. The writ is denied. STAFFORD, C.J., and HAMILTON, WRIGHT, BRACHTENBACH, and DOLLIVER, JJ., concur. UTTER, J. (dissenting) The majority contends this court is helpless to act in the face of the failure of the State to provide meaningful assistance to the petitioner, a narcotic addict who has demonstrated a willingness and desire to cure his addiction, when State action exacerbates his *175 addictive personality by placing him in a closed setting where the sale and use of drugs apparently cannot be effectively controlled. This is not, should not, and cannot be the law. For this court to hold that it is assures the continued explosive degeneration of the addicts confined to our institutions and creates a great likelihood that such individuals will do further injury to society when they are eventually released. The United States Supreme Court in Estelle v. Gamble, 429 U.S. 97, 102-04, 50 L.Ed.2d 251, 97 S.Ct. 285 (1976), has recognized as repugnant to the Eighth Amendment "punishments which are incompatible with `the evolving standards of decency that mark the progress of a maturing society,'" and that infliction of unnecessary suffering is "inconsistent with contemporary standards of decency as manifested in modern legislation codifying the common-law view that `it is but just that the public be required to care for the prisoner, who cannot by reason of the deprivation of his liberty, care for himself.'" (Footnote omitted.) The relief here requested does not require, as the majority insists, the recognition by this court of a constitutionally based broad right of rehabilitation. In its present facutal framework this case presents a narrow, albeit important, issue concerning the constitutional rights of inmates confined to state institutions: Does a prisoner who is psychologically addicted to narcotics have the right to demand some protection from the demonstrable physical and mental harm which he suffers as a result of being confined to an institution in which he is unavoidably exposed to unlawful trade in and use of hard narcotics, which prison officials are unable to prevent? I conclude that the State is constitutionally compelled to provide protection from harm of this nature and therefore dissent. The record establishes that, prior to his recent and more than coincidental transfer to Western State Hospital, the petitioner was incarcerated at Walla Walla State Penitentiary where there is extensive unlawful use of hard drugs, including heroin, amphetamines, and hallucinogens. This *176 drug culture allegedly involves not only prisoners, but staff and visitors as well. Prison personnel have, under existing conditions, been unable to do anything to significantly curtail this activity, nor have they provided a means by which prisoners who wish to do so, may seek sanctuary from its adverse effects. Such a situation not only results in the creation of an environment in which it is extremely difficult for most inmates who have the desire to rehabilitate themselves, but in the case of the petitioner and others like him, makes debilitation inevitable. As we stated in our prior opinion in this case, the petitioner is psychologically and has been physiologically addicted to drugs. All his crimes have been committed either to obtain drugs or money with which to purchase drugs. Due to lack of funding, no programs have been provided to help him cure this addiction .. . Use of drugs has resulted in confinement in institutions where his addiction is encouraged by the availability of narcotics. He is unable to escape either their physical presence or the prison drug subculture that encourages their use. On his release at the end of his term, nothing will have been accomplished by confinement except to confirm the physical and psychological needs which guarantee, once more, his involvement in criminal acts, followed by more confinement. Bresolin v. Morris, 86 Wn.2d 241, 249, 543 P.2d 325 (1975). Faced with this situation, the petitioner has made great efforts to secure placement in a drug treatment program. As the majority points out, the petitioner has recently been transferred to the drug treatment program at Western State Hospital. That placement is unusual, to say the least. In the long history of this case, the petitioner first sought treatment under RCW 69.32.090. This court then ordered, in the words of the statute, that respondent "make available to health authorities portions of correctional institutions under his jurisdiction for the isolation and treatment, at public expense, of petitioner." Respondent failed to do so and petitioner sought placement in the Western State *177 Hospital drug treatment program. Respondent resisted that placement, stating in the Brief of Respondent at pages 1-2: [I]t is used primarily as a stepping stone back to the streets and is not designed to treat an individual and then return him to an institution . .. The treatment program at the hospital is of limited duration (about 18 months) and the program is of limited size (30 people). Because of the physical layout of the hospital, it is not considered a "secure" facility. It has no walls, fences or guards, limiting the types of persons it can take and clearly indicating it was not established to provide immediate drug treatment for all prison inmates who might be found to be narcotics addicts. Petitioner has not been transferred to Western State Hospital because of his long sentence. He is presently serving the first of three five-year mandatory minimum terms based upon deadly weapon findings, State v. Bresolin, 13 Wn. App. 386 (1975), and in fact has no tentative release date yet established because of his consecutive sentence structure. He also has a federal detainer, based on a federal conviction, lodged against him which prevents his parole, except to federal custody, ... The court has been informed by counsel for the respondent, at the time of the most recent hearings in this case, that these underlying facts have not significantly changed. Respondent has not contended Bresolin now fits the established criteria for the Western State program. It is difficult to view Bresolin's recent transfer to the Western State program, in view of respondent's past position, as little more than an effort by the respondent to render moot the important issues raised by this case. Bresolin's placement at Western State does not, however, moot these issues as to other inmate/addicts who, as the undisputed evidence indicates, desire and would benefit from placement in a drug treatment program. These inmates are still incarcerated in the state penitentiary under conditions and with resulting harm identical to that of the named petitioner here. The legislature has expressly repealed RCW 69.32.090 (see Laws of 1975, 2d Ex. Sess., ch. 103), the statute which *178 we found controlling in our prior opinion in this case. While the present statutory scheme clearly allows the establishment of drug treatment programs, and I feel in a factual setting such as this requires them (RCW 72.08.101), the record is devoid of any indication that the respondent intends to implement an adequate program at the state penitentiary at any time in the near future.[6] As the majority suggests, courts have shown reluctance to become involved in the inner workings of our penal institutions. The power of the courts to intervene to protect inmates from conditions which threaten their health or safety, or which are violative of a basic constitutional right is clearly established. See, e.g., Estelle v. Gamble, supra; Procunier v. Martinez, 416 U.S. 396, 40 L.Ed.2d 224, 94 S.Ct. 1800 (1974)(prison mail censorship regulations held violative of inmates' First and Fourteenth Amendment rights); Gates v. Collier, 501 F.2d 1291 (5th Cir.1974)(confinement under conditions which threaten physical health and safety and deprive inmates of basic hygiene and medical treatment constitutes "cruel and unusual punishment"); Riley v. Rhay, 407 F.2d 496 (9th Cir.1969)(claim by inmate of Washington State Penitentiary that failure to provide medical care violated his constitutional rights states cause of action under the Civil Rights Act, 42 U.S.C. §§ 1981, 1983, 1985); Pugh v. Locke, 406 F. Supp. 318 (M.D. Ala. 1976)(failure to protect inmates from the constant threat of physical harm constitutes cruel and unusual punishment). Where deprivation of needed medical care is added to the imprisonment imposed as punishment for commission *179 of a crime, the additional suffering imposed thereby constitutes cruel and unusual punishment and provides justification for our intervention to alleviate that additional suffering. Estelle v. Gamble, supra; Ramsey v. Ciccone, 310 F. Supp. 600 (W.D. Mo. 1970). Moreover, due process requires additional proceedings to justify failure of the state to protect an inmate from any harm greater than that contemplated by his incarceration. New York Ass'n for Retarded Children, Inc. v. Rockefeller, 357 F. Supp. 752 (E.D.N.Y. 1973); Baxstrom v. Herold, 383 U.S. 107, 15 L.Ed.2d 620, 86 S.Ct. 760 (1966). The trial court found, pursuant to our order of referral, that: The Petitioner is psychologically addicted to the use of narcotic drugs. Psychological addiction is the primary cause of drug usage. Drug treatment programs have as their primary focus the cure of psychological addiction.... ... ... [The petitioner's] psychological addiction leads him to obtain and use narcotic drugs when he is able to do so. ... ... There is no form of therapy available to the Petitioner at the Penitentiary which has any probability of curing his condition. The evidence presented at this fact-finding hearing further establishes that the petitioner has actively sought aid in dealing with his drug problems while not in prison. No such programs are available to him, or other inmates, at the penitentiary. Yet, because of his confinement and the failure of prison officials to control illegal drug activity within the walls of the institution, it is impossible, at the present time, for an addicted inmate to avoid continued involvement with drugs, no matter how determined he might be to forsake them. This would not be the case but for the inability of the institution staff to adequately control the prison environment, coupled with the failure to provide addicts who affirmatively seek help an environment in *180 which to begin to rebuild their lives. Confinement under the present conditions only intensifies such an individual's psychological addiction, with the result that when he is thrust once again into society's mainstream, it will be even more difficult for him to avoid further involvement with drugs and additional confinement. Contrary to the assertion of the majority, the uncontroverted testimony of expert witnesses in the superior court fact-finding hearing established that the petitioner and others like him are indeed treatable and that such treatment is a necessity.[7] While there is considerable conflict among experts as to which of a number of techniques would be most beneficial to addicts, most authorities seem now to assume that effective treatment can be provided. See S. Levine, Narcotics and Drug Abuse 311 (1973); R. Bonnie & M. Sonnenreich, Legal Aspects of Drug Dependence 171-80 (1975); Drug Addiction and Treatment in the District of Columbia, Hearing Before the Subcomm. on Public Health, Education, Welfare, and Safety of the Comm. on the District of Columbia United States Senate, 92nd Cong., 1st Sess. (1971); G. Swanson, Law Enforcement and Drug Rehabilitation: Is a Bridge of Trust Possible? 4 Contemporary Drug Problems 493 (1975).[8] *181 The record in this case clearly establishes that the failure to make such treatment available to the inmate/addict who affirmatively seeks it does substantial harm to that individual, as well as society as a whole. See Bresolin v. Morris, supra at 247-49. Though it may be true that the Supreme Court has not recognized the existence of a "`fundamental right' to rehabilitation from narcotics addiction ..." (Marshall v. United States, 414 U.S. 417, 421, 38 L.Ed.2d 618, 94 S.Ct. 700 (1974)),[9] it is clear that a person may not be punished simply for being an addict, Robinson v. California, 370 U.S. 660, 8 L.Ed.2d 758, 82 S.Ct. 1417 (1962), and has a constitutional right to protection from direct harm caused by the failure of prison officials to keep order. Gates v. Collier, supra; Pugh v. Locke, supra. In a situation such as that before us, the right to be free of official indifference to the need for medical treatment and protection from harm, which is constitutionally required, forms the basis for petitioner's claim. An accepted part of medical treatment is often the healing of the mind. See, e.g., Howard R. & Martha E. Lewis, Psychosomatics (1972); L. Keiser, The Traumatic Neurosis (1968). Such healing of the mind is necessary to treat psychological addiction for the purpose of providing the inmate with the defense mechanisms necessary to survive as a nonaddict in the drug culture existing inside the prison. The trial court *182 found on the basis of expert testimony that the primary means of treating addiction is to combat the psychological roots of this "disease." Robinson v. California, supra at 667 n. 8. It is entirely inappropriate to deny the addict protection from the harm which the prison environment causes him, simply because the appropriate means of implementing those constitutional rights requires treating his mind. I therefore conclude the established right of the petitioner and others similarly situated to be free of cruel and and unusual punishment (U.S. Const. amend. 8; Const. art. 1, § 14) and the due process right to be free from direct harm not contemplated by the sentencing court, create in these circumstances a concomitant obligation on the part of the State to provide adequate treatment to ameliorate the harm caused those addicts who affirmatively seek help with their drug problems. Such a result is required because it is the failure of the State, (presumably due to inadequate facilities and staffing), to bring under control unlawful activity within the penitentiary which creates the particular harm suffered by this petitioner and others like him. I would deny respondent's motion to dismiss and order the respondent to take appropriate action to provide meaningful drug treatment programs for individuals whose circumstances are similar to the petitioner's, and further order that the respondent report to this court on a monthly basis as to his progress in this endeavor.[10] We must assume that the respondent, like all citizens of this state, will obey the *183 commands of this court and therefore see no need at this time to consider what further remedies may prove appropriate or necessary. HOROWITZ, J., concurs with UTTER, J. HUNTER, J. (dissenting) I concur with the dissent except for the mandate requiring the respondent to make monthly reports to this court regarding the success of the treatments, in which respect, I dissent to the dissent. NOTES [1] See Bresolin v. Morris, 86 Wn.2d 241, 543 P.2d 325 (1975). [2] "The director of institutions shall provide for the establishment of programs and procedures for convicted persons at the state penitentiary, which are designed to be corrective, rehabilitative and reformative of the undesirable behavior problems of such persons, as distinguished from programs and procedures essentially penal in nature." RCW 72.08.101. [3] Our recent cases of State v. Starrish, 86 Wn.2d 200, 544 P.2d 1 (1975) (observing in a footnote that the problem of treatment of alcohol problems of offenders is one for legislative resolution), and Robinson v. Peterson, 87 Wn.2d 665, 555 P.2d 1348 (1976) (holding that jail officials do not have a constitutional duty to provide rehabilitation programs) are in accord. [4] A law review article relied upon by the petitioner, in support of his claim that drug rehabilitation programs should be judicially required, goes no further than to advocate protection of the right to receive methadone for withdrawal symptoms and treatment of physical dependence, while at the same time recognizing that even this treatment is controversial. Comment, The Rights of Prisoners to Medical Care and the Implications For Drug-Dependent Prisoners and Pre-trial Detainees, 42 U. Chi. L. Rev. 705 (1975). [5] An article by P. Dwyer & M. Botein, The Right to Rehabilitation for Prisoners — Judicial Reform of the Correctional Process, 20 N.Y.L.F. 273 (1974), cited by the petitioner, takes the view that the courts should intervene in prison management and order the establishment of maintenance of rehabilitation programs. The authors assume, without citation of evidence, that rehabilitation is an achievable prison goal. They do not address the specific problem of rehabilitation of drug addicts. [6] The trial court, in its hearing on this matter, expressly found that "[t]here is no form of therapy available to the Petitioner at the Penitentiary which has any probability of curing his condition." In an affidavit submitted in this case dated June 16, 1976, Harold Bradley, Director of Adult Corrections Division of the Department of Social and Health Services, stated the existing drug treatment program at Walla Walla would continue at "essentially the same level as it has been in the past ..." [7] Lyle Quasim, a qualified expert, testified as follows: "Q. [by Mr. Emery]: Can you treat the psychological addiction in prison? A. Yes, you can treat psychological addiction in prison.... I think that we can make some significant inroads into dealing with the psychological process in the penitentiary." Gene Chontos, another expert, testified as follows: "Q. [by Mr. Emery]: Do you conclude that drug treatment in prison is an absolute necessity as a grounding for successful treatment of an addict who is in prison and who will be released later on? A. I think, yes, it's necessary. It's definitely necessary just to build trust that you can transfer outside.... Q. [by the Court]: In other words, and assuming the law is that you can't interfere with his prison sentence while you are treating him, there are available to the State forms of medical or psychological therapy which could be administered to this petitioner at the penitentiary beneficially in the light of his present physical and mental condition? A. If the funds were free enough to do that. If there were money available, I would say yes." The record is replete with similar statements. [8] Expert testimony at the fact-finding hearing was to the effect that the most effective drug treatment program would involve isolated therapeutic communities of approximately 35 to 40 members each. These groups would include those addicts who had affirmatively and sincerely sought help in curing their drug addiction. In addition, some apparently less intensive program was indicated to be desirable to serve the approximately 300 members of the prison population who are primarily or secondarily involved with the drug culture but do not seem to be prime candidates for successful isolated treatment. [9] I disagree with the majority's conclusion that the Supreme Court's decision in Marshall controls our disposition of this case. The Supreme Court affirmed the determination of the Court of Appeals that the eligibility classifications contained in the federal statute there at issue, which rendered the particular addict there considered ineligible for discretionary rehabilitative commitment, did not violate the petitioner's right to equal protection. The court was not considering the right of an inmate to be protected from the specific harm caused him by the inability of the state to keep order within its institutions. It is that issue which is before us here. [10] The power of the courts to enforce such obligations is well established. In recent years the courts of this nation have utilized various remedies in an effort to protect the constitutional rights of persons confined to prisons. Traditionally, the courts have allowed relief in the form of contempt citations, injunctive relief, or, particularly in section 1983 actions, damages. More recently, the courts have found it appropriate to utilize remedies which are quite broad in scope, including: enjoining institutions from accepting new prisoners until populations within the institutions are reduced; ordering specific institutional changes; and, appointing special masters or committees to enforce orders of the court requiring specific reforms. See Comment, Cruel But Not So Unusual Punishment: The Role of the Federal Judiciary in State Prison Reform, 7 Cumberland L. Rev. 31 (1976), and cases cited therein.

F I L E D United States Court of Appeals Tenth Circuit UNITED STATES COURT OF APPEALS DEC 22 1997 TENTH CIRCUIT PATRICK FISHER Clerk UNITED STATES OF AMERICA, Plaintiff - Appellee, No. 97-2154 v. (D.C. No. CV-96-519 JP/JHG) THOMAS TURNER, (D. New Mex.) Defendant - Appellant. ORDER AND JUDGMENT* Before ANDERSON, McKAY, and LUCERO, Circuit Judges. After examining Appellant’s brief and the appellate record, this panel has determined unanimously that oral argument would not materially assist the determination of this appeal. See Fed. R. App. P. 34(a); 10th Cir. R. 34.1.9. The case is therefore ordered submitted without oral argument. Appellant claims that his conviction was fundamentally defective because he was allowed to plead guilty to conduct that was not a crime, in violation of his right to due process. Mr. Turner appeals the district court’s denial of his Motion to Vacate, Set Aside, * This order and judgment is not binding precedent, except under the doctrines of law of the case, res judicata, and collateral estoppel. The court generally disfavors the citation of orders and judgments; nevertheless, an order and judgment may be cited under the terms and conditions of 10th Cir. R. 36.3. or Correct Sentence pursuant to 28 U.S.C. § 2255, and the district court’s dismissal of his action. We grant Appellant’s motion for leave to proceed without prepayment of costs or fees, and we grant Appellant a certificate of appealability. We affirm the judgment for the reasons given in the magistrate judge’s Proposed Findings and Recommended Disposition, as adopted and supplemented by the district court in its Order filed April 1, 1997. AFFIRMED. Entered for the Court Monroe G. McKay Circuit Judge 2 

690 F.Supp.2d 889 (2010) ALLIANCE COMMUNICATIONS COOPERATIVE, INC.; Beresford Municipal Telephone Company; Interstate Telecommunications Cooperative, Inc.; Kennebec Telephone Company, Inc.; McCook Cooperative Telephone Company; and Splitrock Properties, Inc., Plaintiffs, v. GLOBAL CROSSING TELECOMMUNICATIONS, INC., Defendant and Third-Party Plaintiff, v. Golden West Telecommunications Cooperative, Inc.; Bridgewater-Canistota Independent Telephone Company; Vivian Telephone Company; James Valley Cooperative Telephone Company; Northern Valley Communications, LLC; Midstate Communications, Inc.; Midstate Telecom, Inc.; Valley Telecommunications Cooperative Association, Inc.; Venture Communications Cooperative, Inc.; Western Telephone Company; Faith Municipal Telephone Company; Onvoy, Inc.; Trans National Communications International, Inc.; Express Communications, Inc.; and South Dakota Networks, LLC., Third-Party Defendants. Golden West Telecommunications Cooperative, Inc.; Bridgewater Canistota Independent Telephone Company; Vivian Telephone Company; James Valley Cooperative Telephone Company; Northern Valley Communications, LLC; Midstate Communications, Inc.; Midstate Telecom, Inc.; Sioux Valley Telephone Company; Valley Telecommunications Cooperative Association, Inc.; Venture Communications Cooperative, Inc.; West River Cooperative Telephone Company; South Dakota Network, LLC, Plaintiffs, v. Onvoy, Inc. and Trans National Communications International, Inc., Defendants, Global Crossing Telecommunications, Inc., Defendant and Third-Party Plaintiff, v. Express Communications, Inc., Alliance Communications Cooperative, Inc.; Beresford Municipal Telephone Company; Interstate Telecommunications Cooperative, Inc.; Kennebec Telephone Company, Inc.; McCook Cooperative Telephone Company; Splitrock Properties, Inc., Third-Party Defendants Golden West Telecommunications Cooperative, Inc.; Bridgewater Canistota Independent Telephone Company; Vivian Telephone Company; James Valley Cooperative Telephone Company; Northern Valley Communications, LLC; Midstate Communications, Inc.; Midstate Telecom, Inc.; Sioux Valley Telephone Company; Valley Telecommunications Cooperative Association, Inc.; Venture Communications Cooperative, Inc.; West River Cooperative Telephone Company; Western Telephone Company; Faith Municipal Telephone Company; Cheyenne River *890 Sioux Tribe Telephone Authority; RC Communications, Inc.; Union Telephone Company of Hartford; Armour Independent Telephone Company; and South Dakota Network, LLC, Plaintiffs, v. Onvoy, Inc.; Trans National Communications International, Inc., Defendants, and Sprint Communications Company Limited Partnership, Defendant and Third-Party Plaintiff, v. Express Communications, Inc., Third-Party Defendant. Kennebec Telephone Company, Inc. and Santel Communications Cooperative, Inc., Plaintiffs, v. Sprint Communications Company Limited Partnership, Defendant and Third-Party Plaintiff, v. Express Communications, Inc., Third-Party Defendant. Alliance Communications Cooperative, Inc.; Beresford Municipal Telephone Company; Interstate Telecommunications Cooperative, Inc.; McCook Cooperative Telephone Company; Splitrock Properties, Inc.; Stockholm-Strandburg Telephone Company and Tri-County Telecom, Inc., Plaintiffs, v. Sprint Communications Company Limited Partnership, Defendant and Third-Party Plaintiff, v. Express Communications, Inc., Third-Party Defendant and Fourth-Party Plaintiff, v. Onvoy, Inc. and Trans National Communications International, Inc., Fourth-Party Defendants. Civ. Nos. 06-4221-KES, 06-3023-KES, 06-3025-KES, 06-4144-KES, 07-3003-KES. United States District Court, D. South Dakota, Southern Division. February 11, 2010. *891 Meredith A. Moore, Ryan J. Taylor, Cutler & Donahoe, LLP, Sioux Falls, SD, Margo D. Northrup, Darla Pollman Rogers, Riter, Rogers, Wattier, Brown & Northrup, Pierre, SD, Danelle Jean Daugherty, Bureau of Indian Affairs, *892 James M. Cremer, Bantz, Gosch & Cremer, LLC, Aberdeen, SD, for Plaintiffs. Eric A. Linden, Jaffe Raitt Heuer & Weiss, Southfield, MI, Michael J. Shortley, III, Global Crossing North America, Inc., Pittsford, NY, William M. Van Camp, Olinger, Lovald, McCahren & Reimers, P.C., Pierre, SD, Eric J. Nystrom, John C. Ekman, Mark H. Zitzewitz, Lindquist and Vennum PLLP, Minneapolis, MN, John Patrick Mullen, Michael A. Hauck, Bangs, McCullen, Butler, Foye & Simmons, Cheryle Wiedmeier Gering, Davenport, Evans, Hurwitz & Smith, David Alan Palmer, Sioux Falls, SD, Peter B. Krupp, Thomas E. Lent, Lurie & Krupp, LLP, Boston, MA, for Defendants. ORDER KAREN E. SCHREIER, Chief Judge. Plaintiffs move for reconsideration of the court's order denying defendant Onvoy, Inc.'s (Onvoy) motion for summary judgment, granting defendant Trans National Communications International, Inc.'s (TNCI) motion for summary judgment, denying defendant Global Crossing Telecommunications, Inc.'s (Global Crossing) motion for summary judgment, granting in part and denying in part defendant Sprint Communications Company Limited Partnership's (Sprint) motion for summary judgment, granting plaintiffs' motion for summary judgment on Global Crossing's counterclaims, and granting in part and denying in part third-party defendant Express Communications, Inc.'s (Express) motion for summary judgment on Global Crossing's and Sprint's third-party complaints. See Order, Docket 253. Specifically, plaintiffs seek reconsideration of the court's factual determination that "none of defendants subscribed to plaintiffs' switched access services by submitting an Access Order as prescribed in the tariffs." Id. at 22. Plaintiffs also seek reconsideration of the court's ruling that TNCI, Global Crossing, and Sprint did not constructively order services under plaintiffs' tariffs. Onvoy, TNCI, Global Crossing, and Sprint oppose plaintiffs' motion to reconsider. BACKGROUND Plaintiffs, a group composed of local exchange carriers (LECs) located in South Dakota, and centralized equal access provider South Dakota Network, LLC (SDN), filed this consolidated action against defendants to recover access charges allegedly owed pursuant to plaintiffs' tariffs filed with the Federal Communications Commission (FCC) and the South Dakota Public Utilities Commission (SDPUC). A number of counterclaims, third-party complaints, and cross-claims were also filed, but plaintiffs' present motion does not implicate those claims. On September 21, 2009, the court issued an order ruling on defendants' summary judgment motions (hereinafter referred to as "summary judgment order"). The court found that "none of defendants subscribed to plaintiffs' switched access services by submitting an Access Order as prescribed in the tariffs," but went on to consider whether each defendant constructively ordered services under plaintiffs' tariffs. Id. at 22. The court found that there were disputed issues of material fact relating to the issue of whether Onvoy constructively ordered originating access services under plaintiffs' tariffs and was therefore liable for the associated access charges. As a result, the court denied Onvoy's motion for summary judgment. With respect to TNCI, Global Crossing, and Sprint, however, the court found as a matter of law that these parties did not receive access services under plaintiffs' tariffs (with respect to the traffic at issue), and as a result did not constructively order access services and become liable for access charges. Thus, the court granted *893 TNCI's motion for summary judgment and denied Global Crossing's and Sprint's motions for summary judgment on the limited issue of whether Global Crossing and Sprint had paid plaintiffs for access services they admitted to ordering and receiving. Plaintiffs now argue that the court erred in finding that "none of defendants subscribed to plaintiffs' switched access services by submitting an Access Order as prescribed in the tariffs" and in failing to consider issues of material fact that may establish that TNCI, Global Crossing, and Sprint are liable under the constructive ordering doctrine. The court will consider plaintiffs' second contention first. STANDARD The Federal Rules of Civil Procedure do not mention motions to reconsider. The Eighth Circuit has instructed courts to consider such motions either under Rule 59(e) or Rule 60(b). Sanders v. Clemco Indus., 862 F.2d 161, 168 (8th Cir.1988); see also Schoffstall v. Henderson, 223 F.3d 818, 827 (8th Cir.2000) (holding that Rule 59(e) applies to a motion to reconsider); Broadway v. Norris, 193 F.3d 987, 989 (8th Cir.1999) (analyzing whether Rule 59(e) or Rule 60(b) applies to a motion to reconsider). Here, plaintiffs move under Rule 59(e), which permits a party to file a motion to alter or amend a judgment within ten days[1] of that judgment. Fed. R.Civ.P. 59(e). Rule 59(e) refers to entry of judgment, but some authority indicates that a district court may entertain a Rule 59(e) motion before the entry of final judgment on a separate document. Sanders, 862 F.2d at 168 n. 12. "Motions for reconsideration serve a limited function: to correct manifest errors of law or fact or to present newly discovered evidence." Hagerman v. Yukon Energy Corp., 839 F.2d 407, 414 (8th Cir.1988) (quoting Rothwell Cotton Co. v. Rosenthal & Co., 827 F.2d 246, 251 (7th Cir.), as amended, 835 F.2d 710 (7th Cir.1987)). A Rule 59(e) motion cannot be used "to introduce new evidence that could have been adduced during pendency of the summary judgment motion.... Nor should a motion for reconsideration serve as the occasion to tender new legal theories for the first time." Concordia College Corp. v. W.R. Grace & Co., 999 F.2d 326, 330 (8th Cir.1993) (quoting Hagerman, 839 F.2d at 414). District courts have broad discretion in determining whether to grant a motion for reconsideration. Hagerman, 839 F.2d at 413-14. DISCUSSION I. Motion to Reconsider Court's Finding That TNCI, Global Crossing, and Sprint Did Not Constructively Order Services Plaintiffs seek reconsideration of the portion of the court's summary judgment order that concludes that, as a matter of law, the constructive ordering doctrine does not apply to TNCI, Global Crossing, and Sprint. Plaintiffs "submit that because of the business relationships that existed among all of the parties, the constructive ordering doctrine may apply to all of the carriers in this case, and the trier of fact should be allowed to view the flow of traffic among all of the carriers and then determine the respective liability of the parties." Plaintiffs' Memorandum of Law in Support of Their Motion for Reconsideration of Memorandum Opinion and Order Dated September 29, 2009, Docket 255 at 11-12, 663 F.Supp.2d 807, 815-16,. The court finds that plaintiffs do not advance any new evidence or arguments of *894 law explaining why the court should change the summary judgment order and deny TNCI's, Global Crossing's, and Sprint's motions for summary judgment. Plaintiffs' failure to provide any new reasons why summary judgment was inappropriate is reason enough for the court to deny plaintiffs' motion for reconsideration of this portion of the court's summary judgment order. See Schoffstall, 223 F.3d at 827 (finding that district court did not abuse its discretion by denying a motion for reconsideration where the movant merely restated the arguments it made in opposition to summary judgment and provided no additional reasons why summary judgment was inappropriate). But the court has considered the substance of plaintiffs' arguments and finds them to be without merit. Plaintiffs request that the court reconsider the business relationships that existed between the various parties and find that in light of these business relationships, the constructive ordering doctrine "should be applied through the entire communications path of the traffic, not just isolated segments of the path." Id. at 14. Plaintiffs' argument misses the rule that the terms of the relevant tariffs, and not the business relationships of the parties or the entire communications path of the traffic, are dispositive of the issue of liability for access charges pursuant to those tariffs. As the court explained in the summary judgment order, because plaintiffs seek to recover access charges owed pursuant to their tariffs, the relevant question is whether plaintiffs provided each defendant with access services pursuant to their tariffs. See Advamtel LLC v. AT & T Corp., 118 F.Supp.2d 680, 683 (E.D.Va. 2000) (explaining that to recover for amounts charged pursuant to their tariffs, plaintiffs must show that they operated under a valid tariff and that they provided services to the customer pursuant to that tariff); see also American Tel. & Tel. Co. v. City of New York, 83 F.3d 549, 552 (2d Cir.1996) (setting out terms of relevant tariff in determining whether defendant was obligated to pay charges under the tariff). Here, plaintiffs' tariffs apply to plaintiffs' "customers," and a "customer" is an individual or entity that subscribes to the services offered therein. An individual or entity may subscribe to the services offered in plaintiffs' tariffs "in one of two ways: (1) by affirmatively ordering ... or (2) by constructively ordering" the service. City of New York, 83 F.3d at 553. Under the constructive ordering doctrine, an individual or entity that does not follow the ordering provisions contained within the relevant tariff is deemed to have subscribed to or ordered the services offered in the tariff if the receiver of services (1) is interconnected in such a manner that it can expect to receive access services, (2) fails to take reasonable steps to prevent the receipt of services, and (3) does in fact receive such services. Advamtel, 118 F.Supp.2d at 685. Under the third requirement of the constructive ordering doctrine, a party must have actually received the services offered in the relevant tariff to be liable. Plaintiffs' tariffs provide detailed and specific definitions of "switched access service." Under plaintiff-LECs' tariffs, switched access service is a two-point communications path between a customer's designated premise and an end user's premise. National Exchange Carrier Association, Inc's Tariff F.C.C. No. 5, § 6.1 (available at Docket 193-7); Local Exchange Carrier Association, Inc.'s Tariff No. 1, § 6.1 (available at Docket 192-6). Under SDN's tariffs, switched access service is a communications path between plaintiff-LECs and SDN's centralized equal access tandem where a customer's traffic is switched to originate or terminate *895 its communications, and the customer's point of interconnection is the demarcation point or network interface between SDN's communications facilities located at the SDN tandem switch and customer provided facilities. SDN's Tariff F.C.C. No. 1, § 6.1 (available at Docket 192-6 and 239-18); SDN's South Dakota Tariff No. 2, § 6.1 (available at Docket 186-4 and 186-5). As the court explained in its summary judgment order, TNCI, Global Crossing, and Sprint did not designate premises at which plaintiff-LECs delivered traffic originating from end users or provide any facilities at which SDN switched the Express traffic. Thus, TNCI, Global Crossing, and Sprint did not receive "switched access service" as that term is defined in plaintiffs' tariffs, so these defendants are not liable for switched access charges under plaintiffs' tariffs. Nothing in plaintiffs' motion for reconsideration indicates that the court applied the wrong law, that the court misinterpreted the applicable tariffs, or that the court failed to consider material facts. Plaintiffs set out facts about Express and its contractual relationships with facilities-based carriers, the role of intermediary carriers in carrying the Express traffic, the single point of interconnection provided by SDN, Onvoy's role in facilitating the agreement between the interexchange carriers and TNCI and Express, and the prevalence of arrangements like this in the industry. These facts were all set out in plaintiffs' briefs opposing summary judgment and, to the extent they are relevant, considered by the court in the summary judgment order. See Order at 7-15. In their motion for reconsideration, plaintiffs cite 3 Rivers Telephone Cooperative, Inc. v. U.S. West Communications, Inc., No. CV 99-80-GF-CSO, 2003 WL 24249671 (D.Mont. Aug. 22, 2003), for the proposition that the constructive ordering doctrine applies even when there are multiple intermediary carriers. Plaintiffs argue that the Express traffic traversed the entire communications path that was established by Onvoy, TNCI, Global Crossing, and Sprint in order to reach the end user receiving the call. Plaintiffs previously cited 3 Rivers in response to Onvoy's argument that the constructive ordering doctrine is inapplicable to intermediary carriers. Plaintiffs' Memorandum of Law in Opposition to Motion for Summary Judgment Filed by Onvoy, Inc., Docket 207 at 24. Now plaintiffs attempt to conflate the proposition that the constructive ordering doctrine is not rendered inapplicable merely because a carrier is an intermediary carrier with respect to the traffic in question with the proposition that the constructive ordering doctrine always applies to an intermediary carrier. 3 Rivers does not support plaintiffs' proposition. This case does not apply (or even mention) the constructive ordering doctrine. Indeed, the court found as a matter of law that the defendant interexchange carrier was a "customer" that received switched access services as defined in the relevant tariffs. 3 Rivers, 2003 WL 24249671, at *7, *9. In 3 Rivers, the defendant interexchange carrier did not dispute that it received such services. Id. at *7. Thus, the court did not analyze the constructive ordering doctrine. Moreover, 3 Rivers is distinguishable from the present case. In that case, the court found that the defendant interexchange carrier was responsible for terminating access charges regardless of where the traffic originated. Id. at *11. That is, the court rejected the defendant interexchange carrier's contention that it was not responsible for terminating access charges associated with traffic it delivered to the plaintiff-LECs because that traffic was originated by subscribers of other carriers. See id. at *3. Thus, in 3 Rivers, there was no dispute that the defendant interexchange *896 carrier actually delivered traffic to the plaintiff-LECs for termination. The present case, on the other hand, involves liability for originating access charges where the defendant carriers picked up the traffic at some point after plaintiffs switched the traffic. Unlike the defendant in 3 Rivers, here, TNCI, Global Crossing, and Sprint deny that they received the traffic from plaintiffs. None of these defendants picked up the traffic at SDN's switch in Sioux Falls. The fact that the involvement of an intermediary carrier earlier in the traffic flow did not absolve the defendant interexchange carrier from liability for terminating access charges in 3 Rivers does not mean that the involvement of intermediary carriers earlier in the traffic flow does not absolve TNCI, Global Crossing, and Sprint of liability for originating access charges in this case. Simply put, 3 Rivers does not address the same situation or issues that are at the heart of the present case. Plaintiffs' continued reliance on 3 Rivers does not support their motion for reconsideration. Next, plaintiffs argue that given the procedural posture of this case, there is no meaningful distinction between Onvoy and TNCI, Global Crossing, and Sprint and that because of the business relationships among them, they are all customers of plaintiffs' access services. In support of this argument, plaintiffs quote the deposition testimony of plaintiffs' expert asserting that TNCI, Global Crossing, and Sprint were all customers of plaintiffs because they were "provided" the service in that the calls were originated, transported, and switched. As an initial matter, the court is not required to substitute its interpretation of the language of plaintiffs' tariffs with the conclusory legal assertions of plaintiffs' expert. And as the court explained in its original order, TNCI, Global Crossing, and Sprint did not receive access services within the meaning of plaintiffs' tariffs because they did not designate premises at which plaintiff-LECs delivered traffic originating from end users or provide any facilities at which SDN switched the Express traffic. Thus, the difference between Onvoy on the one hand and TNCI, Global Crossing, and Sprint on the other is that there are disputed facts that may show that Onvoy did designate or provide such facilities, and there are no facts showing that TNCI, Global Crossing, or Sprint did so. Contrary to the assertion of plaintiffs' expert witness, the facts that "[t]he calls were originated, transported, [and] switched [and that] [t]he equal access look-up was done and they were routed onto the network of Onvoy and the parties" does not mean that TNCI, Global Crossing, or Sprint received the services under plaintiffs' tariffs. See Deposition of Eileen Bodamer, Docket 211-12 at 44. Indeed, plaintiffs' assertion ignores the court's distinction between "receiving" services and "benefitting from" services. See Order at 36-38. Next plaintiffs argue that the traffic remained "Express traffic" and subject to plaintiffs' tariffs until Global Crossing or Sprint delivered the traffic to the LEC serving the end user customer receiving the call. In support of this argument, plaintiffs quote the testimony of their expert witness explaining that plaintiffs expected Global Crossing or Sprint to pay the originating access charges. Again, this argument ignores the specific definition of "switched access service" in plaintiffs' tariffs. The name assigned to the traffic and the hopes of plaintiffs are irrelevant to the issue of whether Global Crossing or Sprint actually received services as defined in plaintiffs' tariffs. Plaintiffs also attempt to distinguish MCI WorldCom Network Servs., Inc. v. Paetec Commc'ns, No. Civ.A.04-1479, 2005 WL 2145499, at *4 (E.D.Va. Aug. 31, 2005) on the grounds that the Paetec court found the charges at issue to be unlawful. This *897 fact is irrelevant to the portion of the Paetec opinion relied on by this court. Paetec shows that the court must compare the actual service provided to the defendant with the definition of the service in the applicable tariff. See id. at *4. The fact that the court later found the charges to be unlawful under 47 U.S.C. § 203(a) because they were not included within the plaintiffs' tariffs, see id. at *5, does not undermine the court's reasoning in this case. Moreover, plaintiffs' assertion that they are entitled to bill for access charges pursuant to their tariffs only shows that they are entitled to bill the entity that received the services, not that they are entitled to bill and recover from any entity that touched the traffic. Indeed, plaintiffs do not and cannot argue that defendants are liable for access charges if they did not receive the access services offered under the tariff. Overall, plaintiffs seek to reargue their assertion that because of the business relationships among the parties, all of defendants are liable under the constructive ordering doctrine. Plaintiffs ignore the language of their own tariffs setting out the definition of "switched access service." They do not argue that TNCI, Global Crossing, or Sprint designated premises at which plaintiff-LECs delivered traffic originating from end users, as is required under plaintiff-LECs tariffs. Nor do plaintiffs argue that TNCI, Global Crossing, or Sprint provided any facilities at which SDN switched the Express traffic, as is required under SDN's tariffs. The court has considered plaintiffs' arguments and finds that there are no material issues of fact in the record that could support application of the constructive ordering doctrine to TNCI, Global Crossing, and Sprint. The court acknowledged in the summary judgment order that there are various contractual arrangements among the parties purporting to allocate liability for access charges. Order at 52-53. But these contractual relationships are not before the court in this case. Plaintiffs' motion for reconsideration of this portion of the court's summary judgment order is denied. II. Motion to Reconsider Court's Finding that Onvoy Did Not Affirmatively Order Services Pursuant to Plaintiffs' Tariffs Plaintiffs also seek reconsideration of the court's factual finding that Onvoy did not subscribe to plaintiffs' switched access services by submitting an access order as prescribed in the tariffs. Plaintiffs ask the court to make a finding that will enable them to argue to the trier of fact that Onvoy either affirmatively or constructively ordered access services. The court finds that plaintiffs did not assert their alleged affirmative ordering theory with sufficient clarity for the court to treat it as an independent ground for relief in ruling on Onvoy's summary judgment motion and will not allow plaintiffs to raise that argument now. Looking first at Onvoy's motion to dismiss plaintiffs' claims against it,[2] Onvoy argued that it never ordered any services from any plaintiff, either by submitting an Access Order or by constructively ordering services. Memorandum of Law in Support of Defendant Onvoy, Inc.'s Motion to Dismiss Pursuant to Fed.R.Civ.P. 12(b)(6), Docket 22 (Civ. 06-3023) at 5-8, Docket 21 *898 (Civ. 06-3025) at 5-8 ("Onvoy at no time submitted an Access Order to any plaintiff for access service, and therefore, Onvoy was not their customer and had no regulatory or contractual obligation to pay access charges."). Plaintiffs' response to Onvoy's motion to dismiss did not state that Onvoy affirmatively ordered services under plaintiffs' tariffs. Rather, plaintiffs only argued that Onvoy constructively ordered services. Plaintiffs summarized Onvoy's arguments and stated, Onvoy's Motion to Dismiss should be denied. Onvoy constructively ordered access service, including CEA service from Plaintiffs. Onvoy held itself out as the long distance service provider for services sold to Express; Onvoy received access services from Plaintiffs and was interconnected with Plaintiffs in a way in which it could have reasonably expected to receive such services from Plaintiffs; and Onvoy utilized the access and CEA services provided. Response to Motion to Dismiss, Docket 51 (Civ. 06-3023) at 10-11, Docket 39 (Civ. 06-3025) at 10-11. Plaintiffs also addressed Onvoy's argument that it did not order access services pursuant to plaintiffs' tariffs: Onvoy makes a related argument that it never "ordered" access service from any Plaintiff. While Plaintiffs submit that Onvoy indeed placed orders which were necessary to interconnect the networks, if not provide switched access service, this argument simply misses the mark. As the Advamtel Court explained, that is beside the point in a dispute over whether services have been constructively ordered.... Onvoy's arguments as to whether it actually filed proper access orders with the Plaintiffs is off the mark. The issue is whether Onvoy constructively ordered such services through its actions. Docket 51 (Civ. 06-3023) at 13, Docket 39 (Civ. 06-3025) at 13 (emphasis added). Thus, while plaintiffs asserted in passing that Onvoy "placed orders" with plaintiffs, plaintiffs argued that the real issue was whether Onvoy constructively ordered access services. In ruling on Onvoy's motion to dismiss, the court characterized plaintiffs' claims against Onvoy as follows: There is no dispute that plaintiffs were operating under validly filed tariffs. Rather, Onvoy and [TNCI] argue that the services were not provided pursuant to the tariff because Onvoy and [TNCI] did not order the services in the manner required by the tariffs. Plaintiffs do not dispute that neither Onvoy nor [TNCI] ordered the services as required by the tariffs. Instead, plaintiffs contend that Onvoy and [TNCI] constructively ordered the services, and thus, Onvoy and [TNCI] are required to pay the rates stated in plaintiffs' tariffs for the services they received. Order, Docket 99 (Civ. 06-4221) at 8, Docket 71 (Civ. 06-3025) at 10 (emphasis added). None of plaintiffs, either in the member cases the order applied to or in the remaining member cases, ever explicitly challenged the court's understanding of plaintiffs' claims against Onvoy.[3] *899 Looking now at plaintiffs' response to Onvoy's motion for summary judgment, plaintiffs made only passing reference to an affirmative ordering theory. In responding to Onvoy's argument that Express, rather than Onvoy, was the customer under plaintiffs' tariffs, plaintiffs argued that there are disputed issues of material fact regarding whether Onvoy was responsible for the access charges or was the customer under plaintiffs' tariffs. Plaintiffs asserted (without citing the language of their tariffs), that the service offered under their tariffs is a two-point communications path between an end user premise and an interexchange carrier, and that the entity that establishes the two-point communications path is the customer. Plaintiffs' Memorandum of Law in Opposition to Motion for Summary Judgment Filed by Onvoy, Inc., Docket 207 at 14. Plaintiffs then argued that Onvoy created a two-point communications path by establishing the connection between SDN and Onvoy: [W]hen Onvoy ordered services from the Plaintiffs, it submitted an order to SDN for the 22 (T-1s) Feature Group D Circuits that created this communication path. The request for services from Onvoy came via a series of e-mails and a Design Layout Record. In fact, in its Brief, Onvoy admits to being the owner of the trunk. The facts in the record show that there are material questions of fact as to whether Onvoy, not Express, is the customer responsible to the LECs and SDN for all access charges under the tariff. Id. at 15-16 (internal citations omitted). Although plaintiffs argued that Onvoy was the customer under their tariffs because it established the communications path, they did not argue that Onvoy's actions satisfied the ordering provisions of plaintiffs' tariffs or that establishing the communications path constituted "affirmative ordering." Thus, plaintiffs did not allege that Onvoy affirmatively ordered services pursuant to the ordering provisions of plaintiffs' tariffs in this section of their brief. Plaintiffs argued that the constructive ordering doctrine applies to Onvoy. Plaintiffs set out the requirements of this doctrine and argued, "[a]s the Advamtel and other similar cases illustrate, if Onvoy intends to avail itself of the defense that it did not affirmatively order any services, it must also establish that it did not constructively order such services." Id. at 20. Plaintiffs' passing mention of the affirmative ordering theory does not constitute a legal argument that Onvoy did, in fact, affirmatively order services. Plaintiffs went on, In this case, there is first of all a dispute as to whether Onvoy ordered services from Plaintiffs. Onvoy argues that Express, not Onvoy, ordered services from the Plaintiffs. That contention is not supported by the facts. Onvoy either actually or constructively ordered services from SDN in September of 2004, via fax and a Design Layout Record. Specifically, Onvoy supplied T1's so Onvoy could "pick up" the long distance traffic of Express. Although Onvoy apparently disputes this fact, Plaintiffs submit the order for services came in the form of a *900 "non-industry standard" ASR, and such an order has been found to be adequate by courts in their consideration of the constructive ordering doctrine. See Advamtel II, at 802 (IXCs must pay not only for services ordered pursuant to the terms specified in tariffs, but also for services that are constructively ordered). Id. at 20 (internal citations to the record omitted). In this passage, plaintiffs asserted that Onvoy either actually or constructively ordered services from SDN by faxing a design layout record. But beyond the bare assertion that Onvoy actually ordered services, plaintiffs did not set forth a legal argument that the correspondence between Onvoy and SDN satisfied the ordering provisions of plaintiffs' tariffs. Indeed, plaintiffs did not set out or provide the court with the ordering provisions of their tariffs or argue that an informal series of emails or faxes could satisfy the requirements therein.[4] Moreover, plaintiffs explicitly argued that a "non-industry standard" access order was adequate to satisfy the requirements of the constructive ordering doctrine, not that such an order was adequate to satisfy the tariff's ordering requirements. Thus the court interprets this passage as supporting plaintiffs' constructive ordering theory, not as advancing an affirmative ordering theory. Prior to their present motion for reconsideration, plaintiffs did not articulate an argument that Onvoy affirmatively ordered access services pursuant to plaintiffs' tariffs. This is not to say that plaintiffs have the burden of proving an affirmative ordering theory at the summary judgment stage. But plaintiffs do have to set out their theories of recovery with sufficient clarity that the court and opposing parties know that plaintiffs assert each theory of recovery. Plaintiffs failed to do that here. A party cannot tender new legal theories for the first time on a motion for reconsideration. Concordia College, 999 F.2d at 330. Plaintiffs had an opportunity to set forth the argument that Onvoy affirmatively ordered access services pursuant to the ordering provisions of plaintiffs' tariffs in their opposition to Onvoy's motions to dismiss and for summary judgment, but they failed to do so. Now, without presenting any newly discovered evidence or identifying any manifest errors of law, plaintiffs attempt to rehash arguments that the court resolved in the summary judgment order. That is not the purpose of a motion for reconsideration. See id.; see also Hagerman, 839 F.2d at 414. The court's finding that "none of defendants subscribed to plaintiffs' switched access services by submitting an Access Order as prescribed in the tariffs," is consistent with the record and will not be modified. Plaintiffs will not be allowed to present their new argument that Onvoy affirmatively ordered access services by complying with the ordering requirements of plaintiffs' tariffs at trial.[5] Plaintiffs' motion to reconsider this portion of the summary judgment order is denied. For the reasons set for herein, it is hereby *901 ORDERED that plaintiffs' motion for reconsideration and relief from the court's Memorandum Opinion and Order dated September 29, 2009 (Docket 254) is denied. NOTES [1] Plaintiffs' motion for reconsideration was filed before the December 1, 2009, amendment to Rule 59(e) extending the 10-day period to a 28-day period. [2] Onvoy moved to dismiss plaintiffs' claims against it in member cases Civ. 06-3023 and Civ. 06-3025 before the cases were consolidated. Docket 21 (Civ. 06-3023); Docket 19 (Civ. 06-3025). Plaintiffs in the remaining member cases (Civ. 06-4221, Civ. 06-4144, and Civ. 07-3003) did not amend their complaints to allege claims against Onvoy until after the court ruled on Onvoy's motions to dismiss in member cases Civ. 06-3023 and Civ. 06-3025. [3] Plaintiffs filed the Affidavit of Mark Shlanta, CEO of SDN, in conjunction with their opposition to Onvoy's motion to dismiss. Shlanta stated, "[t]here is a dispute between the parties in reference to what constitutes an Access Service Request (`ASR') in the industry. An `industry standard' ASR is a formal document that outlines what the ordering party is requesting. When parties work closely together, a `non-industry standard' ASR can be utilized, and can come in the form of an e-mail, fax, letter etc. The request by Onvoy in this situation came in the form of a `non-industry standard' ASR." Affidavit of Mark Shlanta, Docket 52 (Civ. 06-3023) at ¶ 6, Docket 40 (Civ. 06-3025) at ¶ 6. Shlanta also stated, "SDN believes that the entity which ordered services from Plaintiffs was Onvoy. Onvoy did submit an order to SDN for the 22 T-1s and did actually receive services from the Plaintiffs." Docket 52 (Civ. 06-3023) at ¶ 9; Docket 40 (Civ. 06-3025) at ¶ 9. But the court did not consider Shlanta's affidavit when ruling on Onvoy's motion to dismiss. Order, Docket 99 (Civ. 06-4221) at 9 n. 3, Docket 71 (Civ. 06-3025) at 11 n. 3. And the assertions of one of the parties in an affidavit is not sufficient to put the court and Onvoy on notice that plaintiffs asserted a separate legal claim under the affirmative ordering doctrine, particularly when they only argued the constructive ordering doctrine in their brief. [4] Plaintiffs now cite the assertion of their expert witness that an "access order" can take whatever format of order that the receiving party will accept, but even this conclusory assertion does not argue that an informal format is acceptable pursuant to the language of plaintiffs' tariffs. [5] Plaintiffs will be able to present any admissible evidence that is relevant to their claim that Onvoy constructively ordered access services. Presumably, some, if not all, of the facts plaintiffs advance in favor of their new affirmative ordering theory will be relevant to the issues raised by the constructive ordering doctrine.

231 F.3d 1207 (9th Cir. 2000) UNITED STATES OF AMERICA, Plaintiff-Appellee,v.NICHOLAS MIDDLETON, Defendant-Appellant. No. 99-10518 UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT Argued and Submitted September 12, 2000Filed November 16, 2000 David J. Cohen, Cohen & Paik, San Francisco, California, for the defendant-appellant. J. Douglas Wilson, Assistant United States Attorney, Chief, Appellate Section, San Francisco, California, for the plaintiff appellee. Appeal from the United States District Court for the Northern District of California William H. Orrick, Jr., District Judge, Presiding. D.C. No. CR-98-00167-WHO Before: Susan P. Graber, Raymond C. Fisher, and Marsha S. Berzon, Circuit Judges. GRABER, Circuit Judge: 1 Defendant Nicholas Middleton challenges his conviction for intentionally causing damage to a "protected computer" without authorization, in violation of 18 U.S.C. S 1030(a)(5)(A). Defendant asks us to interpret the statute, which prohibits conduct causing damage to "one or more individuals," 18 U.S.C. S 1030(e)(8)(A), to exclude damage to a corporation. Defendant also argues that the trial court incorrectly instructed the jury on the "damage " element of the offense and that the government presented insufficient evidence of the requisite amount of damage. We disagree with each of Defendant's contentions and, therefore, affirm the conviction. FACTUAL AND PROCEDURAL BACKGROUND1 2 Defendant worked as the personal computer administrator for Slip.net, an Internet service provider. His responsibilities included installing software and hardware on the company's computers and providing technical support to its employees. He had extensive knowledge of Slip.net's internal systems, including employee and computer program passwords. Dissatisfied with his job, Defendant quit. He then began to write threatening e-mails to his former employer. 3 Slip.net had allowed Defendant to retain an e-mail account as a paying customer after he left the company's employ. Defendant used this account to commit his first unauthorized act. After logging in to Slip.net's system, Defendant used a computer program called "Switch User" to switch his account to that of a Slip.net receptionist, Valerie Wilson. This subterfuge allowed Defendant to take advantage of the benefits and privileges associated with that employee's account, such as creating and deleting accounts and adding features to existing accounts. 4 Ted Glenwright, Slip.net's president, discovered this unauthorized action while looking through a "Switch User log," which records all attempts to use the Switch User program. Glenwright cross-checked the information with the compa-ny's "Radius Log," which records an outside user's attempt to dial in to the company's modem banks. The information established that Defendant had connected to Slip.net.'s computers and had then switched to Wilson's account. Glenwright immediately terminated Defendant's e-mail account. 5 Nevertheless, Defendant was able to continue his activities. Three days later, he obtained access to Slip.net's computers by logging in to a computer that contained a test account and then using that test account to gain access to the company's main computers. Once in Slip.net's main system, Defendant accessed the account of a sales representative and created two new accounts, which he called "TERPID" and "SANTOS." Defendant used TERPID and SANTOS to obtain access to a different computer that the company had named "Lemming." Slip.net used Lemming to perform internal administrative functions and to host customers' websites. Lemming also contained the software for a new billing system. After gaining access to the Lemming computer, Defendant changed all the administrative passwords, altered the computer's registry, deleted the entire billing system (including programs that ran the billing software), and deleted two internal databases. 6 Glenwright discovered the damage the next morning. He immediately contacted the company's system administrator, Bruno Connelly. Glenwright and Connelly spent an entire weekend repairing the damage that Defendant had caused to Slip.net's computers, including restoring access to the computer system, assigning new passwords, reloading the billing software, and recreating the deleted databases. They also spent many hours investigating the source and the extent of the damage. Glenwright estimated that he spent 93 hours repairing the damage; Connelly estimated that he spent 28 hours; and other employees estimated that they spent a total of 33 hours. Additionally, Slip.net bought new software to replace software that Defendant had deleted, and the company hired an outside consultant for technical support. Defendant was arrested and charged with a violation of 18 U.S.C. S 1030(a)(5)(A). He moved to dismiss the indictment, arguing that Slip.net was not an "individual" within the meaning of the statute. The district court denied the motion, holding that "the statute encompasses damage sustained by a business entity as well as by a natural person." United States v. Middleton, 35 F. Supp. 2d 1189, 1192 (N.D. Cal. 1999). 7 The case was then tried to a jury. Defendant filed motions for acquittal, arguing that the government had failed to prove that Slip.net suffered at least $5,000 in damage. The district court denied the motions. Defendant requested a jury instruction on the meaning of "damage." This request, too, was denied, and the court gave a different instruction. 8 The jury convicted Defendant. The district court sentenced him to three years' probation, subject to the condition that he serve 180 days in community confinement. The court also ordered Defendant to pay $9,147 in restitution. This timely appeal ensued. STANDARDS OF REVIEW 9 We review de novo the district court's interpretation of a statute. United States v. Frega, 179 F.3d 793, 802 n.6 (9th Cir. 1999). We also review de novo whether a jury instruction misstates the elements of a statutory crime. Id. at 806 n.16. We review a challenge to the sufficiency of the evidence by examining the evidence in the light most favorable to the prosecution and determining 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 (1979). DISCUSSION 10 A. "One or More Individuals" 11 Title 18 U.S.C. S 1030(a)(5)(A) prohibits a person from knowingly transmitting "a program, information, code, or command, and as a result of such conduct, intentionally caus[ing] damage without authorization, to a protected computer." A "protected computer" is a computer "which is used in interstate or foreign commerce or communication." 18 U.S.C. S 1030(e)(2)(B). Defendant concedes that Slip.net's computers fit within that definition. The statute defines "damage" to mean "any impairment to the integrity or availability of data, a program, a system, or information, that causes loss aggregating at least $5,000 in value during any 1-year period to one or more individuals." 18 U.S.C. S 1030(e)(8)(A). Defendant argues that Congress intended the phrase "one or more individuals" to exclude corporations. We disagree. 12 "In interpreting a statute, we look first to the plain language of the statute, construing the provisions of the entire law, including its object and policy, to ascertain the intent of Congress." United States v. Mohrbacher, 182 F.3d 1041, 1048 (9th Cir. 1999) (citation and internal quotation marks omitted). When a statutory term is undefined, we endeavor to give that term its ordinary meaning. Id. We are instructed to avoid, if possible, an interpretation that would produce "an absurd and unjust result which Congress could not have intended." Clinton v. City of New York, 524 U.S. 417, 429 (1998). 13 According to Defendant, in common usage the term "individuals" excludes corporations. He notes that the "Dictionary Act," 1 U.S.C. S 1, which provides general rules of statutory construction, defines the word "person" to include "corporations, companies, associations, firms, partnerships, societies, and joint stock companies, as well as individuals. " That definition, argues Defendant, implies that the word "person" includes "corporations," but that the word "individuals" does not. Defendant reasons that, if Congress had intended S 1030(a)(5)(A) to cover damage to corporations, Congress would have used the word "persons," not "individuals." For several reasons, we are not persuaded. 14 We examine first the ordinary meaning of "individuals." That word does not necessarily exclude corporations. Webster's Third New Int'l Dictionary 1152 (unabridged ed. 1993) provides five definitions of the noun "individual," the first being "a single or particular being or thing or group of beings or things." (Emphasis added.) To the extent that a word's dictionary meaning equates to its "plain meaning," a corporation can be referred to as an "individual. " Cf. United States v. Miguel, 111 F.3d 666, 670 (9th Cir. 1997) (using a dictionary to define "contemporaneous"). 15 Neither is "individual" a legal term of art that applies only to natural persons. As Black's Law Dictionary 773 (6th ed. 1990) states: 16 Individual. As a noun, this term denotes a single person as distinguished from a group or class, and also, very commonly, a private or natural person as distinguished from a partnership, corporation, or association; but it is said that this restrictive signifi cation is not necessarily inherent in the word, and that it may, in proper cases, include artificial persons. 17 (Emphasis added.) See also Black's Law Dictionary 777 (7th ed. 1999) (stating that "individual" refers to "an indivisible entity" or a "single person or thing"). Because "individual" as a general legal term does not exclude corporations, we next consider applicable precedent. 18 In Clinton, the Supreme Court held that Congress intended to include corporations within a provision of the Line Item Veto Act that authorized "any individual adversely affected" to challenge the Act's constitutionality. 524 U.S. at 428 (emphasis added). The Court examined the purpose of the provision (to allow expedited judicial review of the Line Item Veto Act) and determined that Congress could not have intended that only natural persons be able to demand expedited review. Id. at 429. That interpretation, noted the Court, would produce an "absurd and unjust result which Congress could not have intended." Id. 19 So, too, here. Defendant was convicted of violating S 1030(a)(5)(A), which criminalizes damage to "protected computers." A "protected computer" is a computer that is "used in interstate or foreign commerce or communication." 18 U.S.C. S 1030(e)(2)(B). A large number of the computers that are used in interstate or foreign commerce or communication are owned by corporations. Cf. S. Rep. No. 104-357, pt. II (1996) (noting that "computers continue to proliferate in businesses and homes"). It is highly unlikely, in view of Congress' purpose to stop damage to computers used in interstate and foreign commerce and communication, that Congress intended to criminalize damage to such computers only if the damage is to a natural person. Defendant's interpretation would thwart Congress' intent. 20 Defendant's interpretation also ignores the context in which the term "individual" appears. It is true that the Dictionary Act's definition of "person" implies that the words "corporations" and "individuals" refer to different things. But the Dictionary Act instructs us not to use its definitions if "the context indicates otherwise." 1 U.S.C. S 1. Context refers to "the text of the Act of Congress surrounding the word at issue, or the texts of other related congressional Acts." Rowland v. California Men's Colony, 506 U.S. 194, 199 (1993); see id. at 198-200 (interpreting the word "person," as used in 28 U.S.C. S 1915, to mean natural persons only). An examination of 18 U.S.C. S 1030 in its entirety uncovers further evidence that Congress did not, as Defendant argues, intend to use the word "individuals" to mean natural persons only, and the word "person" to mean natural persons and corporations. 21 As noted, 18 U.S.C. S 1030(e)(8)(A) defines "damage" to mean "any impairment to the integrity or availability of data, a program, a system, or information that causes loss aggregating at least $5,000 . . . to one or more individuals." Section 1030(e)(8)(C) provides an alternative definition of damage: any impairment to a system "that causes physical injury to any person." Under Defendant's theory, corporations could suffer "damage" as defined in S 1030(e)(8)(C), because a corporation is a "person." Corporations, however, cannot suffer "physical injury." See Black's Law Dictionary 1147 (defining "physical injury" as "[b]odily harm or hurt"). If Congress had meant to incorporate the Dictionary Act's definition of "person" (and, by extension, Defendant's definition of "individual"), S 1030(e)(8)(C) should read, "that causes physical injury to any individual." But it does not. In context, it appears that Congress used "individuals" and "person" in a non-technical manner, without reference to the Dictionary Act. 22 Defendant also relies on the statute's legislative history. We have examined that history, but conclude that the statute's history confirms our reading of the word "individuals." Congress originally enacted the Computer Fraud and Abuse Act in 1984. Pub. L. No. 98-473, tit. II, S 2102(a), Oct. 12, 1984. The 1990 version of S 1030(a)(5)(A) prohibited conduct that damages a "Federal interest computer" and "causes loss to one or more others of a value aggregating $1,000 or more." A "Federal interest computer" was defined as a computer owned or used by the United States Government or a financial institution, or "one of two or more computers used in committing the offense, not all of which are located in the same State." 18 U.S.C. S 1030(e)(2)(A) & (B) (1990). In 1994, Congress replaced the term "Federal interest computer" with the phrase "computer used in interstate commerce or communication" and changed the damage provision to read, "causes loss or damage to one or more other persons of value aggregating $1,000 or more." 18 U.S.C. S 1030(a)(5)(A)(ii)(II)(aa) (1995). Before the 1994 amendment, a hacker could escape the statute's prohibitions by containing activities within a single state. Congress' 1994 amendment attempted to "broaden the statute's reach." S. Rep. No. 104-357, pt. IV(E) (discussing 1994 amendment). Congress' 1994 amendments also added a private cause of action for victims of computer crime. 18 U.S.C. S 1030(g). 23 In 1996, Congress amended S 1030(a)(5) to its current form, using the term "protected computer" and concomitantly expanding the number of computers that the statute "protected." 18 U.S.C. S 1030(a)(5) & (e)(2).2 The 1996 amendments also altered the definition of damage to read, "loss aggregating at least $5,000 in value during any 1-year period to one or more individuals." 18 U.S.C. S 1030(e)(8)(A). We have found no explanation for this change. We do not believe, however, that this change evidences an intent to limit the statute's reach. 24 To the contrary, Congress has consciously broadened the statute consistently since its original enactment. The Senate Report on the 1996 amendments notes: 25 As intended when the law was originally enacted, the Computer Fraud and Abuse statute facilitates addressing in a single statute the problem of com putercrime . . . . As computers continue to proliferate in businesses and homes, and new forms of computer crimes emerge, Congress must remain vigilant to ensure that the Computer Fraud and Abuse statute is up-to-date and provides law enforcement with the necessary legal framework to fight com puter crime. 26 S. Rep. No. 104-357, pt. II (emphasis added). The report instructs that "the definition of `damage' is amended to be sufficiently broad to encompass the types of harm against which people should be protected." Id. pt. IV(1)(E). The report notes that the interaction between S 1030(a)(5)(A) (the provision that prohibits conduct causing damage) and S 1030(e)(8) (the provision that defines damage) will prohibit a hacker from stealing passwords from an existing log-on program, when this conduct requires "all system users to change their passwords, and requires the system administrator to devote resources to resecuring the system. . . . If the loss to the victim meets the required monetary threshold, the conduct should be criminal, and the victim should be entitled to relief." Id. (emphasis added). The reference to a "system administrator" suggests that a corporate victim is involved. That is, if Congress intended to limit the definition of the crime to conduct causing financial damage to a natural person only, its report would not use the example of a "system administrator" devoting resources to fix a computer problem as illustrative of the "damage" to be prevented and criminalized. The Senate Report's reference to the proliferation of computers in businesses as well as homes provides additional evidence of the Senate's intent to extend the statute's protec-tions to corporate entities. 27 On the basis of the statutory text taken in context, the Supreme Court's Clinton decision, and the statute's purpose and legislative history, we conclude that 18 U.S.C. S 1030(a)(5) criminalizes computer crime that damages natural persons and corporations alike. The district court did not err in so ruling. 28 B. Jury Instructions on "Damage" 29 Defendant next argues that the district court instructed the jury improperly on the definition of "damage. " Defendant requested this instruction: "Damage does not include expenses relating to creating a better or making a more secure system than the one in existence prior to the impairment." The court refused the request and gave a different instruction. The court explained to the jury that "damage" is an impairment to Slip.net's computer system that caused a loss of at least $5,000. The court continued: 30 The term "loss" means any monetary loss that Slip.net sustained as a result of any damage to Slip.net's computer data, program, system or information that you find occurred. 31 And in considering whether the damage caused a loss less than or greater than $5,000, you may con sider any loss that you find was a natural and fore seeable result of any damage that you find occurred. 32 In determining the amount of losses, you may con sider what measures were reasonably necessary to restore the data, program, system, or information that you find was damaged or what measures were reasonably necessary to resecure the data, program, sys tem, or information from further damage. 33 "In reviewing jury instructions, the relevant inquiry is whether the instructions as a whole are misleading or inadequate to guide the jury's deliberation." United States v. Dixon, 201 F.3d 1223, 1230 (9th Cir. 2000). In this case, the district court's instructions on "damage" and "loss " correctly stated the applicable law. Defendant concedes that "damage" includes any loss that was a foreseeable consequence of his criminal conduct, including those costs necessary to "resecure" Slip.net's computers. He does not argue, therefore, that the court misstated the law. Defendant contends instead that the court's instruction might have led the jury to believe that it could consider the cost of creating a better or more secure system and that his proposed additional instruction was needed to avoid that possibility. The district court's instruction, when read in its entirety, adequately presented Defendant's theory. The court instructed the jury that it could consider only those costs that were a "natural and foreseeable result" of Defendant's conduct, only those costs that were "reasonably necessary," and only those costs that would "resecure" the computer to avoid "further damage." That instruction logically excludes any costs that the jury believed were excessive, as well as any costs that would merely create an improved computer system unrelated to preventing further damage resulting from Defendant's conduct. In particular, the term "resecure " implies making the system as secure as it was before, not making it more secure than it was before. We presume that the jury followed the court's instructions. United States v. Montgomery, 150 F.3d 983, 997 (9th Cir. 1998). 34 Because "the district court's instructions fairly and adequately covered the elements of the offense, we review the instruction's `precise formulation' for an abuse of discretion." United States v. Knapp, 120 F.3d 928, 930 (9th Cir. 1997). The district court in this case did not abuse its discretion in rejecting Defendant's "precise formulation" of the definition of "damage." See United States v. Smith , 217 F.3d 746, 750 (9th Cir. 2000) (stating that "it is not required that a jury be instructed in line with the chosen words of the accused"). C. Sufficiency of the Evidence 35 Defendant's final argument is that the government presented insufficient evidence of the requisite $5,000 in damage. The government computed the amount of damage that occurred by multiplying the number of hours that each employee spent in fixing the computer problems by their respective hourly rates (calculated using their annual salaries), then adding the cost of the consultant and the new software. The government estimated the total amount of damage to be $10,092. Defendant and the government agree that the cost of Glenwright's time made up the bulk of that total. 36 Defendant observes that Slip.net paid Glenwright a fixed salary and that Slip.net did not pay Glenwright anything extra to fix the problems caused by Defendant's conduct. There also is no evidence, says Defendant, that Glenwright was diverted from his other responsibilities or that such a diversion caused Slip.net a financial loss. Defendant argues that, unless Slip.net paid its salaried employees an extra $5,000 for the time spent fixing the computer system, or unless the company was prevented from making $5,000 that it otherwise would have made because of the employees' diversion, Slip.net has not suffered "damage" as defined in the statute. We disagree. 37 In United States v. Sablan, 92 F.3d 865, 869 (9th Cir. 1996), this court held that, under the Sentencing Guidelines for computer fraud, it was permissible for the district court to compute "loss" based on the hourly wage of the victim bank's employees. The court reasoned, in part, that the bank would have had to pay a similar amount had it hired an outside contractor to repair the damage. Id. at 870. Analogous reasoning applies here. There is no basis to believe that Congress intended the element of "damage" to depend on a victim's choice whether to use hourly employees, outside contractors, or salaried employees to repair the same level of harm to a protected computer. Rather, whether the amount of time spent by the employees and their imputed hourly rates were reasonable for the repair tasks that they performed are questions to be answered by the trier of fact. 38 Our review of the record identifies sufficient evidence from which a rational trier of fact could have found that Slip.net suffered $5,000 or more in damage. Glenwright testified that he spent approximately 93 hours investigating and repairing the damage caused by Defendant. That total included 24 hours investigating the break-in, determining how to fix it, and taking temporary measures to prevent future break-ins. Glenwright testified that he spent 21 hours recreating deleted databases and 16 hours reloading and configuring the billing software and its related applications. Glenwright estimated that his time was worth $90 per hour, based on his salary of $180,000 per year. He also testified, among other things, that he did not hire an outside contractor to repair the damage because he believed that he, as a computer expert with a preexisting knowledge of the customized features of his company's computers, could fix the problems more efficiently. It is worth noting that, because the jury had to find only $5,000 worth of damage, it could have discounted Glenwright's number of hours or his hourly rate considerably and still have found the requisite amount of damage. 39 Other Slip.net employees testified to the hours that they spent fixing the damage caused by Defendant, and to their respective salaries. The government then presented expert testimony from which a jury could determine that the time spent by the employees was reasonable. Defendant cross-examined the government's witnesses on these issues vigorously, and he presented contrary expert testimony. By the verdict, the jury found the government witnesses' testimony to be more credible, a finding that was within its power to make. We hold, on this record, that the conviction was not based on insufficient evidence. 40 AFFIRMED. Notes: 1 Because a jury convicted Defendant, we view the evidence in the light most favorable to the government. United States v. Cuevas, 847 F.2d 1417, 1421 (9th Cir. 1988). 2 The 1996 amendments corrected deficiencies in the 1990 version of the statute and the 1994 version. In 1994, when Congress substituted the phrase "computer used in interstate commerce or communication" for "Federal interest computer," it inadvertently removed protection from those computers belonging to or used by the United States Government or a financial institution, but not used in interstate commerce. See S. Rep. No. 104-357. The 1996 amendments included within the definition of "protected computer" those computers used in interstate commerce or communication, as well as computers "exclusively for the use of a financial institution or the United States Government, or. . . used by or for a financial institution or the United States Government and the conduct constituting the offense affects the use." 18 U.S.C.S 1030(e)(2)(A).

691 F.2d 966 Edgar E. SIMPSON, Plaintiff-Appellant,v.Richard S. SCHWEIKER, Secretary of Health and HumanServices, Defendant-Appellee. No. 81-7525. United States Court of Appeals,Eleventh Circuit. Nov. 12, 1982. Todd Johnson, Valdosta, Ga., for plaintiff-appellant. Gregory J. Leonard, Bernard E. Namie, Asst. U.S. Attys., Macon, Ga., for defendant-appellee. Appeal from the United States District Court for the Middle District of Georgia. Before HILL and HENDERSON, Circuit Judges, and GARZA*, Senior Circuit Judge. GARZA, Circuit Judge: 1 After receiving Social Security disability benefits for nearly two years, appellant Edgar Simpson was notified that improvement in his condition justified a cessation of those benefits. Simpson responded by filing a claim for continuation of the disability insurance coverage. The Administrative Law Judge (ALJ) who heard the case ruled that while Simpson was still unable to perform his former job, he possessed "the residual functional capacity for at least sedentary work,"1 and, therefore, was not disabled. The termination of benefits which the ALJ ordered is the subject of this appeal. 2 Edgar Simpson is a forty-three year old man who, prior to the onset of the alleged disability, worked as a truck driver for thirteen years. He contends that the severity of the back pain which he suffers finally forced him to resign from his job. After that time, he attempted to work for several other businesses. On each occasion, however, the number of days he was forced to miss because of the disability prohibited him from continuing employment. He has not worked at all in the past six years. 3 When Simpson presented his claim to the Social Security Administration in 1976, he was judged disabled and awarded disability benefits. The decision of the ALJ, upon remand from the Appeals Council, is quoted below at great length because of its relevance to the decision of the instant case. 4 In view of the medical evidence introduced at the original hearing and the evidence just referred to, which was obtained at the request of the Appeals Council, this Administrative Law Judge finds some difficulty in arriving at a decision that this claimant suffers from disabling pain.However, in view of the prior court decisions and the administrative rulings regarding pain as a disability, this claimant has substantial evidence to support his position. Lay evidence of the claimant's pain abounds, as the claimant's pastor, his wife, his friends and neighbors all attest to their belief that he suffers severe pain and is disabled. His manifestations of pain and disability have so impressed the members of his church that they gave a benefit to raise funds for his care and treatment and also helped provide him with housing. This attitude on the part of claimant's peers in his locality is supported to some extent by medical evidence. The Administrative Law Judge wrote claimant's attending physician for an up-to-date report, and the physician, a general practitioner who has referred him to various doctors during his incapacity, reported as of August 29, 1977. He replied that Mr. Simpson goes regularly to Gainesville, Florida for evaluation, that he has had a ganglion block in an effort to relieve the back pain but he got no relief from this and that in fact he appeared to have even worse pain. The doctor added, "Diagnosis remains the same and the medications are only for pain relief and tension." (Exhibit 35). Dr. Dickson had also on July 25 expressed the opinion that the claimant was totally and permanently disabled due to cystic disease of both kidneys and said he "also suffers severe pain from a lumbar sacral disorder." (Exhibit 37). 5 Under the circumstances in this case, the Administrative Law Judge felt it both appropriate and necessary to have the testimony of a medical advisor, and at the supplemental hearing, Dr. Robert M. Packer, Jr., a board certified internist, testified. 6 The testimony of Dr. Packer discounts to a great degree any disability due to kidney disease. It was his opinion that the claimant did have a kidney disorder, but that it had not reached a sufficient level of severity as to cause him the pain and discomfort claimed. In fact, it was the medical advisor's opinion that the claimant's pain (and he did not discount the fact that there was pain) came from a spinal disorder, and it was his suggestion that the claimant be examined by a neurosurgeon and that a myelogram be performed. 7 In view of Dr. Packer's testimony, the Administrative Law Judge requested the State Agency of Georgia to have the claimant examined by a neurosurgeon, and if it was considered to be medically advisable, and the claimant agreed, to have a myelogram performed. The State Agency replied that myelograms were considered as surgical procedures by their State Agency medical consultants and, according to their guidelines, could not be purchased. The Administrative Law Judge was of the opinion that unless a neurosurgeon was given an opportunity to avail himself of such diagnostic procedures as he felt proper that to pursue the matter further along this line would not bear fruit. 8 Whatever the cause, the Administrative Law Judge is convinced at this point that the claimant does believe that he suffers constant pain and that this pain affects his ability to function. 9 In its remand order the Administrative Law Judge was charged with the responsibility of making specific findings as to the credibility of the claimant's complaints of pain and the effect of such pain on his ability to function. In making such findings, the Administrative Law Judge was told to consider as appropriate, such factors as the claimant's "daily activities." It appears that the claimant during his period of disability has attended church fairly regularly. His other activities are quite restricted. He cannot sit for very long at a time, stand for long at a time and he lays down for different periods during the day. If he sits more than a half hour, he has great pain and has to get up which eases him somewhat. His legs bother him continuously. Another factor mentioned by the Council was the kinds, amounts, and frequency of any medications taken. This has been previously referred to in a discussion of the medical evidence, but to repeat, the record shows that he has had an attempt at blockage of nerves to the hip by ganglion block, which was said to only exacerbate his pain. And while in June he was advised to desist from taking liberal amounts of Percadan and Phenaphen, the testimony at the hearing was to the effect that he was still taking these medications, and the statements by his attending physician substantiate this testimony. 10 Probably the most important factor in evaluating pain is the question of claimant's credibility. In the opinion of the Administrative Law Judge the claimant does suffer pain. He appeared at the hearing to be uncomfortable and depressed. His overall demeanor showed no lack of motivation and substantial citizens in the community attest to his credibility. Thus, the Administrative Law Judge concludes that, while the medical evidence does not point directly to the cause of the pain, that it is such as to support an allegation of pain and does not reflect on claimant's credibility as a witness. 11 Thus, it is the opinion of the Administrative Law Judge, after careful review of the total record, that the claimant suffers from an impairment or combination of impairments including pain of such a level of severity as to preclude him from engaging in substantial gainful activity. 12 Record on Appeal, vol. 2, at 334-5. 13 Appellant maintains that his disability benefits have been terminated on the basis of evidence essentially identical to that which formed the basis for the initial award of those benefits. 14 It is clear that the Secretary may terminate disability benefits whenever he obtains evidence that a claimant's disability has ceased. 42 U.S.C. § 425; 20 C.F.R. §§ 404.1590(a) and 404.1594(a). However, it is also certain, as the Fifth Circuit declared in Rivas v. Weinberger, 475 F.2d 255 (5th Cir. 1973), that "(o)nce evidence has been presented which supports a finding that a given condition exists it is presumed in absence of proof to the contrary that the condition has remained unchanged." 475 F.2d at 258. 15 We are mindful of the limited review which this Court conducts in administrative appeals. We do not have the latitude to freely decide the case as we see fit; we determine only whether the Secretary's finding is supported by substantial evidence. In reviewing the appeal of an initial disability benefits case, we consider whether the Secretary's finding of no disability is supported by substantial evidence. However, in light of principles of administrative res judicata, this is not the proper inquiry in a benefits continuation case.2 We must ascertain whether the Secretary's finding of improvement to the point of no disability is supported by substantial evidence. In each case, the burden remains with the claimant to prove the existence of a disability. Crosby v. Schweiker, 650 F.2d 777, 778 (5th Cir. 1981). If, however, the evidence in a continuation case is substantially the same as the evidence had been in the initial disability benefits request case, benefits must be continued. Otherwise, termination of benefits will often depend not on a finding of changed condition, but simply on the whim of a changed ALJ. With this in mind, we turn to an examination of the evidence presented at each hearing. 16 At the initial benefits request hearing, Simpson alleged two medical conditions as causes of his pain. First, he claimed that polycystic kidney disease was the source of his debilitating pain.3 He also maintained that osteoarthritis contributed to his disability.4 The medical testimony on these conditions revealed that Simpson was asymptomatic with regard to the kidney disease and that his objective back impairment was minor. None of the doctors doubted the claimant's sincerity about the pain he was experiencing. This pain was reiterated by Simpson himself, as well as his family, friends, and pastor. It is the pain which prompted the ALJ to find Simpson disabled. 17 We now consider whether his condition has improved since the award of disability benefits. At the 1979 hearing, a host of family and friends again testified that Simpson was in extreme pain much of the time and that his activities were extremely limited. His wife related that he often took excess pain medication because of the extreme pain he suffered. A number of persons testified that Simpson's pale face often served as a mirror of the ravages within. The persons with whom Simpson is in closest contact, therefore, continue to be convinced of the sincerity of his complaint. The medical testimony offered continues to show the same weakness that was evident at the first hearing. One doctor, while noting that the "physical examination showed some reduction in range of motion of the dorso-lumbar spine ...," reported that x-rays of the claimant's lumbar spine were within normal limits. Apparently, this doctor's report was the basis of the Secretary's decision to terminate Simpson's benefits. Shortly after the report was made, Simpson was informed: 18 You were initially found to be disabled because of kidney disease and back problems. You have indicated that you are still unable to return to work because of constant back pain, which limits you in walking, bending, standing and sitting, and high blood pressure. The evidence in file shows that your blood pressure is somewhat elevated, but there are no secondary complications that would render you disabled. Although you continue having some limitation of motion in your back, x-rays show no abnormalities, and you are able to get about quite well. Studies show no current evidence of kidney problems. Complete physical examination shows no other evidence of impairment in any respect. There is no indication that you are disabled according to the definition of the law. 19 Record on Appeal, vol. 2, at 341. The above-quoted letter ignores the fact that the basis for the original award of disability was not the minimal objective signs of back or kidney problems, but the debilitating pain which Simpson continues to suffer. The diagnosis upon which the Secretary relied to terminate appellant's benefits was no startling revelation. The same diagnosis had been made previously by different physicians and included in the record of the first hearing.5 20 Pain can be disabling "even when its existence is unsupported by objective medical evidence if linked to a medically determinable impairment." Scharlow v. Schweiker, 655 F.2d 645, 648 (5th Cir. 1981). In this case, a doctor did report that Simpson's back x-rays were within normal limits. However, in the same report, he also described his physical examination finding of appellant's limited range of motion and the pain which that motion occasioned. This physician did find a medically determinable impairment, albeit of small magnitude. Another doctor reported no change in the back condition either symptomatically or functionally since the disability was first declared.6 In sum, Simpson continues to manifest the same medically determinable impairments and consequent pain that resulted in the disability ruling. For this reason, we must hold that the Secretary's most recent decision in this case is not supported by substantial evidence.7 21 REVERSED. * Honorable Reynaldo G. Garza, U. S. Circuit Judge for the Fifth Circuit, sitting by designation 1 Record on Appeal, vol. 2, at 17 2 A cogent statement of the effect of ignoring res judicata was provided in Shaw v. Schweiker, 536 F.Supp. 79 (E.D.Pa.1982): After a final determination of disability, if a termination of benefits were effected without a showing either of improvement or newly-discovered evidence, such a termination would of necessity be based on whim or caprice or would constitute an impermissible relitigation of facts and determinations already finally decided. 536 F.Supp. at 83 3 Polycystic kidney disease is an inherited kidney disorder characterized by the presence of many bilateral cysts which cause enlargement of the kidney, as well as reduced function thereof. It is a disease which progresses slowly over a number of years 4 Osteoarthritis is a type of joint or bone disease in which the structures degenerate 5 Record on Appeal, vol. 2, at 280, 307 6 Record on Appeal, vol. 2, at 392 7 In light of our decision, we refrain from needlessly discussing the other points of error which Simpson raises

187 F.3d 1219 (10th Cir. 1999) UNITED STATES OF AMERICA, Plaintiff-Appellee,v.KAREN HANZLICEK, also known as Karen Pearl Hanzlicek, Defendant-Appellant. No. 97-5172 UNITED STATES COURT OF APPEALS TENTH CIRCUIT August 16, 1999 Appeal from the United States District Court for the Northern District of Oklahoma. D.C. No. 96-CR-115-BU William D. Lunn, Tulsa, Oklahoma, for Defendant-Appellant Karen Hanzlicek. Neal B. Kirkpatrick, Assistant United States Attorney, (Stephen C. Lewis, United States Attorney, with him on the brief), Tulsa, Oklahoma, for Plaintiff-Appellee. Before ANDERSON, KELLY, and MURPHY, Circuit Judges. MURPHY, Circuit Judge. 1 The United States moves the court to dismiss this appeal on the basis of the fugitive disentitlement doctrine. See Molinaro v. United States, 396 U.S. 365, 366 (1970) ("No persuasive reason exists why this Court should proceed to adjudicate the merits of a criminal case after the convicted defendant who has sought review escapes from the restraints placed upon him pursuant to the conviction. While such a case does not strip the case of its character as an adjudicable case or controversy, we believe it disentitles the defendant to call upon the resources of the Court for determination of his claim."). Because Hanzlicek became a fugitive during the pendency of the appeal and remains a fugitive to this day, this court grants the government's motion and dismisses Hanzlicek's appeal with prejudice. 2 Hanzlicek was convicted following a jury trial on one count of conspiracy in violation of 18 U.S.C. § 371, two counts of mail fraud in violation of 18 U.S.C. § 1341, and one count of attempting to pass a falsely made obligation of the United States under 18 U.S.C. § 472. The district court sentenced Hanzlicek to a term of imprisonment of twenty-three months on each count, to be served concurrently, and imposed a three-year term of supervised release. Hanzlicek completed her term of incarceration and was released from the Bureau of Prisons on July 6, 1998. She failed, however, to report for her term of supervised release and was declared a fugitive from justice on July 20, 1998. 3 The application of the fugitive disentitlement doctrine is discretionary. See Ortega-Rodriguez v. United States, 507 U.S. 234, 250 n.23 (1993). Nevertheless, the policy considerations underlying the doctrine strongly weigh in favor of its application in circumstances when the criminal defendant becomes and remains a fugitive during the pendency of the direct appeal of her conviction. See id. at 242 ("[O]ur cases consistently and unequivocally approve dismissal as an appropriate sanction when a prisoner is a fugitive during 'the ongoing appellate process.' Moreover, this rule is amply supported by a number of justifications. In addition to addressing the enforceability concerns identified [in prior Supreme Court cases], dismissal by an appellate court after a defendant has fled its jurisdiction serves an important deterrent function and advances an interest in efficient, dignified appellate practice."); see also Parretti v. United States, 143 F.3d 508, 510-11 (9th Cir. 1998) (en banc) (further cataloging policy considerations underlying doctrine). The strength of these policy considerations counsel against reaching the merits of a fugitive's direct appeal in the absence of extraordinary circumstances.1 4 This case does not present extraordinary circumstances sufficient to disregard Hanzlicek's contempt for this court in particular and the judicial system in general. See United States v. Timbers Preserve, 999 F.2d 452, 455 (10th Cir. 1993) (holding that a litigant's fugitive status is "obvious culpable behavior" that demonstrates "willful disregard for the court"); Ali v. Sims, 788 F.2d 954, 959 (3d Cir. 1986) ("[A] fugitive from justice has demonstrated such disrespect for the legal processes that he has no right to call upon the court to adjudicate his claim.").2 Counsel asserts that this case is extraordinary because Hanzlicek's flight results from a mental defect instead of a volitional act. This claim, however, is based solely on the conjecture of counsel and is incapable of being tested via the adversarial process because of Hanzlicek's fugitive status. 5 Nor does the fact that Hanzlicek became a fugitive during the term of her supervised release weigh in favor of a different outcome. A term of supervised release is an integral part of a judgment and sentence, a period within which an offender can be reintegrated into society under the supervision of the criminal justice system. This court will not diminish the importance of that period by disregarding the status of those who become fugitives during supervised release. Furthermore, the only court to address the question, albeit in a brief, unpublished disposition, found the doctrine applicable nonetheless. See United States v. Lee, No. 97-50021, 131 F.3d 149, 1997 WL 735033, at *1 (9th Cir. Mar. 12, 1998) (applying disentitlement doctrine where appellant became fugitive during term of supervised release). 6 As a final matter, this court recognizes that there are a few issues of overlap between Hanzlicek's appeal and that of her co-defendant husband. Nevertheless, Hanzlicek's appeal presents nine issues not presented in her co-defendant's appeal, including several questions that are particularly weighty and complex. We conclude that the relatively narrow overlap between the two appeals is not sufficient reason to disregard Hanzlicek's fugitive status, when to do so would require the expenditure of significant additional resources of this court. See Ali, 788 F.2d at 959 ("Particularly in this age of overcrowded dockets and court backlogs, it is unreasonable to expect a court to expend its scarce resources on one who has blatantly disregarded the court's procedures."). 7 The United States' motion to dismiss Hanzlicek's appeal with prejudice pursuant to the fugitive disentitlement doctrine is hereby GRANTED. Notes: 1 In fact, with two very narrow exceptions, this court has not found a single case declining to apply the disentitlement doctrine in the context of a direct appeal from conviction. Cf. United States v. Sharpe, 470 U.S. 675, 681 n.2. (1985) (refusing to apply doctrine where defendant's conviction was "nullified" by court of appeals and United States sought review in Supreme Court); United States v. Snow, 748 F.2d 928, 930 (4th Cir. 1984) (disentitlement doctrine not per se applicable where escapee is returned to custody before government seeks dismissal). 2 It should be noted that Timbers and Ali are civil cases rather than direct criminal appeals. Nevertheless, the analyses in those cases is all the more persuasive in this case because courts have generally been far more hesitant to apply the fugitive disentitlement doctrine in the civil context. See, e.g., Perko v. Bowers, 945 F.2d 1038, 1039-40 (8th Cir. 1991) (discussing generally narrower applicability of doctrine outside of direct criminal appeal context). 8 KELLY, Circuit Judge, dissenting. 9 The court should proceed to the merits of Mrs. Hanzlicek's appeal and decide it along with Mr. Hanzlicek's (No. 97-5180). Mr. and Mrs. Hanzlicek were tried jointly, and their appeals involve several similar, if not identical, issues requiring a review of the entire record. In addition, both appeals are fully briefed, have been orally argued, and already have consumed considerable judicial resources it is decidedly against the interest of judicial economy to dismiss Mrs. Hanzlicek's appeal only to have these issues reappear in a 28 U.S.C. § 2255 proceeding. Both appeals may now be decided before the same panel. Additionally, Mrs. Hanzlicek has already served her prison sentence. While supervised release is an important part of Mrs. Hanzlicek's sentence, it does differentiate this case from the many cases that have applied the fugitive disentitlement doctrine when the defendant has fled before serving time in prison. See, e.g., Molinaro v. New Jersey, 396 U.S. 365, 365 (1970); United States v. O'Neal, 453 F.2d 344, 344-45 (10th Cir. 1972). 10 Application of the fugitive disentitlement doctrine is discretionary, see Ortega-Rodriguez v. United States, 507 U.S. 234, 250 n.23 (1993), and it is not always applied, see United States v. Luppi, No. 98-1475, 1999 WL 535295, (10th Cir. July 26, 1999) (unpublished) (declining to apply doctrine where defendant challenged her fugitive status). The court's discretion ought to be exercised in favor of hearing this appeal if for no other reason than the very troubling trial conduct of the United States in securing Mrs. Hanzlicek's conviction. A review of this record persuades me that to sit back and say nothing implicitly condones such conduct. The court having concluded otherwise, I respectfully dissent. If the court is intent on applying the doctrine, it should be applied conditionally so that the appeal will be dismissed in thirty days from the date this opinion is filed if Mrs. Hanzlicek does not surrender. See United States v. Swigart, 490 F.2d 914, 915 (10th Cir. 1973); O'Neal, 453 F.2d at 345.

NOT PRECEDENTIAL UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT _____________ No. 13-1971 _____________ ROBERT MCCLENAGHAN; NINA HELLER, Appellants v. MELISSA TURI; GUY TURI, H/W; ZIARA BIERIG, Nee Arden; BEN BIERIG, H/W; LABORATORY CORPORATION OF AMERICA HOLDINGS AND SUBSIDIARIES AND AFFILIATES, Collectively known as "LabCorp"; PATRICIA SPRAGUE; KEVIN KRUTNER; THE DO GOOD CHARITABLE FOUNDATION, a/k/a and/or d/b/a GUATADOPT.COM _____________ On Appeal from the United States District Court for the Eastern District of Pennsylvania (D.C. Civil No. 5-09-cv-05497) District Judge: Honorable Petrese B. Tucker ___________ Submitted Under Third Circuit L.A.R. 34.1(a) March 20, 2014 Before: CHAGARES, GREENAWAY, JR., and VANASKIE, Circuit Judges (Filed: May 28, 2014) ___________ OPINION ___________ VANASKIE, Circuit Judge.  Appellants Robert McClenaghan and Nina Heller ran an internet-based adoption agency, Main Street Adoptions. In their telling, after years of success in placing foreign- born children with American families, they suffered an unanticipated setback in early 2008 when the Guatemalan government effectively ceased all international adoptions from that country. Some couples who sought to adopt Guatemalan children using Main Street Adoptions during this period were left with a different impression—that the agency had knowingly preyed on couples desperate to adopt from Guatemala, stringing them along to believe that their adoption was moving forward and scamming them out of money in the process. Those who felt duped took to online message boards and consumer complaint websites, such as ripoffreport.com, to commiserate and warn others. Appellants brought this defamation, trade libel, and intentional interference with contractual relations action on November 18, 2009, seeking damages from various defendants who had published disgruntled internet posts about Main Street Adoptions. This appeal concerns the statute of limitations for defamation claims under Pennsylvania law, which we recently examined at length in our decision in In re Phila. Newspapers, LLC, 690 F.3d 161, 173-75 (3d Cir. 2012). Because the District Court’s instructions to the jury did not reflect that, under Pennsylvania law, each internet post could constitute a separate tortious act, governed by the applicable one-year statute of limitations, we will vacate the judgment in part and remand for further proceedings. I. 2  In early 2007, Appellee Melissa Turi, along with her husband Guy Turi, contacted Main Street Adoptions seeking to adopt a child from Guatemala. Although the parties disagree as to why several attempts at adoption fell through, neither party disputes that Turi was not left a satisfied customer. In early 2008, Turi began to air her grievances by posting adverse information about Main Street Adoptions on various locations on the internet. Some of Turi’s posts were published on publicly-accessible websites that a person searching the internet for information about Main Street Adoptions might come across after a simple search. Other posts were published in a private Yahoo Group consisting of parents seeking to adopt. The content of such posts was not searchable by non-members. According to Appellants, negative internet posts, including those made by Turi, caused Main Street Adoptions harm in the marketplace, forcing them to close in July 2009. Appellants brought suit against Turi and others who had published negative internet posts about Main Street Adoptions on November 18, 2009. The private Yahoo Group messages were not referenced in the complaint. According to his trial testimony, McClenaghan did not discover these posts until he joined the Yahoo Group in 2011. The complaint was never amended to include these posts. During trial, Turi’s lawyer moved to exclude any internet posts that were published more than a year prior to the filing of the complaint, arguing that they were excluded under Pennsylvania’s statute of limitations on defamation actions and thus irrelevant and prejudicial. In response, Appellants’ lawyer argued that because the statute 3 of limitations was an affirmative defense, all the posts attributed to Turi should be admitted and the jury should determine which posts had been published before November 18, 2008. Appellants’ counsel also argued that even posts barred by the statute of limitations could be relevant to showing Turi’s state of mind when she was alleged to have published later posts within the limitations period. The District Court allowed pre- November 18, 2008 posts to be introduced, but noted that it would give the jurors an instruction asking whether the defense had established that the statute of limitations barred posts made before November 18, 2008. Appellants’ counsel also argued that the discovery rule should toll the statute of limitations for the claims relating to posts that were published on the private Yahoo Group. Noting that the Yahoo Group rules prohibited adoption providers from becoming members or viewing content, Appellants’ counsel alleged that the statute of limitations on the Yahoo Group posts should not have begun to run until 2011, when McClenaghan joined the Yahoo Group after the closure of Main Street Adoptions. The District Court determined as a matter of law that the discovery rule did not apply, as “the parties . . . had almost the same information before November ’08” that they would later discover once joining the Yahoo Group. Supp. App. 15. Finally, Appellants’ counsel requested that the District Court instruct the jurors that claims for interference with contractual relations were subject to a two-year statute of limitations. The District Court declined to do so, reasoning that the claims for contractual interference were premised on “the same alleged defamatory statements,” and therefore 4 “the one-year statute of limitations of defamation also applies to those claims.” App. 104. The District Court submitted the case to the jury on special verdict questions. The first question on the Verdict Sheet asked the jurors, “Do you find that Plaintiffs Robert McClenaghan and Nina Heller had knowledge of the allegedly defamatory statements posted by Defendant Melissa Turi in April 2008?” App. 155. Jurors were instructed that if they answered that question in the affirmative, then “the foreperson should sign and date this form and return it to the Courtroom.” Id. Appellants’ counsel objected to the charge, arguing that under Pennsylvania law “each new statement is independently actionable,” with its own statute of limitations. App. 101. The District Court disagreed, concluding “if they knew in 2008, they had a year from say April of 2008 to bring the action.” Id. Consistent with this ruling, the District Court instructed the jurors: It is undisputed in this case that Plaintiffs’ lawsuit was filed on November 18, 2009. The law requires that certain civil lawsuits be commenced within a certain prescribed period of time. The Plaintiffs’ claims for defamation are subject to a one-year statute of limitations. The Plaintiffs’ claim for trade libel is also subject to the one-year statute of limitations. Because the Plaintiffs’ claim[s] for contractual interference are based on the same alleged defamatory statements, the one-year statute of limitations of defamation also applies to those claims. Accordingly, in order to find in favor of the Plaintiffs on any of their claims, you must determine that the Plaintiffs’ lawsuit was initiated and filed with the court within one year of the time period when Plaintiffs had knowledge that the Defendant, Melissa Turi, posted allegedly defamatory statements on the internet. 5  If you find that the Plaintiffs had knowledge of the alleged defamatory statements in April 2008, then all of Plaintiffs’ claims are time barred and you must find in favor of the Defendant. If you find that the Plaintiffs did not have knowledge of the allegedly defamatory statements until November of 2008, then Plaintiffs’ claims are not time barred and may be considered. App. 104-05. The jurors answered the statute of limitations question on the verdict form in the affirmative, finding that Appellants had knowledge of the purportedly defamatory internet posts in April 2008. The jury therefore did not reach the second and third questions, concerning whether Turi’s statements had been defamatory and, if so, whether they had been truthful. II. The District Court had jurisdiction pursuant to 28 U.S.C. § 1332. We have jurisdiction pursuant to 28 U.S.C. § 1291. A. Appellants first argue that the jury charge was incorrect because it barred consideration of any claim based upon posts published by Turi after April of 2008. Appellants point to three posts introduced at trial that had been published less than a year before the complaint was filed. One of these, a post made on scamalert.com on November 28, 2008, appears to be a word-for-word copy of a post published on ripoffreport.com on April 8, 2008, outside of the limitations period. Another post was published within the private Yahoo Group on December 16, 2008 and described Main 6 Street Adoptions as “a very criminal agency.” App. 126. Finally, Appellants allege Turi published a March 12, 2009 post on complaintsboard.com, which professed that she had “lost over 30,000 in a bate in switch [sic] baby scam” orchestrated by Main Street Adoptions. App. 125. “The statute of limitations for defamation claims is one year from the date of publication.” In re Phila. Newspapers, 690 F.3d 161, 174 (3d Cir. 2012) (citing 42 Pa. Cons. Stat. § 5523). Like many other states, Pennsylvania has adopted the “single publication rule,” whereby: [n]o person shall have more than one cause of action for damages for libel or slander, or invasion of privacy, or any other tort founded upon any single publication, or exhibition, or utterance, such as any one edition of a newspaper, or book, or magazine, or any one presentation to an audience, or any one broadcast over radio or television, or any one exhibition of a motion picture. 42 Pa. Cons. Stat. § 8341(b). Pennsylvania established this rule in response to the concern that a contrary rule would render any statute of limitations “meaningless in that an action could be filed any time a defamatory article was read, no matter the time lag between the actual printing of the article and the reading of the article by a third party.” Graham v. Today’s Spirit, 468 A.2d 454, 457 (Pa. 1983). Although “Pennsylvania courts have not considered whether the single publication rule applies to Internet publication[,]” we recently predicted that Pennsylvania courts would extend the rule to “publicly accessible material on the Internet . . . .” In re Philadelphia Newspapers, 690 F.3d at 7 174. We noted that courts in many other single publication rule jurisdictions had already done so. Id. The District Court’s charge to the jury on the statute of limitations instructed that if they found that “the plaintiffs had knowledge of the alleged defamatory statements in April, 2008, then all of plaintiffs’ claims are time barred and you must find in favor of the defendant.”1 App. 153-54 (emphasis added). The relevant triggering event for the statute of limitations in a defamation action under Pennsylvania law, however, is the publication of the defamatory communication by the defendant, not the point in time when the plaintiff first learns of the communication. See Dominiak v. Nat’l Enquirer, 266 A.2d 626, 629 (Pa. 1970). The publication of each communication constitutes a separate, potentially-tortious act, governed by its own statute of limitations. See Graham, 468 A.2d at 457 (noting that a newspaper would “commit[] a tortious act” each time it publishes a single defamatory article, giving rise to “separate causes of action”). The jury instruction was therefore an incorrect statement of the law. That the instruction was erroneous, however, does not end our inquiry. “[A] mistake in a jury instruction constitutes reversible error only if it fails to fairly and adequately present the issues in the case without confusing or misleading the jury.” Donlin v. Philips Lighting N. Am. Corp., 581 F.3d 73, 79 (3d Cir. 2009) (internal quotation omitted). In this case, 1 In determining whether the jury charge stated the correct legal standard, we exercise plenary review. United States v. Coyle, 63 F.3d 1239, 1245 (3d Cir. 1995). 8 the jury instructions impermissibly precluded the jury from considering the posts made within one year of the filing of the lawsuit. Significantly, the fact that one of the three posts attributed to Turi within the limitations period—the November 28, 2008 scamalert.com post—was identical to a post made outside the limitations period—the April 1, 2008 post on ripoffreport.com—does not foreclose liability on the latter post. Although the content of the two communications was identical, the November 2008 post could be independently actionable as a republication. “Republishing material (for example, the second edition of a book), editing and reissuing material, or placing it in a new form that includes the allegedly defamatory material, resets the statute of limitations.” In re Phila. Newspapers, 690 F.3d at 174. In Graham, the Pennsylvania Supreme Court confronted the question of whether identical articles published on the same day by two different newspapers constituted a single publication. 468 A.2d at 456. The Court held that the publication of the article in two distinct newspapers—Today’s Post and Today’s Spirit—constituted “two separate causes of action,” regardless of the fact that both newspapers had the same publisher. Id. at 458. The Court distinguished this case from the situation that the single publication rule was designed to prevent, wherein “a multitude of lawsuits [could be] based on one tortious act,” such as one newspaper publishing an article in one edition being held liable for a separate cause of action for each copy of that edition sold. Id. at 458. “[I]f the 9 defamatory statement is contained in two separate editions, then two separate causes of action exist.” Id. The November 28 post is therefore independently actionable, although it is identical to the April 2008 post, which is barred by the statute of limitations. To be found liable for the November 28 post, however, Turi herself must have been responsible for the republication of the content—it is not enough that the words were originally hers. If Turi’s pre-limitations period ripoffreport.com post was copied and pasted onto scamalert.com by someone other than Turi, then Turi cannot be found liable for the republication, as Turi did not engage in any tortious conduct within the limitations period. On the other hand, if Turi herself “republished” her earlier ripoffreport.com post on scamalert.com, then Turi may be found liable despite the fact that she first posted the words more than a year before defendants brought suit. The District Court’s charge did not reflect that the publication of each post was a separate, potentially-tortious act, governed by its own statute of limitations. Instead, the instructions focused jurors’ attention on when Appellants first learned of Turi’s allegedly defamatory conduct. This precluded the jury from considering whether those posts published within the limitations period were defamatory. We will therefore vacate the jury’s verdict and remand for further proceedings as to the three posts made within a year of November 18, 2009. B. 10  Appellants next allege that the discovery rule should toll the statute of limitations on all posts that were published by Turi in the private Yahoo Group.2 Under the discovery rule, the statute of limitations is tolled “where a party neither knows nor reasonably should have known of his injury and its cause at the time his right to institute suit arises.” Fine v. Checcio, 870 A.2d 850, 859 (Pa. 2005). The Yahoo Group posts were only viewable by members who had joined the private group. Appellants claim they were unable to discover the posts within the limitations period, as the group rules precluded them from becoming members while they worked for an adoption agency. Appellants’ testified at trial that they were aware of the existence of negative online commentary published by Turi about Main Street Adoptions as early as April 2008. Even accepting Appellants’ contention they could not have joined the private Yahoo Group while they maintained an adoption agency, they were on notice of the injury to their reputation and its source well before the November 18, 2009 filing of the complaint. Furthermore, the complaint did not include the Yahoo Group posts, even though Appellants could have joined the Yahoo Group as early as July 2009 when Main Street Adoptions closed. Therefore, this scenario does not present the type of “[w]orthy case[] . . . pertaining to hard-to-discern injuries” against which the discovery rule was designed to protect. Wolk v. Olson, 730 F. Supp. 2d 376, 378 (E.D. Pa. 2010). We 2 Turi urges us to conclude that all of her Yahoo Group posts are statements of fact or opinion, which are non-defamatory as a matter of law. Not having the benefit of full briefing or a ruling from the District Court on this question, we will decline to reach the issue. The District Court should consider this on remand, having already had the benefit of a complete trial. 11 therefore find no error in the District Court’s conclusion that, as a matter of law, the discovery rule did not toll the statute of limitations as to the private Yahoo Group posts. C. Finally, Appellants contend that the District Court erred in instructing jurors that the one-year statute of limitations for defamation claims applied as well to their intentional interference with prospective contracts claims. The District Court concluded that because “[Appellants’] claim [sic] for contractual interference are based on the same alleged defamatory statements, the one-year statute of limitations of defamation also applies to those claims.” App. 104. Appellants maintain that the District Court should have instructed jurors that the intentional interference with contractual relations claims were governed instead by the two-year statute of limitations that can apply to such claims. In Evans v. Phila. Newspapers, Inc., the Pennsylvania Superior Court addressed the question of “whether a tortious interference claim, which is based upon identical allegations set forth in an accompanying defamation claim, should be considered duplicative and, as such, be barred by the one year statute of limitations applicable to defamation claims.” 601 A.2d 330, 332 (Pa. Super. Ct. 1991). Reasoning that plaintiffs “should not be able to circumvent the statute of limitations by merely terming the claim tortious interference when in essence it is one of defamation,” the court concluded that it would “look to the gravamen of the action, not to the label applied to it by plaintiffs.” Id. at 333. Looking to the gravamen of the action brought by Appellants, we agree with the 12 District Court below that the one-year statute of limitations for defamation actions governs all of Appellants’ claims. Because Appellants’ “claim[s] for tortious interference [are] based upon the alleged false and defamatory character of the communication complained of,” Appellants cannot circumvent the defamation statute of limitations by repackaging the same claims under a tortious interference theory. Id. at 334. III. For the foregoing reasons, we will affirm in part and vacate in part the judgment entered below, and remand this matter for further proceedings consistent with this opinion. 13 

48 So.2d 252 (1950) ALABAMA GREAT SOUTHERN R. CO. v. Charles RUSSELL. 6 Div. 79. Supreme Court of Alabama. June 22, 1950. Rehearing Denied November 2, 1950. James J. Mayfield and Francis A. Massa, of Tuscaloosa, for petitioner. Benners, Burr, Stokely & McKamy, of Birmingham, and Jones, Dominick & McEachin and Liston C. Bell, of Tuscaloosa, opposed. SIMPSON, Justice. Petition of Charles Russell for certiorari to the Court of Appeals to review and revise the judgment and decision of that Court, after remandment, in the case of Alabama Great Southern R. Co. v. Russell, Ala.App., 48 So.2d 239, and motion by appellant to strike the petition. Motion to strike overruled; writ denied. FOSTER, LIVINGSTON and STAKELY, JJ., concur.

F I L E D United States Court of Appeals Tenth Circuit UNITED STATES COURT OF APPEALS January 9, 2006 TENTH CIRCUIT Elisabeth A. Shumaker Clerk of Court UNITED STATES OF AMERICA, Plaintiff - Appellee, No. 05-7068 v. (D.C. Nos. 04-CV-106-P and 00-CR-21-P) RALPH DOUGLAS GANN, (E.D. Okla.) Defendant - Appellant. ORDER DENYING CERTIFICATE OF APPEALABILITY Before KELLY, O’BRIEN, and TYMKOVICH, Circuit Judges. Ralph Douglas Gann, an inmate appearing pro se, seeks to appeal from the district court’s denial of his 28 U.S.C. § 2255 motion to vacate, set aside, or correct his sentence. In order to merit a certificate of appealability (“COA”), Mr. Gann must make “a substantial showing of the denial of a constitutional right.” 28 U.S.C. § 2253(c)(2); Miller-El v. Cockrell, 537 U.S. 322, 336 (2003). To make such a showing, he must demonstrate that reasonable jurists would find the district court’s resolution of the constitutional issue contained in his motion debatable or wrong. Slack v. McDaniel, 529 U.S. 473, 484 (2000). Because we determine that Mr. Gann has not made such a showing, we deny a COA and dismiss the appeal. A jury convicted Mr. Gann of maintaining a place for the purpose of manufacturing, distributing and using methamphetamine (Count III), 21 U.S.C. § 856(a)(1) & 18 U.S.C. § 2; and possession of a firearm by a person who has been convicted of a felony (Count X), 18 U.S.C. § 922(g)(1) & § 2. He was sentenced to the statutory maximum of 240 months on Count III, and 120 months on Count X, with the sentences running consecutively, with three years of supervised release on each count running concurrently thereafter. His conviction and sentence were affirmed on direct appeal. United States v. Gann, 58 Fed. Appx. 792 (10th Cir. 2003). The Supreme Court denied certiorari. Gann v. United States, 538 U.S. 954 (2003). In his § 2255 motion, Mr. Gann claimed ineffective assistance of counsel based on a failure (1) to challenge the drug quantities contained in the presentence report (“PSR”), (2) to argue his lack of participation in the underlying controlled substance offense so as invoke a more lenient sentencing guideline, (3) to argue successfully that his sentences should not run consecutively, and (4) to object to the indictment and the jury instructions based on the indictment’s specifying two different locations in Count III. Mr. Gann later supplemented his § 2255 motion contending that (5) his Sixth Amendment rights were violated given Blakely v. Washington, 542 U.S. 296 (2004). -2-  In seeking a COA, Mr. Gann relies upon issues (1), (2) and (4). To prevail on an ineffective assistance claim, Mr. Gann must show deficient performance by counsel and prejudice from counsel’s error or omission. See Strickland v. Washington, 466 U.S. 668, 687 (1984). Concerning issue (1), Mr. Gann argues that counsel’s ineffectiveness resulted in the district court failing to exclude waste water from the drug quantity calculation in accordance with U.S.S.G. § 2D1.1, n.1 (2000). The district court rejected this for lack of a factual predicate: the Pre-Sentence Report (“PSR”) derived the quantity from methamphetamine in powder form and liquid methamphetamine. R. Doc. 10 at 6; see also R. Doc. 4 at 6. This claim is not reasonably debatable. As for issue (2), although couched as an ineffective assistance claim, the district court’s resolution is not reasonably debatable because this court rejected the idea that Mr. Gann was a non-participant that could not be held responsible for the drug quantities in the PSR. Gann, 58 Fed. Appx. at 799-800. Mr. Gann cannot demonstrate prejudice in an ineffectiveness claim because this court has rejected the substantive issue on the merits. See United States v. Warner, 23 F.3d 287, 291 (10th Cir. 1994) (ordinarily, matters rejected on direct appeal are not proper grounds for § 2255 relief). Finally, Mr. Gann argues that counsel should have objected to the indictment on Count III and the jury instructions because the indictment charged -3- that he maintained a place for manufacturing, distributing or using methamphetamine in two locations. He contends that the two locations should have been in separate counts, and the jury instructions pertaining to Count III did not require specification of one or both locations, thereby depriving him of his Fifth Amendment rights and a unanimous verdict. R. Doc. 1 at 13. According to Mr. Gann, “[h]ad the jury been instructed that they must have a unanimous verdict on both places, it might have resulted in only the one where the firearm was not at, which would have resulted in an acquittal of Count 10.” Aplt. Br. at 13. An indictment is duplicitous if it charges two or more separate offenses in the same count. United States v. Haber, 251 F.3d 881, 888 (10th Cir. 2001). The proper way to challenge a duplicitous indictment is by a pretrial motion to elect. United States v. Henry, 504 F.2d 1335, 1338 (10th Cir. 1974). Alternatively, specific unanimity instructions may cure a duplicitous indictment. In plain error challenges, we have held that, absent a realistic possibility of confusion, a general unanimity instruction is adequate to tell the jury that it must be unanimous on underlying factual specifications. United States v. Phillips, 869 F.2d 1361, 1366- 67 (10th Cir. 1988) (collecting cases). The issue here is whether maintaining each location for a prohibited purpose constitutes separate offenses, or are merely different means of committing a single offense. See Richardson v. United States, 526 U.S. 813, 816 -4- (1999); United States v. Weller, 238 F.3d 1215, 1219-20 (10th Cir. 2001). The law of the Tenth Circuit is clear: where two or more acts could be charged as separate counts but are part of the same scheme or course of conduct, they are not necessarily duplicitous and may be charged in one count. See United States v. Jaynes, 75 F.3d 1493, 1502-1503 (10th Cir. 1996); United States v. Browning, Inc., 572 F.2d 720, 725-26 (10th Cir. 1978). That seems to apply here: in describing the situation on direct appeal, we noted that this “was a ‘family business[]’ involving Doug Gann, Doss Gann and Irene Gann, and others, at both the Ridge Drive and Chicken Creek properties.” Gann, 58 Fed. Appx. at 798. Though not determinative of the duplicity issue, we found ample evidence that Mr. Gann maintained both locations for the manufacture of methamphetamine (Count III). Id. at 796-99; United States v. Ramirez, 273 F.3d 903, 915 (9th Cir. 2001) (sufficiency does not cure duplicity). Regardless of whether the duplicity issue is reasonably debatable, what is not reasonably debatable is that Mr. Gann cannot show prejudice. Mr. Gann claims he was prejudiced by counsel’s failure to argue duplicity based upon the potential for an acquittal on the firearms count (Count X). Mr. Gann theorizes that had the jury been given a specific instruction on unanimity on Count III, the jury might have convicted based solely on the Ridge Drive location, and decided to acquit on Count X which involved the firearm found at the Chicken Creek -5- location. This assumes a legal nexus between the two counts that is absent. Moreover, ample evidence supported the conviction on Count X, including Mr. Gann’s stipulation concerning the prior felony conviction, as well as his presence near the gun. Gann, 58 Fed. Appx. at 798. We do not think the prejudice prong on an ineffective assistance claim is reasonably debatable–in assessing prejudice, we must presume that a jury would act rationally and consider the evidence pertaining to each count. See Strickland, 466 U.S. at 695. Thus, Mr. Gann has not shown a reasonable probability that, but for counsel’s alleged error, the result of the proceeding would have been different. Mr. Gann has filed a motion for leave to supplement his brief based on Dodd v. United States, 125 S. Ct. 2478 (2005). That case held that the one-year limitation period of 28 U.S.C. § 2255, ¶ 6(3), runs from the date the Supreme Court recognizes a right and declares it retroactive, not the date on which a lower federal court applies the right retroactively. Dodd, 125 S. Ct. at 2482. This does not alter the conclusion that Blakely v. Washington and Booker v. United States, do not apply retroactively on collateral review. United States v. Bellamy, 411 F.3d 1182, 1186-88 (10th Cir. 2005). Thus, Mr. Gann’s claim that he has until January 12, 2006, to preserve his Booker contentions is without merit because the Supreme Court has not declared Booker to be retroactive. Accordingly, we DENY the application for COA and DISMISS the appeal. -6- The motion to supplement the brief is GRANTED. Entered for the Court Paul J. Kelly, Jr. Circuit Judge -7- 

Case: 11-50476 Document: 00511765507 Page: 1 Date Filed: 02/23/2012 IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT United States Court of Appeals Fifth Circuit FILED February 23, 2012 No. 11-50476 Summary Calendar Lyle W. Cayce Clerk UNITED STATES OF AMERICA, Plaintiff-Appellee v. RAFAEL IBARRA-SOTO, also known as Rafael Ibarra, Defendant-Appellant Appeal from the United States District Court for the Western District of Texas USDC No. 3:11-CR-141-1 Before DENNIS, CLEMENT, and OWEN, Circuit Judges. PER CURIAM:* Rafael Ibarra-Soto challenges the substantive reasonableness of his guidelines minimum 41-month sentence for illegal reentry. The Government has moved for summary affirmance, or in the alternative, for an extension of time to file an appellate brief. The Government’s motion for summary affirmance is DENIED. See United States v. Holy Land Found. for Relief, 445 F.3d 771, 781 (5th Cir. 2006); United States v. Taylor, 631 F.2d 419, 420 & n.1 (5th Cir. 1980); Groendyke Transp., Inc. v. Davis, 406 F.2d 1158, 1162 (5th Cir. 1969). The * Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR. R. 47.5.4.  Case: 11-50476 Document: 00511765507 Page: 2 Date Filed: 02/23/2012 No. 11-50476 motion for an extension of time is DENIED in the interest of judicial economy because the Government adequately briefed the issues in its motion. Ibarra-Soto asserts that the guidelines range overstated the seriousness of his offense, failed to provide just punishment, and undermined respect for the law because his illegal reentry was not a crime of violence, did not pose a danger to others, and amounted to an international trespass. This argument does not overcome the presumption that a guidelines sentence for illegal reentry is reasonable. See United States v. Aguirre-Villa, 460 F.3d 681, 682-83 (5th Cir. 2006); United States v. Alonzo, 435 F.3d 551, 554 (5th Cir. 2006). Next Ibarra-Soto contends that his sentence is unreasonable because the illegal reentry guideline double-counted his criminal record by using his prior convictions for indecency/sexual contact with a child to determine his offense level and his criminal history score. Such an argument likewise “provides no real grounds to doubt the reasonableness of his sentence.” United States v. Duarte, 569 F.3d 528, 529-31 (5th Cir. 2009). Finally, Ibarra-Soto asserts that the guidelines range failed to account for his personal history and characteristics, particularly his lengthy residency in the United States, his long marriage, and his seven legal resident children. He also notes he returned for a “benign motive,” to receive medical treatment and be with his family. The district court listened to these arguments at the sentencing hearing. It found that Ibarra-Soto’s prior offenses distinguished his case more than his length of time in the United States. Nevertheless, the court imposed the minimum sentence under the Guidelines, indicating that the court took Ibarra-Soto’s mitigation arguments into account. Ibarra-Soto does not show that the district court failed to 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 sentencing factors. See United States v. Cooks, 589 F.3d 173, 186 (5th Cir. 2009). He fails to rebut the presumption of reasonableness that applies to his 2  Case: 11-50476 Document: 00511765507 Page: 3 Date Filed: 02/23/2012 No. 11-50476 guidelines sentence. See id.; Alonzo, 435 F.3d at 554. The judgment of the district court is AFFIRMED. 3 

780 P.2d 659 (1988) Jane DOE, Natural Mother and Next Friend of Sally Doe, a minor, Appellant, v. INDEPENDENT SCHOOL DISTRICT NO. I-89; Board of Education of Independent School District No. I-89; Floyd Donwerth; Betty Hill; Gene Brody; Hugh Long; Susan Hermes; Shirley Darrell; and Delbert Hamm, as members of the Board of Education of Independent School District No. I-89; and Jose Rideout, Appellees. No. 59965. Supreme Court of Oklahoma. October 18, 1988. Rehearing Denied October 10, 1989. Jones, Schuster & Flaugher by W. Terry Flaugher, Oklahoma City, for appellant. Looney, Nichols, Johnson & Hayes by E. Bay Mitchell, III, Oklahoma City, for appellees. *660 HODGES, Justice. A negligence action was brought against Independent School District No. I-89; Board of Education of Independent School District No. I-89; Floyd Donwerth, Betty Hill, Gene Brody, Hugh Long, Susan Hermes, Shirley Darrell, and Delbert Hamm, as Members of the Board; and Jose Rideout (appellees) under the Political Subdivision Tort Claims Act (Act).[1] The trial court granted appellees' motion for summary judgment, ruling that the six month statute of limitations had expired before the suit was filed. Two issues are presented for our consideration. First, whether the trial court erred in interpreting the applicable statute of limitations under the Act. Secondly, whether summary judgment was improper because appellees were equitably estopped from asserting the statute of limitations' defense. We answer both questions in the negative and affirm the judgment of the trial court. On April 3, 1981, Jose Rideout, a bus driver for appellee school district, abducted Sally Doe (a fourteen year old retarded female) and forced her to have sexual intercourse. Rideout was convicted and sentenced for the crime. Jane Doe, the natural mother of Sally (appellant), brought this action after it was revealed that Rideout had prior convictions for sexual crimes. Appellant sent notice of the claim to the school board on July 17, 1981. Thereafter, all correspondence on the claim was between appellant's attorney and an investigator from the school board's insurance company. The investigator informed the attorney that he could not settle the claim until he completed his report of the incident. On November 24, 1981, the attorney sent a letter indicating that he would file the suit unless the claim was successfully resolved. The investigator again urged her to wait until the report was complete. On December 3, 1981, appellant's attorney telephoned the investigator who then informed him the claim was denied. On December 11, 1981, a letter was received by appellant's attorney confirming that conversation. The lawsuit was not filed until June 3, 1982. Appellant first claims that her action was not time barred by the applicable statute of limitations. She contends that the trial court erred in interpreting 51 O.S. 1981 §§ 156 and 157.[2] Section 156(C) provided in pertinent part: "No action for any cause arising under this act shall be maintained unless valid notice has been given and the action is commenced within six (6) months after notification of denial of the claim by the clerk of the political subdivision." (Emphasis supplied). Section 157 provided: "Within ninety (90) days after receiving the filing of a claim, the clerk of the political subdivision shall notify the claimant in writing of the approval or denial of the claim. A claim is denied if the political subdivision fails to approve the claim in its entirely within *661 ninety (90) days, unless the interested parties have reached a settlement before the expiration of that period. A person may not initiate a suit against a political subdivision or an employee whose conduct gave rise to the claim unless the claim has been denied in whole or in part." (Emphasis supplied). In our recent opinion in Trent v. The Board of County Commissioners of Johnston County, 755 P.2d 615 (Okla. 1988), we observed the apparent purpose of the 90 day period for a political subdivision to either approve or deny a claim is for the benefit of plaintiff and to prevent a political subdivision from needlessly delaying the filing of a claim beyond 90 days. In affirming the district court, we ruled § 157 provided for an automatic denial of a claim after 90 days if it had not been denied, approved or settled at an earlier date. Furthermore, we distinguished Whitley v. Oologah S.D. I-4 of Rogers Cty, 741 P.2d 455 (Okla. 1987), wherein a political subdivision continued to promise to settle the remainder of a claim up until such time as the suit was filed, which was well after the six month time limit. In Trent, we noted there was not a partial settlement or approval of the claim nor was there a promise to settle. In the present case, appellant contends she considered the claim settled inasmuch as the investigator constantly maintained that there was no need to file the lawsuit because the claim would be settled when the investigation was complete. Furthermore, she contends that the statute of limitations was tolled for 60 days by the appellees' request for additional information. From the record it is apparent there was not a settlement of appellant's claim. Appellant relies on the fact that the investigator urged her not to file her claim until his report was finished. We cannot accept appellant's position. Appellees never undertook negotiations with appellant nor did they ever admit liability for the claim, they simply were investigating the incident. Had appellant seriously considered the claim settled, she would not have sent a letter on November 24, 1981, indicating she would file the suit within the next week unless the claim was successfully resolved. Moreover, on December 11, 1981, she received a letter unequivocally denying her claim and she still had over four months to file the suit. Appellant relies on § 156(C) to substantiate her argument that the statute of limitations was tolled 60 days when appellees requested additional information. Section 156(C) provided in pertinent part: "Failure to state either the time, place, circumstances and amount of compensation demanded shall not invalidate the notice unless the claimant declines or refuses to furnish such information within ninety (90) days after demand by the political subdivision." Appellant erroneously construes this statute to provide for a tolling of the statute of limitations. Section 156(C) only concerns the adequacy of the notice given the political subdivision. Trent, 755 P.2d at 615. It is undisputed that appellant complied with the notice provisions of this section. We find no merit in appellant's argument that appellees' request for additional information somehow extended the statute of limitations 60 days. Therefore, we would affirm the district court's holding that appellant failed to comply with the statute of limitations. Appellant's action was time barred on April 15, 1982, six months after the claim was denied by operation of law under § 157. Next, appellant attacks the trial court's grant of summary judgment. She contends there still existed a substantial controversy of fact as to the issue of equitable estoppel. Appellant maintains reasonable persons might differ as to the conclusions to be drawn from the undisputed facts. Her argument again stems from her allegation the investigator of the claim urged her to wait until he finished his report. In short, she claims appellees are estopped from asserting a § 156(C) time bar because they induced appellant's attorney to delay in filing her lawsuit. In Jarvis v. City of Stillwater, 732 P.2d 470, 472-73 (Okla. 1987), we stated: *662 "A fact question as to whether a defendant is estopped from interposing the defense of a time bar is generally raised by a plaintiff's allegations that the defendant had made (a) some assurance of settlement negotiations reasonably calculated to lull the plaintiff into a sense of security and delay action beyond the statutory period, or (b) by an express and repeated admission of liability in conjunction with promises of payment, settlement or performance, or (c) any false, fraudulent or misleading conduct or some affirmative act of concealment to exclude suspicion and preclude inquiry, which induces one to refrain from timely bringing an action." (Footnotes omitted). The Jarvis case is factually similar and controls the disposition of the present case. Jarvis relied on a letter sent by the city requesting additional information and also mentioning an investigation, the results of which would be made available to Jarvis. Jarvis argued the letter led him to believe further correspondence from the city would be forthcoming, and this reliance induced him to delay in filing his action. We held Jarvis had failed to make out a case for estoppel because the letter did not fall into any of the three variations that would support an equitable estoppel argument. Furthermore, we stated the Political Subdivision Tort Claims Act narrowly structures the method for bringing a tort claim against a municipality. Upon reviewing the record in the instant case we find there is no evidence that would support an estoppel argument. In order to invoke the doctrine of equitable estoppel there must be some assurance of settlement negotiations reasonably calculated to lull a plaintiff into a sense of security and delay action beyond the statutory period. Jarvis, 732 P.2d at 472. Appellees never admitted liability for the claim or undertook negotiations to settle it. In addition, the record does not reflect any false, fraudulent or misleading conduct on the part of appellees. Any reliance on the part of appellant was unequivocally denounced when appellee sent a letter rejecting the claim. Appellant still had over four months to file her claim. We cannot hold appellees' actions were the cause of appellant's delay in the filing of her action beyond the statutory period. We find the district court correctly granted summary judgment. In sum, we find appellant failed to allege facts sufficient to invoke the doctrine of equitable estoppel and also failed to file her action before the statute of limitations expired. The district court's judgment for appellees is affirmed. DOOLIN, C.J., HARGRAVE, V.C.J., and LAVENDER and SIMMS, JJ., concur. OPALA, ALMA WILSON, KAUGER and SUMMERS, JJ., dissent. OPALA, Justice, with whom KAUGER, Justice joins, dissenting. I dissent from the court's opinion for the reasons expressed by me in Trent v. Board of County Com'rs, 755 P.2d 615, 619 [Okl. 1988] (Opala, J., dissenting) and Whitley v. Oologah S.D. I-4 of Rogers Cty., 741 P.2d 455 [Okl. 1987] (Opala, J., concurring). ALMA WILSON, Justice, dissenting. The majority opinion holds that the appellees were not equitably estopped from asserting the statute of limitations defense. Because I believe that there is a fact question which should be resolved by a fact-finder, summary judgment is improper. I therefore respectfully dissent. In a negligence action brought under the Political Subdivision Tort Claims Act,[1] the trial court granted summary judgment to defendants finding that the six months' statute of limitations in 51 O.S. 1981, § 156(C) had expired before the suit was filed. The attorney for the plaintiff claims that he was encouraged not to file a lawsuit *663 by the demeanor, actions, and the specific requests of the insurance company's investigator and therefore the insurance company should be barred from asserting the statute of limitations as a defense by reason of equitable estoppel. On April 3, 1981, during school hours, Sally Doe, a fourteen-year-old retarded female, was taken by her school bus driver, Jose Rideout, to a motel where he forced her to have sexual intercourse. Subsequently, Rideout was convicted and sentenced for his crime. The plaintiff alleged that Rideout had a previous police record which revealed that prior to his employment with the defendant school district, he had been arrested on sixteen separate occasions, that he had been convicted of four separate crimes including attempted criminal assault on a female of the age of thirteen, and that six of the past charges against him involved sexual crimes or attempted sexual crimes on females under the age of eighteen. On July 17, 1981, the plaintiff's attorney sent notice to the school board of plaintiff's claim. In early August, he was contacted by the investigator for the school board's insurance company. In a deposition of the plaintiff's attorney by the defendants, the attorney testified that he and the investigator met and talked on the phone on several occasions from August through December, 1981, which he describes in the deposition. He stated that the investigator told him that there was no need to file a lawsuit, and that the matter could not be settled until he had finished his investigation and submitted his report. The defendants allege that the claim was denied by operation of law on October 15, 1981, ninety days after the claim was made.[2] On November 24, 1981, plaintiff's attorney sent the investigator a letter stating that he intended to file suit "within the next week unless this matter can be successfully resolved." Two days later, plaintiff's attorney received a phone call from the investigator telling him, "Don't file your lawsuit, I've still got a little bit of investigation to do, let me go ahead and complete my investigation. You don't need to file your lawsuit." On December 3, 1981, plaintiff's attorney had a telephone conversation with the investigator and was told that the claim had been denied, that the position of the company was that there would be another insurance company that would pay the claim. At the attorney's request, the investigator sent a letter confirming the telephone conversation. The letter was sent December 8, 1981, and received December 11, 1981. On April 15, 1982, the defendants allege the statute of limitations ran,[3] and the petition was filed on June 3, 1982. The relevant provisions of the Political Subdivision Tort Claims Act are found in 51 O.S. 1981, § 157, and § 156(C). Section 157 provides that a claim is denied if the political subdivision fails to approve the claim within ninety days or receipt of the claim. Because such a time limit is procedural, like other statutes of limitation, the time bar may be extended by estoppel. See Jarvis v. City of Stillwater, 732 P.2d 470, 473 (Okla. 1987). Section 156(C) provides that "[n]o action for any cause arising under this act shall *664 be maintained unless ... the action is commenced within six (6) months after notification of denial of the claim by the clerk of the political subdivision." This Court has previously held that unless a claim has been approved during the ninety day period, the claim is deemed denied at the end of the ninety days. Neal v. City of Blackwell, 670 P.2d 587, 588 (Okla. 1983). Where a claim is deemed denied, the six-month limitation of section 156(C) is activated. Lucas v. Independent Pub. School Dist. No. 35, 674 P.2d 1131 (Okla. 1983). But where the facts show that a plaintiff is lulled into a sense of security to delay the filing of a lawsuit beyond the statutory period, the defendant will be estopped from interposing the defense of a time bar. Jarvis, 732 P.2d at 471. "One cannot equitably lull an adversary into a false sense of security, thereby subjecting his claim to the bar of limitations, and then be heard to plead that very delay as a defense to the action." Whitley v. Oologan Ind. School Dist., 741 P.2d 455, 457 (Okla. 1987). The issue before this Court is whether the actions which the plaintiff alleges were taken by the defendants in urging the plaintiff not to file a lawsuit were legally sufficient to lull the plaintiff's attorney into a false sense of security so that the defendants are estopped from using the statute of limitations as a defense. The trial court on a motion for summary judgment found that the plaintiff's claim was denied by operation of law on October 15, 1981, and that the six months' statute of limitations ran on April 15, 1982, and that therefore the plaintiff was barred by the statute of limitations. At the time of the hearing, District Court Rule 13[4] provided in pertinent part: A party may move for judgment in his favor on the ground that the depositions, admissions in the pleadings, stipulations, answers to interrogatories and demands to admit, affidavits, and exhibits on file, filed with his motion or subsequently filed with leave of court show that there is no substantial controversy as to any material fact. Therefore, if the facts alleged by the plaintiff concerning the actions of the defendant's investigator are legally sufficient to estop the defendant from asserting the statute of limitations as a defense, summary judgment should have been denied. The alleged facts which I find persuasive are that the plaintiff's attorney was told that there was no need to file a lawsuit when he contacted the investigator, and that the matter could not be settled until the investigator had finished his report, leading the plaintiff's attorney to believe that the settlement would be made as soon as the investigation was complete. In fact, the insurance company never denied that the school board was liable for its employee's tortious conduct, only "that there is no coverage under their policy for this loss." In his December 3, 1981, telephone conversation with the insurance investigator, the plaintiff's attorney was led to believe that another insurance company would pay the claim. In Jarvis, which the majority opinion finds to be dispositive, this Court stated that a fact question concerning whether a defendant is estopped from interposing the defense of a time bar is raised by the plaintiff's allegations that the defendants had made: (a) some assurance of settlement negotiations reasonably calculated to lull the plaintiff into a sense of security and delay action beyond the statutory period, or (b) an express and repeated admission of liability in conjunction with promises of payment, settlement or performance, or (c) any false, fraudulent or misleading conduct or some affirmative act of concealment to exclude suspicion and preclude inquiry, which induces one to refrain from timely bring an action. Jarvis, 732 P.2d, at 472-473. The case at bar is a classic scenario of voluntary enlargement of the ninety-day denial period. The provisions of § 157 required a denial of the claim in whole or in part before suit could be instituted. The *665 request of the insurance investigator that the plaintiff not file suit until his investigation report was completed not only prompted but required plaintiff's attorney's letter of November 24, 1981, advising he would file suit within a week and requesting a response of denial or acceptance of plaintiff's offer of settlement. Clearly at that date, both plaintiff and defendants recognized the claim as undenied. On receipt of that letter defendants' investigator requested additional time for a response. Under these facts, defendants may not now deny under the authority of Neal and Lucas that the ninety-day time of "deemed denial" was enlarged by its own request. The plaintiff has alleged facts which if proven would show that the actions of the insurance investigator were misleading inducing him from timely bringing the lawsuit. The petition was filed within six months of December 8, 1981, which was the date the letter was sent which denied the insurance company's liability. The action would therefore be timely. Whitley, 741 P.2d at 457. I would find that the alleged acts of the defendants' insurance investigator were sufficient to assert a fact question which would still be in controversy and therefore summary judgment was improper. I would reverse the judgment of the trial court and remand this cause for further proceedings. SUMMERS, Justice, dissenting. Plaintiff filed her action six months to the day from the date she was first notified that her claim had been denied by the defendant, satisfying 51 O.S. 1981 § 156(C). I therefore dissent for the reasons expressed in my dissenting opinion in Trent v. Board of County Commissioners of Johnston Co., 755 P.2d 615, 621 (Okla. 1988). KAUGER, J., joins in these views. NOTES [1] 51 O.S. 1981 § 151 et seq., now retitled The Governmental Tort Claims Act, 51 O.S.Supp. 1987 §§ 151-171. [2] Section 157 was recently amended to provide: A. A claim is deemed denied if the state or political subdivision fails to approve the claim in its entirety within ninety (90) days, unless the interested parties have reached a settlement before the expiration of that period. A person may not initiate a suit against the state or a political subdivision unless the claim has been denied in whole or in part. The claimant and the state may continue attempts to settle a claim, however, settlement negotiations do not extend the date of denial. ... . 1988 Okla. Sess. Laws 1087 (emphasis indicates addition). [1] 51 O.S. 1981, § 151 et seq., now retitled Governmental Tort Claims Act, 51 O.S.Supp. 1987, §§ 151-171. [2] 51 O.S. 1981, § 157 provided: Within ninety (90) days after receiving the filing of a claim, the clerk of the political subdivision shall notify the claimant in writing of the approval or denial of the claim. A claim is denied if the political subdivision fails to approve the claim in its entirety within ninety (90) days, unless the interested parties have reached a settlement before the expiration of that period. A person may not initiate a suit against a political subdivision or employee whose conduct gave rise to the claim unless the claim has been denied in whole or in part. Section 157 has subsequently been amended by 1984 Okla. Sess. Laws, ch. 226, § 9, eff. Oct. 1, 1985; and 1984 Okla. Sess. Laws, ch. 228, § 5, eff. July 1, 1984. [3] 51 O.S. 1981, § 156(C) provided in pertinent part: No action for any cause arising under this act shall be maintained unless valid notice has been given and the action is commenced within six (6) months after notification of denial of the claim by the clerk of the political subdivision. Section 156 has subsequently been amended by 1984 Okla. Sess. Laws, ch. 226, § 8, eff. Oct. 1, 1985; 1985 Okla. Sess. Laws, ch. 357, § 2, operative Oct. 1, 1985, and 1986 Okla. Sess. Laws, ch. 247, § 23, operative July 1, 1986. [4] 12 O.S. 1981, ch. 2, App., Rules for District Courts of Oklahoma (subsequently withdrawn and replaced by order of Oct. 30, 1984, eff. Nov. 1, 1984).

406 F.2d 698 NATIONAL LABOR RELATIONS BOARD, Petitioner,v.THOMPSON TRANSPORT COMPANY, Inc., Respondent. No. 9879. United States Court of Appeals Tenth Circuit. January 29, 1969. Rehearing Denied March 21, 1969. COPYRIGHT MATERIAL OMITTED Edward Wall, Washington, D. C. (Arnold Ordman, General Counsel, Dominick L. Manoli, Associate General Counsel, Marcel Mallet-Prevost, Asst. General Counsel, Frank H. Itkin and Mitchell L. Strickler, Washington, D. C., Attorneys, on the brief), for petitioner. William G. Haynes, Topeka, Kan. (Lillard, Eidson, Lewis & Porter and O. B. Eidson, Philip H. Lewis, James W. Porter, Charles S. Fisher, Jr., Charles N. Henson, Peter F. Caldwell, Roscoe E. Long, R. Austin Nothern and Brock R. Snyder, Topeka, Kan., on the brief), for respondent. Before PICKETT, LEWIS and HICKEY, Circuit Judges. DAVID T. LEWIS, Circuit Judge. 1 This case reaches us through petition of the National Labor Relations Board under section 10(e) of the National Labor Relations Act for enforcement of a remedial order made June 21, 1967, and premised on a Board decision that Thompson Transport Company (Company) had violated §§ 8(a) (1) and 8(a) (5) of the Act. The Board found that the Company violated § 8(a) (1) by threatening employees that it might close its Phillipsburg, Kansas, terminal if the employees chose union representation and § 8(a) (5) and (1) of the Act "by closing the terminal without prior notice to, or bargaining with the Union1 concerning its decision to close the terminal and the effect of the closing upon the employees" The Company's resistance to enforcement asserts: 2 (1) That the Board's certification of the Union was invalid. 3 (2) That there is not substantial evidence on the record as a whole to support the Board's finding that the Company violated section 8(a) (1) of the Act. 4 (3) That there is not substantial evidence on the record as a whole to support the Board's finding that the Company violated section 8(a) (5) and (1) of the Act. 5 (4) That the Board's remedy as ordered does not effectuate the purposes of the Act. The Board's Certification 6 The Company, a common carrier by truck of petroleum and related products, maintained terminals at McPherson and Phillipsburg, Kansas. On November 9, 1965 the Union filed a petition under § 9(c) of the Act for a representation election of the Company's employees at the Phillipsburg terminal. A full hearing was held on the petition and as a result thereof the Regional Director issued his Decision and Direction of Election which, inter alia, found Willis Hodge to be an employee of the Company rather than an independent contractor as argued by the Company and properly included within the requested bargaining unit.2 Thereafter the company filed a petition with the Board to review the Director's decision. The Board on December 28, 1965 issued a telegraphic order denying the petition 7 as it raises no substantial issues warranting review except as to the status of the leased driver [Hodge]. As such issue can best be resolved by the challenge procedure, the decision and direction of election is hereby amended to permit the leased driver to vote subject to challenge. 8 Pursuant to the Board's order the election was held on December 29, 1965 in which nine votes were cast, five of which, including that of Hodge, were challenged. Thereafter the Regional Director conducted an investigation in respect to the challenged votes, and on January 28, 1966 determined that Hodge's ballot should be opened and counted.3 The Company did not petition the Board for review of this determination and the Board in noting that no objections had been filed to the Regional Director's report within the time provided for in its Rules and Regulations § 102.67(b), 29 CFR 102.67(b),4 adopted the Regional Director's findings and certified the Union as the duly elected representative of the Company's employees. At the unfair labor hearing the Company sought to relitigate the status of Hodge; however the Trial Examiner sustained General Counsel's objection thereto 9 on the basis of the Board's well established policy not to relitigate in an unfair labor practice proceeding such as this, issues which were or could have been litigated in a prior related representation proceeding absent newly discovered or previously unavailable evidence. 10 In NLRB v. Ideal Laundry & Dry Cleaning Co., 10 Cir., 330 F.2d 712, this court held that when an employer had not been granted an opportunity for a full hearing during the interlocutory administrative procedures on the issue of the appropriateness of the bargaining unit such issue was open in the unfair practice hearing and thereafter on review in this court. The fundamental of Ideal is simple and basic — due process in an administrative hearing requires an opportunity to be fully heard upon any issue that is determinative of the rights of the parties and when that opportunity is denied at the interlocutory level no finality can be accorded the determination there made. But this principle has not been abused by the Board in the case at bar. Although the Company did seek and obtain review of the Regional Director's determination of the appropriate unit the Board acted well within its discretion in holding that the issue of Hodge's status could best be determined through the challenge procedure. It is quite apparent that the validity of Hodge's vote might have had no effect upon the outcome of the election and thereafter the Company might have had no further interest in his inclusion in the unit. In any event the Board procedures provided full opportunity for review of the Director's decision to count the Hodge vote and the Company did not seek such review. To continue the issue as appropriate in the unfair practice hearing would be but to nullify the effectiveness of § 102.67(b) and violate the cautionary words of the Supreme Court that "* * * courts should not topple over administrative decisions unless the administrative body not only has erred but has erred against objection made at the time appropriate under its practice." United States v. L. A. Tucker Truck Lines, Inc., 344 U.S. 33, 37, 73 S.Ct. 67, 69, 97 L.Ed. 54. 11 We hold, as did the First Circuit in NLRB v. Rexall Chemical Co., 370 F.2d 363, that the Company's failure to exhaust administrative procedures as to Hodge's status precludes review of that issue in this court.5 The Section 8(a)(1) Violation 12 It is a basic violation of § 8(a) (1) for an employer to interfere with employee organizational activity by a coercive threat to close his plant. Irving Air Chute Co. v. NLRB, 2 Cir., 350 F.2d 176; cf. Textile Workers Union of America v. Darlington Mfg. Co., 380 U.S. 263, 274 n. 20, 85 S.Ct. 994, 13 L.Ed.2d 827. The core of the unfair labor practice lies, however, in the element of coercion and does not extend to a total restriction upon argumentative discussion of the effect of unionization upon the economic health of the company. The latter is protected activity under section 8(c) of the Act. J. S. Dillon & Sons Stores Co. v. NLRB, 10 Cir., 338 F.2d 395. The primary responsibility of determining whether particular utterances are to be construed as threats or mere expressions of opinion lies with the Board, Betts Baking Co. v. NLRB, 10 Cir., 380 F.2d 199, 202; NLRB v. McCormick Concrete Co. of S. C., Inc., 4 Cir., 371 F.2d 149, and its decision will not be disturbed on appeal unless the record as a whole does not reveal substantial evidence in support thereof, North American Rockwell Corp. v. NLRB, 10 Cir., 389 F.2d 866. 13 In the case at bar the Board bases its finding principally upon a statement made by the Company's terminal manager to employee Hodge that if "the union was voted in that he would or that they would [or] might close the terminal down."6 This statement, viewed in total isolation, dictates no particular inference and under some circumstances might not justify a finding of an unfair labor practice. See J. S. Dillon & Sons Stores Co., supra. However the Board properly could and did consider the incident in light of the Company's total course of conduct and when so viewed this statement need not be deemed as an isolated statement to a single employee which would not in itself justify a finding of an unfair labor practice. 14 The Union attempted to organize the employees at the Company's McPherson terminal in 1963 but was met by conduct on behalf of the Company which resulted in the Board issuing a consent order against the Company. It is not our or the Board's function to relitigate the propriety of this earlier conduct but it was proper for the Board in considering the intended effect of Wise's statement to Hodge to take administrative notice of the fact that during that organization campaign the Company not only threatened its employees with reprisals in the event they selected the Union but coupled such threats with statements to its employees that it might be forced to close the terminal. The Company's president testified in the instant case that the Company's general attitude toward unionization had not changed during the intervening years. And, indeed, Hodge had been re-employed only after he "promised [he] wouldn't start a union * * * [if he] could go back to work." 15 Substantial evidence supports the finding of an 8(a) (1) violation. The Section 8(a) (5) Violation 16 The Board decision, upsetting the finding of the Trial Examiner that the Company had closed the Phillipsburg terminal because of a discriminatory motive violative of § 8(a) (3) of the Act, determined that the Company had acted entirely in compliance with a lawful economic motive in the closing. Nevertheless, the Board further determined that an 8(a) (5) violation had occurred by the Company's refusal to bargain the decision to and the effects of closing the terminal. It seems apparent and we hold, that the Company, solely motivated by a sound economic reason, had no duty to bargain on the decision to close the terminal. Darlington Mfg. Co., supra; NLRB v. Transmarine Navigation Corp., 9 Cir., 380 F.2d 933. No amount of collective bargaining could erase the economic facts that gave rise to the Company's decision to close and its change of operation could in no way be characterized as a "farming out" or other procedure to continue its operation in a new or different manner. The Company had simply lost the major part of its Phillipsburg business. The duty to bargain concerning the effects of the closing did, however, continue. Transmarine Navigation Corp., supra; NLRB v. Royal Plating & Polishing Co., 3 Cir., 350 F.2d 191. 17 The reasoning of the Board in its Decision and Order, 165 N.L.R.B. No. 96, and the remedy fashioned therefrom, are so dependent upon the premise that the Company had a dual obligation to bargain both as to decision and effect of the closing that we are unable, on the present record, to determine whether the Board did or would consider an 8(a) (5) violation to have occurred independent of the Company's admitted refusal to bargain on the decision to close. We consider it appropriate, therefore, to allow remand of the case to afford the Board opportunity to further consider this aspect of the case, and if it does so, to make appropriate and specific findings and conclusions in the matter. 18 An appropriate order of the Board limited to the 8(a) (1) violation will be presently enforced on specific request of the Board if filed with the clerk of this court within 30 days; otherwise, enforcement is presently denied without prejudice and the case is remanded to the Board for further consideration in accord with this opinion. Notes: 1 Truck Drivers Local Union No. 696 (Teamsters) 2 "All drivers, mechanics, and servicemen at the Phillipsburg, Kansas terminal of Thompson Transport Co., Inc., excluding office-clerical employees, and professional employees, guards and supervisors as defined in the Act." 3 The Director sustained the Company's challenge to ballots cast by Carl Walters, Darrell Humbarger, Harlan Mason and Boyd McNulty. This left the Union with three votes out of five counted 4 Section 102.67(b) provides that The decision of the regional director shall be final: Provided, however, That within 10 days after service thereof any party may file eight copies of a request for review with the Board in Washington, D. C. 5 Such review, even in a proper case, of a Board decision of whether a given individual should be classified as an employee or independent contractor is very limited. See NLRB v. United Insurance Co. of America, 390 U.S. 254, 88 S.Ct. 988, 19 L.Ed.2d 1083 6 Wise denied such statement and other statements of similar nature made to an employee who was not a member of the bargaining unit; however credibility determinations "are within the Board's province and not this court's." NLRB v. Seamprufe, Inc., 10 Cir., 382 F.2d 820, 822

409 S.E.2d 622 (1991) James Clifford POWELL v. COMMONWEALTH of Virginia. Record No. 0757-89-2. Court of Appeals of Virginia. September 3, 1991. *623 Owaiian M. Jones, Fredericksburg, for appellant. Leah A. Darron, Asst. Atty. Gen. (Mary Sue Terry, Atty. Gen., on brief), for appellee. Present: BARROW, COLEMAN and COLE[*], JJ. COLEMAN, Judge. In this criminal appeal, we reverse the convictions of James Clifford Powell for possession of cocaine with the intent to distribute in violation of Code § 18.2-248, and possession of drug paraphernalia in violation of Code § 54-524.109:1. We hold that the trial court erred by permitting the Commonwealth to impeach Powell by establishing on cross-examination that he had been previously convicted of three unrelated felonies involving drugs. Accordingly, we remand the case to the circuit court. On August 26, 1988, an officer of the Westmoreland County Sheriff's Department received a tip from an informant that Powell was selling cocaine from his residence. The officer immediately obtained a search warrant for the premises, which was leased to Linda Baldacci. Several officers seized cocaine, a scale, plastic "baggies," razor blades and other paraphernalia, and arrested Powell and Baldacci. At trial, Baldacci testified that Powell was living with her at the time of the arrests and that, although she was a user of cocaine, the cocaine and items seized belonged to Powell, who sold cocaine. Powell testified on his own behalf. He denied possession *624 of the cocaine and of the paraphernalia. He also denied that he lived at Baldacci's residence or that he was ever involved with her. He denied familiarity with cocaine and drug paraphernalia. He testified that the cocaine and paraphernalia belonged to Baldacci. He explained that his fingerprint in the cocaine residue on the scale was probably imprinted there when he touched the scale in passing, since Baldacci often left it out. When asked on direct examination if he had ever been convicted of a felony, he answered, "One time." On cross-examination, the following exchange occurred between Powell and the prosecutor: Q. You weren't exactly accurate about your felony convictions in court today, were you, sir? A. What do you mean, I wasn't accurate? Q. Do you remember all of your felony convictions, or do you have some trouble with your memory? A. No, I don't have any trouble with my memory. Q. There's nothing wrong with your memory? A. No, sir. Q. In fact, you've been convicted of at least three felonies, have you not? A. No, sir, I have not. Q. You have not. You were convicted on January 26, 1983, in the Circuit Court of Fairfax County, were you not, for possession? Defense counsel objected on the grounds that the Commonwealth was not allowed to inquire about the names and nature of the felony convictions but could only elicit the number. The court overruled the objection, stating that the Commonwealth's attorney was allowed to impeach Powell since "[h]e said he was convicted one time. I think the Commonwealth's attorney has a right to ask specific questions." The cross-examination continued: Q. Isn't it true that you were convicted of two drug felonies in the Circuit Court of Fairfax County in 1983? A. All I know of is one, sir. Q. That's in Fairfax? A. Yes, sir. Q. And you were also convicted in the Circuit Court of Westmoreland County in November of 1983 for a similar drug offense, were you not? A. That was all to do with the same thing, sir. Q. Different counties, is that correct? A. That's why I said one, yes, sir. Q. So you've been convicted of three felonies? A. Well, I call it one, sir, because it was all the same thing. It was all a long time ago. Q. So all the same offense, but three separate offenses back then, is that right? A. I guess so, sir. Q. So you didn't tell us the truth about that then, is that right? A. I didn't mean to be lying to you about it. Like I said, to me it was all the same thing. Q. And did you get out of the drug distribution business in `83 then? A. I don't think that I was found guilty of distribution at that time. It was possession. The court overruled Powell's motion to declare a mistrial because of this questioning. The jury convicted Powell and recommended a seven year penitentiary sentence and $7,000 fine for possession with the intent to distribute, and a twelve month sentence and $1,000 fine for possession of drug paraphernalia. Code § 19.2-268 permits an accused to testify in his own behalf in any criminal proceeding, "subject to cross-examination as any other witness...." Code § 19.2-269 provides that "a person convicted of a felony or perjury shall not be incompetent to testify, but the fact of conviction may be shown in evidence to affect his credit." When the Commonwealth attempts to impeach the credibility of the accused by showing prior felony convictions, in order *625 to avoid undue prejudice to the accused, neither the nature of the felony, other than perjury, nor the details of the crime are admissible; only the fact of a conviction can be shown. Harmon v. Commonwealth, 212 Va. 442, 446, 185 S.E.2d 48, 51 (1971). In Harmon, the Supreme Court expressly overruled its holding in Hicks v. Commonwealth, 157 Va. 939, 161 S.E. 919 (1932), which had allowed the Commonwealth to identify the felony for which a defendant had been previously convicted. Harmon, 212 Va. at 446, 185 S.E.2d at 51. In Santmier v. Commonwealth, 217 Va. 318, 319, 228 S.E.2d 681, 682 (1976), the Supreme Court extended the holding in Harmon to provide that, when an accused testifies falsely on direct examination that he does not use drugs, he opens the door for the Commonwealth "for the purpose of attacking his credibility on cross-examination" by asking whether he had been previously convicted of an offense "dealing in marijuana." Id. 217 Va. at 319-20, 228 S.E.2d at 682. In Sadoski v. Commonwealth, 219 Va. 1069, 254 S.E.2d 100 (1979), the Court partially reaffirmed Hicks and extended Harmon by holding that the prosecution could impeach the defendant by showing not only the fact of a felony conviction but the number of previous felony convictions. Id. 219 Va. at 1070, 254 S.E.2d at 101. The Court reasoned that the number of the defendant's prior felony convictions was relevant because, "if evidence of one felony conviction is important to a determination of credibility, evidence of more than one felony conviction is even more important." Id. at 1071, 254 S.E.2d at 101. More recently, in McAmis v. Commonwealth, 225 Va. 419, 304 S.E.2d 2 (1983), the defendant was tried for grand larceny. Upon direct examination, he testified that he had been convicted previously of six felonies. The trial court allowed the Commonwealth's attorney to cross-examine the defendant about the names of the felonies on the theory that he had opened the door to cross-examination about the nature of the convictions. The Supreme Court disagreed, holding that, where a defendant takes the witness stand in his own defense and testifies on direct examination that he has been convicted previously of a certain number of felonies, he may be cross-examined only with respect to the correctness of the number stated and, if his answers are truthful, not with regard to the names or the nature of the offenses. Id. at 422, 304 S.E.2d at 4 (emphasis added). The Court explained the limits of its ruling: Here, no claim is made that McAmis answered untruthfully any questions concerning the number of his felony convictions. Hence, because McAmis did not go beyond stating on direct examination that he had been convicted previously of six felonies other than perjury, it was error for the trial court to require him to divulge the names of the felonies. Id. Implicit in the McAmis decision is the Court's recognition of an established method of impeaching a witness's credibility other than by showing that the witness has been previously convicted of a felony; a witness may be impeached by showing that he has knowingly testified untruthfully about a material fact. Thus, when a defendant testifies untruthfully regarding a material fact, such as the number of his felony convictions, he opens the door to cross-examination for the purpose of attacking his credibility by showing that he has purposely misrepresented the truth. See Santmier, 217 Va. at 319, 228 S.E.2d at 682. The McAmis decision, and line of cases preceding it, leave unanswered, however, the issue we must decide, which is the extent to which the Commonwealth may impeach a defendant, who has testified untruthfully about the number of prior felony convictions, by inquiring about the nature and names of the prior offenses. In Joyner v. Commonwealth, 10 Va.App. 290, 392 S.E.2d 822 (1990), we held that where the Commonwealth attempts to impeach the accused under Code § 19.2-269 by establishing the number of prior convictions, the Commonwealth's right to cross-examine him about the name and nature *626 of the prior convictions is not unlimited. Although the Joyner case involved impeachment based solely upon proving the fact and number of prior felonies, the limitations which the Joyner decision placed upon the Commonwealth's cross-examination, and the rationale for doing so, which is to avoid and minimize the prejudice occasioned by disclosing the nature of the offense, guide us in our holding. Joyner had truthfully answered on direct examination that he had been convicted of a felony. When asked on cross-examination if he had been convicted of six felonies, Joyner testified that he could not remember. Id. at 293, 392 S.E.2d at 823. The trial court permitted the Commonwealth's attorney to ask Joyner about the names and nature of his prior felony convictions. We held that, while the Commonwealth was allowed to impeach the accused by cross-examining him about the number of his prior felony convictions, the trial court erred by allowing the Commonwealth's attorney to inquire into the names and nature of the previous felony convictions. Id. at 299, 392 S.E.2d at 826-27. However, in so holding, we expressly rejected the Commonwealth's contention that Joyner answered untruthfully by feigning ignorance of the number of his prior felony convictions. "Joyner's testimony is clearly distinguishable from the patently untruthful testimony of the accused in Santmier and the misleading inferences drawn from the accused's testimony in Harmon." Id. 10 Va.App. at 298, 392 S.E.2d at 826. Thus, Joyner reiterates the principle established by our Supreme Court in the Hicks, Harmon and Sadoski cases that when an accused does not testify untruthfully about the fact or number of prior felony convictions, the Commonwealth is allowed to impeach him only by establishing that he has been previously convicted of a certain number of felonies; it is the fact of felony convictions which may be considered as affecting the credit given the testimony of an accused under Code § 19.2-269. From this line of cases, two distinct methods for impeaching the credibility of a defendant who testifies are identified and distinguished. First, a defendant/witness may be impeached by showing that he has been previously convicted of a felony. Code § 19.2-269. That basic rule of impeachment was extended to permit proof of the number of prior felony convictions, because if one conviction was relevant for impeachment purposes, proof of multiple convictions was more relevant. Sadoski, 219 Va. at 1071, 254 S.E.2d at 101. The second method of impeachment is identified in the Santmier line of cases, and discussed in the McAmis decision. If a defendant/witness testifies untruthfully about a material fact, the opposing party may impeach the defendant/witness's credibility by showing that he knowingly testified untruthfully. In the former situation, regardless of whether a defendant has testified about his prior felony convictions, the Commonwealth may impeach his credibility under Code § 19.2-269 by proving "the fact of conviction" and number of prior felonies. However, where the defendant/witness testifies untruthfully about "the fact of conviction" or the number of prior felony offenses, the Commonwealth may show that the witness has knowingly testified untruthfully about a material fact. Thus, two separate methods of impeachment are in question in Powell's case: the fact and number of his prior felony convictions and proof that he knowingly testified untruthfully. We hold that where, as with Powell, a defendant/witness testifies untruthfully on direct examination about the number of prior felony convictions, he opens the door to cross-examination which is reasonably designed to elicit relevant evidence to show whether the defendant/witness knowingly testified falsely. The Commonwealth may not, however, resort to cross-examination which unnecessarily presents prejudicial information about the name or nature of prior convictions with little or no probative value. Unlike Joyner, Powell testified on direct examination that he had been previously convicted of only one felony when, apparently, he had three prior felony convictions. Powell's testimony was untruthful. *627 The Commonwealth could impeach Powell by showing, pursuant to Code § 19.2-269, that he had three felony convictions. Additionally, whether Powell knowingly testified untruthfully about his felony convictions was a separate basis for impeaching him, and that issue became a factual question which the jury had to decide. In order for the jury to decide whether Powell knowingly testified untruthfully, or whether he did so due to ignorance or confusion, the Commonwealth was entitled to show the facts and circumstances which had a bearing upon Powell's knowledge of his prior convictions. Any evidence which tended to establish that Powell purposely misrepresented the truth would have been relevant. However, all relevant evidence is not necessarily admissible; where the prejudicial effect of relevant evidence so outweighs its probative value that it may unduly influence the outcome of the case, it must be excluded. In order for a trial judge to balance relevance against prejudice, the judge must first ascertain that the inquiry will lead to evidence which will, in fact, be relevant. The Commonwealth may not undertake cross-examination which discloses that an accused has been convicted of a particular felony where the witness's response will not provide the fact finder with pertinent or helpful evidence, or where, even if the response will be relevant in showing that the accused knew of the prior convictions, that fact could have been established without the prejudice caused by divulging the name and nature of the prior convictions. To permit a question containing prejudicial information, such as the name or nature of a felony conviction, where the answer to the question will have minimal or no probative value to determine that a defendant/witness has testified untruthfully, destroys any opportunity which the trial court has of balancing the effect upon a jury until after the harm and prejudice have occurred. By disclosing the name and nature of the prior felonies, the risk of prejudice is greatly increased beyond the situation where the Commonwealth proves only the fact and number of prior convictions. The jury is more inclined not to limit consideration of such evidence to impeaching the accused's evidence, but also as tending to show that he is probably guilty of this offense, or is a person of bad character. We are not unaware that some prejudice rises against a defendant when it is disclosed that he has been convicted of a felony, but its probative value as to his credit outweighs the prejudicial effect. Should the jury be permitted to know the name of the felony and the details thereof, it may mean more to them than the mere fact that the defendant is a person of doubtful veracity. The danger of such prejudice is increased if the Commonwealth is permitted to show the nature of the crime of which he has been previously convicted. Harmon, 212 Va. at 446, 185 S.E.2d at 51. Where the names and nature of prior multiple felonies are disclosed, the risk of prejudice is likewise greater. Joyner, 10 Va. App. at 299, 392 S.E.2d at 826. The prejudice is even greater where, as here, the prior offenses are similar in nature to the charged offense. The Commonwealth's attorney sought to impeach Powell by having him acknowledge that his answer that he had one felony conviction was knowingly untruthful. Where that can be accomplished without disclosing prejudicial evidence, the Commonwealth must follow that avenue. The Commonwealth may not use what appears to be a knowingly false answer as license to engage in cross-examination in order to purposely disclose prejudicial evidence. Here, the Commonwealth's attorney did just that. He seized upon the untruthful answer about the number of prior convictions to disclose to the jury that Powell had previously been convicted of three drug related felonies without first confronting Powell with records of his convictions and affording him a reasonable opportunity to explain his untruthful answer. Without disclosing what the offenses were, the Commonwealth could have pursued at least three avenues to ascertain *628 whether Powell had intentionally misrepresented the number of his felony convictions. The Commonwealth's attorney could, and did, first inquire of Powell whether he had been convicted on separate occasions in different circuit courts. Clearly, that inquiry, which was not prejudicial, was relevant for the fact finder to consider in deciding whether Powell knew how many times he had been convicted of a felony and whether he was intentionally untruthful when he testified that he had one prior felony conviction. In fact, that colloquy was sufficient, and it showed that Powell knew he had been convicted of felonies on two different occasions in different courts, and on one occasion of two charges. Powell explained that he testified as he did because all three offenses arose out of one occurrence. Whether his answer was intended to be untruthful and to mislead, the jury had the facts necessary to resolve that question. The fact that the prior convictions were for drug related offenses added nothing to help the jury understand whether Powell purposely misrepresented the number. Other means tending to show whether Powell knew how many felony convictions he had include the approach suggested in Joyner, which is to present him with the record of his convictions or copies of the conviction orders and have him acknowledge the number. Without disclosing the name or nature of the convictions, the fact he acknowledges and was aware of the convictions would be relevant to prove that he testified untruthfully. Additionally, the Commonwealth could prove independently the number of convictions, thereby establishing that the facts are other than what he testified. Avenues by which the Commonwealth may establish that Powell purposely misrepresented the number of convictions must be pursued before the Commonwealth can inquire about the name and nature of the prior offenses, and even then, the Commonwealth must show that proof of the name and nature of the convictions is relevant and outweighs the prejudice caused by such disclosure. Thus, in Powell's case, we must decide whether when he answered untruthfully, disclosing the name and nature of his prior convictions tended to prove that he purposely misrepresented the truth. We hold that the trial court erred because the record does not show that disclosing that the prior offenses were drug related has any relevance or tendency to prove that Powell purposely misrepresented the number of his prior felony convictions. In fact, when the Commonwealth proved that Powell had been convicted in different courts on different occasions of more than one offense, those facts provided the fact finder with the probative evidence that he knew the number of offenses, whereas showing that the offenses were drug related or having him acknowledge that they were drug related had little or no additional value. While the Commonwealth was entitled to take issue with his answer and whether it was an intentional misrepresentation, the fact that the convictions were for drug offenses adds nothing. The necessity of presenting evidence that the prior offenses were drug related has not been shown. Any minimal probative value that may come from showing that Powell knew the offenses were drug related was outweighed by the prejudice in showing he had been convicted of three offenses similar to that for which he was being tried. The trial court gave a cautionary instruction which told the jury that the evidence of other offenses could only be considered for impeachment of the defendant and could not be considered as evidence of guilt or in assessing punishment. See Barber v. Commonwealth, 5 Va.App. 172, 181, 360 S.E.2d 888, 893 (1987). "Unless the record shows to the contrary, it is presumed that the jury followed an explicit cautionary instruction." Albert v. Commonwealth, 2 Va.App. 734, 741, 347 S.E.2d 534, 538 (1986). The prejudicial effect cannot be disregarded. The prosecutor's real purpose in asking the questions in a manner to disclose that Powell's prior convictions were for drug related offenses and thereby to portray him as a drug dealer, becomes apparent from his last question to Powell: "And did you get out of the drug distribution business at that time?" The *629 risk of prejudice was so great because the evidence portrayed the defendant as a drug dealer that the jury could not limit its consideration of the evidence to impeachment when it has little, or no, probative value for that purpose. Thus, irrespective of the cautionary instruction, the admission of the evidence was reversible error. Reversed and remanded. NOTES [*] Judge Cole participated in the hearing and decision of this case prior to the effective date of his retirement on April 30, 1991 and thereafter by designation pursuant to Code § 17-116.01.

IN THE COURT OF CRIMINAL APPEALS OF TEXAS NOS. WR-88,609-04, 88,609-05 & 88,609-06 EX PARTE JEREMY PAUL CASTILLO, Applicant ON APPLICATIONS FOR WRITS OF HABEAS CORPUS CAUSE NOS. 37297CR/B, 37298CR/B & 41522CR/B IN THE 40TH DISTRICT COURT FROM ELLIS COUNTY Per curiam. ORDER Applicant was convicted of two counts of assault and one count of aggravated assault and sentenced to five years’ imprisonment in each count. He did not appeal his convictions. Applicant filed these applications for writs of habeas corpus in the county of conviction, and the district clerk forwarded them to this Court. See TEX . CODE CRIM . PROC. art. 11.07. Applicant contends, among other things, that guilty-plea counsel was ineffective because he advised Applicant to plead guilty without investigating his cases. He also contends that in cause number 37298CR/B, his aggravated assault case, he is actually innocent and the complainant’s statement to the police was false. Applicant has alleged facts that, if true, might entitle him to relief. Strickland v. Washington,  2 466 U.S. 668 (1984); Ex parte Elizondo, 947 S.W.2d 202 (Tex. Crim. App. 1996); Ex parte Weinstein, 421 S.W.3d 656 (Tex. Crim. App. 2014). 1 Accordingly, the record should be developed. The trial court is the appropriate forum for findings of fact. TEX . CODE CRIM . PROC. art. 11.07, § 3(d). The trial court shall order guilty-plea counsel to respond to Applicant’s ineffective assistance of counsel claim. In developing the record, the trial court may use any means set out in Article 11.07, § 3(d). If the trial court elects to hold a hearing, it shall determine whether Applicant is indigent. If Applicant is indigent and wants to be represented by counsel, the trial court shall appoint counsel to represent him at the hearing. See TEX . CODE CRIM . PROC. art. 26.04. If counsel is appointed or retained, the trial court shall immediately notify this Court of counsel’s name. The trial court shall first make findings of fact and conclusions of law as to whether guilty- plea counsel’s performance was deficient and Applicant would have insisted on a trial but for his alleged deficient performance. The trial court shall then make findings and conclusions as to whether in his aggravated assault case (1) Applicant has presented newly available or discovered evidence showing that he is actually innocent; (2) he has shown by clear and convincing evidence that no reasonable juror would have convicted him in light of the evidence; and (3) the complainant made a material false statement. The trial court may make any other findings and conclusions that it deems appropriate in response to Applicant’s claims. The trial court shall make findings of fact and conclusions of law within ninety days from 1 The trial court made findings of fact and conclusions of law and recommended that we dismiss these applications under Article 11.07, § 4 of the Code of Criminal Procedure. Applicant’s previous applications were dismissed, so there has not been a “final disposition” in his cases. See TEX . CODE CRIM . PROC. art. 11.07, § 4(a) (“If a subsequent application for writ of habeas corpus is filed after final disposition of an initial application challenging the same conviction . . . .”).  3 the date of this order. The district clerk shall then immediately forward to this Court the trial court’s findings and conclusions and the record developed on remand, including, among other things, affidavits, motions, objections, proposed findings and conclusions, orders, and transcripts from hearings and depositions. See TEX . R. APP . P. 73.4(b)(4). Any extensions of time must be requested by the trial court and obtained from this Court. Filed: December 18, 2019 Do not publish 

751 F.2d 376 Miller (George)v.Hamberger (Carl R.), Lingle (Frederick D.) NO. 84-5304 United States Court of Appeals,THIRD CIRCUIT. NOV 19, 1984 Appeal From: M.D.Pa., Scranton, J. 1 AFFIRMED.

929 F.Supp. 824 (1996) AMERICAN CIVIL LIBERTIES UNION, et al., v. Janet RENO, Attorney General of the United States. AMERICAN LIBRARY ASSOCIATION, INC., et al., v. UNITED STATES DEP'T OF JUSTICE, et al. Civil Action Nos. 96-963, 96-1458. United States District Court, E.D. Pennsylvania. June 11, 1996. *825 Christopher A. Hansen, Marjorie Heins, Ann Beeson, Steven R. Shapiro, Catherine Weiss, Laura Abel, American Civil Liberties Union Foundation, New York City; Stefan Presser, ACLU of Pennsylvania, Philadelphia, PA; David L. Sobel, Marc Rotenberg, Electronic Privacy Information Center, Washington, DC; Mike Godwin, Electronic Frontier Foundation, San Francisco, CA; Roger Evans, Planned Parenthood Foundation of America, New York City, for plaintiffs: American Civil Liberties Union, Human Rights Watch, Electronic Privacy Information Center, Electronic Frontier Foundation, Journalism Education Association, Computer Professionals for Social Responsibility, National Writers Union, ClariNet Communications Corp., Institute for Global Communications, Stop Prisoner Rape, Inc., AIDS Education Global Information System, Bibliobytes, Queer Resources Directory, Critical Path AIDS Project, Inc., Wildcat Press, Inc., Declan McCullagh, Brock Meeks, John Troyer, Jonathan Wallace, and Planned Parenthood Federation of America, Inc. Bruce J. Ennis, Jr., Ann M. Kappler, John B. Morris, Jr., Jenner & Block, Washington, DC, Ronald P. Schiller, Piper & Marbury, *826 Philadelphia, PA, for plaintiffs: American Library Association, Inc., America Online, Inc., American Booksellers Association, Inc., American Booksellers Foundation for Free Expression, American Society of Newspaper Editors, Apple Computer, Inc., Association of American Publishers, Inc., Association of Publishers, Editors and Writers, Citizens Internet Empowerment Coalition, Commercial Internet Exchange Association, CompuServe Incorporated, Families Against Internet Censorship, Freedom to Read Foundation, Inc., Health Sciences Libraries Consortium, Hotwired Ventures LLC, Interactive Digital Software Association, Interactive Services Association, Magazine Publishers of America, Microsoft Corporation, The Microsoft Network, LLC, National Press Photographers Association, Netcom On-Line Communications Services, Inc., Newspaper Association of America, Opnet, Inc., Prodigy Services Company, Society of Professional Journalists, and Wired Ventures, Ltd. Anthony J. Coppolino, Jason R. Baron, Patricia M. Russotto, Mary E. Kostel, Craig Blackwell, Theodore C. Hirt, U.S. Department of Justice, Civil Division, Washington, DC; Mark R. Kmetz, U.S. Attorney's Office, Philadelphia, PA (Frank M. Hunger, Asst. Attorney General, U.S. Department of Justice, Civil Division; Michael R. Stiles, U.S. Attorney, Philadelphia, PA; Dennis G. Linder, Lucinda Love, U.S. Department of Justice, Civil Division, on briefs), for defendants Janet Reno and Department of Justice. James D. Crawford, Carl A. Solano, Jennifer DuFault James, Theresa E. Loscalzo, Joseph T. Lukens, Schnader, Harrison, Segal & Lewis, Philadelphia, PA, for amici curiae Authors Guild, American Society of Journalists and Authors, Ed Carp, Coalition for Positive Sexuality, CONNECTnet, Creative on AOL, Tri Dang Do, Feminists for Free Expression, Margarita La Cabe, Maggie La Noue, LoD Communications, Peter Ludlow, Palmer Museum of Art, Chuck More, Rod Morgan, Pen American Center, Philadelphia Magazine, PSINet, Inc., Eric S. Raymond, Reporters Committee for Freedom of the Press, Don Rittner, The Sexuality Information & Education Council of the United States, Lloyd K. Stires, Peter J. Swanson, Kristi Thomas, Web Communications, and Miryam Ehrlic Williamson. Cathleen A. Cleaver, Director of Legal Studies, Family Research Council, Washington, DC, Bruce A. Taylor, National Law Center for Children And Families, Fairfax, VA, for amici curiae The National Law Center for Children and Families, Family Research Council, "Enough is Enough" Campaign, National Coalition for the Protection of Children of Children & Families, Morality in Media. L. Theodore Hoppe, Jr., Black & Associates, P.C., Media, PA, Jay Alan Sekulow, Colby M. May, James M. Henderson, Sr., American Center for Law & Justice, Washington, DC, for amicus curiae the Family Life Project of the American Center for Law and Justice. Andre L. Dennis, Stradley, Ronon, Stevens & Young, Philadelphia, PA, for amici curiae The Laboratory for Computer Science of the Massachusetts Institute of Technology and Michael L. Dertouzos, Director. Before SLOVITER, Chief Circuit Judge, and BUCKWALTER and DALZELL, District Judges. ADJUDICATION ON MOTIONS FOR PRELIMINARY INJUNCTION I. INTRODUCTION Procedural Background Before us are motions for a preliminary injunction filed by plaintiffs who challenge on constitutional grounds provisions of the Communications Decency Act of 1996 (CDA or "the Act"), which constitutes Title V of the *827 Telecommunications Act of 1996, signed into law by the President on February 8, 1996.[1] Telecommunications Act of 1996, Pub.L. No. 104-104, § 502, 110 Stat. 56, 133-35. Plaintiffs include various organizations and individuals who, inter alia, are associated with the computer and/or communications industries, or who publish or post materials on the Internet, or belong to various citizen groups. See ACLU Complaint (¶¶ 7-26), ALA First Amended Complaint (¶¶ 3, 12-33). The defendants in these actions are Janet Reno, the Attorney General of the United States, and the United States Department of Justice. For convenience, we will refer to these defendants as the Government. Plaintiffs contend that the two challenged provisions of the CDA that are directed to communications over the Internet which might be deemed "indecent" or "patently offensive" for minors, defined as persons under the age of eighteen, infringe upon rights protected by the First Amendment and the Due Process Clause of the Fifth Amendment. Plaintiffs in Civil Action Number 96-963, in which the lead plaintiff is the American Civil Liberties Union (the ACLU),[2] filed their action in the United States District Court for the Eastern District of Pennsylvania on the day the Act was signed, and moved for a temporary restraining order to enjoin enforcement of these two provisions of the CDA. On February 15, 1996, following an evidentiary hearing, Judge Ronald L. Buckwalter, to whom the case had been assigned, granted a limited temporary restraining order, finding in a Memorandum that 47 U.S.C. § 223(a)(1)(B) ("the indecency provision" of the CDA) was unconstitutionally vague. On the same day, Chief Judge Dolores K. Sloviter, Chief Judge of the United States Court of Appeals for the Third Circuit, having been requested by the parties and the district court to convene a three-judge court, pursuant to § 561(a) of the CDA, appointed such a court consisting of, in addition to Judge Buckwalter, Judge Stewart Dalzell of the same district, and herself, as the circuit judge required by 28 U.S.C. § 2284. After a conference with the court, the parties entered into a stipulation, which the court approved on February 26, 1996, wherein the Attorney General agreed that: she will not initiate any investigations or prosecutions for violations of 47 U.S.C. § 223(d) for conduct occurring after enactment of this provision until the three-judge court hears Plaintiffs' Motion for Preliminary Injunction ... and has decided the motion. The Attorney General's commitment was qualified to the extent that she retained: her full authority to investigate or prosecute any violation of § 223(a)(1)(B), as amended, and § 223(d) as to conduct which occurs or occurred during any period of time after enactment of these provisions (including for the period of time to which this stipulation applies) should the Court deny plaintiffs' motion or, if the motion is granted, should these provisions ultimately be upheld. Stipulation, ¶ 4, in C.A. No. 96-963. Shortly thereafter, the American Library Association, Inc. (the ALA) and others[3] filed *828 a similar action at C.A. No. 96-1458. On February 27, 1996, Chief Judge Sloviter, again pursuant to § 561(a) of the CDA and upon request, convened the same three-judge court pursuant to 28 U.S.C. § 2284. The actions were consolidated pursuant to Fed. R.Civ.P. 42(a), "for all matters relating to the disposition of motions for preliminary injunction in these cases, including the hearing on such motions." The parties were afforded expedited discovery in connection with the motions for preliminary injunction, and they cooperated with Judge Dalzell, who had been assigned the case management aspects of the litigation. While the discovery was proceeding, and with the agreement of the parties, the court began receiving evidence at the consolidated hearings which were conducted on March 21 and 22, and April 1, 12 and 15, 1996. In order to expedite the proceedings, the parties worked closely with Judge Dalzell and arranged to stipulate to many of the underlying facts and to place much of their cases in chief before the court by sworn declarations, so that the hearings were largely devoted to cross-examination of certain of the witnesses whose declarations had been filed. The parties submitted proposed findings of fact and post-hearing memoranda on April 29, and the court heard extensive oral argument on May 10, 1996.[4] Statutory Provisions at Issue Plaintiffs focus their challenge on two provisions of section 502 of the CDA which amend 47 U.S.C. §§ 223(a) and 223(d). Section 223(a)(1)(B) provides in part that any person in interstate or foreign communications who, "by means of a telecommunications device,"[5] "knowingly ... makes, *829 creates, or solicits" and "initiates the transmission" of "any comment, request, suggestion, proposal, image or other communication which is obscene or indecent, knowing that the recipient of the communication is under 18 years of age," "shall be criminally fined or imprisoned." (emphasis added). Section 223(d)(1) ("the patently offensive provision"), makes it a crime to use an "interactive computer service"[6] to "send" or "display in a manner available" to a person under age 18, "any comment, request, suggestion, proposal, image, or other communication that, in context, depicts or describes, in terms patently offensive as measured by contemporary community standards, sexual or excretory activities or organs, regardless of whether the user of such service placed the call or initiated the communication." Plaintiffs also challenge on the same grounds the provisions in § 223(a)(2) and § 223(d)(2), which make it a crime for anyone to "knowingly permit[] any telecommunications facility under [his or her] control to be used for any activity prohibited" in §§ 223(a)(1)(B) and 223(d)(1). The challenged provisions impose a punishment of a fine, up to two years imprisonment, or both for each offense. Plaintiffs make clear that they do not quarrel with the statute to the extent that it covers obscenity or child pornography, which were already proscribed before the CDA's adoption. See 18 U.S.C. §§ 1464-65 (criminalizing obscene material); id. §§ 2251-52 (criminalizing child pornography); see also New York v. Ferber, 458 U.S. 747, 102 S.Ct. 3348, 73 L.Ed.2d 1113 (1982); Miller v. California, 413 U.S. 15, 93 S.Ct. 2607, 37 L.Ed.2d 419 (1973). Plaintiffs in the ACLU action also challenge the provision of the CDA that criminalizes speech over the Internet that transmits information about abortions or abortifacient drugs and devices, through its amendment of 18 U.S.C. § 1462(c). That section now prohibits the sending and receiving of information over the Internet by any means regarding "where, how, or of whom, or by what means any [drug, medicine, article, or thing designed, adapted, or intended for producing abortion] may be obtained or made". The Government has stated that it does not contest plaintiffs' challenge to the enforceability of the provision of the CDA as it relates to 18 U.S.C. § 1462(c).[7] As part of its argument that the CDA passes constitutional muster, the Government cites the CDA's "safe harbor" defenses in new § 223(e) of 47 U.S.C., which provides: (e) Defenses In addition to any other defenses available by law: (1) No person shall be held to have violated subsection (a) or (d) of this section solely for providing access or connection to or from a facility, system, or network not under that person's control, including transmission, downloading, intermediate storage, access software, or other related capabilities that are incidental to providing such access or connection that does not include the creation of the content of the communication. (2) The defenses provided by paragraph (1) of this subsection shall not be applicable to a person who is a conspirator with an entity actively involved in the creation *830 or knowing distribution of communications that violate this section, or who knowingly advertises the availability of such communications. (3) The defenses provided in paragraph (1) of this subsection shall not be applicable to a person who provides access or connection to a facility, system, or network engaged in the violation of this section that is owned or controlled by such person. (4) No employer shall be held liable under this section for the actions of an employee or agent unless the employee's or agent's conduct is within the scope of his or her employment or agency and the employer (A) having knowledge of such conduct, authorizes or ratifies such conduct, or (B) recklessly disregards such conduct. (5) It is a defense to a prosecution under subsection (a)(1)(B) or (d) of this section, or under subsection (a)(2) of this section with respect to the use of a facility for an activity under subsection (a)(1)(B) that a person — (A) has taken, in good faith, reasonable, effective, and appropriate actions under the circumstances to restrict or prevent access by minors to a communication specified in such subsections, which may involve any appropriate measures to restrict minors from such communications, including any method which is feasible under available technology; or (B) has restricted access to such communication by requiring use of a verified credit card, debit account, adult access code, or adult personal identification number. (6) The [Federal Communications] Commission may describe measures which are reasonable, effective, and appropriate to restrict access to prohibited communications under subsection (d) of this section. Nothing in this section authorizes the Commission to enforce, or is intended to provide the Commission with the authority to approve, sanction, or permit, the use of such measures. The Commission shall have no enforcement authority over the failure to utilize such measures.... II. FINDINGS OF FACT All parties agree that in order to apprehend the legal questions at issue in these cases, it is necessary to have a clear understanding of the exponentially growing, world-wide medium that is the Internet, which presents unique issues relating to the application of First Amendment jurisprudence and due process requirements to this new and evolving method of communication. For this reason all parties insisted on having extensive evidentiary hearings before the three-judge court. The court's Findings of fact are made pursuant to Fed.R.Civ.P. 52(a). The history and basic technology of this medium are not in dispute, and the first forty-eight paragraphs of the following Findings of fact are derived from the like-numbered paragraphs of a stipulation[8] the parties filed with the court.[9] The Nature of Cyberspace The Creation of the Internet and the Development of Cyberspace 1. The Internet is not a physical or tangible entity, but rather a giant network which interconnects innumerable smaller groups of linked computer networks. It is thus a network of networks. This is best understood if one considers what a linked group of computers — referred to here as a "network" — is, and what it does. Small networks are now ubiquitous (and are often called "local area *831 networks"). For example, in many United States Courthouses, computers are linked to each other for the purpose of exchanging files and messages (and to share equipment such as printers). These are networks. 2. Some networks are "closed" networks, not linked to other computers or networks. Many networks, however, are connected to other networks, which are in turn connected to other networks in a manner which permits each computer in any network to communicate with computers on any other network in the system. This global Web of linked networks and computers is referred to as the Internet. 3. The nature of the Internet is such that it is very difficult, if not impossible, to determine its size at a given moment. It is indisputable, however, that the Internet has experienced extraordinary growth in recent years. In 1981, fewer than 300 computers were linked to the Internet, and by 1989, the number stood at fewer than 90,000 computers. By 1993, over 1,000,000 computers were linked. Today, over 9,400,000 host computers worldwide, of which approximately 60 percent located within the United States, are estimated to be linked to the Internet. This count does not include the personal computers people use to access the Internet using modems. In all, reasonable estimates are that as many as 40 million people around the world can and do access the enormously flexible communication Internet medium. That figure is expected to grow to 200 million Internet users by the year 1999. 4. Some of the computers and computer networks that make up the Internet are owned by governmental and public institutions, some are owned by non-profit organizations, and some are privately owned. The resulting whole is a decentralized, global medium of communications — or "cyberspace" — that links people, institutions, corporations, and governments around the world. The Internet is an international system. This communications medium allows any of the literally tens of millions of people with access to the Internet to exchange information. These communications can occur almost instantaneously, and can be directed either to specific individuals, to a broader group of people interested in a particular subject, or to the world as a whole. 5. The Internet had its origins in 1969 as an experimental project of the Advanced Research Project Agency ("ARPA"), and was called ARPANET. This network linked computers and computer networks owned by the military, defense contractors, and university laboratories conducting defense-related research. The network later allowed researchers across the country to access directly and to use extremely powerful supercomputers located at a few key universities and laboratories. As it evolved far beyond its research origins in the United States to encompass universities, corporations, and people around the world, the ARPANET came to be called the "DARPA Internet," and finally just the "Internet." 6. From its inception, the network was designed to be a decentralized, self-maintaining series of redundant links between computers and computer networks, capable of rapidly transmitting communications without direct human involvement or control, and with the automatic ability to re-route communications if one or more individual links were damaged or otherwise unavailable. Among other goals, this redundant system of linked computers was designed to allow vital research and communications to continue even if portions of the network were damaged, say, in a war. 7. To achieve this resilient nationwide (and ultimately global) communications medium, the ARPANET encouraged the creation of multiple links to and from each computer (or computer network) on the network. Thus, a computer located in Washington, D.C., might be linked (usually using dedicated telephone lines) to other computers in neighboring states or on the Eastern seaboard. Each of those computers could in turn be linked to other computers, which themselves would be linked to other computers. 8. A communication sent over this redundant series of linked computers could travel any of a number of routes to its destination. Thus, a message sent from a computer in Washington, D.C., to a computer in Palo *832 Alto, California, might first be sent to a computer in Philadelphia, and then be forwarded to a computer in Pittsburgh, and then to Chicago, Denver, and Salt Lake City, before finally reaching Palo Alto. If the message could not travel along that path (because of military attack, simple technical malfunction, or other reason), the message would automatically (without human intervention or even knowledge) be re-routed, perhaps, from Washington, D.C. to Richmond, and then to Atlanta, New Orleans, Dallas, Albuquerque, Los Angeles, and finally to Palo Alto. This type of transmission, and re-routing, would likely occur in a matter of seconds. 9. Messages between computers on the Internet do not necessarily travel entirely along the same path. The Internet uses "packet switching" communication protocols that allow individual messages to be subdivided into smaller "packets" that are then sent independently to the destination, and are then automatically reassembled by the receiving computer. While all packets of a given message often travel along the same path to the destination, if computers along the route become overloaded, then packets can be re-routed to less loaded computers. 10. At the same time that ARPANET was maturing (it subsequently ceased to exist), similar networks developed to link universities, research facilities, businesses, and individuals around the world. These other formal or loose networks included BITNET, CSNET, FIDONET, and USENET. Eventually, each of these networks (many of which overlapped) were themselves linked together, allowing users of any computers linked to any one of the networks to transmit communications to users of computers on other networks. It is this series of linked networks (themselves linking computers and computer networks) that is today commonly known as the Internet. 11. No single entity — academic, corporate, governmental, or non-profit — administers the Internet. It exists and functions as a result of the fact that hundreds of thousands of separate operators of computers and computer networks independently decided to use common data transfer protocols to exchange communications and information with other computers (which in turn exchange communications and information with still other computers). There is no centralized storage location, control point, or communications channel for the Internet, and it would not be technically feasible for a single entity to control all of the information conveyed on the Internet. How Individuals Access the Internet 12. Individuals have a wide variety of avenues to access cyberspace in general, and the Internet in particular. In terms of physical access, there are two common methods to establish an actual link to the Internet. First, one can use a computer or computer terminal that is directly (and usually permanently) connected to a computer network that is itself directly or indirectly connected to the Internet. Second, one can use a "personal computer" with a "modem" to connect over a telephone line to a larger computer or computer network that is itself directly or indirectly connected to the Internet. As detailed below, both direct and modem connections are made available to people by a wide variety of academic, governmental, or commercial entities. 13. Students, faculty, researchers, and others affiliated with the vast majority of colleges and universities in the United States can access the Internet through their educational institutions. Such access is often via direct connection using computers located in campus libraries, offices, or computer centers, or may be through telephone access using a modem from a student's or professor's campus or off-campus location. Some colleges and universities install "ports" or outlets for direct network connections in each dormitory room or provide access via computers located in common areas in dormitories. Such access enables students and professors to use information and content provided by the college or university itself, and to use the vast amount of research resources and other information available on the Internet worldwide. 14. Similarly, Internet resources and access are sufficiently important to many corporations and other employers that those employers link their office computer networks *833 to the Internet and provide employees with direct or modem access to the office network (and thus to the Internet). Such access might be used by, for example, a corporation involved in scientific or medical research or manufacturing to enable corporate employees to exchange information and ideas with academic researchers in their fields. 15. Those who lack access to the Internet through their schools or employers still have a variety of ways they can access the Internet. Many communities across the country have established "free-nets" or community networks to provide their citizens with a local link to the Internet (and to provide local-oriented content and discussion groups). The first such community network, the Cleveland Free-Net Community Computer System, was established in 1986, and free-nets now exist in scores of communities as diverse as Richmond, Virginia, Tallahassee, Florida, Seattle, Washington, and San Diego, California. Individuals typically can access free-nets at little or no cost via modem connection or by using computers available in community buildings. Free-nets are often operated by a local library, educational institution, or non-profit community group. 16. Individuals can also access the Internet through many local libraries. Libraries often offer patrons use of computers that are linked to the Internet. In addition, some libraries offer telephone modem access to the libraries' computers, which are themselves connected to the Internet. Increasingly, patrons now use library services and resources without ever physically entering the library itself. Libraries typically provide such direct or modem access at no cost to the individual user. 17. Individuals can also access the Internet by patronizing an increasing number of storefront "computer coffee shops," where customers — while they drink their coffee — can use computers provided by the shop to access the Internet. Such Internet access is typically provided by the shop for a small hourly fee. 18. Individuals can also access the Internet through commercial and non-commercial "Internet service providers" that typically offer modem telephone access to a computer or computer network linked to the Internet. Many such providers — including the members of plaintiff Commercial Internet Exchange Association — are commercial entities offering Internet access for a monthly or hourly fee. Some Internet service providers, however, are non-profit organizations that offer free or very low cost access to the Internet. For example, the International Internet Association offers free modem access to the Internet upon request. Also, a number of trade or other non-profit associations offer Internet access as a service to members. 19. Another common way for individuals to access the Internet is through one of the major national commercial "online services" such as America Online, CompuServe, the Microsoft Network, or Prodigy. These online services offer nationwide computer networks (so that subscribers can dial-in to a local telephone number), and the services provide extensive and well organized content within their own proprietary computer networks. In addition to allowing access to the extensive content available within each online service, the services also allow subscribers to link to the much larger resources of the Internet. Full access to the online service (including access to the Internet) can be obtained for modest monthly or hourly fees. The major commercial online services have almost twelve million individual subscribers across the United States. 20. In addition to using the national commercial online services, individuals can also access the Internet using some (but not all) of the thousands of local dial-in computer services, often called "bulletin board systems" or "BBSs." With an investment of as little as $2,000.00 and the cost of a telephone line, individuals, non-profit organizations, advocacy groups, and businesses can offer their own dial-in computer "bulletin board" service where friends, members, subscribers, or customers can exchange ideas and information. BBSs range from single computers with only one telephone line into the computer (allowing only one user at a time), to single computers with many telephone lines into the computer (allowing multiple simultaneous *834 users), to multiple linked computers each servicing multiple dial-in telephone lines (allowing multiple simultaneous users). Some (but not all) of these BBS systems offer direct or indirect links to the Internet. Some BBS systems charge users a nominal fee for access, while many others are free to the individual users. 21. Although commercial access to the Internet is growing rapidly, many users of the Internet — such as college students and staff — do not individually pay for access (except to the extent, for example, that the cost of computer services is a component of college tuition). These and other Internet users can access the Internet without paying for such access with a credit card or other form of payment. Methods to Communicate Over the Internet 22. Once one has access to the Internet, there are a wide variety of different methods of communication and information exchange over the network. These many methods of communication and information retrieval are constantly evolving and are therefore difficult to categorize concisely. The most common methods of communications on the Internet (as well as within the major online services) can be roughly grouped into six categories: (1) one-to-one messaging (such as "e-mail"), (2) one-to-many messaging (such as "list-serv"), (3) distributed message databases (such as "USENET newsgroups"), (4) real time communication (such as "Internet Relay Chat"), (5) real time remote computer utilization (such as "telnet"), and (6) remote information retrieval (such as "ftp," "gopher," and the "World Wide Web"). Most of these methods of communication can be used to transmit text, data, computer programs, sound, visual images (i.e., pictures), and moving video images. 23. One-to-one messaging. One method of communication on the Internet is via electronic mail, or "e-mail," comparable in principle to sending a first class letter. One can address and transmit a message to one or more other people. E-mail on the Internet is not routed through a central control point, and can take many and varying paths to the recipients. Unlike postal mail, simple e-mail generally is not "sealed" or secure, and can be accessed or viewed on intermediate computers between the sender and recipient (unless the message is encrypted). 24. One-to-many messaging. The Internet also contains automatic mailing list services (such as "listservs"), [also referred to by witnesses as "mail exploders"] that allow communications about particular subjects of interest to a group of people. For example, people can subscribe to a "listserv" mailing list on a particular topic of interest to them. The subscriber can submit messages on the topic to the listserv that are forwarded (via e-mail), either automatically or through a human moderator overseeing the listserv, to anyone who has subscribed to the mailing list. A recipient of such a message can reply to the message and have the reply also distributed to everyone on the mailing list. This service provides the capability to keep abreast of developments or events in a particular subject area. Most listserv-type mailing lists automatically forward all incoming messages to all mailing list subscribers. There are thousands of such mailing list services on the Internet, collectively with hundreds of thousands of subscribers. Users of "open" listservs typically can add or remove their names from the mailing list automatically, with no direct human involvement. Listservs may also be "closed," i.e., only allowing for one's acceptance into the listserv by a human moderator. 25. Distributed message databases. Similar in function to listservs — but quite different in how communications are transmitted — are distributed message databases such as "USENET newsgroups." User-sponsored newsgroups are among the most popular and widespread applications of Internet services, and cover all imaginable topics of interest to users. Like listservs, newsgroups are open discussions and exchanges on particular topics. Users, however, need not subscribe to the discussion mailing list in advance, but can *835 instead access the database at any time. Some USENET newsgroups are "moderated" but most are open access. For the moderated newsgroups,[10] all messages to the newsgroup are forwarded to one person who can screen them for relevance to the topics under discussion. USENET newsgroups are disseminated using ad hoc, peer to peer connections between approximately 200,000 computers (called USENET "servers") around the world. For unmoderated newsgroups, when an individual user with access to a USENET server posts a message to a newsgroup, the message is automatically forwarded to all adjacent USENET servers that furnish access to the newsgroup, and it is then propagated to the servers adjacent to those servers, etc. The messages are temporarily stored on each receiving server, where they are available for review and response by individual users. The messages are automatically and periodically purged from each system after a time to make room for new messages. Responses to messages, like the original messages, are automatically distributed to all other computers receiving the newsgroup or forwarded to a moderator in the case of a moderated newsgroup. The dissemination of messages to USENET servers around the world is an automated process that does not require direct human intervention or review. 26. There are newsgroups on more than fifteen thousand different subjects. In 1994, approximately 70,000 messages were posted to newsgroups each day, and those messages were distributed to the approximately 190,000 computers or computer networks that participate in the USENET newsgroup system. Once the messages reach the approximately 190,000 receiving computers or computer networks, they are available to individual users of those computers or computer networks. Collectively, almost 100,000 new messages (or "articles") are posted to newsgroups each day. 27. Real time communication. In addition to transmitting messages that can be later read or accessed, individuals on the Internet can engage in an immediate dialog, in "real time", with other people on the Internet. In its simplest forms, "talk" allows one-to-one communications and "Internet Relay Chat" (or IRC) allows two or more to type messages to each other that almost immediately appear on the others' computer screens. IRC is analogous to a telephone party line, using a computer and keyboard rather than a telephone. With IRC, however, at any one time there are thousands of different party lines available, in which collectively tens of thousands of users are engaging in conversations on a huge range of subjects. Moreover, one can create a new party line to discuss a different topic at any time. Some IRC conversations are "moderated" or include "channel operators." 28. In addition, commercial online services such as America Online, CompuServe, the Microsoft Network, and Prodigy have their own "chat" systems allowing their members to converse. 29. Real time remote computer utilization. Another method to use information on the Internet is to access and control remote computers in "real time" using "telnet." For example, using telnet, a researcher at a university would be able to use the computing power of a supercomputer located at a different university. A student can use telnet to connect to a remote library to access the library's online card catalog program. 30. Remote information retrieval. The final major category of communication may be the most well known use of the Internet — the search for and retrieval of information located on remote computers. There are three primary methods to locate and retrieve information on the Internet. 31. A simple method uses "ftp" (or file transfer protocol) to list the names of computer files available on a remote computer, and to transfer one or more of those files to an individual's local computer. 32. Another approach uses a program and format named "gopher" to guide an individual's *836 search through the resources available on a remote computer. The World Wide Web 33. A third approach, and fast becoming the most well-known on the Internet, is the "World Wide Web." The Web utilizes a "hypertext" formatting language called hypertext markup language (HTML), and programs that "browse" the Web can display HTML documents containing text, images, sound, animation and moving video. Any HTML document can include links to other types of information or resources, so that while viewing an HTML document that, for example, describes resources available on the Internet, one can "click" using a computer mouse on the description of the resource and be immediately connected to the resource itself. Such "hyperlinks" allow information to be accessed and organized in very flexible ways, and allow people to locate and efficiently view related information even if the information is stored on numerous computers all around the world. 34. Purpose. The World Wide Web (W3C) was created to serve as the platform for a global, online store of knowledge, containing information from a diversity of sources and accessible to Internet users around the world. Though information on the Web is contained in individual computers, the fact that each of these computers is connected to the Internet through W3C protocols allows all of the information to become part of a single body of knowledge. It is currently the most advanced information system developed on the Internet, and embraces within its data model most information in previous networked information systems such as ftp, gopher, wais, and Usenet. 35. History. W3C was originally developed at CERN, the European Particle Physics Laboratory, and was initially used to allow information sharing within internationally dispersed teams of researchers and engineers. Originally aimed at the High Energy Physics community, it has spread to other areas and attracted much interest in user support, resource recovery, and many other areas which depend on collaborative and information sharing. The Web has extended beyond the scientific and academic community to include communications by individuals, non-profit organizations, and businesses. 36. Basic Operation. The World Wide Web is a series of documents stored in different computers all over the Internet. Documents contain information stored in a variety of formats, including text, still images, sounds, and video. An essential element of the Web is that any document has an address (rather like a telephone number). Most Web documents contain "links." These are short sections of text or image which refer to another document. Typically the linked text is blue or underlined when displayed, and when selected by the user, the referenced document is automatically displayed, wherever in the world it actually is stored. Links for example are used to lead from overview documents to more detailed documents, from tables of contents to particular pages, but also as cross-references, footnotes, and new forms of information structure. 37. Many organizations now have "home pages" on the Web. These are documents which provide a set of links designed to represent the organization, and through links from the home page, guide the user directly or indirectly to information about or relevant to that organization. 38. As an example of the use of links, if these Findings were to be put on a World Wide Web site, its home page might contain links such as those: * THE NATURE OF CYBERSPACE * CREATION OF THE INTERNET AND THE DEVELOPMENT OF CYBERSPACE * HOW PEOPLE ACCESS THE INTERNET * METHODS TO COMMUNICATE OVER THE INTERNET 39. Each of these links takes the user of the site from the beginning of the Findings to the appropriate section within this Adjudication. Links may also take the user from the original Web site to another Web site on another computer connected to the Internet. These links from one computer to another, from one document to another across the *837 Internet, are what unify the Web into a single body of knowledge, and what makes the Web unique. The Web was designed with a maximum target time to follow a link of one tenth of a second. 40. Publishing. The World Wide Web exists fundamentally as a platform through which people and organizations can communicate through shared information. When information is made available, it is said to be "published" on the Web. Publishing on the Web simply requires that the "publisher" has a computer connected to the Internet and that the computer is running W3C server software. The computer can be as simple as a small personal computer costing less than $1500 dollars or as complex as a multi-million dollar mainframe computer. Many Web publishers choose instead to lease disk storage space from someone else who has the necessary computer facilities, eliminating the need for actually owning any equipment oneself. 41. The Web, as a universe of network accessible information, contains a variety of documents prepared with quite varying degrees of care, from the hastily typed idea, to the professionally executed corporate profile. The power of the Web stems from the ability of a link to point to any document, regardless of its status or physical location. 42. Information to be published on the Web must also be formatted according to the rules of the Web standards. These standardized formats assure that all Web users who want to read the material will be able to view it. Web standards are sophisticated and flexible enough that they have grown to meet the publishing needs of many large corporations, banks, brokerage houses, newspapers and magazines which now publish "online" editions of their material, as well as government agencies, and even courts, which use the Web to disseminate information to the public. At the same time, Web publishing is simple enough that thousands of individual users and small community organizations are using the Web to publish their own personal "home pages," the equivalent of individualized newsletters about that person or organization, which are available to everyone on the Web. 43. Web publishers have a choice to make their Web sites open to the general pool of all Internet users, or close them, thus making the information accessible only to those with advance authorization. Many publishers choose to keep their sites open to all in order to give their information the widest potential audience. In the event that the publishers choose to maintain restrictions on access, this may be accomplished by assigning specific user names and passwords as a prerequisite to access to the site. Or, in the case of Web sites maintained for internal use of one organization, access will only be allowed from other computers within that organization's local network.[11] 44. Searching the Web. A variety of systems have developed that allow users of the Web to search particular information among all of the public sites that are part of the Web. Services such as Yahoo, Magellan, Altavista, Webcrawler, and Lycos are all services known as "search engines" which allow users to search for Web sites that contain certain categories of information, or to search for key words. For example, a Web user looking for the text of Supreme Court opinions would type the words "Supreme Court" into a search engine, and then be presented with a list of World Wide Web sites that contain Supreme Court information. This list would actually be a series of links to those sites. Having searched out a number of sites that might contain the desired information, the user would then follow individual links, browsing through the information on each site, until the desired material is found. For many content providers on the Web, the ability to be found by these search engines is very important. 45. Common standards. The Web links together disparate information on an evergrowing number of Internet-linked computers by setting common information storage formats (HTML) and a common language for the exchange of Web documents (HTTP). *838 Although the information itself may be in many different formats, and stored on computers which are not otherwise compatible, the basic Web standards provide a basic set of standards which allow communication and exchange of information. Despite the fact that many types of computers are used on the Web, and the fact that many of these machines are otherwise incompatible, those who "publish" information on the Web are able to communicate with those who seek to access information with little difficulty because of these basic technical standards. 46. A distributed system with no centralized control. Running on tens of thousands of individual computers on the Internet, the Web is what is known as a distributed system. The Web was designed so that organizations with computers containing information can become part of the Web simply by attaching their computers to the Internet and running appropriate World Wide Web software. No single organization controls any membership in the Web, nor is there any single centralized point from which individual Web sites or services can be blocked from the Web. From a user's perspective, it may appear to be a single, integrated system, but in reality it has no centralized control point. 47. Contrast to closed databases. The Web's open, distributed, decentralized nature stands in sharp contrast to most information systems that have come before it. Private information services such as Westlaw, Lexis/Nexis, and Dialog, have contained large storehouses of knowledge, and can be accessed from the Internet with the appropriate passwords and access software. However, these databases are not linked together into a single whole, as is the World Wide Web. 48. Success of the Web in research, education, and political activities. The World Wide Web has become so popular because of its open, distributed, and easy-to-use nature. Rather than requiring those who seek information to purchase new software or hardware, and to learn a new kind of system for each new database of information they seek to access, the Web environment makes it easy for users to jump from one set of information to another. By the same token, the open nature of the Web makes it easy for publishers to reach their intended audiences without having to know in advance what kind of computer each potential reader has, and what kind of software they will be using. Restricting Access to Unwanted On-Line Material[12] PICS 49. With the rapid growth of the Internet, the increasing popularity of the Web, and the existence of material online that some parents may consider inappropriate for their children, various entities have begun to build systems intended to enable parents to control the material which comes into their homes and may be accessible to their children. The World Wide Web Consortium launched the PICS ("Platform for Internet Content Selection") program in order to develop technical standards that would support parents' ability to filter and screen material that their children see on the Web. 50. The Consortium intends that PICS will provide the ability for third parties, as well as individual content providers, to rate content on the Internet in a variety of ways. When fully implemented, PICS-compatible World Wide Web browsers, Usenet News Group readers, and other Internet applications, will provide parents the ability to choose from a variety of rating services, or a combination of services. 51. PICS working group [PICS-WG] participants include many of the major online services providers, commercial internet access providers, hardware and software companies, major internet content providers, and *839 consumer organizations. Among active participants in the PICS effort are: Adobe Systems, Inc. Apple Computer America Online AT & T Center for Democracy and Technology CompuServe Delphi Internet Services Digital Equipment Corporation IBM First floor First Virtual Holdings Incorporated France Telecom FTP Software Industrial Technology Research Institute of Taiwan Information Technology Association of America Institut National de Recherche en Informatique et en Automatique (INRIA) Interactive Services Association MCI Microsoft MIT/LCS/World Wide Web Consortium NCD NEC Netscape Communications Corporation NewView O'Reilly and Associates Open Market Prodigy Services Company Progressive Networks Providence Systems/Parental Guidance Recreational Software Advisory Council SafeSurf SoftQuad, Inc. Songline Studios Spyglass SurfWatch Software Telequip Corp. Time Warner Pathfinder Viacom Nickelodeon[13] 52. Membership in the PICS-WG includes a broad cross-section of companies from the computer, communications, and content industries, as well as trade associations and public interest groups. PICS technical specifications have been agreed to, allowing the Internet community to begin to deploy products and services based on the PICS-standards. 53. Until a majority of sites on the Internet have been rated by a PICS rating service, PICS will initially function as a "positive" ratings system in which only those sites that have been rated will be displayed using PICS compatible software. In other words, PICS will initially function as a site inclusion list rather than a site exclusion list. The default configuration for a PICS compatible Internet application will be to block access to all sites which have not been rated by a PICS rating service, while allowing access to sites which have a PICS rating for appropriate content.[14] Software 54. For over a year, various companies have marketed stand alone software that is intended to enable parents and other adults to limit the Internet access of children. Examples of such software include: Cyber Patrol, CYBERsitter, The Internet Filter, Net Nanny, Parental Guidance, SurfWatch, Netscape Proxy Server, and WebTrack. The market for this type of software is growing, and there is increasing competition among software providers to provide products. Cyber Patrol 55. As more people, particularly children, began to use the Internet, Microsystems Software, Inc. decided to develop and market Internet software intended to empower parents to exercise individual choice over what material their children could access. Microsystems' stated intent is to develop a product which would give parents comfort that their children can reap the benefits of the Internet while shielding them from objectionable or *840 otherwise inappropriate materials based on the parents' own particular tastes and values. Microsystems' product, Cyber Patrol, was developed to address this need. 56. Cyber Patrol was first introduced in August 1995, and is currently available in Windows and Macintosh versions. Cyber Patrol works with both direct Internet Access providers (ISPs, e.g., Netcom, PSI, UUnet), and Commercial Online Service Providers (e.g., America Online, CompuServ, Prodigy, Microsoft). Cyber Patrol is also compatible with all major World Wide Web browsers on the market (e.g., Netscape, Navigator, Mosaic, Prodigy's Legacy and Skimmer browsers, America Online, Netcom's NetCruiser, etc.). Cyber Patrol was the first parental empowerment application to be compatible with the PICS standard. In February of 1996, Microsystems put the first PICS ratings server on the Internet. 57. The CyberNOT list contains approximately 7000 sites in twelve categories. The software is designed to enable parents to selectively block access to any or all of the twelve CyberNOT categories simply by checking boxes in the Cyber Patrol Headquarters (the Cyber Patrol program manager). These categories are: Violence/Profanity: Extreme cruelty, physical or emotional acts against any animal or person which are primarily intended to hurt or inflict pain. Obscene words, phrases, and profanity defined as text that uses George Carlin's seven censored words more often than once every fifty messages or pages. Partial Nudity: Full or partial exposure of the human anatomy except when exposing genitalia. Nudity: Any exposure of the human genitalia. Sexual Acts (graphic or text): Pictures or text exposing anyone or anything involved in explicit sexual acts and lewd and lascivious behavior, including masturbation, copulation, pedophilia, intimacy and involving nude or partially nude people in heterosexual, bisexual, lesbian or homosexual encounters. Also includes phone sex ads, dating services, adult personals, CD-ROM and videos. Gross Depictions (graphic or text): Pictures or descriptive text of anyone or anything which are crudely vulgar, deficient in civility or behavior, or showing scatological impropriety. Includes such depictions as maiming, bloody figures, indecent depiction of bodily functions. Racism/Ethnic Impropriety: Prejudice or discrimination against any race or ethnic culture. Ethnic or racist jokes and slurs. Any text that elevates one race over another. Satanic/Cult: Worship of the devil; affinity for evil, wickedness. Sects or groups that potentially coerce individuals to grow, and keep, membership. Drugs/Drug Culture: Topics dealing with the use of illegal drugs for entertainment. This would exclude current illegal drugs used for medicinal purposes (e.g., drugs used to treat victims of AIDS). Includes substances used for other than their primary purpose to alter the individual's state of mind such as glue sniffing. Militant/Extremist: Extremely aggressive and combative behaviors, radicalism, advocacy of extreme political measures. Topics include extreme political groups that advocate violence as a means to achieve their goal. Gambling: Of or relating to lotteries, casinos, betting, numbers games, on-line sports or financial betting including non-monetary dares. Questionable/Illegal: Material or activities of a dubious nature which may be illegal in any or all jurisdictions, such as illegal business schemes, chain letters, software piracy, and copyright infringement. Alcohol, Beer & Wine: Material pertaining to the sale or consumption of alcoholic beverages. Also includes sites and information relating to tobacco products. 58. Microsystems employs people to search the Internet for sites containing material in these categories. Since new sites are constantly coming online, Microsystems updates the CyberNOT list on a weekly basis. Once installed on the home PC, the copy of Cyber Patrol receives automatic updates to *841 the CyberNOT list over the Internet every seven days. 59. In February of 1996, Microsystems signed a licensing arrangement with CompuServe, one of the leading commercial online services with over 4.3 million subscribers. CompuServe provides Cyber Patrol free of charge to its subscribers. Microsystems the same month signed a licensing arrangement with Prodigy, another leading commercial online service with over 1.4 million subscribers. Prodigy will provide Cyber Patrol free of charge of its subscribers. 60. Cyber Patrol is also available directly from Microsystems for $49.95, which includes a six month subscription to the CyberNOT blocked sites list (updated automatically once every seven days). After six months, parents can receive six months of additional updates for $19.95, or twelve months for $29.95. Cyber Patrol Home Edition, a limited version of Cyber Patrol, is available free of charge on the Internet. To obtain either version, parents download a seven day demonstration version of the full Cyber Patrol product from the Microsystems Internet World Wide Web Server. At the end of the seven day trial period, users are offered the opportunity to purchase the complete version of Cyber Patrol or provide Microsystems some basic demographic information in exchange for unlimited use of the Home Edition. The demographic information is used for marketing and research purposes. Since January of 1996, over 10,000 demonstration copies of Cyber Patrol have been downloaded from Microsystems' Web site. 61. Cyber Patrol is also available from Retail outlets as NetBlocker Plus. NetBlocker Plus sells for $19.95, which includes five weeks of updates to the CyberNOT list. 62. Microsystems also sells Cyber Patrol into a growing market in schools. As more classrooms become connected to the Internet, many teachers want to ensure that their students can receive the benefit of the Internet without encountering material they deem educationally inappropriate. 63. Microsystems is working with the Recreational Software Advisory Council (RSAC), a non-profit corporation which developed rating systems for video games, to implement the RSAC rating system for the Internet. 64. The next release of Cyber Patrol, expected in second quarter of this year, will give parents the ability to use any PICS rating service, including the RSAC rating service, in addition to the Microsystems CyberNOT list. 65. In order to speed the implementation of PICS and encourage the development of PICS-compatible Internet applications, Microsystems maintains a server on the Internet which contains its CyberNOT list. The server provides software developers with access to a PICS rating service, and allows software developers to test their products' ability to interpret standard PICS labels. Microsystems is also offering its PICS client test program for Windows free of charge. The client program can be used by developers of PICS rating services to test their services and products. SurfWatch 66. Another software product, SurfWatch, is also designed to allow parents and other concerned users to filter unwanted material on the Internet. SurfWatch is available for both Apple Macintosh, Microsoft Windows, and Microsoft Windows 95 Operating Systems, and works with direct Internet Access Providers (e.g., Netcom, PSI, UUnet, AT & T, and more than 1000 other Internet Service Providers). 67. The suggested retail price of Surf-Watch Software is $49.95, with a street price of between $20.00 and $25.00. The product is also available as part of CompuServe/Spry Inc.'s Internet in a Box for Kids, which includes access to Spry's Kids only Internet service and a copy of SurfWatch. Internet in a Box for Kids retails for approximately $30.00. The subscription service, which updates the SurfWatch blocked site list automatically with new sites each month, is available for $5.95 per month or $60.00 per year. The subscription is included as part of the Internet in a Box for Kids program, and is also provided as a low-cost option from Internet Service Providers. *842 68. SurfWatch is available at over 12,000 retail locations, including National stores such as Comp USA, Egghead Software, Computer City, and several national mail order outlets. SurfWatch can also be ordered directly from its own site on the World Wide Web, and through the Internet Shopping Network. 69. Plaintiffs America Online (AOL), Microsoft Network, and Prodigy all offer parental control options free of charge to their members. AOL has established an online area designed specifically for children. The "Kids Only" parental control feature allows parents to establish an AOL account for their children that accesses only the Kids Only channel on America Online.[15] 70. AOL plans to incorporate PICS-compatible capability into its standard Web browser software, and to make available to subscribers other PICS-compatible Web browsers, such as the Netscape software. 71. Plaintiffs CompuServe and Prodigy give their subscribers the option of blocking all access to the Internet, or to particular media within their proprietary online content, such as bulletin boards and chat rooms. 72. Although parental control software currently can screen for certain suggestive words or for known sexually explicit sites, it cannot now screen for sexually explicit images unaccompanied by suggestive text unless those who configure the software are aware of the particular site. 73. Despite its limitations, currently available user-based software suggests that a reasonably effective method by which parents can prevent their children from accessing sexually explicit and other material which parents may believe is inappropriate for their children will soon be widely available. Content on the Internet 74. The types of content now on the Internet defy easy classification. The entire card catalogue of the Carnegie Library is online, together with journals, journal abstracts, popular magazines, and titles of compact discs. The director of the Carnegie Library, Robert Croneberger, testified that on-line services are the emerging trend in libraries generally. Plaintiff Hotwired Ventures LLC organizes its Web site into information regarding travel, news and commentary, arts and entertainment, politics, and types of drinks. Plaintiff America Online, Inc., not only creates chat rooms for a broad variety of topics, but also allows members to create their own chat rooms to suit their own tastes. The ACLU uses an America Online chat room as an unmoderated forum for people to debate civil liberties issues. Plaintiffs' expert, Scott Bradner,[16] estimated that 15,000 newsgroups exist today, and he described his own interest in a newsgroup devoted solely to Formula 1 racing cars. America Online makes 15,000 bulletin boards available to its subscribers, who post between 200,000 and 250,000 messages each day. Another plaintiffs' expert, Howard Rheingold, participates in "virtual communities" that simulate social interaction. It is no exaggeration to conclude that the content on the Internet is as diverse as human thought. 75. The Internet is not exclusively, or even primarily, a means of commercial communication. Many commercial entities maintain Web sites to inform potential consumers about their goods and services, or to solicit purchases, but many other Web sites exist solely for the dissemination of non-commercial information. The other forms of Internet communication — e-mail, bulletin boards, newsgroups, and chat rooms — frequently have non-commercial goals. For the economic and technical reasons set forth in the following paragraphs, the Internet is an especially attractive means for not-for-profit entities or public interest groups to reach their desired audiences. There are examples in the parties' stipulation of some of the non-commercial uses that the Internet serves. *843 Plaintiff Human Rights Watch, Inc., offers information on its Internet site regarding reported human rights abuses around the world. Plaintiff National Writers Union provides a forum for writers on issues of concern to them. Plaintiff Stop Prisoner Rape, Inc., posts text, graphics, and statistics regarding the incidence and prevention of rape in prisons. Plaintiff Critical Path AIDS Project, Inc., offers information on safer sex, the transmission of HIV, and the treatment of AIDS. 76. Such diversity of content on the Internet is possible because the Internet provides an easy and inexpensive way for a speaker to reach a large audience, potentially of millions. The start-up and operating costs entailed by communication on the Internet are significantly lower than those associated with use of other forms of mass communication, such as television, radio, newspapers, and magazines. This enables operation of their own Web sites not only by large companies, such as Microsoft and Time Warner, but also by small, not-for-profit groups, such as Stop Prisoner Rape and Critical Path AIDS Project. The Government's expert, Dr. Dan R. Olsen,[17] agreed that creation of a Web site would cost between $1,000 and $15,000, with monthly operating costs depending on one's goals and the Web site's traffic. Commercial online services such as America Online allow subscribers to create Web pages free of charge. Any Internet user can communicate by posting a message to one of the thousands of newsgroups and bulletin boards or by engaging in an on-line "chat", and thereby reach an audience worldwide that shares an interest in a particular topic. 77. The ease of communication through the Internet is facilitated by the use of hypertext markup language (HTML), which allows for the creation of "hyperlinks" or "links". HTML enables a user to jump from one source to other related sources by clicking on the link. A link might take the user from Web site to Web site, or to other files within a particular Web site. Similarly, by typing a request into a search engine, a user can retrieve many different sources of content related to the search that the creators of the engine have collected. 78. Because of the technology underlying the Internet, the statutory term "content provider,"[18] which is equivalent to the traditional "speaker," may actually be a hybrid of speakers. Through the use of HTML, for example, Critical Path and Stop Prisoner Rape link their Web sites to several related databases, and a user can immediately jump from the home pages of these organizations to the related databases simply by clicking on a link. America Online creates chat rooms for particular discussions but also allows subscribers to create their own chat rooms. Similarly, a newsgroup gathers postings on a particular topic and distributes them to the newsgroup's subscribers. Users of the Carnegie Library can read on-line versions of Vanity Fair and Playboy, and America Online's subscribers can peruse the New York Times, Boating, and other periodicals. Critical Path, Stop Prisoner Rape, America Online and the Carnegie Library all make available content of other speakers over whom they have little or no editorial control. 79. Because of the different forms of Internet communication, a user of the Internet may speak or listen interchangeably, blurring the distinction between "speakers" and "listeners" on the Internet. Chat rooms, e-mail, and newsgroups are interactive forms of communication, providing the user with the opportunity both to speak and to listen. 80. It follows that unlike traditional media, the barriers to entry as a speaker on the Internet do not differ significantly from the barriers to entry as a listener. Once one has entered cyberspace, one may engage in the dialogue that occurs there. In the argot of *844 the medium, the receiver can and does become the content provider, and vice-versa. 81. The Internet is therefore a unique and wholly new medium of worldwide human communication. Sexually Explicit Material On the Internet 82. The parties agree that sexually explicit material exists on the Internet. Such material includes text, pictures, and chat, and includes bulletin boards, newsgroups, and the other forms of Internet communication, and extends from the modestly titillating to the hardest-core. 83. There is no evidence that sexually-oriented material is the primary type of content on this new medium. Purveyors of such material take advantage of the same ease of access available to all users of the Internet, including establishment of a Web site. 84. Sexually explicit material is created, named, and posted in the same manner as material that is not sexually explicit. It is possible that a search engine can accidentally retrieve material of a sexual nature through an imprecise search, as demonstrated at the hearing. Imprecise searches may also retrieve irrelevant material that is not of a sexual nature. The accidental retrieval of sexually explicit material is one manifestation of the larger phenomenon of irrelevant search results. 85. Once a provider posts content on the Internet, it is available to all other Internet users worldwide. Similarly, once a user posts a message to a newsgroup or bulletin board, that message becomes available to all subscribers to that newsgroup or bulletin board. For example, when the UCR/California Museum of Photography posts to its Web site nudes by Edward Weston and Robert Mapplethorpe to announce that its new exhibit will travel to Baltimore and New York City, those images are available not only in Los Angeles, Baltimore, and New York City, but also in Cincinnati, Mobile, or Beijing — wherever Internet users live. Similarly, the safer sex instructions that Critical Path posts to its Web site, written in street language so that the teenage receiver can understand them, are available not just in Philadelphia, but also in Provo and Prague. A chat room organized by the ACLU to discuss the United States Supreme Court's decision in FCC v. Pacifica Foundation would transmit George Carlin's seven dirty words to anyone who enters. Messages posted to a newsgroup dedicated to the Oklahoma City bombing travel to all subscribers to that newsgroup. 86. Once a provider posts its content on the Internet, it cannot prevent that content from entering any community. Unlike the newspaper, broadcast station, or cable system, Internet technology necessarily gives a speaker a potential worldwide audience. Because the Internet is a network of networks (as described above in Findings 1 through 4), any network connected to the Internet has the capacity to send and receive information to any other network. Hotwired Ventures, for example, cannot prevent its materials on mixology from entering communities that have no interest in that topic. 87. Demonstrations at the preliminary injunction hearings showed that it takes several steps to enter cyberspace. At the most fundamental level, a user must have access to a computer with the ability to reach the Internet (typically by way of a modem). A user must then direct the computer to connect with the access provider, enter a password, and enter the appropriate commands to find particular data. On the World Wide Web, a user must normally use a search engine or enter an appropriate address. Similarly, accessing newsgroups, bulletin boards, and chat rooms requires several steps. 88. Communications over the Internet do not "invade" an individual's home or appear on one's computer screen unbidden. Users seldom encounter content "by accident." A document's title or a description of the document will usually appear before the document itself takes the step needed to view it, and in many cases the user will receive detailed information about a site's content before he or she need take the step to access the document. Almost all sexually explicit images are preceded by warnings as to the content. Even the Government's witness, Agent Howard Schmidt, Director of the Air *845 Force Office of Special Investigation, testified that the "odds are slim" that a user would come across a sexually explicit site by accident. 89. Evidence adduced at the hearing showed significant differences between Internet communications and communications received by radio or television. Although content on the Internet is just a few clicks of a mouse away from the user, the receipt of information on the Internet requires a series of affirmative steps more deliberate and directed than merely turning a dial. A child requires some sophistication and some ability to read to retrieve material and thereby to use the Internet unattended. Obstacles to Age Verification on the Internet 90. There is no effective way to determine the identity or the age of a user who is accessing material through e-mail, mail exploders, newsgroups or chat rooms. An e-mail address provides no authoritative information about the addressee, who may use an e-mail "alias" or an anonymous remailer. There is also no universal or reliable listing of e-mail addresses and corresponding names or telephone numbers, and any such listing would be or rapidly become incomplete. For these reasons, there is no reliable way in many instances for a sender to know if the e-mail recipient is an adult or a minor. The difficulty of e-mail age verification is compounded for mail exploders such as listservs, which automatically send information to all e-mail addresses on a sender's list. Government expert Dr. Olsen agreed that no current technology could give a speaker assurance that only adults were listed in a particular mail exploder's mailing list. 91. Because of similar technological difficulties, individuals posting a message to a newsgroup or engaging in chat room discussions cannot ensure that all readers are adults, and Dr. Olsen agreed. Although some newsgroups are moderated, the moderator's control is limited to what is posted and the moderator cannot control who receives the messages. 92. The Government offered no evidence that there is a reliable way to ensure that recipients and participants in such fora can be screened for age. The Government presented no evidence demonstrating the feasibility of its suggestion that chat rooms, newsgroups and other fora that contain material deemed indecent could be effectively segregated to "adult" or "moderated" areas of cyberspace. 93. Even if it were technologically feasible to block minors' access to newsgroups and similar fora, there is no method by which the creators of newsgroups which contain discussions of art, politics or any other subject that could potentially elicit "indecent" contributions could limit the blocking of access by minors to such "indecent" material and still allow them access to the remaining content, even if the overwhelming majority of that content was not indecent. 94. Likewise, participants in MUDs (Multi-User Dungeons) and MUSEs (Multi-User Simulation Environments) do not know whether the other participants are adults or minors. Although MUDs and MUSEs require a password for permanent participants, they need not give their real name nor verify their age, and there is no current technology to enable the administrator of these fantasy worlds to know if the participant is an adult or a minor. 95. Unlike other forms of communication on the Internet, there is technology by which an operator of a World Wide Web server may interrogate a user of a Web site. An HTML document can include a fill-in-the-blank "form" to request information from a visitor to a Web site, and this information can be transmitted back to the Web server and be processed by a computer program, usually a Common Gateway Interface (cgi) script. The Web server could then grant or deny access to the information sought. The cgi script is the means by which a Web site can process a fill-in form and thereby screen visitors by requesting a credit card number or adult password. 96. Content providers who publish on the World Wide Web via one of the large commercial online services, such as America Online or CompuServe, could not use an online age verification system that requires cgi *846 script because the server software of these online services available to subscribers cannot process cgi scripts. There is no method currently available for Web page publishers who lack access to cgi scripts to screen recipients online for age. The Practicalities of the Proffered Defenses Note: The Government contends the CDA makes available three potential defenses to all content providers on the Internet: credit card verification, adult verification by password or adult identification number, and "tagging". Credit Card Verification 97. Verification[19] of a credit card number over the Internet is not now technically possible. Witnesses testified that neither Visa nor Mastercard considers the Internet to be sufficiently secure under the current technology to process transactions in that manner. Although users can and do purchase products over the Internet by transmitting their credit card number, the seller must then process the transaction with Visa or Mastercard offline using phone lines in the traditional way. There was testimony by several witnesses that Visa and Mastercard are in the process of developing means of credit card verification over the Internet. 98. Verification by credit card, if and when operational, will remain economically and practically unavailable for many of the non-commercial plaintiffs in these actions. The Government's expert "suspect[ed]" that verification agencies would decline to process a card unless it accompanied a commercial transaction. There was no evidence to the contrary. 99. There was evidence that the fee charged by verification agencies to process a card, whether for a purchase or not, will preclude use of the credit-card verification defense by many non-profit, non-commercial Web sites, and there was no evidence to the contrary. Plaintiffs' witness Patricia Nell Warren, an author whose free Web site allows users to purchase gay and lesbian literature, testified that she must pay $1 per verification to a verification agency. Her Web site can absorb this cost because it arises in connection with the sale of books available there. 100. Using credit card possession as a surrogate for age, and requiring use of a credit card to enter a site, would impose a significant economic cost on non-commercial entities. Critical Path, for example, received 3,300 hits daily from February 4 through March 4, 1996. If Critical Path must pay a fee every time a user initially enters its site, then, to provide free access to its non-commercial site, it would incur a monthly cost far beyond its modest resources. The ACLU's Barry Steinhardt testified that maintenance of a credit card verification system for all visitors to the ACLU's Web site would require it to shut down its Web site because the projected cost would exceed its budget. 101. Credit card verification would significantly delay the retrieval of information on the Internet. Dr. Olsen, the expert testifying for the Government, agreed that even "a minute is [an] absolutely unreasonable [delay] ... [P]eople will not put up with a minute." Plaintiffs' expert Donna Hoffman similarly testified that excessive delay disrupts the "flow" on the Internet and stifles both "hedonistic" and "goal-directed" browsing. 102. Imposition of a credit card requirement would completely bar adults who do not have a credit card and lack the resources to obtain one from accessing any blocked material. At this time, credit card verification is effectively unavailable to a substantial number of Internet content providers as a potential defense to the CDA. Adult Verification by Password 103. The Government offered very limited evidence regarding the operation of existing age verification systems, and the evidence offered was not based on personal knowledge. AdultCheck and Verify, existing systems which appear to be used for accessing *847 commercial pornographic sites, charge users for their services. Dr. Olsen admitted that his knowledge of these services was derived primarily from reading the advertisements on their Web pages. He had not interviewed any employees of these entities, had not personally used these systems, had no idea how many people are registered with them, and could not testify to the reliability of their attempt at age verification. 104. At least some, if not almost all, non-commercial organizations, such as the ACLU, Stop Prisoner Rape or Critical Path AIDS Project, regard charging listeners to access their speech as contrary to their goals of making their materials available to a wide audience free of charge. 105. It would not be feasible for many non-commercial organizations to design their own adult access code screening systems because the administrative burden of creating and maintaining a screening system and the ongoing costs involved is beyond their reach. There was testimony that the costs would be prohibitive even for a commercial entity such as HotWired, the online version of Wired magazine. 106. There is evidence suggesting that adult users, particularly casual Web browsers, would be discouraged from retrieving information that required use of a credit card or password. Andrew Anker testified that HotWired has received many complaints from its members about HotWired's registration system, which requires only that a member supply a name, e-mail address and self-created password. There is concern by commercial content providers that age verification requirements would decrease advertising and revenue because advertisers depend on a demonstration that the sites are widely available and frequently visited. 107. Even if credit card verification or adult password verification were implemented, the Government presented no testimony as to how such systems could ensure that the user of the password or credit card is in fact over 18. The burdens imposed by credit card verification and adult password verification systems make them effectively unavailable to a substantial number of Internet content providers. The Government's "Tagging" Proposal 108. The feasibility and effectiveness of "tagging" to restrict children from accessing "indecent" speech, as proposed by the Government has not been established. "Tagging" would require content providers to label all of their "indecent" or "patently offensive" material by imbedding a string of characters, such as "XXX," in either the URL or HTML. If a user could install software on his or her computer to recognize the "XXX" tag, the user could screen out any content with that tag. Dr. Olsen proposed a "-L18" tag, an idea he developed for this hearing in response to Mr. Bradner's earlier testimony that certain tagging would not be feasible. 109. The parties appear to agree that it is technologically feasible — "trivial", in the words of plaintiffs' expert — to imbed tags in URLs and HTML, and the technology of tagging underlies both plaintiffs' PICS proposal and the Government's "-L18" proposal. 110. The Government's tagging proposal would require all content providers that post arguably "indecent" material to review all of their online content, a task that would be extremely burdensome for organizations that provide large amounts of material online which cannot afford to pay a large staff to review all of that material. The Carnegie Library would be required to hire numerous additional employees to review its online files at an extremely high cost to its limited budget. The cost and effort would be substantial for the Library and frequently prohibitive for others. Witness Kiroshi Kuromiya testified that it would be impossible for his organization, Critical Path, to review all of its material because it has only one full and one part-time employee. 111. The task of screening and tagging cannot be done simply by using software which screens for certain words, as Dr. Olsen acknowledged, and we find that determinations as to what is indecent require human judgment. 112. In lieu of reviewing each file individually, a content provider could tag its entire site but this would prevent minors from accessing *848 much material that is not "indecent" under the CDA. 113. To be effective, a scheme such as the -L18 proposal would require a worldwide consensus among speakers to use the same tag to label "indecent" material. There is currently no such consensus, and no Internet speaker currently labels its speech with the -L18 code or with any other widely-recognized label. 114. Tagging also assumes the existence of software that recognizes the tags and takes appropriate action when it notes tagged speech. Neither commercial Web browsers nor user-based screening software is currently configured to block a -L18 code. Until such software exists, all speech on the Internet will continue to travel to whomever requests it, without hindrance. Labelling speech has no effect in itself on the transmission (or not) of that speech. Neither plaintiffs nor the Government suggest that tagging alone would shield minors from speech or insulate a speaker from criminal liability under the CDA. It follows that all speech on any topic that is available to adults will also be available to children using the Internet (unless it is blocked by screening software running on the computer the child is using). 115. There is no way that a speaker can use current technology to know if a listener is using screening software. 116. Tags can not currently activate or deactivate themselves depending on the age or location of the receiver. Critical Path, which posts on-line safer sex instructions, would be unable to imbed tags that block its speech only in communities where it may be regarded as indecent. Critical Path, for example, must choose either to tag its site (blocking its speech in all communities) or not to tag, blocking its speech in none. The Problems of Offshore Content and Caching 117. A large percentage, perhaps 40% or more, of content on the Internet originates outside the United States. At the hearing, a witness demonstrated how an Internet user could access a Web site of London (which presumably is on a server in England), and then link to other sites of interest in England. A user can sometimes discern from a URL that content is coming from overseas, since InterNIC allows a content provider to imbed a country code in a domain name.[20] Foreign content is otherwise indistinguishable from domestic content (as long as it is in English), since foreign speech is created, named, and posted in the same manner as domestic speech. There is no requirement that foreign speech contain a country code in its URL. It is undisputed that some foreign speech that travels over the Internet is sexually explicit. 118. The use of "caching" makes it difficult to determine whether the material originated from foreign or domestic sources. Because of the high cost of using the trans-Atlantic and trans-Pacific cables, and because the high demand on those cables leads to bottleneck delays, content is often "cached", or temporarily stored, on servers in the United States. Material from a foreign source in Europe can travel over the trans-Atlantic cable to the receiver in the United States, and pass through a domestic caching server which then stores a copy for subsequent retrieval. This domestic caching server, rather than the original foreign server, will send the material from the cache to the subsequent receivers, without placing a demand on the trans-oceanic cables. This shortcut effectively eliminates most of the distance for both the request and the information and, hence, most of the delay. The caching server discards the stored information according to its configuration (e.g., after a certain time or as the demand for the information diminishes). Caching therefore advances core Internet values: the cheap and speedy retrieval of information. 119. Caching is not merely an international phenomenon. Domestic content providers *849 store popular domestic material on their caching servers to avoid the delay of successive searches for the same material and to decrease the demand on their Internet connection. America Online can cache the home page of the New York Times on its servers when a subscriber first requests it, so that subsequent subscribers who make the same request will receive the same home page, but from America Online's caching service rather than from the New York Times's server.[21] 120. Put simply, to follow the example in the prior paragraph, America Online has no control over the content that the New York Times posts to its Web site, and the New York Times has no control over America Online's distribution of that content from a caching server. Anonymity 121. Anonymity is important to Internet users who seek to access sensitive information, such as users of the Critical Path AIDS Project's Web site, the users, particularly gay youth, of Queer Resources Directory, and users of Stop Prisoner Rape (SPR). Many members of SPR's mailing list have asked to remain anonymous due to the stigma of prisoner rape. Plaintiffs' Choices Under the CDA 122. Many speakers who display arguably indecent content on the Internet must choose between silence and the risk of prosecution. The CDA's defenses — credit card verification, adult access codes, and adult personal identification numbers — are effectively unavailable for non-commercial, not-for-profit entities. 123. The plaintiffs in this action are businesses, libraries, non-commercial and not-for-profit organizations, and educational societies and consortia. Although some of the material that plaintiffs post online — such as information regarding protection from AIDS, birth control or prison rape — is sexually explicit and may be considered "indecent" or "patently offensive" in some communities, none of the plaintiffs is a commercial purveyor of what is commonly termed "pornography." III. CONCLUSIONS OF LAW Plaintiffs have established a reasonable probability of eventual success in the litigation by demonstrating that §§ 223(a)(1)(B) and 223(a)(2) of the CDA are unconstitutional on their face to the extent that they reach indecency. Sections 223(d)(1) and 223(d)(2) of the CDA are unconstitutional on their face. Accordingly, plaintiffs have shown irreparable injury, no party has any interest in the enforcement of an unconstitutional law, and therefore the public interest will be served by granting the preliminary injunction. Elrod v. Burns, 427 U.S. 347, 373-74, 96 S.Ct. 2673, 2689-90, 49 L.Ed.2d 547 (1976); Hohe v. Casey, 868 F.2d 69, 72 (3d Cir.), cert. denied, 493 U.S. 848, 110 S.Ct. 144, 107 L.Ed.2d 102 (1989); Acierno v. New Castle County, 40 F.3d 645, 653 (3d Cir.1994). The motions for preliminary injunction will therefore be granted. The views of the members of the Court in support of these conclusions follow. SLOVITER, Chief Circuit Judge: A. Statutory Provisions As noted in Part I, Introduction, the plaintiffs' motion for a preliminary injunction is confined to portions of two provisions of the Communications Decency Act of 1996, § 223(a) and § 223(d), which they contend violate their First Amendment free speech and Fifth Amendment due process rights. To facilitate reference, I set forth those provisions in full. Section 223(a), the "indecency" provision, subjects to criminal penalties of imprisonment of no more than two years or a fine or both anyone who: *850 1) in interstate or foreign communications ... (B) by means of a telecommunications device knowingly — (i) makes, creates, or solicits, and (ii) initiates the transmission of, any comment, request, suggestion, proposal, image, or other communication which is obscene or indecent, knowing that the recipient of the communication is under 18 years of age, regardless of whether the maker of such communication placed the call or initiated the communication; ... (2) knowingly permits any telecommunications facility under his control to be used for any activity prohibited by paragraph (1) with the intent that it be used for such activity. (emphasis added). The term "telecommunications device" is specifically defined not to include "the use of an interactive computer service," as that is covered by section 223(d)(1). Section 223(d), the "patently offensive" provision, subjects to criminal penalties anyone who: (1) in interstate or foreign communications knowingly — (A) uses an interactive computer service to send to a specific person or persons under 18 years of age, or (B) uses any interactive computer service to display in a manner available to a person under 18 years of age, any comment, request, suggestion, proposal, image or other communication that, in context, depicts or describes, in terms patently offensive as measured by contemporary community standards, sexual or excretory activities or organs, regardless of whether the use of such service placed the call or initiated the communication; or (2) knowingly permits any telecommunications facility under such person's control to be used for an activity prohibited by paragraph (1) with the intent that it be used for such activity. (emphasis added). Two aspects of these provisions stand out. First, we are dealing with criminal provisions, subjecting violators to substantial penalties. Second, the provisions on indecent and patently offensive communications are not parallel. The government uses the term "indecent" interchangeably with "patently offensive" and advises that it so construes the statute in light of the legislative history and the Supreme Court's analysis of the word "indecent" in FCC v. Pacifica Foundation, 438 U.S. 726, 98 S.Ct. 3026, 57 L.Ed.2d 1073 (1978). However, the CDA does not define "indecent." Notwithstanding Congress' familiarity with Pacifica, it enacted § 223(a), covering "indecent" communications, without any language confining "indecent" to descriptions or depictions of "sexual or excretory activities or organs," language it included in the reference to "patently offensive" in § 223(d)(1)(B). Nor does § 223(a) contain the phrase "in context," which the government believes is relevant. The failure to define "indecent" in § 223(a) is thus arguably a negative pregnant and subject to "the rule of construction that an express statutory requirement here, contrasted with statutory silence there, shows an intent to confine the requirement to the specified instance." Field v. Mans, ___ U.S. ___, ___, 116 S.Ct. 437, 442, 133 L.Ed.2d 351 (1995). See also Gozlon-Peretz v. United States, 498 U.S. 395, 404, 111 S.Ct. 840, 846-47, 112 L.Ed.2d 919 (1991) ("`[W]here Congress includes particular language in one section of a statute but omits it in another section of the same Act, it is generally presumed that Congress acts intentionally and purposely in the disparate inclusion or exclusion'") (quoting Russello v. United States, 464 U.S. 16, 23, 104 S.Ct. 296, 300, 78 L.Ed.2d 17 (1983)). Plaintiffs note the difference but do not press this as a basis for distinguishing between the two sections in their preliminary injunction arguments and therefore I will also use the words interchangeably for this purpose, leaving open the issue for consideration *851 at the final judgment stage if it becomes relevant. B. Preliminary Injunction Standard To obtain a preliminary injunction, plaintiffs must establish that they are likely to prevail on the merits and that they will suffer irreparable harm if injunctive relief is not granted. We also must consider whether the potential harm to the defendant from issuance of a temporary restraining order outweighs possible harm to the plaintiffs if such relief is denied, and whether the granting of injunctive relief is in the public interest. See Campbell Soup Co. v. ConAgra, Inc., 977 F.2d 86, 90-91 (3d Cir.1992); Bradley v. Pittsburgh Bd. of Educ., 910 F.2d 1172, 1175 (3d Cir.1990). In a case in which the injury alleged is a threat to First Amendment interests, the finding of irreparable injury is often tied to the likelihood of success on the merits. In Elrod v. Burns, 427 U.S. 347, 96 S.Ct. 2673, 49 L.Ed.2d 547 (1976), the Supreme Court emphasized that "the loss of First Amendment freedoms, for even minimal periods of time, unquestionably constitutes irreparable injury." Id. at 373, 96 S.Ct. at 2690 (citing New York Times Co. v. United States, 403 U.S. 713, 91 S.Ct. 2140, 29 L.Ed.2d 822 (1971)). Subjecting speakers to criminal penalties for speech that is constitutionally protected in itself raises the spectre of irreparable harm. Even if a court were unwilling to draw that conclusion from the language of the statute itself, plaintiffs have introduced ample evidence that the challenged provisions, if not enjoined, will have a chilling effect on their free expression. Thus, this is not a case in which we are dealing with a mere incidental inhibition on speech, see Hohe v. Casey, 868 F.2d 69, 73 (3d Cir.), cert. denied, 493 U.S. 848, 110 S.Ct. 144, 107 L.Ed.2d 102 (1989), but with a regulation that directly penalizes speech. Nor could there be any dispute about the public interest factor which must be taken into account before a court grants a preliminary injunction. No long string of citations is necessary to find that the public interest weighs in favor of having access to a free flow of constitutionally protected speech. See, e.g., Turner Broadcasting System, Inc. v. FCC, ___ U.S. ___, ___, 114 S.Ct. 2445, 2458, 129 L.Ed.2d 497 (1994); Virginia Bd. of Pharmacy v. Virginia Citizens Consumer Council, 425 U.S. 748, 763-65, 96 S.Ct. 1817, 1826-27, 48 L.Ed.2d 346 (1976). Thus, if plaintiffs have shown a likelihood of success on the merits, they will have shown the irreparable injury needed to entitle them to a preliminary injunction. C. Applicable Standard of Review The CDA is patently a government-imposed content-based restriction on speech, and the speech at issue, whether denominated "indecent" or "patently offensive," is entitled to constitutional protection. See Sable Communications of California, Inc. v. FCC, 492 U.S. 115, 126, 109 S.Ct. 2829, 2836-37, 106 L.Ed.2d 93 (1989). As such, the regulation is subject to strict scrutiny, and will only be upheld if it is justified by a compelling government interest and if it is narrowly tailored to effectuate that interest. Sable, 492 U.S. at 126, 109 S.Ct. at 2836-37; see also Turner Broadcasting, ___ U.S. at ___, 114 S.Ct. at 2459 (1994). "[T]he benefit gained [by a content-based restriction] must outweigh the loss of constitutionally protected rights." Elrod v. Burns, 427 U.S. at 363, 96 S.Ct. at 2685. The government's position on the applicable standard has been less than pellucid but, despite some references to a somewhat lesser burden employed in broadcasting cases, it now appears to have conceded that it has the burden of proof to show both a compelling interest and that the statute regulates least restrictively. Tr. of Preliminary Injunction Hearing at 121 (May 10, 1996). In any event, the evidence and our Findings of Fact based thereon show that Internet communication, while unique, is more akin to telephone communication, at issue in Sable, than to broadcasting, at issue in Pacifica, because, as with the telephone, an Internet user must act affirmatively and deliberately to retrieve *852 specific information online. Even if a broad search will, on occasion, retrieve unwanted materials, the user virtually always receives some warning of its content, significantly reducing the element of surprise or "assault" involved in broadcasting. Therefore, it is highly unlikely that a very young child will be randomly "surfing" the Web and come across "indecent" or "patently offensive" material. Judge Dalzell's separate opinion fully explores the reasons for the differential treatment of radio and television broadcasting for First Amendment purposes from that accorded other means of communication. It follows that to the extent the Court employed a less than strict scrutiny standard of review in Pacifica and other broadcasting cases, see, e.g., Red Lion Broadcasting Co. v. FCC, 395 U.S. 367, 89 S.Ct. 1794, 23 L.Ed.2d 371 (1969), there is no reason to employ a less than strict scrutiny standard of review in this case. D. The Nature of the Government's Interest The government asserts that shielding minors from access to indecent materials is the compelling interest supporting the CDA. It cites in support the statements of the Supreme Court that "[i]t is evident beyond the need for elaboration that a State's interest in `safeguarding the physical and psychological well-being of a minor' is `compelling,'" New York v. Ferber, 458 U.S. 747, 756-57, 102 S.Ct. 3348, 3354, 73 L.Ed.2d 1113 (1982) (quoting Globe Newspaper Co. v. Superior Court, 457 U.S. 596, 607, 102 S.Ct. 2613, 2620, 73 L.Ed.2d 248 (1982)), and "there is a compelling interest in protecting the physical and psychological well-being of minors. This interest extends to shielding minors from the influence of literature that is not obscene by adult standards." Sable, 492 U.S. at 126, 109 S.Ct. at 2836. It also cites the similar quotation appearing in Fabulous Assoc., Inc. v. Pennsylvania Public Utility Comm'n, 896 F.2d 780, 787 (3d Cir.1990). Those statements were made in cases where the potential harm to children from the material was evident. Ferber involved the constitutionality of a statute which prohibited persons from knowingly promoting sexual performances by children under 16 and distributing material depicting such performances. Sable and Fabulous involved the FCC's ban on "dial-a-porn" (dealing by definition with pornographic telephone messages). In contrast to the material at issue in those cases, at least some of the material subject to coverage under the "indecent" and "patently offensive" provisions of the CDA may contain valuable literary, artistic or educational information of value to older minors as well as adults. The Supreme Court has held that "minors are entitled to a significant measure of First Amendment protection, and only in relatively narrow and well-defined circumstances may government bar public dissemination of protected materials to them." Erznoznik v. City of Jacksonville, 422 U.S. 205, 212-213, 95 S.Ct. 2268, 2274, 45 L.Ed.2d 125 (1975) (citations omitted). In Erznoznik, the Court rejected an argument that an ordinance prohibiting the display of films containing nudity at drive-in movie theatres served a compelling interest in protecting minor passersby from the influence of such films. The Court held that the prohibition was unduly broad, and explained that "[s]peech that is neither obscene as to youths nor subject to some other legitimate proscription cannot be suppressed solely to protect the young from ideas or images that a legislative body thinks unsuitable for them." 422 U.S. at 213-14, 95 S.Ct. at 2275. As Justice Scalia noted in Sable, "[t]he more pornographic what is embraced within the ... category of `indecency,' the more reasonable it becomes to insist upon greater assurance of insulation from minors." Sable, 492 U.S. at 132, 109 S.Ct. at 2840 (Scalia, J., concurring). It follows that where non-pornographic, albeit sexually explicit, material also falls within the sweep of the statute, the interest will not be as compelling. In part, our consideration of the government's showing of a "compelling interest" trenches upon the vagueness issue, discussed in detail in Judge Buckwalter's opinion but equally pertinent to First Amendment analysis. Material routinely acceptable according to the standards of New York City, such as *853 the Broadway play Angels in America which concerns homosexuality and AIDS portrayed in graphic language, may be far less acceptable in smaller, less cosmopolitan communities of the United States. Yet the play garnered two Tony Awards and a Pulitzer prize for its author, and some uninhibited parents and teachers might deem it to be material to be read or assigned to eleventh and twelfth graders. If available on the Internet through some libraries, the text of the play would likely be accessed in that manner by at least some students, and it would also arguably fall within the scope of the CDA. There has been recent public interest in the female genital mutilation routinely practiced and officially condoned in some countries. News articles have been descriptive, and it is not stretching to assume that this is a subject that occupies news groups and chat rooms on the Internet. We have no assurance that these discussions, of obvious interest and relevance to older teenage girls, will not be viewed as patently offensive — even in context — in some communities. Other illustrations abound of non-obscene material likely to be available on the Internet but subject to the CDA's criminal provisions. Photographs appearing in National Geographic or a travel magazine of the sculptures in India of couples copulating in numerous positions, a written description of a brutal prison rape, or Francesco Clemente's painting "Labirinth," see Def.Exh. 125, all might be considered to "depict or describe, in terms patently offensive as measured by contemporary community standards, sexual or excretory activities or organs." 47 U.S.C. § 223(d)(1). But the government has made no showing that it has a compelling interest in preventing a seventeen-year-old minor from accessing such images. By contrast, plaintiffs presented testimony that material that could be considered indecent, such as that offered by Stop Prisoner Rape or Critical Path AIDS project, may be critically important for certain older minors. For example, there was testimony that one quarter of all new HIV infections in the United States is estimated to occur in young people between the ages of 13 and 20, an estimate the government made no effort to rebut. The witnesses believed that graphic material that their organizations post on the Internet could help save lives, but were concerned about the CDA's effect on their right to do so. The government counters that this court should defer to legislative conclusions about this matter. However, where First Amendment rights are at stake, "[d]eference to a legislative finding cannot limit judicial inquiry." Sable, 492 U.S. at 129, 109 S.Ct. at 2838 (quoting Landmark Communications, Inc. v. Virginia, 435 U.S. 829, 843, 98 S.Ct. 1535, 1544, 56 L.Ed.2d 1 (1978)). "[W]hatever deference is due legislative findings would not foreclose our independent judgment of the facts bearing on an issue of constitutional law." Id. Moreover, it appears that the legislative "findings" the government cites concern primarily testimony and statements by legislators about the prevalence of obscenity, child pornography, and sexual solicitation of children on the Internet. Similarly, at the hearings before us the government introduced exhibits of sexually explicit material through the testimony of Agent Howard Schmidt, which consisted primarily of the same type of hard-core pornographic materials (even if not technically obscene) which concerned Congress and which fill the shelves of "adult" book and magazine stores. Plaintiffs emphasize that they do not challenge the Act's restrictions on speech not protected by the First Amendment, such as obscenity, child pornography or harassment of children. Their suit is based on their assertion, fully supported by their evidence and our findings, that the CDA reaches much farther. I am far less confident than the government that its quotations from earlier cases in the Supreme Court signify that it has shown a compelling interest in regulating the vast range of online material covered or potentially covered by the CDA. Nonetheless, I acknowledge that there is certainly a compelling government interest to shield a substantial number of minors from some of the online material that motivated Congress to enact the CDA, and do not rest my decision on the inadequacy of the government's showing in this regard. *854 E. The Reach of the Statute Whatever the strength of the interest the government has demonstrated in preventing minors from accessing "indecent" and "patently offensive" material online, if the means it has chosen sweeps more broadly than necessary and thereby chills the expression of adults, it has overstepped onto rights protected by the First Amendment. Sable, 492 U.S. at 131, 109 S.Ct. at 2839. The plaintiffs argue that the CDA violates the First Amendment because it effectively bans a substantial category of protected speech from most parts of the Internet. The government responds that the Act does not on its face or in effect ban indecent material that is constitutionally protected for adults. Thus one of the factual issues before us was the likely effect of the CDA on the free availability of constitutionally protected material. A wealth of persuasive evidence, referred to in detail in the Findings of Fact, proved that it is either technologically impossible or economically prohibitive for many of the plaintiffs to comply with the CDA without seriously impeding their posting of online material which adults have a constitutional right to access. With the possible exception of an e-mail to a known recipient, most content providers cannot determine the identity and age of every user accessing their material. Considering separately content providers that fall roughly into two categories, we have found that no technology exists which allows those posting on the category of newsgroups, mail exploders or chat rooms to screen for age. Speakers using those forms of communication cannot control who receives the communication, and in most instances are not aware of the identity of the recipients. If it is not feasible for speakers who communicate via these forms of communication to conduct age screening, they would have to reduce the level of communication to that which is appropriate for children in order to be protected under the statute. This would effect a complete ban even for adults of some expression, albeit "indecent," to which they are constitutionally entitled, and thus would be unconstitutional under the holding in Sable, 492 U.S. at 131, 109 S.Ct. at 2839. Even as to content providers in the other broad category, such as the World Wide Web, where efforts at age verification are technically feasible through the use of Common Gateway Interface (cgi) scripts (which enable creation of a document that can process information provided by a Web visitor), the Findings of Fact show that as a practical matter, non-commercial organizations and even many commercial organizations using the Web would find it prohibitively expensive and burdensome to engage in the methods of age verification proposed by the government, and that even if they could attempt to age verify, there is little assurance that they could successfully filter out minors. The government attempts to circumvent this problem by seeking to limit the scope of the statute to those content providers who are commercial pornographers, and urges that we do likewise in our obligation to save a congressional enactment from facial unconstitutionality wherever possible. But in light of its plain language and its legislative history, the CDA cannot reasonably be read as limited to commercial pornographers. A court may not impose a narrowing construction on a statute unless it is "readily susceptible" to such a construction. Virginia v. American Booksellers Ass'n, 484 U.S. 383, 397, 108 S.Ct. 636, 645, 98 L.Ed.2d 782 (1988). The court may not "rewrite a ... law to conform it to constitutional requirements." Id. Although we may prefer an interpretation of a statute that will preserve the constitutionality of the statutory scheme, United States v. Clark, 445 U.S. 23, 27, 100 S.Ct. 895, 899-900, 63 L.Ed.2d 171 (1980), we do not have license to rewrite a statute to "create distinctions where none were intended." American Tobacco Co. v. Patterson, 456 U.S. 63, 72 n. 6, 102 S.Ct. 1534, 1539 n. 6, 71 L.Ed.2d 748 (1982); see also Consumer Party v. Davis, 778 F.2d 140, 147 (3d Cir.1985). The Court has often stated that "absent a clearly expressed legislative intention to the contrary, [statutory] language must ordinarily be regarded as conclusive." Escondido Mut. Water Co. v. La Jolla Band of Mission Indians, 466 U.S. 765, 772, 104 S.Ct. 2105, 2110, (1984) *855 (quoting North Dakota v. United States, 460 U.S. 300, 312, 103 S.Ct. 1095, 1102, 75 L.Ed.2d 77 (1983)). It is clear from the face of the CDA and from its legislative history that Congress did not intend to limit its application to commercial purveyors of pornography. Congress unquestionably knew how to limit the statute to such entities if that was its intent, and in fact it did so in provisions relating to dial-a-porn services. See 47 U.S.C. § 223(b)(2)(A) (criminalizing making any indecent telephone communication "for commercial purposes"). It placed no similar limitation in the CDA. Moreover, the Conference Report makes clear that Congress did not intend to limit the application of the statute to content providers such as those which make available the commercial material contained in the government's exhibits, and confirms that Congress intended "content regulation of both commercial and non-commercial providers." Conf.Rep. at 191. See also, 141 Cong. Rec. S8089 (daily ed. June 9, 1995) (Statement of Senator Exon). The scope of the CDA is not confined to material that has a prurient interest or appeal, one of the hallmarks of obscenity, because Congress sought to reach farther. Nor did Congress include language that would define "patently offensive" or "indecent" to exclude material of serious value. It follows that to narrow the statute in the manner the government urges would be an impermissible exercise of our limited judicial function, which is to review the statute as written for its compliance with constitutional mandates. I conclude inexorably from the foregoing that the CDA reaches speech subject to the full protection of the First Amendment, at least for adults.[1] In questions of the witnesses and in colloquy with the government attorneys, it became evident that even if "indecent" is read as parallel to "patently offensive," the terms would cover a broad range of material from contemporary films, plays and books showing or describing sexual activities (e.g., Leaving Las Vegas) to controversial contemporary art and photographs showing sexual organs in positions that the government conceded would be patently offensive in some communities (e.g., a Robert Mapplethorpe photograph depicting a man with an erect penis). We have also found that there is no effective way for many Internet content providers to limit the effective reach of the CDA to adults because there is no realistic way for many providers to ascertain the age of those accessing their materials. As a consequence, we have found that "[m]any speakers who display arguably indecent content on the Internet must choose between silence and the risk of prosecution." Such a choice, forced by sections 223(a) and (d) of the CDA, strikes at the heart of speech of adults as well as minors. F. Whether CDA is Narrowly Tailored In the face of such a patent intrusion on a substantial category of protected speech for adults, there is some irony in considering whether the statute is narrowly tailored or, as sometimes put, whether Congress has used the least restrictive means to achieve a compelling government interest. See Sable, 492 U.S. at 126, 109 S.Ct. at 2836-37. It would appear that the extent of the abridgement of the protected speech of adults that it has been shown the CDA would effect is too intrusive to be outweighed by the government's asserted interest, whatever its strength, in protecting minors from access to indecent material. Nonetheless, the formulation of the inquiry requires that we consider the government's assertion that the statute is narrowly drafted, and I proceed to do so. In this case, the government relies on the statutory defenses for its argument of narrow tailoring. There are a number of reasons why I am not persuaded that the statutory defenses can save the CDA from a conclusion of facial unconstitutionality. First, it is difficult to characterize a criminal statute that hovers over each content *856 provider, like the proverbial sword of Damocles, as a narrow tailoring. Criminal prosecution, which carries with it the risk of public obloquy as well as the expense of court preparation and attorneys' fees, could itself cause incalculable harm. No provider, whether an individual, non-profit corporation, or even large publicly held corporation, is likely to willingly subject itself to prosecution for a miscalculation of the prevalent community standards or for an error in judgment as to what is indecent. A successful defense to a criminal prosecution would be small solace indeed. Credit card and adult verification services are explicitly referred to as defenses in § 223(e)(5)(B) of the CDA. As is set forth fully in the detailed Findings of Fact, these defenses are not technologically or economically feasible for most providers. The government then falls back on the affirmative defense to prosecution provided in § 223(e)(5)(A) for a person who "has taken, in good faith, reasonable, effective, and appropriate actions under the circumstances to restrict or prevent access by minors to a communication specified in such subsections ... including any method which is feasible under available technology." The government emphasizes that "effective" does not require 100% restriction, and that this defense is "open-ended" and requires only reasonable efforts based on current technology. But, as the evidence made clear, there is no such technology at this time. The government proffered as one option that would constitute a valid affirmative defense under § 223(e)(5)(A) a "tagging" scheme conceived by Dr. Olsen in response to this lawsuit whereby a string of characters would be imbedded in all arguably indecent or patently offensive material. Our Findings of Fact set forth fully the reasons why we found that the feasibility and effectiveness of tagging in the manner proposed by the government has not been established. All parties agree that tagging alone does nothing to prevent children from accessing potentially indecent material, because it depends upon the cooperation of third parties to block the material on which the tags are embedded. Yet these third parties, over which the content providers have no control, are not subject to the CDA. I do not believe a statute is narrowly tailored when it subjects to potential criminal penalties those who must depend upon third parties for the effective operation of a statutory defense. Most important, the government's "tagging" proposal is purely hypothetical and offers no currently operative defense to Internet content providers. At this time, there is no agreed-upon "tag" in existence, and no web browsers or user-based screening systems are now configured to block tagged material. Nor, significantly, has the government stipulated that a content provider could avoid liability simply by tagging its material. Third, even if the technology catches up, as the government confidently predicts, there will still be a not insignificant burden attached to effecting a tagging defense, a burden one should not have to bear in order to transmit information protected under the constitution. For example, to effect tagging content providers must review all of their material currently published online, as well as all new material they post in the future, to determine if it could be considered "patently offensive" in any community nationwide. This would be burdensome for all providers, but for the many not-for-profit entities which currently post thousands of Web pages, this burden would be one impossible to sustain. Finally, the viability of the defenses is intricately tied to the clarity of the CDA's scope. Because, like Judge Buckwalter, and for many of the reasons he gives, I believe that "indecent" and "patently offensive" are inherently vague, particularly in light of the government's inability to identify the relevant community by whose standards the material will be judged, I am not persuaded by the government that the statutory defenses in § 223(e) provide effective protection from the unconstitutional reach of the statute. Minors would not be left without any protection from exposure to patently unsuitable material on the Internet should the challenged provisions of the CDA be preliminarily enjoined. Vigorous enforcement of current obscenity and child pornography laws should suffice to address the problem the *857 government identified in court and which concerned Congress. When the CDA was under consideration by Congress, the Justice Department itself communicated its view that it was not necessary because it was prosecuting online obscenity, child pornography and child solicitation under existing laws, and would continue to do so.[2] It follows that the CDA is not narrowly tailored, and the government's attempt to defend it on that ground must fail. G. Preliminary Injunction When Congress decided that material unsuitable for minors was available on the Internet, it could have chosen to assist and support the development of technology that would enable parents, schools, and libraries to screen such material from their end. It did not do so, and thus did not follow the example available in the print media where non-obscene but indecent and patently offensive books and magazines abound. Those responsible for minors undertake the primary obligation to prevent their exposure to such material. Instead, in the CDA Congress chose to place on the speakers the obligation of screening the material that would possibly offend some communities. Whether Congress' decision was a wise one is not at issue here. It was unquestionably a decision that placed the CDA in serious conflict with our most cherished protection — the right to choose the material to which we would have access. The government makes what I view as an extraordinary argument in its brief. It argues that blocking technology needed for effective parental control is not yet widespread but that it "will imminently be in place." Government's Post-hearing Memorandum at 66. It then states that if we uphold the CDA, it "will likely unleash the `creative genius' of the Internet community to find a myriad of possible solutions." I can imagine few arguments less likely to persuade a court to uphold a criminal statute than one that depends on future technology to cabin the reach of the statute within constitutional bounds. The government makes yet another argument that troubles me. It suggests that the concerns expressed by the plaintiffs and the questions posed by the court reflect an exaggerated supposition of how it would apply the law, and that we should, in effect, trust the Department of Justice to limit the CDA's application in a reasonable fashion that would avoid prosecution for placing on the Internet works of serious literary or artistic merit. That would require a broad trust indeed from a generation of judges not far removed from the attacks on James Joyce's Ulysses as obscene. See United States v. One Book Entitled Ulysses, 72 F.2d 705 (2d Cir.1934); see also Book Named "John Cleland's Memoirs of a Woman of Pleasure" v. Attorney General of Mass., 383 U.S. 413, 86 S.Ct. 975, 16 L.Ed.2d 1 (1966). Even if we were to place confidence in the reasonable judgment of the representatives of the Department of Justice who appeared before us, the Department is not a monolithic structure, and individual U.S. Attorneys in the various districts of the country have or appear to exercise some independence, as reflected by the Department's tolerance of duplicative challenges in this very case. But the bottom line is that the First Amendment should not be interpreted to require us to entrust the protection it affords to the judgment of prosecutors. Prosecutors come and go. Even federal judges are limited to life tenure. The First Amendment remains to give protection to future generations as well. I have no hesitancy in concluding that it is likely that plaintiffs will prevail on the merits of their argument that the challenged provisions of the CDA are facially invalid under both the First and Fifth Amendments. BUCKWALTER, District Judge: A. I believe that plaintiffs should prevail in this litigation. *858 My conclusion differs in part from my original memorandum filed in conjunction with the request for a Temporary Restraining Order. As part of the expedited review (per § 561 of the CDA), and in contrast to the limited documentation available to me at the time of the T.R.O. hearing, we have now gathered voluminous evidence presented by way of sworn declarations, live testimony, demonstrative evidence, and other exhibits.[1] Based upon our findings of fact derived from careful consideration of that evidence, I now conclude that this statute is overbroad and does not meet the strict scrutiny standard in Sable Communications of California, Inc. v. FCC, 492 U.S. 115, 109 S.Ct. 2829, 106 L.Ed.2d 93 (1989). More specifically, I now find that current technology is inadequate to provide a safe harbor to most speakers on the Internet. On this issue, I concur in Chief Judge Sloviter's opinion. In addition, I continue to believe that the word "indecent" is unconstitutionally vague, and I find that the terms "in context" and "patently offensive" also are so vague as to violate the First and Fifth Amendments. It is, of course, correct that statutes that attempt to regulate the content of speech presumptively violate the First Amendment. See e.g. R.A.V. v. City of Saint Paul, 505 U.S. 377, 381, 112 S.Ct. 2538, 2541-42, 120 L.Ed.2d 305 (1992). That is as it should be. The prohibition against Government's regulation of speech cannot be set forth any clearer than in the language of the First Amendment itself. I suspect, however, that it may come as a surprise to many people who have not followed the evolution of constitutional law that, by implication at least, the First Amendment provides that Congress shall make no law abridging the freedom of speech unless that law advances a compelling governmental interest.[2] Our cherished freedom of speech does not cover as broad a spectrum as one may have gleaned from a simple reading of the Amendment.[3] First Amendment jurisprudence has developed into a study of intertwining standards *859 and applications, perhaps as a necessary response to our ever-evolving culture and modes of communication.[4] Essentially, my concerns are these: above all, I believe that the challenged provisions are so vague as to violate both the First and Fifth Amendments, and in particular that Congress' reliance on Pacifica is misplaced. In addition, I believe that technology as it currently exists — and it bears repeating that we are at the preliminary injunction phase only — cannot provide a safe harbor for most speakers on the Internet, thus rendering the statute unconstitutional under a strict scrutiny analysis. I refer to Chief Judge Sloviter's more detailed analysis of this issue. While I believe that our findings of fact clearly show that as yet no defense is technologically feasible, and while I also have found the present Act to be unconstitutionally vague, I believe it is too early in the development of this new medium to conclude that other attempts to regulate protected speech within the medium will fail a challenge. That is to say that I specifically do not find that any and all statutory regulation of protected speech on the Internet could not survive constitutional scrutiny. Prior cases have established that government regulation to prevent access by minors to speech protected for adults, even in media considered the vanguard of our First Amendment protections, like print, may withstand a constitutional challenge. See e.g. Ginsberg v. New York, 390 U.S. 629, 636, 88 S.Ct. 1274, 1278, 20 L.Ed.2d 195 (1968) ("`Material which is protected for distribution to adults is not necessarily constitutionally protected from restriction upon its dissemination to children.'") (quoting Bookcase Inc. v. Broderick, 18 N.Y.2d 71, 75, 271 N.Y.S.2d 947, 952, 218 N.E.2d 668, 671 (1966), appeal dismissed, sub nom Bookcase, Inc. v. Leary, 385 U.S. 12, 87 S.Ct. 81, 17 L.Ed.2d 11 (1966)). It should be noted that those restrictions that have been found constitutional were sensitive to the unique qualities of the medium at which the restriction was aimed. B. This statute, all parties agree, deals with protected speech, the preservation of which has been extolled by court after court in case after case as the keystone, the bulwark, the very heart of our democracy. What is more, the CDA attempts to regulate protected speech through criminal sanctions, thus implicating not only the First but also the Fifth Amendment of our Constitution. The concept of due process is every bit as important to our form of government as is free speech. If free speech is at the heart of our democracy, then surely due process is the very lifeblood of our body politic; for without it, democracy could not survive. Distilled to its essence, due process is, of course, nothing more and nothing less than fair play. If our citizens cannot rely on fair play in their relationship with their government, the stature of our government as a shining example of democracy would be greatly diminished. I believe that an exacting or strict scrutiny of a statute which attempts to criminalize protected speech requires a word by word look at that statute to be sure that it clearly sets *860 forth as precisely as possible what constitutes a violation of the statute. The reason for such an examination is obvious. If the Government is going to intrude upon the sacred ground of the First Amendment and tell its citizens that their exercise of protected speech could land them in jail, the law imposing such a penalty must clearly define the prohibited speech not only for the potential offender but also for the potential enforcer. Kolender, 461 U.S. 352, 103 S.Ct. 1855; Hoffman Estates, 455 U.S. 489, 102 S.Ct. 1186; Smith v. Goguen, 415 U.S. 566, 94 S.Ct. 1242, 39 L.Ed.2d 605 (1974); Grayned v. City of Rockford, 408 U.S. 104, 92 S.Ct. 2294, 33 L.Ed.2d 222 (1972); Winters v. New York, 333 U.S. 507, 68 S.Ct. 665, 92 L.Ed. 840 (1948). In dealing with issues of vagueness and due process over the years, the Supreme Court has enunciated many notable principles. One concern with vague laws relates to the issue of notice. The older cases have used phrases such as "a statute which either forbids or requires the doing of an act in terms so vague that men of common intelligence must necessarily guess at its meaning and differ as to its application violates the first essential of due process of law," Connally v. General Const. Co., 269 U.S. 385, 391, 46 S.Ct. 126, 127, 70 L.Ed. 322 (1926) (citations omitted); "it will not do to hold an average man to the peril of indictment for the unwise exercise of his ... knowledge involving so many factors of varying effect that neither the person to decide in advance nor the jury to try him after the fact can safely and certainly judge the result," Cline v. Frink Dairy Co., 274 U.S. 445, 465, 47 S.Ct. 681, 687, 71 L.Ed. 1146 (1927); and "[n]o one may be required at peril of life, liberty or property to speculate as to the meaning of penal statutes. All are entitled to be informed as to what the State commands or forbids," Lanzetta v. New Jersey, 306 U.S. 451, 453, 59 S.Ct. 618, 619, 83 L.Ed. 888 (1939). Second, the Court has said that laws must provide precise standards for those who apply them to prevent arbitrary and discriminatory enforcement, because "[w]hen the legislature fails to provide such minimal guidelines, a criminal statute may permit `a standardless sweep [that] allows policemen, prosecutors, and juries to pursue their personal predilections.'" Kolender, 461 U.S. at 358, 103 S.Ct. at 1858 (citing Goguen, 415 U.S. at 575, 94 S.Ct. at 1248). Finally, when First Amendment concerns have been implicated, a stricter standard of examination for vagueness is imperative. "[T]his court has intimated that stricter standards of permissible statutory vagueness may be applied to a statute having a potentially inhibiting effect on speech; a man may the less be required to act at his peril here, because the free dissemination of ideas may be the loser." Smith v. California, 361 U.S. 147, 151, 80 S.Ct. 215, 217-18, 4 L.Ed.2d 205 (1959). See also Hoffman Estates, 455 U.S. at 499, 102 S.Ct. at 1193-94 ("[P]erhaps the most important factor affecting the clarity that the Constitution demands of a law is whether it threatens to inhibit the exercise of constitutionally protected rights. If, for example, the law interferes with the right of free speech ..., a more stringent vagueness test should apply.") (citations omitted). A case which sums up vagueness as it relates to due process as succinctly as any other is Grayned v. City of Rockford. Here the court said: It is a basic principle of due process that an enactment is void for vagueness if its prohibitions are not clearly defined. Vague laws offend several important values. First, because we assume that man is free to steer between lawful and unlawful conduct, we insist that laws give the person of ordinary intelligence a reasonable opportunity to know what is prohibited, so that he may act accordingly. Vague laws may trap the innocent by not providing fair warning. Second, if arbitrary and discriminatory enforcement is to be prevented, laws must provide explicit standards for those who apply them. A vague law impermissibly delegates basic policy matters to policemen, judges, and juries for resolution on an ad hoc and subjective basis, with the attendant dangers of arbitrary and discriminatory application. Third, but related, where a vague statute "abut[s] upon sensitive areas of basic First Amendment freedoms," it "operates to inhibit the exercise of [those] freedoms." *861 Uncertain meanings inevitably lead citizens to "`steer far wider of the unlawful zone' ... than if the boundaries of the forbidden areas were clearly marked." Grayned, 408 U.S. at 108-109, 92 S.Ct. at 2298-99 (citations omitted). At the same time, in considering the vagueness issue, as the Government correctly points out, "[C]ondemned to the use of words, we can never expect mathematical certainty from our language." Grayned, 408 U.S. at 110, 92 S.Ct. at 2300. See also Hoffman Estates, 455 U.S. 489, 102 S.Ct. 1186; Hynes v. Mayor & Council of Oradell, 425 U.S. 610, 96 S.Ct. 1755, 48 L.Ed.2d 243 (1976); Goguen, 415 U.S. 566, 94 S.Ct. 1242. In addition, it will always be true that the fertile legal "imagination can conjure hypothetical cases in which the meaning of [disputed] terms will be in nice question." American Communications Assn. v. Douds, 339 U.S. 382, 412, 70 S.Ct. 674, 691, 94 L.Ed. 925 (1950). Thus, as I considered the vagueness issue I have kept in mind the observation of Justice Holmes, denying a challenge to vagueness in Nash v. United States, 229 U.S. 373, 33 S.Ct. 780, 57 L.Ed. 1232 (1913). To Justice Holmes, "the law is full of instances where a man's fate depends on his estimating rightly, that is, as the jury subsequently estimates it, some matter of degree. If his judgment is wrong, not only may he incur a fine or a short imprisonment ..., he may incur the penalty of death." Nash, 229 U.S. at 377, 33 S.Ct. at 781. Even more recently the court has stated that "due process does not require `impossible standards' of clarity." Kolender, 461 U.S. at 361, 103 S.Ct. at 1860 (quoting United States v. Petrillo, 332 U.S. 1, 7-8, 67 S.Ct. 1538, 1542, 91 L.Ed. 1877 (1947)). It is with all of these principles in mind, as they interplay with the unique features of the Internet, that I have reached my conclusion. The fundamental constitutional principle that concerns me is one of simple fairness, and that is absent in the CDA. The Government initially argues that "indecent" in this statute is the same as "patently offensive." I do not agree that a facial reading of this statute supports that conclusion. The CDA does not define the term "indecent," and the FCC has not promulgated regulations defining indecency in the medium of cyberspace. If "indecent" and "patently offensive" were intended to have the same meaning, surely section (a) could have mirrored section (d)'s language.[5] Indecent in this statute is an undefined word which, standing alone, offers no guidelines whatsoever as to its parameters. Interestingly, another federal crime gives a definition to indecent entirely different from that proposed in the present case.[6] While not applicable here, this example shows the indeterminate nature of the word and the need for clear definition, particularly in a statute which infringes upon protected speech. Although the use of different terms in § 223(a) and (d) suggests that Congress intended that the terms have different meanings, the Conference Report indicates an intention to treat § 223(a) as containing the same language as § 223(d). Conf.Rep. at 188-89 ("The conferees intend that the term indecency ... has the same meaning as established in FCC v. Pacifica Foundation, 438 U.S. 726, 98 S.Ct. 3026, 57 L.Ed.2d 1073 (1978) and [Sable] and "New section 223(d)(1) codifies the definition of indecency from [Pacifica].... The precise contours of the definition of indecency have varied.... The essence of the phrase — patently offensive descriptions of sexual and excretory activities — has remained constant, however."). Therefore, I will acknowledge that the term indecency is "reasonably susceptible" to the definition offered in the Conference Report *862 and might therefore adopt such a narrowing construction if it would thereby preserve the constitutionality of the statute. See Virginia v. American Booksellers Association, 484 U.S. 383, 397, 108 S.Ct. 636, 645, 98 L.Ed.2d 782 (1988); Erznoznik v. City of Jacksonville, 422 U.S. 205, 95 S.Ct. 2268, 45 L.Ed.2d 125 (1975). Accepting these terms as synonymous, however, provides no greater help to a speaker attempting to comply with the CDA. Contrary to the Government's suggestion, Pacifica does not answer the question of whether the terms pass constitutional muster in the present case. In Pacifica, the Court did not consider a vagueness challenge to the term "indecent," but considered only whether the Government had the authority to regulate the particular broadcast at issue — George Carlin's Monologue entitled "Filthy Words." In finding in the affirmative, the Court emphasized that its narrow holding applied only to broadcasting, which is "uniquely accessible to children, even those too young to read." 438 U.S. at 749, 98 S.Ct. at 3040. Thus, while the Court sanctioned the FCC's time restrictions on a radio program that repeatedly used vulgar language, the Supreme Court did not hold that use of the term "indecent" in a statute applied to other media, particularly a criminal statute, would be on safe constitutional ground. The Supreme Court more recently had occasion to consider a statute banning "indecent" material in the dial-a-porn context in Sable, 492 U.S. 115, and found that a complete ban on such programming violated the First Amendment because it was not narrowly tailored to serve the purpose of limiting children's access to commercial pornographic telephone messages. Once again, the Court did not consider a challenge to the term "indecent" on vagueness grounds, and indeed has never directly ruled on this issue. Several other courts have, however, upheld the use of the term in statutes regulating different media. For example, in Information Providers' Coalition v. FCC, 928 F.2d 866 (9th Cir.1991), the Ninth Circuit Court of Appeals considered whether the term "indecent" in the 1989 Amendment to the Communications Act regulating access to telephone dial-a-porn services and the FCC's implementing regulations was void for vagueness. The FCC had defined "indecent" as "the description or depiction of sexual or excretory activities or organs in a patently offensive manner as measured by contemporary community standards for the telephone medium." 928 F.2d at 874. Although recognizing that the Supreme Court had never explicitly ruled on a vagueness challenge to the term, the court read Sable and Pacifica as having implicitly accepted the use of this definition of "indecent." The court further stated that the FCC's definition of "indecent" was no less imprecise than was the definition of "obscenity" as announced in Miller v. California, 413 U.S. 15, 25, 93 S.Ct. 2607, 2615-16, 37 L.Ed.2d 419 (1973), and thus concluded that "indecent" as pertained to dial-a-porn regulations must survive a vagueness challenge. See also Dial Information Services v. Thornburgh, 938 F.2d 1535 (2d Cir.1991), (upholding the use of "indecent" in the same amendment to the Communications Act and FCC regulations.); Action for Children's Television v. FCC, 932 F.2d 1504, 1508 (D.C.Cir.1991) (rejecting vagueness challenge to "indecency" provision in broadcast television regulations).[7] Notably, however, in these telephone and cable television cases the FCC had defined indecent as patently offensive by reference to contemporary community standards for that particular medium. See, e.g., Pacifica, 438 U.S. at 732, 98 S.Ct. at 3031-32 (defining "indecent" by reference to terms "patently offensive as measured by contemporary community standards for the broadcast medium"); Dial Information Services, 938 F.2d at 1540 (defining indecency by reference to contemporary community standards for the telephone medium). Here, the provision is not so limited. In fact, there is no effort to conform the restricting terms to the medium *863 of cyberspace, as is required under Pacifica and its progeny. The Government attempts to save the "indecency" and "patently offensive" provisions by claiming that the provisions would only be used to prosecute pornographic works which, when considered "in context" as the statute requires, would be considered "indecent" or "patently offensive" in any community. The Government thus contends that plaintiffs' fears of prosecution for publishing material about matters of health, art, literature or civil liberties are exaggerated and unjustified. The Government's argument raises two issues: first is the question of which "community standards" apply in cyberspace, under the CDA; and second is the proposition that citizens should simply rely upon prosecutors to apply the statute constitutionally. Are the contemporary community standards to be applied those of the vast world of cyberspace, in accordance with the Act's apparent intent to establish a uniform national standard of content regulation? The Government offered no evidence of any such national standard or nationwide consensus as to what would be considered "patently offensive". On the contrary, in supporting the use of the term "indecent" in the CDA, the Government suggests that, in part, this term was chosen as a means of insulating children from material not restricted under current obscenity laws. This additional term is necessary, the Government states, because "whether something rises to the level of obscene is a legal conclusion that, by definition, may vary from community to community." Govt.Brief at 31. In support of its argument, the Government points to the Second Circuit's decision in United States v. Various Articles of Obscene Merchandise, Schedule No. 2102, 709 F.2d 132, 134, 137 (2d Cir.1983), which upheld the district court's conclusion that "detailed portrayals of genitalia, sexual intercourse, fellatio, and masturbation" including the film "Deep Throat" and other pornographic films and magazines, are not obscene in light of the community standards prevailing in New York City." What this argument indicates is that as interpretations of obscenity ebb and flow throughout various communities, restrictions on indecent material are meant to cover a greater or lesser quantity of material not reached by each community's obscenity standard. It follows that to do this, what constitutes indecency must be as open to fluctuation as the obscenity standard and cannot be rigidly constructed as a single national standard if it is meant to function as the Government has suggested. As Justice Scalia stated, "[t]he more narrow the understanding of what is `obscene,' ... the more pornographic what is embraced within the residual category of `indecency.'" Sable, 492 U.S. at 132, 109 S.Ct. at 2840 (Scalia, J. concurring). This understanding is consistent with the case law, in which the Supreme Court has explained that the relevant community is the one where the information is accessed and where the local jury sits. See Sable, 492 U.S. at 125, 109 S.Ct. at 2836; Hamling v. United States, 418 U.S. 87, 94 S.Ct. 2887, 41 L.Ed.2d 590 (1974); Miller, 413 U.S. at 30, 93 S.Ct. at 2618 ("[O]ur nation is simply too big and too diverse for this Court to reasonably expect that such standards [of what is patently offensive] could be articulated for all 50 states in a single formulation."). However, the Conference Report with regard to the CDA states that the Act is "intended to establish a uniform national standard of content regulation." Conf.Rep. at 191. This conflict inevitably leaves the reader of the CDA unable to discern the relevant "community standard," and will undoubtedly cause Internet users to "steer far wider of the unlawful zone" than if the community standard to be applied were clearly defined. The chilling effect on the Internet users' exercise of free speech is obvious. See Baggett v. Bullitt, 377 U.S. 360, 372, 84 S.Ct. 1316, 1322-23, 12 L.Ed.2d 377 (1964). This is precisely the vice of vagueness. In addition, the Government's argument that the challenged provisions will be applied only to "pornographic" materials, and will not be applied to works with serious value is without support in the CDA itself. Unlike in the obscenity context, indecency has not been defined to exclude works of serious literary, artistic, political or scientific value, and therefore the Government's suggestion that it will not be used to prosecute publishers of such material is without foundation in the law itself. The Government's claim that the *864 work must be considered patently offensive "in context" does nothing to clarify the provision, for it fails to explain which context is relevant. "Context" may refer to, among other things, the nature of the communication as a whole, the time of day it was conveyed, the medium used, the identity of the speaker, or whether or not it is accompanied by appropriate warnings. See e.g., Pacifica, 438 U.S. at 741 n. 16, n. 17, 98 S.Ct. at 3036 n. 16, n. 17 (referring to "the context of the whole book," and to the unique interpretation of the First Amendment "in the broadcasting context"). The thrust of the Government's argument is that the court should trust prosecutors to prosecute only a small segment of those speakers subject to the CDA's restrictions, and whose works would reasonably be considered "patently offensive" in every community. Such unfettered discretion to prosecutors, however, is precisely what due process does not allow. "It will not do to say that a prosecutor's sense of fairness and the Constitution would prevent a successful ... prosecution for some of the activities seemingly embraced within the sweeping statutory definitions. The hazard of being prosecuted ... nevertheless remains.... Well-intentioned prosecutors and judicial safeguards do not neutralize the vice of a vague law." Baggett, 377 U.S. at 373-74, 84 S.Ct. at 1323; see also Keyishian v. Board of Regents, 385 U.S. 589, 599, 87 S.Ct. 675, 681, 17 L.Ed.2d 629 (1967) ("[i]t is no answer" to a vague law for the Government "to say that the statute would not be applied in such a case."). And we cannot overlook the vagaries of politics. What may be, figuratively speaking, one administration's pen may be another's sword. The evidence and arguments presented by the Government illustrate the possibility of arbitrary enforcement of the Act. For example, one Government expert opined that any of the so-called "seven dirty words" used in the Carlin monologue would be subject to the CDA and therefore should be "tagged," as should paintings of nudes displayed on a museum's web site. The Government has suggested in its brief, however, that the Act should not be so applied. See Govt.Brief at 37 (suggesting that "seven dirty words" if used "in the context of serious discussions" would not be subject to the Act). Even Government counsel was unable to define "indecency" with specificity. The Justice Department attorney could not respond to numerous questions from the court regarding whether, for example, artistic photographs of a nude man with an erect penis, depictions of Indian statues portraying different methods of copulation, or the transcript of a scene from a contemporary play about AIDS could be considered "indecent" under the Act. Plaintiffs also argue that section 223(e)(5)(A) of the CDA, offering a defense for speakers who take "good faith, reasonable, effective and appropriate actions under the circumstances to restrict or prevent access by minors to a communication" covered by the Act, is unconstitutionally vague because it fails to specify what would constitute an effective defense to prosecution. The plain language of the safe harbor provision indicates an effort to ensure that the statute limits speech in the least restrictive means possible by taking into account emerging technologies in allowing for any and all "reasonable, effective and appropriate" approaches to restricting minors' access to the proscribed material. But, the statute itself does not contain any description of what, other than credit card verification and adult identification codes — which we have established remain unavailable to most content providers — will protect a speaker from prosecution. Significantly, although the FCC is authorized to specify measures that might satisfy this defense, the FCC's views will not be definitive but will only "be admitted as evidence of good faith efforts" that the defendant has met the requirements of the defense. 47 U.S.C. § 223(e)(6). Thus, individuals attempting to comply with the statute presently have no clear indication of what actions will ensure that they will be insulated from criminal sanctions under the CDA. C. The consequences of posting indecent content are severe.[8] I recognize that people *865 must make judgments each and every day, many times in the most intimate of relationships and that an error in judgment can have serious consequences. It is also true that where those consequences involve penal sanctions, a criminal law or statute has more often than not carefully defined the proscribed conduct. It is not so much that the accused needs these precise definitions, as it has been said he or she rarely reads the law in advance. What is more important is that the enforcer of statutes must be guided by clear and precise standards. In statutes that break into relatively new areas, such as this one, the need for definition of terms is greater, because even commonly understood terms may have different connotations or parameters in this new context.[9] Words cannot define conduct with mathematical certainty, and lawyers, like the bright and intelligent ones now before us, will most certainly continue to devise ways by which to challenge them. This rationale, however, can neither support a finding of constitutionality nor relieve legislators from the very difficult task of carefully drafting legislation tailored to its goal and sensitive to the unique characteristics of, in this instance, cyberspace. DALZELL, District Judge: A. Introduction I begin with first principles: As a general rule, the Constitution forbids the Government from silencing speakers because of their particular message. R.A.V. v. City of Saint Paul, 505 U.S. 377, 381-82, 112 S.Ct. 2538, 2542, 120 L.Ed.2d 305 (1992). "Our political system and cultural life rest upon this ideal." Turner Broadcasting Sys. v. FCC, ___ U.S. ___, ___, 114 S.Ct. 2445, 2458, 129 L.Ed.2d 497 (1994). This general rule is subject only to "narrow and well-understood exceptions". Id. A law that, as here, regulates speech on the basis of its content, is "presumptively invalid". R.A.V., 505 U.S. at 381-82, 112 S.Ct. at 2542. Two of the exceptions to this general rule deal with obscenity (commonly understood to include so-called hardcore pornography), Miller v. California, 413 U.S. 15, 93 S.Ct. 2607, 37 L.Ed.2d 419 (1973), and child pornography, New York v. Ferber, 458 U.S. 747, 102 S.Ct. 3348, 73 L.Ed.2d 1113 (1982). The Government can and does punish with criminal sanction people who engage in these forms of speech. 18 U.S.C. §§ 1464-65 (criminalizing obscene material); id. §§ 2251-52 (criminalizing child pornography). Indeed, the Government could punish these forms of speech on the Internet even without the CDA. E.g., United States v. Thomas, 74 F.3d 701, 704-05 (6th Cir.1995) (affirming obscenity convictions for the operation of a computer bulletin board). The Government could also completely ban obscenity and child pornography from the Internet. No Internet speaker has a right to engage in these forms of speech, and no Internet listener has a right to receive them. Child pornography and obscenity have "no constitutional protection, and the government may ban [them] outright in certain media, or in all." Alliance for Community Media v. FCC, 56 F.3d 105, 112 (D.C.Cir.1995) (citing R.A.V., 505 U.S. at 386-88, 112 S.Ct. at 2545), cert. granted sub nom. Denver Area Educ. Telecommunications Consortium v. FCC, ___ U.S. ___, 116 S.Ct. 471, 133 L.Ed.2d 401 (1996); see also Ferber, 458 U.S. at 756, 102 S.Ct. at 3354. As R.A.V. notes, "`the freedom of speech' referred to by the First Amendment does not include a freedom to disregard these traditional limitations." R.A.V., 505 U.S. at 383, 112 S.Ct. at 2543. The cases before us, however, are not about obscenity or child pornography. Plaintiffs in these actions claim no right to engage in these forms of speech in the future, nor does the Government intimate that plaintiffs have engaged in these forms of speech in the past. *866 This case is about "indecency", as that word has come to be understood since the Supreme Court's decisions in FCC v. Pacifica Foundation, 438 U.S. 726, 98 S.Ct. 3026, 57 L.Ed.2d 1073 (1978), and Sable Communications v. FCC, 492 U.S. 115, 109 S.Ct. 2829, 106 L.Ed.2d 93 (1989). The legal difficulties in these actions arise because of the special place that indecency occupies in the Supreme Court's First Amendment jurisprudence. While adults have a First Amendment right to engage in indecent speech, Sable, 492 U.S. at 126, 109 S.Ct. at 2836-37; see also Pacifica, 438 U.S. at 747-48, 98 S.Ct. at 3039-40, the Supreme Court has also held that the Government may, consistent with the Constitution, regulate indecency on radio and television, and in the "dial-a-porn" context, as long as the regulation does not operate as a complete ban. Thus, any regulation of indecency in these areas must give adults access to indecent speech, which is their right. The Government may only regulate indecent speech for a compelling reason, and in the least restrictive manner. Sable, 492 U.S. at 126, 109 S.Ct. at 2836-37. "It is not enough to show that the Government's ends are compelling; the means must be carefully tailored to achieve those ends." Id. This "most exacting scrutiny", Turner, ___ U.S. at ___, 114 S.Ct. at 2459, requires the Government to "demonstrate that the recited harms are real, not merely conjectural, and that the regulation will in fact alleviate these harms in a direct and material way." United States v. National Treasury Employees Union, ___ U.S. ___, ___, 115 S.Ct. 1003, 1017, 130 L.Ed.2d 964 (1995) (citing Turner, ___ U.S. at ___, 114 S.Ct. at 2450). Thus, although our analysis here must balance ends and means, the scales tip at the outset in plaintiffs' favor. This is so because "[r]egulations which permit the Government to discriminate on the basis of the content of the message cannot be tolerated under the First Amendment." Simon & Schuster, Inc. v. Members of the New York State Crime Victims Board, 502 U.S. 105, 116, 112 S.Ct. 501, 508, 116 L.Ed.2d 476 (1991) (citation omitted). The Government argues that this case is really about pornography on the Internet. Apart from hardcore and child pornography, however, the word pornography does not have a fixed legal meaning. When I use the word pornography in my analysis below, I refer to for-profit purveyors of sexually explicit, "adult" material similar to that at issue in Sable. See 492 U.S. at 118, 109 S.Ct. at 2832. Pornography is normally either obscene or indecent, as Justice Scalia noted in his concurrence in Sable. Id. at 132, 109 S.Ct. at 2839-40. I would avoid using such an imprecise (and overbroad) word, but I feel compelled to do so here, since Congress undoubtedly had such material in mind when it passed the CDA. See S.Rep. No. 230, 104th Cong., 2d Sess. 187-91 (1996), reprinted in 1996 U.S.C.C.A.N. 10, 200-05 [hereinafter Senate Report]. Moreover, the Government has defended the Act before this court by arguing that the Act could be constitutionally applied to such material. Plaintiffs have, as noted, moved for a preliminary injunction. The standards for such relief are well-settled. Plaintiffs seeking preliminary injunctive relief must show (1) "[a] reasonable probability of eventual success in the litigation" and (2) "irreparabl[e] injur[y] pendente lite" if relief is not granted. Acierno v. New Castle County, 40 F.3d 645, 653 (3d Cir.1994). We must also consider, if appropriate, (3) "the possibility of harm to other interested persons from the grant or denial of the injunction", and (4) "the public interest". Id.; see also Opticians Ass'n v. Independent Opticians, 920 F.2d 187, 192 (3d Cir.1990). In a First Amendment challenge, a plaintiff who meets the first prong of the test for a preliminary injunction will almost certainly meet the second, since irreparable injury normally arises out of the deprivation of speech rights, "for even minimal periods of time". Elrod v. Burns, 427 U.S. 347, 373-74, 96 S.Ct. 2673, 2689-90, 49 L.Ed.2d 547 (1976); Hohe v. Casey, 868 F.2d 69, 72 (3d Cir.), cert. denied, 493 U.S. 848, 110 S.Ct. 144, 107 L.Ed.2d 102 (1989). Of course, neither the Government nor the public generally can claim an interest in the enforcement of an unconstitutional law. Thus, I focus my legal analysis today primarily on whether plaintiffs have shown a likelihood of success on their claim that the CDA is unconstitutional. *867 The issues of irreparable harm to plaintiffs, harm to third parties, and the public interest all flow from that determination.[1] Plaintiffs' challenge here is a "facial" one. A law that regulates the content of speech is facially invalid if it does not pass the "most exacting scrutiny" that we have described above, or if it would "penalize a substantial amount of speech that is constitutionally protected". Forsyth County v. Nationalist Movement, 505 U.S. 123, 129-30, 112 S.Ct. 2395, 2401, 120 L.Ed.2d 101 (1992). This is so even if some applications would be "constitutionally unobjectionable". Id.; see also National Treasury Employees Union v. United States, 990 F.2d 1271, 1279-80 (D.C.Cir.1993) (Randolph, J., concurring), aff'd, ___ U.S. ___, 115 S.Ct. 1003, 130 L.Ed.2d 964 (1995). Sometimes facial challenges require an inquiry into a party's "standing" (i.e., whether a party may properly challenge a law as facially invalid). See, e.g., Ferber, 458 U.S. at 767-79, 102 S.Ct. at 3359-67. At other times a facial challenge requires only an inquiry into the law's reach. See, e.g., R.A.V., 505 U.S. at 390-91, 112 S.Ct. at 2547.[2] As I describe it in part C below, I have no question that plaintiffs here have standing to challenge the validity of the CDA, and, indeed, the Government has not seriously challenged plaintiffs' standing to do so. See, e.g., Virginia v. American Booksellers Assoc., 484 U.S. 383, 392, 108 S.Ct. 636, 642-43, 98 L.Ed.2d 782 (1988). Thus, the focus is squarely on the merits of plaintiffs' facial challenge.[3] I divide my legal analysis below into three parts. In Part B, I examine the traditional definition of indecency and relate it to the provisions of the CDA at issue in this action. From this analysis I conclude that § 223(a) and § 223(d) of the CDA reach the same kind of speech. My analysis also convinces me that plaintiffs are unlikely to succeed in their claim that the CDA is unconstitutionally vague. In Part C, I address the Government's argument that plaintiffs are not the CDA's target, nor would they likely face prosecution under the Act. Here, I conclude that plaintiffs could reasonably fear prosecution under the Act, even if some of their fears border on the farfetched. In Part D, I consider the legal implications of the special attributes of Internet communication, as well as the effect that the CDA would have on these attributes. In this Part I conclude that the disruptive effect of the CDA on Internet communication, as well as the CDA's broad reach into protected speech, not only render the Act unconstitutional but also would render unconstitutional any regulation of protected speech on this new medium. *868 B. Defining Indecency Although no court of appeals has ever to my knowledge upheld a vagueness challenge to the meaning of "indecency", several recent cases have grappled with the elusive meaning of that word in the context of cable television and "dial-a-porn". Alliance for Community Media v. FCC, 56 F.3d 105 (D.C.Cir.1995), cert. granted, ___ U.S. ___, 116 S.Ct. 471, 133 L.Ed.2d 401 (1996); Dial Information Serv. Corp. v. Thornburgh, 938 F.2d 1535 (2d Cir.1991), cert. denied, 502 U.S. 1072, 112 S.Ct. 966, 117 L.Ed.2d 132 (1992); Information Providers' Coalition for Defense of the First Amendment v. FCC, 928 F.2d 866 (9th Cir.1991). In Alliance for Community Media, 56 F.3d at 123-25, for example, the District of Columbia Court of Appeals addressed prohibitions on indecent programming on certain cable television channels. That court noted that the FCC has codified the meaning of "`indecent' programming" on cable television as "programming that describes or depicts sexual or excretory activities or organs in a patently offensive manner as measured by contemporary community standards for the cable medium." Id. at 112 (citing what is now 47 C.F.R. § 76.701(g)). The FCC took a similar approach to the definition of "indecency" in the "dial-a-porn" medium.[4] In Dial Information Services, 938 F.2d at 1540, the Second Circuit quoted the FCC's definition of indecent telephone communications in that context: [I]n the dial-a-porn context, we believe it is appropriate to define indecency as the description or depiction of sexual or excretory activities or organs in a patently offensive manner as measured by contemporary community standards for the telephone medium. Id. at 1540 (citation omitted); see also Information Providers' Coalition for Defense of the First Amendment v. FCC, 928 F.2d 866, 876 (9th Cir.1991). These three cases recognize that the FCC did not define "indecency" for cable and dial-a-porn in a vacuum. Rather, it borrowed from the Supreme Court's decision in FCC v. Pacifica Foundation, 438 U.S. 726, 98 S.Ct. 3026, 57 L.Ed.2d 1073 (1978). In that case (which I describe in greater detail below), the Supreme Court established the rough outline from which the FCC fashioned its three-part definition. For the first two parts of the test, the Supreme Court emphasized the "importance of context" in examining arguably indecent material. Id. at 747 n. 25, 98 S.Ct. at 3039 n. 25. "Context" in the Pacifica opinion includes consideration of both the particular medium from which the material originates and the particular community that receives the material. Id. at 746, 98 S.Ct. at 3038-39 (assuming that the Carlin monologue "would be protected in other contexts"); id. at 748-51, 98 S.Ct. at 3039-41 (discussing the attributes of broadcast); see also Information Providers' Coalition, 928 F.2d at 876 (discussing the "content/context dichotomy"). Second, the opinion limits its discussion to "patently offensive sexual and excretory language", Pacifica, 438 U.S. at 747, 98 S.Ct. at 3039, and this type of content has remained the FCC's touchstone. See, e.g., Alliance for Community Media, 56 F.3d at 112.[5] We have quoted from the CDA extensively above and I will only briefly rehearse that discussion here. Section 223(a) of the CDA criminalizes "indecent" speech on the Internet. This is the "indecency" provision. Section 223(d) of the CDA addresses speech that, "in context, depicts or describes, in terms patently offensive as measured by contemporary community standards, sexual or excretory activities or organs". This is the "patently offensive" provision. The foregoing discussion leads me to conclude that these two provisions describe the same kind of speech. That is, the use of "indecent" in § 223(a) is shorthand for the longer description in § 223(d). Conversely, the longer description in § 223(d) is itself the definition of "indecent" speech. I believe Congress could *869 have used the word "indecent" in both § 223(a) and § 223(d), or it could have used the "patently offensive" description of § 223(d) in § 223(a), without a change in the meaning of the Act. I do not believe that Congress intended that this distinction alone would change the reach of either section of the CDA.[6] The CDA's legislative history confirms this conclusion. There, the conference committee explicitly noted that § 223(d) "codifies the definition of indecency from FCC v. Pacifica Foundation, 438 U.S. 726 [98 S.Ct. 3026, 57 L.Ed.2d 1073] (1978).... The conferees intend that the term indecency (and the rendition of the definition of that term in new section 502) has the same meaning as established in FCC v. Pacifica Foundation, 438 U.S. 726 [98 S.Ct. 3026, 57 L.Ed.2d 1073] (1978) and Sable Communications of California, Inc. v. FCC, 492 U.S. 115 [109 S.Ct. 2829, 106 L.Ed.2d 93] (1989)." Senate Report at 188, reprinted in 1996 U.S.C.C.A.N. at 201-02. The legislative history makes clear that Congress did not intend to create a distinction in meaning when it used the generic term "indecency" in § 223(a) and the definition of that term in § 223(d).[7] There is no doubt that the CDA requires the most stringent review for vagueness, since it is a criminal statute that "threatens to inhibit the exercise of constitutionally protected rights". Colautti v. Franklin, 439 U.S. 379, 391, 99 S.Ct. 675, 683, 58 L.Ed.2d 596 (1979); see also Kolender v. Lawson, 461 U.S. 352, 358 n. 8, 103 S.Ct. 1855, 1859 n. 8, 75 L.Ed.2d 903 (1983); Grayned, 408 U.S. at 108-09, 92 S.Ct. at 2298-99. My analysis here nevertheless leads ineluctably to the conclusion that the definition of indecency is not unconstitutionally vague. The Miller definition of obscenity has survived such challenges, see, e.g., Hamling v. United States, 418 U.S. 87, 118-19, 94 S.Ct. 2887, 2908-09, 41 L.Ed.2d 590 (1974); Fort Wayne Books, Inc. v. Indiana, 489 U.S. 46, 57, 109 S.Ct. 916, 924, 103 L.Ed.2d 34 (1989), and the definition of indecency contains a subset of the elements of obscenity. If the Miller test "give[s] the person of ordinary intelligence a reasonable opportunity to know what is prohibited, so that he may act accordingly", Grayned v. City of Rockford, 408 U.S. 104, 108, 92 S.Ct. 2294, 2298-99, 33 L.Ed.2d 222 (1972), the omission of parts of that test does not warrant a contrary conclusion. See Dial Information Services, 938 F.2d at 1541-42. Similarly, since the definition of indecency arose from the Supreme Court itself in Pacifica, we may fairly imply that the Court did not believe its own interpretation to invite "arbitrary and discriminatory enforcement" or "abut upon sensitive areas of basic First Amendment freedoms". Grayned, 408 U.S. at 108-109, 92 S.Ct. at 2299 (citations and alterations omitted). Sable, while not explicitly addressing the issue of vagueness, reinforces this conclusion. See Information Providers' Coalition, 928 F.2d at 875-76 (citing Sable, 492 U.S. at 126-27, 109 S.Ct. at 2836-37). It follows, then, that plaintiffs' vagueness challenge is not likely to succeed on the merits and does not support preliminary injunctive relief. The possible interpretations of the defenses in § 223(e) do not alter this conclusion. As a matter of statutory construction, § 223(e)(5)(B) could not be clearer. This section, which imports the dial-a-porn defenses into the CDA, creates "specific and objective" methods to avoid liability. See Roberts v. United States Jaycees, 468 U.S. 609, 629, 104 S.Ct. 3244, 3255-56, 82 L.Ed.2d 462 (1984). Section 223(e)(5)(A) is more suspect, since it arguably "fail[s] to describe with sufficient particularity what a suspect must do in order to satisfy" it. Kolender 461 U.S. *870 at 361, 103 S.Ct. at 1860.[8] Yet even though the defenses in both sections are unavailable to many Internet users, their unavailability does not render the liability provisions vague. Rather, their unavailability just transforms § 223(a) and § 223(d) into a total ban, in violation of Butler v. Michigan, 352 U.S. 380, 383, 77 S.Ct. 524, 525-26, 1 L.Ed.2d 412 (1957), and Sable, 492 U.S. at 127, 131, 109 S.Ct. at 2837, 2839. I am sensitive to plaintiffs' arguments that the statute, as written, does not create safe harbors through which all Internet users may shield themselves from liability. Transcript of May 10, 1996, at 37-38. Here again, however, the absence of safe harbors relates to the (over) breadth of a statute, and not its vagueness. See Sable, 492 U.S. at 127, 131, 109 S.Ct. at 2837, 2839. C. Plaintiffs' Likelihood of Prosecution Under the Act The Government has consistently argued that the speech of many of the plaintiffs here is almost certainly not indecent. They point, for example, to the educational and political content of plaintiffs' speech, and they also suggest that the occasional curse word in a card catalogue will probably not result in prosecution. See Senate Report at 189, reprinted in 1996 U.S.C.C.A.N. at 203 ("Material with serious redeeming value is quite obviously intended to edify and educate, not to offend."). In this section I address that argument. I agree with the Government that some of plaintiffs' claims are somewhat exaggerated, but hyperbolic claims do not in themselves weigh in the Government's favor. In recent First Amendment challenges, the Supreme Court has itself paid close attention to extreme applications of content-based laws. In Simon & Schuster, Inc. v. Members of the New York State Crime Victims Board, 502 U.S. 105, 112 S.Ct. 501, 116 L.Ed.2d 476 (1991), the Court addressed the constitutionality of a law that required criminals to turn over to their victims any income derived from books, movies, or other commercial exploitation of their crimes. Id. at 109, 112 S.Ct. at 504-05. In its opinion, the Court evaluated the argument of an amicus curiae that the law's reach could include books such as The Autobiography of Malcolm X, Civil Disobedience, and Confessions of Saint Augustine, and authors such as Emma Goldman, Martin Luther King, Jr., Sir Walter Raleigh, Jesse Jackson, and Bertrand Russell. Id. at 121-22, 112 S.Ct. at 511. The Court credited the argument even while recognizing that it was laced with "hyperbole": The argument that [the] statute ... would prevent publication of all of these works is hyperbole—some would have been written without compensation—but the ... law clearly reaches a wide range of literature that does not enable a criminal to profit from his crime while a victim remains uncompensated. Id. at 122, 112 S.Ct. at 511. If a content-based law "can produce such an outcome", id. at 123, 112 S.Ct. at 512 (emphasis added), then Simon & Schuster allows us to consider those outcomes in our analysis. Even more recently, in United States v. National Treasury Employees Union, ___ U.S. ___, 115 S.Ct. 1003, 130 L.Ed.2d 964 (1995), the Court addressed the constitutionality of a law that banned federal employees from accepting honoraria for publications unrelated to their work. Id. at ___, 115 S.Ct. at 1008. The Court noted that the law would reach "literary giants like Nathaniel Hawthorne and Herman Melville, ... Walt Whitman, ... and Bret Harte". Id. at ___, 115 S.Ct. at 1012. This concern resurfaced later in the opinion, see id. at ___, 115 S.Ct. at 1015 ("[W]e cannot ignore the risk that [the ban] might deprive us of the work of a future Melville or Hawthorne."), even though a footnote immediately renders this concern at least hyperbolic: These authors' familiar masterworks would survive the honoraria ban as currently administered. *871 Besides exempting all books, the [regulations implementing the ban] protect fiction and poetry from the ban's coverage, although the statute's language is not so clear. But some great artists deal in fact as well as fiction, and some deal in both. Id. n. 16 (citations omitted). Here, even though it is perhaps unlikely that the Carnegie Library will ever stand in the dock for putting its card catalogue online, or that the Government will hale the ACLU into court for its online quiz of the seven dirty words, we cannot ignore that the Act could reach these activities. The definition of indecency, like the definition of obscenity, is not a rigid formula. Rather, it confers a large degree of autonomy to individual communities to set the bounds for decency for themselves. Cf. Sable, 492 U.S. at 125-26, 109 S.Ct. at 2836-37. This is as it should be, since this flexibility recognizes that ours is a country with diverse cultural and historical roots. See, e.g., Hamling, 418 U.S. at 104-05, 94 S.Ct. at 2901 ("A juror is entitled to draw on his own knowledge of the views of the average person in the community or vicinage from which he comes for making the required determination, just as he is entitled to draw on his knowledge of the propensities of a `reasonable' person in other areas of the law."). Putting aside hyperbolic application, I also have little doubt that some communities could well consider plaintiffs' speech indecent, and these plaintiffs could—perhaps should—have a legitimate fear of prosecution. In Action for Children's Television v. FCC, 58 F.3d 654 (D.C.Cir.1995), the District of Columbia Court of Appeals summarized three broadcasts that the FCC found indecent in the late 1980s: The offending morning broadcast ... contained "explicit references to masturbation, ejaculation, breast size, penis size, sexual intercourse, nudity, urination, oral-genital contact, erections, sodomy, bestiality, menstruation and testicles." The remaining two were similarly objectionable. Id. at 657 (citing In re Infinity Broadcasting Corp., 3 FCC R. 930, 932 (1987)). In Infinity Broadcasting, one of the broadcasts that the FCC found indecent was an excerpt of a play about AIDS, finding that the excerpts "contained the concentrated and repeated use of vulgar and shocking language to portray graphic and lewd depictions of excretion, anal intercourse, ejaculation, masturbation, and oral-genital sex". 3 FCC R. at 934.[9] To the FCC, even broadcasts with "public value ... addressing the serious problems posed by AIDS" can be indecent if "that material is presented in a manner that is patently offensive". Id. (emphasis in original).[10] Yet, this is precisely the kind of speech that occurs, for example, on Critical Path AIDS Project's Web site, which includes safer sex instructions written in street language for easy comprehension. The Web site also describes the risk of HIV transmission for particular sexual practices. The FCC's implication in In the Matter of King Broadcasting Co., 5 FCC R. 2971 (1990), that a "candid discussion[] of sexual topics" on television was decent in part because it was "not presented in a pandering, titillating or vulgar manner" would be unavailing to Critical Path, other plaintiffs, and some amici. These organizations want to pander and titillate on their Web sites, at least to a degree, to attract a teen audience and deliver their message in an engaging and coherent way.[11] *872 In In re letter to Merrell Hansen, 6 FCC R. 3689 (1990), the FCC found indecent a morning discussion between two announcers regarding Jim Bakker's alleged rape of Jessica Hahn. Id. Here, too, the FCC recognized that the broadcast had public value. Id. (noting that the broadcast concerned "an incident that was at the time `in the news'"). Yet, under the FCC's interpretation of Pacifica, "the merit of a work is `simply one of the many variables' that make up a work's context". Id. (citation omitted). One of the plaintiffs here, Stop Prisoner Rape, Inc., has as its core purpose the issue of prison rape. The organization creates chat rooms in which members can discuss their experiences. Some amici have also organized Web sites dedicated to survivors of rape, incest, and other sexual abuse. These Web sites provide fora for the discussion and contemplation of shared experiences. The operators of these sites, and their participants, could legitimately fear prosecution under the CDA. With respect to vulgarity, the Government is in a similarly weak position. In Pacifica, the Supreme Court held that multiple repetition of expletives could be indecent. Pacifica, 438 U.S. at 750, 98 S.Ct. at 3040-41. Although the FCC did not follow this rationale with respect to a broadcast of "a bona fide news story" on National Public Radio, Letter to Mr. Peter Branton, 6 FCC R. 610 (1991), aff'd on other grounds sub nom. Branton v. FCC, 993 F.2d 906, 908 (D.C.Cir. 1993), the ACLU, a plaintiff here, could take little comfort from that administrative decision. It would need to discern, for example, whether a chat room that it organized to discuss the meaning of the word fuck was more like the Carlin monologue or more like a National Public Radio broadcast.[12] The Government's expert would have found expletives indecent in a community consisting only of himself,[13] and his views undoubtedly —and reasonably—reflect the view of many people. In sum, I am less confident than the Government that societal mores have changed so drastically since Pacifica that an online equivalent of the Carlin monologue, or the Carlin monologue itself online, would pass muster under the CDA. Under existing precedent, plaintiffs' fear of prosecution under the Act is legitimate, even though they are not the pornographers Congress had in mind when it passed the CDA.[14]Cf. City of Houston v. Hill, 482 U.S. 451, 459, 107 S.Ct. 2502, 2508, 96 L.Ed.2d 398 (1987). My discussion of the effect and reach of the CDA, therefore, applies both to plaintiffs' hyperbolic concerns and to their very real ones. D. A Medium-Specific Analysis The Internet is a new medium of mass communication.[15] As such, the Supreme Court's First Amendment jurisprudence compels us to consider the special qualities of this new medium in determining whether the CDA is a constitutional exercise of governmental power. Relying on these special qualities, which we have described at length in our Findings of fact above, I conclude that the CDA is unconstitutional and that the First Amendment denies Congress the power to regulate protected speech on the Internet. This analysis and conclusions are consistent with Congress's intent to avoid tortuous and piecemeal review of the CDA by authorizing expedited, direct review in the Supreme Court "as a matter of right" of interlocutory, and not merely final, orders upholding facial *873 challenges to the Act. See § 561(b) of the Telecommunications Act of 1996.[16] 1. The Differential Treatment of Mass Communication Media Nearly fifty years ago, Justice Jackson recognized that "[t]he moving picture screen, the radio, the newspaper, the handbill, the sound truck and the street corner orator have differing natures, values, abuses and dangers. Each ... is a law unto itself". Kovacs v. Cooper, 336 U.S. 77, 97, 69 S.Ct. 448, 459, 93 L.Ed. 513 (1949) (Jackson, J., concurring). The Supreme Court has expressed this sentiment time and again since that date, and differential treatment of the mass media has become established First Amendment doctrine. See, e.g., Turner Broadcasting Sys., Inc. v. FCC, ___ U.S. ___, ___, 114 S.Ct. 2445, 2456, 129 L.Ed.2d 497 (1994) ("It is true that our cases have permitted more intrusive regulation of broadcast speakers than of speakers in other media."); Pacifica, 438 U.S. at 748, 98 S.Ct. at 3039 ("We have long recognized that each medium of expression presents special First Amendment problems."); City of Los Angeles v. Preferred Communications, Inc., 476 U.S. 488, 496, 106 S.Ct. 2034, 2039, 90 L.Ed.2d 480 (1986) ("Different communications media are treated differently for First Amendment purposes.") (Blackmun, J., concurring); Metromedia, Inc. v. City of San Diego, 453 U.S. 490, 500-01, 101 S.Ct. 2882, 2889, 69 L.Ed.2d 800 (1981) (plurality opinion) ("This Court has often faced the problem of applying the broad principles of the First Amendment to unique forums of expression."). Thus, the Supreme Court has established different rules for print, Miami Herald Publishing Co. v. Tornillo, 418 U.S. 241, 94 S.Ct. 2831, 41 L.Ed.2d 730 (1974), broadcast radio and television, see, e.g., Red Lion Broadcasting Co. v. FCC, 395 U.S. 367, 89 S.Ct. 1794, 23 L.Ed.2d 371 (1969), cable television, Turner, ___ U.S. at ___ - ___, 114 S.Ct. at 2456-57, and even billboards, Metromedia, 453 U.S. at 501, 101 S.Ct. at 2889, and drive-in movie theaters, Erznoznik v. City of Jacksonville, 422 U.S. 205, 95 S.Ct. 2268, 45 L.Ed.2d 125 (1975). This medium-specific approach to mass communication examines the underlying technology of the communication to find the proper fit between First Amendment values and competing interests. In print media, for example, the proper fit generally forbids governmental regulation of content, however minimal. Tornillo, 418 U.S. at 258, 94 S.Ct. at 2839-40. In other media (billboards, for example), the proper fit may allow for some regulation of both content and of the underlying technology (such as it is) of the communication. Metromedia, 453 U.S. at 502, 101 S.Ct. at 2889-90. Radio and television broadcasting present the most expansive approach to medium-specific regulation of mass communication. As a result of the scarcity of band widths on the electromagnetic spectrum, the Government holds broad authority both to parcel out the frequencies and to prohibit others from speaking on the same frequency: As a general matter, there are more would-be broadcasters than frequencies available in the electromagnetic spectrum. And if two broadcasters were to attempt to transmit over the same frequency in the same locale, they would interfere with one another's signals, so that neither could be heard at all. The scarcity of broadcast frequencies thus required the establishment of some regulatory mechanism to divide the electromagnetic spectrum and assign specific frequencies to particular broadcasters. Turner, ___ U.S. at ___, 114 S.Ct. at 2456 (citing FCC v. League of Women Voters, 468 U.S. 364, 104 S.Ct. 3106, 82 L.Ed.2d 278 (1984)). *874 This scarcity also allows the Government to regulate content even after it assigns a license: In addition, the inherent physical limitation on the number of speakers who may use the broadcast medium has been thought to require some adjustment in traditional First Amendment analysis to permit the Government to place limited content restraints, and impose certain affirmative obligations, on broadcast licensees. Id. at ___, 114 S.Ct. at 2457 (citing Red Lion, 395 U.S. at 390-95, 89 S.Ct. at 1806-09; National Broadcasting Co. v. United States, 319 U.S. 190, 63 S.Ct. 997, 87 L.Ed. 1344 (1943)). The broadcasting cases firmly establish that the Government may force a licensee to offer content to the public that the licensee would otherwise not offer, thereby assuring that radio and television audiences have a diversity of content. In broadcasting, "[i]t is the right of the public to receive suitable access to social, political, esthetic, moral, and other ideas and experiences which is crucial". Red Lion, 395 U.S. at 390, 89 S.Ct. at 1807; see also CBS, Inc. v. FCC, 453 U.S. 367, 395, 101 S.Ct. 2813, 2829, 69 L.Ed.2d 706 (1981) ("A licensed broadcaster is `granted the free and exclusive use of a limited and valuable part of the public domain; when he accepts that franchise it is burdened by enforceable public obligations.'") (citation omitted); Columbia Broadcasting Sys., Inc. v. Democratic Nat'l Comm., 412 U.S. 94, 110-11, 93 S.Ct. 2080, 2090-91, 36 L.Ed.2d 772 (1973). These content restrictions include punishing licensees who broadcast inappropriate but protected speech at an impermissible time. Pacifica, 438 U.S. at 750-51, 98 S.Ct. at 3040-41. In this case, the Government relies on the Pacifica decision in arguing that the CDA is a constitutional exercise of governmental power. Since the CDA regulates indecent speech, and since Pacifica authorizes governmental regulation of indecent speech (so the Government's argument goes), it must follow that the CDA is a valid exercise of governmental power. That argument, however, ignores Pacifica's roots as a decision addressing the proper fit between broadcasting and the First Amendment. The argument also assumes that what is good for broadcasting is good for the Internet. 2. The Scope of the Pacifica Decision In FCC v. Pacifica Foundation, 438 U.S. 726, 98 S.Ct. 3026, 57 L.Ed.2d 1073 (1978), the Supreme Court first decided whether the Government had the power to regulate indecent speech. Id. at 729, 98 S.Ct. at 3030. In Pacifica, a radio listener complained about the broadcast of George Carlin's "Filthy Words" monologue at 2:00 p.m. on a Tuesday afternoon. Id. at 729-30, 98 S.Ct. at 3030. The Carlin monologue was replete with "the words you couldn't say on the public ... airwaves ..., ever", and the listener had tuned in while driving with his young son in New York. Id. The FCC issued a declaratory order, holding that it could have subjected the Pacifica Foundation (owner of the radio station) to an administrative sanction. Id. at 730, 98 S.Ct. at 3030. In its order the FCC also described the standards that it would use in the future to regulate indecency in the broadcast medium. Id. at 731, 98 S.Ct. at 3030-31. The Supreme Court upheld the FCC's decision and confirmed the power of that agency to regulate indecent speech. Id. at 750-51, 98 S.Ct. at 3040-41. The rationale of Pacifica rested on three overlapping considerations. First, using as its example the Carlin monologue before it, the Court weighed the value of indecent speech and concluded that such speech "lie[s] at the periphery of First Amendment concerns." Id. at 743, 98 S.Ct. at 3037. Although the Court recognized that the FCC had threatened to punish Pacifica based on the content of the Carlin monologue, id. at 742, 98 S.Ct. at 3036-37, it found that the punishment would have been permissible because four-letter words "offend for the same reasons that obscenity offends." Id. at 746, 98 S.Ct. at 3039 (footnote omitted). The Court then described the place of four-letter words "in the hierarchy of first amendment values": Such utterances are no essential part of any exposition of ideas, and are of such slight social value as a step to truth that *875 any benefit that may be derived from them is clearly outweighed by the social interest in order and morality. Id. at 746, 98 S.Ct. at 3039 (citing Chaplinsky v. New Hampshire, 315 U.S. 568, 572, 62 S.Ct. 766, 769, 86 L.Ed. 1031 (1942)). Second, the Court recognized that "broadcasting ... has received the most limited First Amendment protection." Id. at 748, 98 S.Ct. at 3040. The Government may regulate broadcast consistent with the Constitution, even though the same regulation would run afoul of the First Amendment in the print medium. Id. (comparing Red Lion Broadcasting Co. v. FCC, 395 U.S. 367, 89 S.Ct. 1794, 23 L.Ed.2d 371 (1969) with Miami Herald Publishing Co. v. Tornillo, 418 U.S. 241, 94 S.Ct. 2831, 41 L.Ed.2d 730 (1974)). This is so because broadcasting has a "uniquely pervasive presence in the lives of all Americans" and "is uniquely accessible to children, even those too young to read." Pacifica, 438 U.S. at 748-49, 98 S.Ct. at 3040. Third, the Court found the FCC's sanction —an administrative sanction—to be an appropriate means of regulating indecent speech. At the outset of the opinion, the Court disclaimed that its holding was a "consider[ation of] any question relating to the possible application of § 1464 as a criminal statute." Id. at 739 n. 13, 98 S.Ct. at 3035. Later in the opinion, the Court "emphasize[d] the narrowness of [its] holding", and explicitly recognized that it had not held that the Carlin monologue would justify a criminal prosecution. Id. at 750, 98 S.Ct. at 3040-41. Instead, the Court allowed the FCC to regulate indecent speech with administrative penalties under a "nuisance" rationale—"like a pig in the parlor instead of the barnyard." Id. at 750, 98 S.Ct. at 3041 (citation omitted). Time has not been kind to the Pacifica decision. Later cases have eroded its reach, and the Supreme Court has repeatedly instructed against overreading the rationale of its holding. First, in Bolger v. Youngs Drug Products Corp., 463 U.S. 60, 103 S.Ct. 2875, 77 L.Ed.2d 469 (1983), the Supreme Court refused to extend Pacifica to a law unrelated to broadcasting. In that case, a federal law prohibited the unsolicited mailing of contraceptive advertisements. Id. at 61, 103 S.Ct. at 2877. The Government defended the law by claiming an interest in protecting children from the advertisements. The Court rejected this argument as overbroad: In [Pacifica], this Court did recognize that the Government's interest in protecting the young justified special treatment of an afternoon broadcast heard by adults as well as children. At the same time, the majority "emphasize[d] the narrowness of our holding", explaining that broadcasting is "uniquely pervasive" and that it is "uniquely accessible to children, even those too young to read." The receipt of mail is far less intrusive and uncontrollable. Our decisions have recognized that the special interest of the Federal Government in regulation of the broadcast media does not readily translate into a justification for regulation of other means of communication. Id. at 74, 103 S.Ct. at 2884 (citations and footnotes omitted) (emphasis in original) see also id. at 72, 103 S.Ct. at 2883 ("[T]he `short, though regular, journey from mail box to trash can ... is an acceptable burden, at least so far as the Constitution is concerned.'") (citation omitted) (alterations in original). Second, in Sable Communications v. FCC, 492 U.S. 115, 109 S.Ct. 2829, 106 L.Ed.2d 93 (1989), the Supreme Court again limited Pacifica. In that case, the Court considered the validity of a ban on indecent "dial-a-porn" communications. Id. at 117-18, 109 S.Ct. at 2832.[17] As in Bolger, the Government argued that Pacifica justified a complete ban of that form of speech. The Supreme Court disagreed, holding instead that Pacifica's "emphatically narrow" holding arose out of the "unique attributes of broadcasting". Id. *876 at 127, 109 S.Ct. at 2837. The Court held that the ban was unconstitutional. Id. at 131, 109 S.Ct. at 2839. Sable narrowed Pacifica in two ways. First, the Court implicitly rejected Pacifica's nuisance rationale for dial-a-porn, holding instead that the Government could only regulate the medium "by narrowly drawn regulations designed to serve those interests without unnecessarily interfering with First Amendment freedoms". Id. at 126, 109 S.Ct. at 2836. (citation omitted). Under this strict scrutiny, "[i]t is not enough to show that the Government's ends are compelling; the means must be carefully tailored to achieve those ends." Id.; see also Fabulous Assoc. v. Pennsylvania Pub. Util. Comm., 896 F.2d 780, 784-85 (3d Cir.1990). Second, the Court concluded that the law, like a law it had struck down in 1957, "denied adults their free speech rights by allowing them to read only what was acceptable for children". Sable, 492 U.S. at 126, 109 S.Ct. at 2837 (citing Butler v. Michigan, 352 U.S. 380, 77 S.Ct. 524, 1 L.Ed.2d 412 (1957)). Thus, any regulation of dial-a-porn would have to give adults the opportunity to par-take of that medium. Id. This conclusion echoes Bolger. See Bolger, 463 U.S. at 74, 103 S.Ct. at 2884 ("The level of discourse reaching a mailbox simply cannot be limited to that which would be suitable for a sand-box.").[18] Finally, in Turner Broadcasting System, Inc. v. FCC, ___ U.S. ___, 114 S.Ct. 2445, 129 L.Ed.2d 497 (1994), the Supreme Court implicitly limited Pacifica once again when it declined to adopt the broadcast rationale for the medium of cable television. The Court concluded that the rules for broadcast were "inapt" for cable because of the "fundamental technological differences between broadcast and cable transmission". Id. at ___, 114 S.Ct. at 2457. The legal significance to this case of Turner's refusal to apply the broadcast rules to cable television cannot be overstated. Turner's holding confirms beyond doubt that the holding in Pacifica arose out of the scarcity rationale unique to the underlying technology of broadcasting, and not out of the end product that the viewer watches. That is, cable television has no less of a "uniquely pervasive presence" than broadcast television, nor is cable television more "uniquely accessible to children" than broadcast. See Pacifica, 438 U.S. at 748-49, 98 S.Ct. at 3039-40. From the viewer's perspective, cable and broadcast television are identical: moving pictures with sound from a box in the home. Whether one receives a signal through an antenna or through a dedicated wire, the end result is just television in either case. In declining to extend broadcast's scarcity rationale for cable, the Supreme Court also implicitly limited Pacifica the holding of which flows directly from that rationale.[19] Turner thus confirms that the analysis of a particular medium of mass communication must focus on the underlying technology that brings the information to the user. In broadcast, courts focus on the limited number *877 of band widths and the risk of interference with those frequencies. See, e.g., Turner, ___ U.S. at ___ - ___, 114 S.Ct. at 2456-57. In cable, courts focus on the number of channels, the different kinds of cable operators, and the cost to the consumer. Id. at ___, 114 S.Ct. at 2452. I draw two conclusions from the foregoing analysis. First, from the Supreme Court's many decisions regulating different media differently, I conclude that we cannot simply assume that the Government has the power to regulate protected speech over the Internet, devoting our attention solely to the issue of whether the CDA is a constitutional exercise of that power. Rather, we must also decide the validity of the underlying assumption as well, to wit, whether the Government has the power to regulate protected speech at all. That decision must take into account the underlying technology, and the actual and potential reach, of that medium. Second, I conclude that Pacifica's holding is not persuasive authority here, since plaintiffs and the Government agree that Internet communication is an abundant and growing resource. Nor is Sable persuasive authority, since the Supreme Court's holding in that case addressed only one particular type of communication (dial-a-porn), and reached no conclusions about the proper fit between the First Amendment and telephone communications generally. Again, plaintiffs and the Government here agree that the Internet provides content as broad as the imagination. 3. The Effect of the CDA and the Novel Characteristics of Internet Communication Over the course of five days of hearings and many hundreds of pages of declarations, deposition transcripts, and exhibits, we have learned about the special attributes of Internet communication. Our Findings of fact — many of them undisputed — express our understanding of the Internet. These Findings lead to the conclusion that Congress may not regulate indecency on the Internet at all. Four related characteristics of Internet communication have a transcendent importance to our shared holding that the CDA is unconstitutional on its face. We explain these characteristics in our Findings of fact above, and I only rehearse them briefly here. First, the Internet presents very low barriers to entry. Second, these barriers to entry are identical for both speakers and listeners. Third, as a result of these low barriers, astoundingly diverse content is available on the Internet. Fourth, the Internet provides significant access to all who wish to speak in the medium, and even creates a relative parity among speakers. To understand how disruptive the CDA is to Internet communication, it must be remembered that the Internet evolved free of content-based considerations. Before the CDA, it only mattered how, and how quickly, a particular packet of data travelled from one point on the Internet to another. In its earliest incarnation as the ARPANET, the Internet was for many years a private means of access among the military, defense contractors, and defense-related researchers. The developers of the technology focused on creating a medium designed for the rapid transmittal of the information through overlapping and redundant connections, and without direct human involvement. Out of these considerations evolved the common transfer protocols, packet switching, and the other technology in which today's Internet users flourish. The content of the data was, before the CDA, an irrelevant consideration. It is fair, then, to conclude that the benefits of the Internet to private speakers arose out of the serendipitous development of its underlying technology. As more networks joined the "network of networks" that is the Internet, private speakers have begun to take advantage of the medium. This should not be surprising, since participation in the medium requires only that networks (and the individual users associated with them) agree to use the common data transfer protocols and other medium-specific technology. Participation does not require, and has never required, approval of a user's or network's content. After the CDA, however, the content of a user's speech will determine the extent of participation in the new medium. If a speaker's content is even arguably indecent in some communities, he must assess, inter alia, the risk of prosecution and the cost of *878 compliance with the CDA. Because the creation and posting of a Web site allows users anywhere in the country to see that site, many speakers will no doubt censor their speech so that it is palatable in every community. Other speakers will decline to enter the medium at all. Unlike other media, there is no technologically feasible way for an Internet speaker to limit the geographical scope of his speech (even if he wanted to), or to "implement[] a system for screening the locale of incoming" requests. Sable 492 U.S. at 125, 109 S.Ct. at 2836. The CDA will, without doubt, undermine the substantive, speech-enhancing benefits that have flowed from the Internet. Barriers to entry to those speakers affected by the Act would skyrocket, especially for non-commercial and not-for-profit information providers. Such costs include those attributable to age or credit card verification (if possible), tagging (if tagging is even a defense under the Act[20]), and monitoring or review of one's content. The diversity of the content will necessarily diminish as a result. The economic costs associated with compliance with the Act will drive from the Internet speakers whose content falls within the zone of possible prosecution. Many Web sites, newsgroups, and chat rooms will shut down, since users cannot discern the age of other participants. In this respect, the Internet would ultimately come to mirror broadcasting and print, with messages tailored to a mainstream society from speakers who could be sure that their message was likely decent in every community in the country. The CDA will also skew the relative parity among speakers that currently exists on the Internet. Commercial entities who can afford the costs of verification, or who would charge a user to enter their sites, or whose content has mass appeal, will remain unaffected by the Act. Other users, such as Critical Path or Stop Prisoner Rape, or even the ACLU, whose Web sites before the CDA were as equally accessible as the most popular Web sites, will be profoundly affected by the Act. This change would result in an Internet that mirrors broadcasting and print, *879 where economic power has become relatively coterminous with influence. Perversely, commercial pornographers would remain relatively unaffected by the Act, since we learned that most of them already use credit card or adult verification anyway. Commercial pornographers normally provide a few free pictures to entice a user into proceeding further into the Web site. To proceed beyond these teasers, users must provide a credit card number or adult verification number. The CDA will force these businesses to remove the teasers (or cover the most salacious content with cgi scripts), but the core, commercial product of these businesses will remain in place. The CDA's wholesale disruption on the Internet will necessarily affect adult participation in the medium. As some speakers leave or refuse to enter the medium, and others bowdlerize their speech or erect the barriers that the Act envisions, and still others remove bulletin boards, Web sites, and newsgroups, adults will face a shrinking ability to participate in the medium. Since much of the communication on the Internet is participatory, i.e., is a form of dialogue, a decrease in the number of speakers, speech fora, and permissible topics will diminish the worldwide dialogue that is the strength and signal achievement of the medium. It is no answer to say that the defenses and exclusions of § 223(e) mitigate the disruptive forces of the Act. We have already found as facts that the defenses either are not available to plaintiffs here or would impose excessive costs on them. These defenses are also unavailable to participants in specific forms of Internet communication. I am equally dubious that the exclusions of § 223(e) would provide significant relief from the Act. The "common carrier" exclusion of § 223(e)(1), for example, would not insulate America Online from liability for the content it provides to its subscribers. It is also a tricky question whether an America Online chat room devoted to, say, women's reproductive health, is or is not speech of the service itself, since America Online, at least to some extent, "creat[es] the content of the communication" simply by making the room available and assigning it a topic. Even if America Online has no liability under this example, the service might legitimately choose not to provide fora that led to the prosecution of its subscribers. Similarly, it is unclear whether many caching servers are devoted "solely" to the task of "intermediate storage". The "vicarious liability" exclusion of § 223(e)(4) would not, for example, insulate either a college professor or her employer from liability for posting an indecent online reading assignment for her freshman sociology class. We must of course give appropriate deference to the legislative judgments of Congress. See Sable, 492 U.S. at 129, 109 S.Ct. at 2838; Turner, ___ U.S. at ___ - ___, 114 S.Ct. at 2472-73 (Blackmun, J., concurring). After hearing the parties' testimony and reviewing the exhibits, declarations, and transcripts, we simply cannot in my view defer to Congress's judgment that the CDA will have only a minimal impact on the technology of the Internet, or on adult participation in the medium. As in Sable, "[d]eference to a legislative finding cannot limit judicial inquiry when First Amendment rights are at stake." Sable, 492 U.S. at 129, 109 S.Ct. at 2838 (citation omitted). Indeed, the Government has not revealed Congress's "extensive record" in addressing this issue, Turner, ___ U.S. at ___, 114 S.Ct. at 2472 (Blackmun, J., concurring), or otherwise convinced me that the record here is somehow factually deficient to the record before Congress when it passed the Act. 4. Diversity and Access on the Internet Nearly eighty years ago, Justice Holmes, in dissent, wrote of the ultimate constitutional importance of the "free trade in ideas": [W]hen men have realized that time has upset many fighting faiths, they may come to believe even more than they believe the very foundations of their own conduct that the ultimate good desired is better reached by free trade in ideas — that the best test of truth is the power of the thought to get itself accepted in the competition of the market.... *880 Abrams v. United States, 250 U.S. 616, 630, 40 S.Ct. 17, 22, 63 L.Ed. 1173 (1919) (Holmes, J., dissenting). For nearly as long, critics have attacked this much-maligned "marketplace" theory of First Amendment jurisprudence as inconsistent with economic and practical reality. Most marketplaces of mass speech, they charge, are dominated by a few wealthy voices. Miami Herald Publishing Co. v. Tornillo, 418 U.S. 241, 248-50, 94 S.Ct. 2831, 2834-36, 41 L.Ed.2d 730 (1974). These voices dominate — and to an extent, create — the national debate. Id. Individual citizens' participation is, for the most part, passive. Id. at 251, 94 S.Ct. at 2836. Because most people lack the money and time to buy a broadcast station or create a newspaper, they are limited to the role of listeners, i.e., as watchers of television or subscribers to newspapers. Id. Economic realities limit the number of speakers even further. Newspapers competing with each other and with (free) broadcast tend toward extinction, as fixed costs drive competitors either to consolidate or leave the marketplace. Id. at 249-50, 94 S.Ct. at 2835-36. As a result, people receive information from relatively few sources: The elimination of competing newspapers in most of our large cities, and the concentration of control of media that results from the only newspaper's being owned by the same interests which own a television station and a radio station, are important components of this trend toward concentration of control of outlets to inform the public. The result of these vast changes has been to place in a few hands the power to inform the American people and shape public opinion. Id. at 249-50, 94 S.Ct. at 2836. The Supreme Court has also recognized that the advent of cable television has not offered significant relief from this problem. Although the number of cable channels is exponentially greater than broadcast, Turner, ___ U.S. at ___, 114 S.Ct. at 2452, cable imposes relatively high entry costs, id. at ___ - ___, 114 S.Ct. at 2451-52 (noting that the creation of a cable system requires "[t]he construction of [a] physical infrastructure"). Nevertheless, the Supreme Court has resisted governmental efforts to alleviate these market dysfunctions. In Tornillo, the Supreme Court held that market failure simply could not justify the regulation of print, 418 U.S. at 258, 94 S.Ct. at 2839-40, regardless of the validity of the criticisms of that medium, id. at 251, 94 S.Ct. at 2836. Tornillo invalidated a state "right-of-reply" statute, which required a newspaper critical of a political candidate to give that candidate equal time to reply to the charges. Id. at 244, 94 S.Ct. at 2832-33. The Court held that the statute would be invalid even if it imposed no cost on a newspaper, because of the statute's intrusion into editorial discretion: A newspaper is more than a passive receptacle or conduit for news, comment, and advertising. The choice of material to go into a newspaper, and the decisions made as to limitations on the size and content of the paper, and treatment of public issues and public officials — whether fair or unfair — constitute the exercise of editorial control and judgment. Id. at 258, 94 S.Ct. at 2840. Similarly, in Turner, the Supreme Court rejected the Government's argument that market dysfunction justified deferential review of speech regulations for cable television. Even recognizing that the cable market "suffers certain structural impediments", Turner, ___ U.S. at ___, 114 S.Ct. at 2457, the Court could not accept the Government's conclusion that this dysfunction justified broadcast-type standards of review, since "the mere assertion of dysfunction or failure in a speech market, without more, is not sufficient to shield a speech regulation from the First Amendment standards applicable to nonbroadcast media." Id. at ___, 114 S.Ct. at 2458. "[L]aws that single out the press, or certain elements thereof, for special treatment `pose a particular danger of abuse by the State,' and so are always subject to at least some degree of heightened First Amendment scrutiny." Id. (citation omitted).[21]*881 The Court then eloquently reiterated that government-imposed, content-based speech regulations are generally inconsistent with "[o]ur political system and cultural life": At the heart of the First Amendment lies the principle that each person should decide for him or herself the ideas and beliefs deserving of expression, consideration, and adherence. Our political system and cultural life rest upon this ideal. Government action that stifles speech on account of its message, or that requires the utterance of a particular message favored by the Government, contravenes this essential right. Laws of this sort pose the inherent risk that the Government seeks not to advance a legitimate regulatory goal, but to suppress unpopular ideas or information or manipulate the public debate through coercion rather than persuasion. These restrictions "rais[e] the specter that the Government may effectively drive certain ideas or viewpoints from the marketplace." Id. (citation omitted). Both Tornillo and Turner recognize, in essence, that the cure for market dysfunction (government-imposed, content-based speech restrictions) will almost always be worse than the disease. Here, however, I am hard-pressed even to identify the disease. It is no exaggeration to conclude that the Internet has achieved, and continues to achieve, the most participatory marketplace of mass speech that this country — and indeed the world — has yet seen. The plaintiffs in these actions correctly describe the "democratizing" effects of Internet communication: individual citizens of limited means can speak to a worldwide audience on issues of concern to them. Federalists and Anti-Federalists may debate the structure of their government nightly, but these debates occur in newsgroups or chat rooms rather than in pamphlets. Modern-day Luthers still post their theses, but to electronic bulletin boards rather than the door of the Wittenberg Schlosskirche. More mundane (but from a constitutional perspective, equally important) dialogue occurs between aspiring artists, or French cooks, or dog lovers, or fly fishermen. Indeed, the Government's asserted "failure" of the Internet rests on the implicit premise that too much speech occurs in that medium, and that speech there is too available to the participants. This is exactly the benefit of Internet communication, however. The Government, therefore, implicitly asks this court to limit both the amount of speech on the Internet and the availability of that speech. This argument is profoundly repugnant to First Amendment principles. My examination of the special characteristics of Internet communication, and review of the Supreme Court's medium-specific First Amendment jurisprudence, lead me to conclude that the Internet deserves the broadest possible protection from government-imposed, content-based regulation. If "the First Amendment erects a virtually insurmountable barrier between government and the print media", Tornillo, 418 U.S. at 259, 94 S.Ct. at 2840 (White, J., concurring), even though the print medium fails to achieve the hoped-for diversity in the marketplace of ideas, then that "insurmountable barrier" must also exist for a medium that succeeds in achieving that diversity. If our Constitution "prefer[s] `the power of reason as applied through public discussion'", id. (citation omitted), "[r]egardless of how beneficent-sounding the purposes of controlling the press might be", id., even though "occasionally debate on vital matters will not be comprehensive and ... all viewpoints may not be expressed", id. at 260, 94 S.Ct. at 2841, a medium that does capture comprehensive debate and does allow for the expression of all viewpoints should receive at least the same protection from intrusion. Finally, if the goal of our First Amendment jurisprudence is the "individual dignity and choice" that arises from "putting the decision as to what views shall be voiced largely into the hands of each of us", Leathers v. Medlock, 499 U.S. 439, 448-49, 111 *882 S.Ct. 1438, 1444, 113 L.Ed.2d 494 (1991) (citing Cohen v. California, 403 U.S. 15, 24, 91 S.Ct. 1780, 1787-88, 29 L.Ed.2d 284 (1971)), then we should be especially vigilant in preventing content-based regulation of a medium that every minute allows individual citizens actually to make those decisions. Any content-based regulation of the Internet, no matter how benign the purpose, could burn the global village to roast the pig. Cf. Butler, 352 U.S. at 383, 77 S.Ct. at 525-26. 5. Protection of Children from Pornography I accept without reservation that the Government has a compelling interest in protecting children from pornography. The proposition finds one of its clearest expressions in Mill, who recognized that his exposition regarding liberty itself "is meant to apply only to human beings in the maturity of their faculties": We are not speaking of children or of young persons below the age which the law may fix as that of manhood or womanhood. Those who are still in a state to require being taken care of by others must be protected against their own actions as well as against external injury. John Stuart Mill, On Liberty 69 (Gertrude Himmelfarb ed., Penguin Books 1982) (1859), cited in Harry Kalven Jr., A Worthy Tradition 54 (Jamie Kalven ed.1988). This rationale, however, is as dangerous as it is compelling. Laws regulating speech for the protection of children have no limiting principle, and a well-intentioned law restricting protected speech on the basis of its content is, nevertheless, state-sponsored censorship. Regulations that "drive certain ideas or viewpoints from the marketplace" for children's benefit, Simon & Schuster, 502 U.S. at 116, 112 S.Ct. at 508, risk destroying the very "political system and cultural life", Turner, ___ U.S. at ___, 114 S.Ct. at 2458, that they will inherit when they come of age. I therefore have no doubt that a Newspaper Decency Act, passed because Congress discovered that young girls had read a front page article in the New York Times on female genital mutilation in Africa, would be unconstitutional. Tornillo, 418 U.S. at 258, 94 S.Ct. at 2839-40. Nor would a Novel Decency Act, adopted after legislators had seen too many pot-boilers in convenience store book racks, pass constitutional muster. Butler, 352 U.S. at 383, 77 S.Ct. at 525-26. There is no question that a Village Green Decency Act, the fruit of a Senator's over-hearing of a ribald conversation between two adolescent boys on a park bench, would be unconstitutional. Perry Education Ass'n v. Perry Local Educators' Ass'n, 460 U.S. 37, 45, 103 S.Ct. 948, 954-55, 74 L.Ed.2d 794 (1983). A Postal Decency Act, passed because of constituent complaints about unsolicited lingerie catalogues, would also be unconstitutional. Bolger, 463 U.S. at 73, 103 S.Ct. at 2883-84. In these forms of communication, regulations on the basis of decency simply would not survive First Amendment scrutiny. The Internet is a far more speech-enhancing medium than print, the village green, or the mails. Because it would necessarily affect the Internet itself, the CDA would necessarily reduce the speech available for adults on the medium. This is a constitutionally intolerable result. Some of the dialogue on the Internet surely tests the limits of conventional discourse. Speech on the Internet can be unfiltered, unpolished, and unconventional, even emotionally charged, sexually explicit, and vulgar — in a word, "indecent" in many communities. But we should expect such speech to occur in a medium in which citizens from all walks of life have a voice. We should also protect the autonomy that such a medium confers to ordinary people as well as media magnates. Moreover, the CDA will almost certainly fail to accomplish the Government's interest in shielding children from pornography on the Internet. Nearly half of Internet communications originate outside the United States, and some percentage of that figure represents pornography. Pornography from, say, Amsterdam will be no less appealing to a child on the Internet than pornography from New York City, and residents of Amsterdam *883 have little incentive to comply with the CDA.[22] My analysis does not deprive the Government of all means of protecting children from the dangers of Internet communication. The Government can continue to protect children from pornography on the Internet through vigorous enforcement of existing laws criminalizing obscenity and child pornography. See United States v. Thomas, 74 F.3d 701, 704-05 (6th Cir.1995). As we learned at the hearing, there is also a compelling need for public education about the benefits and dangers of this new medium, and the Government can fill that role as well. In my view, our action today should only mean that the Government's permissible supervision of Internet content stops at the traditional line of unprotected speech. Parents, too, have options available to them. As we learned at the hearing, parents can install blocking software on their home computers, or they can subscribe to commercial online services that provide parental controls. It is quite clear that powerful market forces are at work to expand parental options to deal with these legitimate concerns. More fundamentally, parents can supervise their children's use of the Internet or deny their children the opportunity to participate in the medium until they reach an appropriate age. See Fabulous, 896 F.2d at 788-89 (noting that "our society has traditionally placed" these decisions "on the shoulders of the parent"). E. Conclusion Cutting through the acronyms and argot that littered the hearing testimony, the Internet may fairly be regarded as a never-ending worldwide conversation. The Government may not, through the CDA, interrupt that conversation. As the most participatory form of mass speech yet developed, the Internet deserves the highest protection from governmental intrusion. True it is that many find some of the speech on the Internet to be offensive, and amid the din of cyberspace many hear discordant voices that they regard as indecent. The absence of governmental regulation of Internet content has unquestionably produced a kind of chaos, but as one of plaintiffs' experts put it with such resonance at the hearing: What achieved success was the very chaos that the Internet is. The strength of the Internet is that chaos.[23] Just as the strength of the Internet is chaos, so the strength of our liberty depends upon the chaos and cacophony of the unfettered speech the First Amendment protects. For these reasons, I without hesitation hold that the CDA is unconstitutional on its face. ORDER AND NOW, this 11th day of June, 1996, upon consideration of plaintiffs' motions for preliminary injunction, and the memoranda of the parties and amici curiae in support and opposition thereto, and after hearing, and upon the findings of fact and conclusions of law set forth in the accompanying Adjudication, it is hereby ORDERED that: 1. The motions are GRANTED; 2. Defendant Attorney General Janet Reno, and all acting under her direction and control, are PRELIMINARILY ENJOINED from enforcing, prosecuting, investigating or reviewing any matter premised upon: (a) Sections 223(a)(1)(B) and 223(a)(2) of the Communications Decency Act of 1996 ("the CDA"), Pub.L. No. 104-104, § 502, 110 Stat. 133, 133-36, to the extent such enforcement, prosecution, investigation, or review are based upon allegations other than obscenity or child pornography; and (b) Sections 223(d)(1) and 223(d)(2) of the CDA; *884 3. Pursuant to Fed.R.Civ.P. 65(c), plaintiffs need not post a bond for this injunction, see Temple Univ. v. White, 941 F.2d 201, 220 (3d Cir.1991), cert. denied sub nom. Snider v. Temple Univ., 502 U.S. 1032, 112 S.Ct. 873, 116 L.Ed.2d 778 (1992); and 4. The parties shall advise the Court, in writing, as to their views regarding the need for further proceedings on the later of (a) thirty-one days from the date of this Order, or (b) ten days after final appellate review of this Order. NOTES [1] The CDA will be codified at 47 U.S.C. § 223(a) to (h). In the body of this Adjudication, we refer to the provisions of the CDA as they will ultimately be codified in the United States Code. [2] The plaintiffs in this action are the American Civil Liberties Union; Human Rights Watch; Electronic Privacy Information Center; Electronic Frontier Foundation; Journalism Education Association; Computer Professionals for Social Responsibility; National Writers Union; Clarinet Communications Corp.; Institute for Global Communications; Stop Prisoner Rape; AIDS Education Global Information System; Bibliobytes; Queer Resources Directory; Critical Path AIDS Project, Inc.; Wildcat Press, Inc.; Declan McCullagh dba Justice on Campus; Brock Meeks dba Cyberwire Dispatch; John Troyer dba The Safer Sex Page; Jonathan Wallace dba The Ethical Spectacle; and Planned Parenthood Federation of America, Inc. We refer to these plaintiffs collectively as the ACLU. [3] The plaintiffs in the second action, in addition to the ALA, are: America Online, Inc.; American Booksellers Association, Inc.; American Booksellers Foundation for Free Expression; American Society of Newspaper Editors; Apple Computer, Inc.; Association of American Publishers, Inc.; Association of Publishers, Editors and Writers; Citizens Internet Empowerment Coalition; Commercial Internet Exchange Association; Compu-Serve Incorporated; Families Against Internet Censorship; Freedom to Read Foundation, Inc.; Health Sciences Libraries Consortium; Hotwired Ventures LLC; Interactive Digital Software Association; Interactive Services Association; Magazine Publishers of America; Microsoft Corporation; The Microsoft Network, L.L.C.; National Press Photographers Association; Netcom OnLine Communication Services, Inc.; Newspaper Association of America; Opnet, Inc.; Prodigy Services Company; Society of Professional Journalists; Wired Ventures, Ltd. We refer to these plaintiffs collectively as the ALA. The eight counts of the amended complaint in this action focus on the CDA's amendment to 47 U.S.C. § 223, and do not challenge the CDA's amendment of 18 U.S.C. § 1462(c). [4] In addition, we have received briefs of amici curiae supporting and opposing plaintiffs' contentions. Arguing in favor of our granting the motions for preliminary injunction are Authors Guild, American Society of Journalists and Authors, Ed Carp, Coalition for Positive Sexuality, CONNECTnet, Creative Coalition on AOL, Tri Dang Do, Feminists for Free Expression, Margarita Lacabe, Maggie LaNoue, LoD Communications, Peter Ludlow, Palmer Museum of Art, Chuck More, Rod Morgan, PEN American Center, Philadelphia Magazine, PSINet, Inc., Eric S. Raymond, Reporters Committee for Freedom of the Press, Don Rittner, The Sexuality Information and Education Council of the United States, Lloyd K. Stires, Peter J. Swanson, Kirsti Thomas, Web Communications, and Miryam Ehrlich Williamson. Opposing the motion are the Family Life Project of the American Center for Law and Justice and a group consisting of The National Law Center for Children and Families, Family Research Council, "Enough Is Enough!" Campaign, National Coalition for the Protection of Children and Families, and Morality in Media. [5] The Act does not define "telecommunications device". By Order dated February 27, 1996, we asked the parties to address whether a modem is a "telecommunications device". Plaintiffs and the Government answered in the affirmative, and we agree that the plain meaning of the phrase and the legislative history of the Act strongly support their conclusion. "Telecommunications" under 47 U.S.C. § 153(48) means "the transmission, between or among points specified by the user, of information of the user's choosing, without change in the form of content of the information as sent and received." The plain meaning of "device" is "something that is formed or formulated by design and usu[ally] with consideration of possible alternatives, experiment, and testing." Webster's Third New International Dictionary, 618 (1986). Clearly, the sponsors of the CDA thought it would reach individual Internet users, many of whom still connect through modems. See, e.g., 141 Cong. Rec. S8329-46 (daily ed. June 14, 1995) (statements of Sen. Exon and Sen. Coats). The resolution of the tension between the scope of "telecommunications device" and the scope of "interactive computer service" as defined in 47 U.S.C. § 230(a)(2), see infra note 6, must await another day. It is sufficient for us to conclude that the exclusion of § 223(h)(1)(B) is probably a narrow one (as the Government has argued), insulating an interactive computer service from criminal liability under the CDA but not insulating users who traffic in indecent and patently offensive materials on the Internet through those services. [6] The statute at § 509 amends 47 U.S.C. to add § 230(e)(2), which defines such a service as "any information service, system, or access software provider that provides or enables computer access by multiple users to a computer server, including specifically a service or system that provides access to the Internet and such systems operated or services offered by libraries or educational institutions." [7] In the Government's Opposition to plaintiffs' motion for a temporary restraining order in C.A. No. 96-963, it notes "the Department has a longstanding policy that previous such provisions are unconstitutional and will not be enforced", and that both President Clinton and Attorney General Reno "have made th[e] point clear" that no one will be prosecuted under "the abortion-related provision of newly-amended 18 U.S.C. § 1462(c)." Opposition at 19, n. 11 (February 14, 1996). In view of this "longstanding policy", the Government contends there is no realistic fear of prosecution and, so the argument goes, no need for equitable relief. Id. In their post-hearing brief, the ACLU plaintiffs inform us that in view of the Government's statement, "they do not seek a preliminary injunction against the enforcement of § 1462(c)." Post-Trial Brief of ACLU Plaintiffs at 2 n. 2. [8] The court again expresses its appreciation to the parties for their cooperative attitude in evolving the stipulation. [9] The Government has not by motion challenged the standing of any plaintiff in either case, and we harbor no doubts of our own on that point, notwithstanding the Government's suggestion in a footnote of its post-hearing brief. See Defendants' Post-Hearing Memorandum at 37 n. 46 ("Plaintiffs' assertions as to the speech at issue are so off-point as to raise standing concerns."). Descriptions of these plaintiffs, as well as of the nature and content of the speech they contend is or may be affected by the CDA, are set forth in paragraphs 70 through 356 at pages 30 through 103 of the parties' stipulation filed in these actions. These paragraphs will not be reproduced here, but will be deemed adopted as Findings of the court. [10] It became clear from the testimony that moderated newsgroups are the exception and unmoderated newsgroups are the rule. [11] The evidence adduced at the hearings provided detail to this paragraph of the parties' stipulation. See Findings 95 to 107. [12] Testimony adduced at the hearing suggests that market forces exist to limit the availability of material on-line that parents consider inappropriate for their children. Although the parties sharply dispute the efficacy of so-called "parental empowerment" software, there is a sufficiently wide zone of agreement on what is available to restrict access to unwanted sites that the parties were able to enter into twenty-one paragraphs of stipulated facts on the subject, which form the basis of paragraphs 49 through 69 of our Findings of fact. Because of the rapidity of developments in this field, some of the technological facts we have found may become partially obsolete by the time of publication of these Findings. [13] This membership is constantly growing, according to the testimony of Albert Vezza, Chairman of the World Wide Web Consortium. See also Defendants' Ex. D-167. [14] See also Defendants' Ex. D-174 and the testimony of Mr. Vezza. [15] From this point, our Findings are, unless noted, no longer based upon the parties' stipulation, but upon the record adduced at the hearings. [16] Mr. Bradner is a member of the Internet Engineering Task Force, the group primarily responsible for Internet technical standards, as well as other Internet-related associations responsible for, among other things, the prevailing Internet Protocols. He is also associated with Harvard University. [17] Dr. Olsen chairs the Computer Science Department at Brigham Young University in Provo, Utah, and is the recently-appointed Director of the Human Computer Interaction Institute at Carnegie-Mellon University in Pittsburgh, Pennsylvania. [18] The term "information content provider" is defined in § 509 of the CDA, at the new 47 U.S.C. § 230(e)(3), as "any person or entity that is responsible, in whole or in part, for the creation or development of information provided through the Internet or any other interactive computer service." [19] By "verification", we mean the method by which a user types in his or her credit card number, and the Web site ensures that the credit card is valid before it allows the user to enter the site. [20] InterNIC is a naming organization, not a regulator of content. InterNIC and two other European organizations maintain a master list of domain names to ensure that no duplication occurs. Creators of Web sites must register their domain name with InterNIC, and the agency will instruct the creator to choose another name if the new Web site has the name of an already-existing site. InterNIC has no control over content on a site after registration. [21] This paragraph and the preceding paragraph also illustrate that a content provider might store its own material or someone else's on a caching server. The goal — saving money and time — is the same in both cases. [1] It also probably covers speech protected by the First Amendment for some minors a well, because it fails to limit its reach to that which is harmful for minors, an issue which it is not necessary to decide in light of the other conclusions reached. [2] See 141 Cong.Rec. S8342 (daily ed. June 14, 1995) (letter from Kent Markus, Acting Assistant Attorney General, U.S. Department of Justice, to Senator Leahy). [1] If by virtue of the statute's authorization of expedited review of its constitutionality, "on its face," 47 U.S.C. § 561(a), we were strictly limited to looking at the words of the statute, I would stand by my T.R.O. opinion. However, in light of the procedures which are required by 47 U.S.C. § 561(a) and 28 U.S.C. § 2284, and were followed by this court in establishing an extensive record in this case, to ignore the evidence presented would be to ignore what an action for injunctive relief is all about. Section 561 reads as follows: § 561. EXPEDITED REVIEW. (a) THREE-JUDGE DISTRICT COURT HEARING — Notwithstanding any other provision of law, any civil action challenging the constitutionality, on its face, of this title or any amendment made by this title, or any provision thereof, shall be heard by a district court of 3 judges convened pursuant to the provisions of section 2284 of title 28, United States Code. Section 2284 states, in relevant part: § 2284. Three-judge court; when required; composition; procedure (b) In any action required to be heard and determined by a district court of three judges under subsection (a) of this section, the composition and procedure of the court shall be as follows: ... (3) A single judge may conduct all proceedings except the trial.... He may grant a temporary restraining order on a specific finding, based on evidence submitted, that specified irreparable damages will result if the order is not granted, which order, unless previously revoked by the district judge, shall remain in force only until the hearing and determination by the district court of three judges of an application for a preliminary injunction.... [2] Justice Kennedy argues in his opinion in Simon & Schuster v. New York Crime Victims Bd., 502 U.S. 105, 120, 112 S.Ct. 501, 510-11, 116 L.Ed.2d 476 (1991), that "[t]he regulated content has the full protection of the First Amendment and this, I submit, is itself a full and sufficient reason for holding the statute unconstitutional. In my view it is both unnecessary and incorrect to ask whether the state can show that the statute `is necessary to serve a compelling state interest and is narrowly drawn to achieve that end.'" In the present case, there is no disagreement that indecent and patently offensive speech have the full protection of the First Amendment. [3] Not only has speech been divided up and given values — with some types of speech given little or no protection (obscenity, fighting words, possibly commercial speech) — but also, by court decisions over the years, it has been decided that the content of speech can indeed be regulated provided that the regulation will directly and materially advance a compelling government interest, and that it is narrowly tailored to accomplish that interest in the least restrictive manner. However, any content-based restriction must survive this most exacting scrutiny. Sable, 492 U.S. 115, 109 S.Ct. 2829; Texas v. Johnson, 491 U.S. 397, 109 S.Ct. 2533, 105 L.Ed.2d 342 (1989). [4] The plaintiffs have made facial challenges to the disputed provisions of the CDA on grounds of both vagueness and overbreadth. The approach taken and language used in evaluating a statute under each of these doctrines commingles, and frequently is treated as a single approach. "We have traditionally viewed vagueness and overbreadth as logically related and similar doctrines." Kolender v. Lawson, 461 U.S. 352, 358 n. 8, 103 S.Ct. 1855, 1859 n. 8, 75 L.Ed.2d 903 (1983) (citing Keyishian v. Board of Regents, 385 U.S. 589, 609, 87 S.Ct. 675, 687, 17 L.Ed.2d 629 (1967); NAACP v. Button, 371 U.S. 415, 433, 83 S.Ct. 328, 338, 9 L.Ed.2d 405 (1963)). Even in cases where the court attempts to distinguish these two doctrines, it acknowledges some interplay between them. See e.g. Village of Hoffman Estates v. Flipside, Hoffman Estates, Inc., 455 U.S. 489, 494, and n. 6, 102 S.Ct. 1186, 1191, and n. 6, 71 L.Ed.2d 362 (1982). In addition, when discussing overbreadth, one cannot avoid reference to the same language used to describe and apply the strict scrutiny standard to constitutionally protected activities. See e.g. Sable, 492 U.S. at 131, 109 S.Ct. at 2839; Roberts v. Jaycees, 468 U.S. 609, 623, 104 S.Ct. 3244, 3252-53, 82 L.Ed.2d 462 (1984). While there are occasional attempts to argue for clear distinctions among these doctrines, see e.g. Kolender, 461 U.S. at 369, 103 S.Ct. at 1864-65 (White, J., Rehnquist, J. dissenting), such bright lines simply have not been, and most likely cannot be, drawn in this area. [5] Comparing a different portion of each of these two provisions suggests that different terms are not to be read to mean the same thing. As written, section (a) pertains to telecommunications devices, and section (d) to interactive computer services. While we have not entirely resolved the tension between these definitions at this stage, it has been established that these terms are not synonymous, but are in fact intended to denote different technologies. This, together with the rule of statutory construction set forth in Chief Judge Sloviter's opinion, seems to suggest on the face of the statute that indecent and patently offensive also are not to be read as synonymous. [6] 18 U.S.C. § 1461 states, "The term `indecent' as used in this section includes matter of a character tending to incite arson, murder or assassination." [7] Although the Supreme Court may rule on the vagueness question in the context of cable television regulation in Alliance for Community Media v. FCC, 56 F.3d 105 (D.C.Cir.1995), currently pending on certiorari before the Court, we will not defer adjudication of this issue as the constitutionality of the term in the cable context may not be determinative of its use in cyberspace. [8] Each intentional act of posting indecent content for display shall be considered a separate violation of this subsection and carries with it a fine, a prison term of up to two years, or both. 47 U.S.C. § 223(a), (d) and Conf.Rep. at 189. [9] As I have noted, the unique nature of the medium cannot be overemphasized in discussing and determining the vagueness issue. This is not to suggest that new technology should drive constitutional law. To the contrary, I remain of the belief that our fundamental constitutional principles can accommodate any technological achievements, even those which, presently seem to many to be in the nature of a miracle such as the Internet. [1] By Order dated March 13, 1996, we asked the parties to submit their views on questions regarding allocation of the burdens of proof in these cases. Since I believe that the outcome of these cases is clear regardless of the allocation of proof between the parties, none of my conclusions in this opinion requires me to choose between the arguments that the parties have presented to us. [2] Although I do not believe the statute is unconstitutionally vague, I agree with Judge Buckwalter that the Government's promise not to enforce the plain reach of the law cannot salvage its overbreadth. Even accepting the Government's argument that prosecution of non-obscene pornography would be a "legitimate application" of the CDA, City of Houston v. Hill, 482 U.S. 451, 459, 107 S.Ct. 2502, 2508, 96 L.Ed.2d 398 (1987), it is clear that the Act would "make unlawful a substantial amount of constitutionally protected conduct", id. As in Hill, the Government's circular reasoning—that the law is constitutional because prosecutors would only apply it to those against whom it could constitutionally be applied—must fail. See id. at 464-67, 107 S.Ct. at 2511-13. [3] Plaintiffs have argued that we may consider their challenge under the standards governing both "facial" and "as-applied" challenges. That is, they suggest that we may pass judgment on the decency of the plaintiffs' speech, even if we are unable to conclude that the act is facially unconstitutional. Surely this procedural confusion arises out of the three opinions of the D.C. Circuit in National Treasury Employees Union v. United States, 990 F.2d 1271, 1279-80 (D.C.Cir. 1993), aff'd, ___ U.S. ___, 115 S.Ct. 1003, 130 L.Ed.2d 964. I doubt that we could undertake an as-applied inquiry, since we do not know the exact content of plaintiffs' speech. Indeed, it is impossible to know the exact content of some plaintiffs' speech, since plaintiffs themselves cannot know that content. America Online, for example, cannot know what its subscribers will spontaneously say in chat rooms or post to bulletin boards. In any event, I need not address this issue, in the light of our disposition today. [4] "Dial-a-porn" is a shorthand description of "sexually oriented prerecorded telephone messages". Sable, 492 U.S. at 117-18, 109 S.Ct. at 2832. [5] In turn, Pacifica's definition of indecency has its roots in the Supreme Court's obscenity jurisprudence. Indecency includes some but not all of the elements of obscenity. See, e.g., Alliance for Community Media, 56 F.3d at 113-14 n. 4. [6] The reach of the two provisions is not coterminous, however. As we explain in the introduction to this Adjudication, § 223(a) reaches the making, creation, transmission, and initiation of indecent speech. Section 223(d) arguably reaches more broadly to the "display" of indecent speech. I conclude here only that both sections refer to the identical type of proscribed speech. [7] At oral argument, counsel for the Government candidly recognized that "there's nothing quite like this statute before", and that the CDA's novelty raised some "legislative craftsmanship problem[s]". Transcript of May 10, 1996, at 81-82. I believe that my analysis here makes sense in the light of the legislative history and the jurisprudence on which Congress relied in enacting the CDA. See Senate Report at 188, reprinted in 1996 U.S.C.C.A.N. at 201-02. [8] The counterargument is that § 223(e)(5)(A), when read together with § 223(e)(6), merely confers jurisdiction on the FCC to prescribe the "reasonable, effective, and appropriate actions" that count as defenses. Congress employed a similar scheme for dial-a-porn. See Dial Information Servs., 938 F.2d at 1539 (citing 47 U.S.C. § 223(b)(3)); Information Providers' Coalition, 928 F.2d at 871. [9] The play was "critically acclaimed and long-running in Los Angeles area theaters". Infinity Broadcasting, 3 FCC R. at 932. [10] Analytically, it makes sense that indecent speech has public value. After all, indecent speech is nevertheless protected speech, see, e.g., Sable, 492 U.S. at 126, 109 S.Ct. at 2836-37, and it must therefore have some public value that underlies the need for protection. Obscenity, by contrast, has no public value, id. at 124, and thus has no protection from proscription. [11] Internet technology undercuts the Government's argument that the "in context" element of §§ 223(a) and 223(d) would insulate plaintiffs such as Critical Path from liability. See, e.g., Transcript of May 10, 1996, at 89-91. A user who clicks on a link in the Critical Path database (see Findings 33, 77-78) might travel to a highly graphic page in a larger HTML document. The social value of that page, in context, might be debatable, but the use of links effectively excerpts that document by eliminating content unrelated to the link. [12] Moreover, because of the technology of Internet relay chat, it would need to make this determination before it organized the chat room, since it could not pre-screen the discussion among the participants. Thus, it would need to predict, in advance, what the participants were likely to say. The participants would need to make a similar determination, unaided (I expect) by First Amendment lawyers. [13] Testimony of April 12, 1996, at 235-36. [14] In this section I do not imply that the FCC has jurisdiction to process Internet complaints in the same manner as it does for broadcast. The extent of the FCC's jurisdiction under the CDA is a sticky question not relevant here. See Senate Report at 190-91, reprinted in 1996 U.S.C.C.A.N. at 204. Because the administrative decisions cited above arose out of citizens' complaints to the FCC, however, they provide a kind of surrogate insight into the kinds of speech that citizens have charged as indecent in the past. [15] See Finding of fact 81. See also Symposium, Emerging Media: Technology and the First Amendment, 104 Yale L.J. 1613 (1995). [16] A narrow holding for this new medium also will not eliminate the chill to plaintiffs, who could well stifle the extent of their participation in this new medium while awaiting a future iteration of the CDA. Such a holding would also lead Congress to believe that a rewritten CDA (using, for example, a "harmful to minors" standard, see Senate Report at 189, reprinted in 1996 U.S.C.C.A.N. at 202) would pass constitutional muster. In my view, a holding consistent with the novel qualities of this medium provides Congress with prompt and clear answers to the questions that the CDA asks. [17] The history of dial-a-porn regulation both before and after Sable is tortuous, and involves the intervention of all three branches of government. I will not rehearse that history here, deferring instead to the other courts that have recounted it. See, e.g., Sable, 492 U.S. at 118-23, 109 S.Ct. at 2832-35; Dial Information Serv., 938 F.2d at 1537-40; Information Providers Coalition, 928 F.2d at 870-73. [18] Sable is arguably not a decision about mass communication. Unlike Red Lion, Tornillo, or Turner, the Court in Sable reached no conclusions about the proper fit between the First Amendment and governmental regulation of the telephone. The case also includes no discussion of the technology of the telephone generally. The plaintiff in that case, a purveyor of dial-a-porn, challenged the statute only with respect to that type of content. Sable, 492 U.S. at 117-18, 109 S.Ct. at 2832. Thus, the Court's opinion discussed only the "dial-in services". Id. at 128, 109 S.Ct. at 2837-38. Since every telephone call at issue was, by definition, dial-a-porn, every telephone call was, by definition, either obscene or indecent. Id. at 132, 109 S.Ct. at 2839-40 (Scalia, J., concurring). Here, however, plaintiffs represent forty-seven different speakers (including educational associations and consortia) who provide content to the Internet on a broad range of topics. The limited reach of the Sable holding renders it inapt to the Internet communications of the plaintiffs in these actions. [19] I note here, too, that we have found as a fact that operation of a computer is not as simple as turning on a television, and that the assaultive nature of television, see Pacifica, 438 U.S. at 748-49, 98 S.Ct. at 3039-40, is quite absent in Internet use. See Findings 87-89. The use of warnings and headings, for example, will normally shield users from immediate entry into a sexually explicit Web site or newsgroup message. See Finding 88. The Government may well be right that sexually explicit content is just a few clicks of a mouse away from the user, but there is an immense legal significance to those few clicks. [20] In a May 3, 1996 letter to a three-judge court in the Southern District of New York, John C. Keeney, Acting Assistant Attorney General in the Criminal Division of the Department of Justice, has advised that tagging would be "substantial evidence" in support of a § 223(e)(5)(A) defense: Under present technology, non-commercial content providers can take steps to list their site[s] in URL registries of covered sites, register their site[s] with the marketplace of browsers and blocking software (including listing an IP address), place their material in a directory blocked by screening software, or take other similarly effective affirmative steps to make their site[s] known to the world to allow the site[s] to be blocked. Under present technology, it is the position of the Department of Justice that, absent extraordinary circumstances, such efforts would constitute substantial evidence that a content provider had taken good faith, reasonable, effective, and appropriate actions under the circumstances to restrict or prevent access by minors to the covered material. The same would be true for tagging by content providers coupled with evidence that the tag would be screened by the marketplace of browsers and blocking software. Letter of May 3, 1996 from Acting Assistant Attorney General John C. Keeney to Hons. Denise L. Cote, Leonard B. Sand, and Jose A. Cabranes, attached to Defendants' Motion for Leave to File Supplemental Statement. On May 8, 1996, the Government moved to file the Kenney letter in this action, and we granted the motion as unopposed the next day. The letter certainly raises more questions than it answers. I wonder, for example, whether it is consistent with the plain language of the Act simply for content providers to "make their site[s] known to the world" and thereby "to allow [them] to be blocked", even though this form of notice alone would not reduce the availability of indecent content. Cf. Senate Report at 178, 1996 U.S.C.C.A.N. at 201 (noting that § 223(d) "applies to content providers who post indecent material for online display without taking precautions that shield that material from minors"). It is also an unanswered question whether the Keeney letter would eliminate any of the CDA's chill, since the Government acknowledged that the letter would not prohibit a United States Attorney from taking a contrary position in a particular prosecution. See Defendants' May 9, 1996 Response to the May 8, 1996 Order of Court. The letter also fails to mention how users who participate in chat rooms, newsgroups, listservs, and e-mail might take advantage of § 223(e)(5)(A). Finally, it is undisputed that neither PICS nor the hypothetical "-L18" tag are available to speakers using the World Wide Web today, whom the Government has explicitly reserved its right to prosecute should the CDA ultimately be found constitutional. See Stipulation and Order of February 26, 1996, quoted supra. [21] Turner examined certain "must-carry" provisions under an intermediate scrutiny, since those laws imposed incidental burdens on speech but did not directly regulate content. Turner, ___ U.S. at ___, 114 S.Ct. at 2469. The Court remanded the case to the district court without passing on the constitutionality of the must-carry provisions. Id. at ___, 114 S.Ct. at 2472. [22] Arguably, a valid CDA would create an incentive for overseas pornographers not to label their speech. If we upheld the CDA, foreign pornographers could reap the benefit of unfettered access to American audiences. A valid CDA might also encourage American pornographers to relocate in foreign countries or at least use anonymous remailers from foreign servers. [23] Testimony of March 22, 1996, at 167.

Concurring Opinion Filed July 24, 2019. In The Court of Appeals Fifth District of Texas at Dallas No. 05-19-00161-CV IN THE INTEREST OF T.R.N. AND A.R.N., CHILDREN On Appeal from the 305th Judicial District Court Dallas County, Texas Trial Court Cause No. JC-17-00385-X CONCURRING OPINION Opinion by Justice Carlyle I write with full recognition of the important process due to a person whose parental rights have been terminated. For that reason, I concur in the opinion, judgment, and order we issue today. My concern is the uneven application of rules on motions to withdraw when a court of appeals affirms after an attorney files an Anders brief. We correctly rely on In re P.M. to deny a court-appointed attorney’s unopposed motion to withdraw because that case says Family Code section 107.016(3)(B) 1 means the attorney must continue representation until “the date all appeals in relation to any final order terminating parental rights are exhausted or waived.” 520 S.W.3d 24, 27–28 (Tex. 2016) (per curiam). P.M. instructs 1 In 2017, the legislature added subpart (2), and moved former subpart (2) (which P.M. considered) to now-subpart (3) without change. See Act of May 31, 2017, 85th Leg., R.S., ch. 317, § 9 (H.B. 7) (eff. Sept. 1, 2017). that “appointed counsel’s obligations can be satisfied by filing a petition for review that satisfies the standards for an Anders brief.” Id. P.M. requires more extensive representation to indigent people represented in the termination of parental rights (TPR) context than those in the criminal context. In criminal cases, the court of criminal appeals tells us part of “appointed counsel’s duty to withdraw is based upon his professional and ethical responsibilities as an officer of the court not to burden the judicial system with false claims, frivolous pleadings, or burdensome time demands.” Kelly v. State, 436 S.W.3d 313, 318 (Tex. Crim. App. 2014). In criminal cases, “the purpose of the Anders brief is to satisfy the appellate court that the appointed counsel’s motion to withdraw is, indeed, based upon a conscientious and thorough review of the law and facts,” making “the Anders brief . . . only the proverbial tail while the motion to withdraw is the dog.” Id. (cleaned up).2 The court of criminal appeals tells us: “We hold that the courts of appeals have jurisdiction and authority to grant a motion to withdraw that accompanies an Anders brief whenever, as here, they find that appellate counsel has exercised professional diligence in assaying the record for error, and they agree that the appeal is frivolous.” Meza v. State, 206 S.W.3d 684, 689 (Tex. Crim. App. 2006) (remanding for the court of appeals to consider counsel’s Anders motion to withdraw); see also Meza v. State, No. 10-05-00037-CR (Tex. App.—Waco Nov. 1, 2006) (order on remand granting counsel’s motion to withdraw because counsel exercised diligence in analyzing the record and the court agreed with counsel’s conclusion that there were no non-frivolous issues to be raised on appeal). Finally, the court of criminal appeals makes very clear that criminal defendants have no right for appointed counsel to file a petition for discretionary review after a court of appeals affirms their conviction after appellate counsel filed an Anders brief. Kelly, 436 S.W.3d at 319– 2 Metzler, Theodore, Cleaning Up Quotations, 18 J. of App. Prac. & Process 143 (2017) (discussing and explaining the “cleaned up” parenthetical, a way to shorten unnecessarily lengthy citations); see Cadena Comercial USA Corp. v. Tex. Alcohol & Beverage Comm’n, 518 S.W.3d 318, 341 n.18 (Tex. 2017) (Willett, J., dissenting); see also United States v. Reyes, 866 F.3d 316, 321 (5th Cir. 2017); Robinson v. Home Owners Mgmt. Enters., Inc., 549 S.W.3d 226, 231 (Tex. App.—Ft. Worth 2018, pet. filed). –2– 20; Ex parte Owens, 206 S.W.3d 670, 674 & n.28 (Tex. Crim. App. 2006); Meza, 206 S.W.3d at 688. Given that the courts imported the Anders process into the TPR context, it is curious indeed that the supreme court chose not to follow the very clear court-of-criminal-appeals precedents. See In re D.A.S., 973 S.W.2d 296, 298–99 (Tex. 1998) (extending Anders procedures to juvenile cases, which are “quasi-criminal in nature”); P.M., 520 S.W.3d at 27–28 & n.10. The statutes the two high courts interpreted do not immediately appear to justify P.M. diverging from Kelly. The supreme court in P.M. dealt with the following language: [A]n attorney appointed under this subchapter to serve as an attorney ad litem for a parent or an alleged father continues to serve in that capacity until the earliest of: (A) the date the suit affecting the parent-child relationship is dismissed; (B) the date all appeals in relation to any final order terminating parental rights are exhausted or waived; or (C) the date the attorney is relieved of the attorney’s duties or replaced by another attorney after a finding of good cause is rendered by the court on the record. TEX. FAM. CODE § 107.016(3). In Kelly, the court of criminal appeals dealt with the following language: An attorney appointed under this article shall: . . . (2) represent the defendant until charges are dismissed, the defendant is acquitted, appeals are exhausted, or the attorney is permitted or ordered by the court to withdraw as counsel for the defendant after a finding of good cause is entered on the record. TEX. CODE CRIM. PROC. art. 26.04(j)(2). Both laws first provide for representation until the litigation is terminated, in the criminal context by acquittal or dismissal and in the family context by dismissal. Second, the Family Code provision provides for representation until “all appeals . . . are exhausted or waived,” while the Criminal Procedure provision says representation continues until “appeals are exhausted.” Thus, in this way, the Family Code provides by its terms two ways for the representation to cease while the Criminal Procedure code provides only one. On their face, these statutes do not appear to require a different result for motions to withdraw in an affirmed Anders indigent TPR appeal than –3– the settled Anders precedent on motions to withdraw in affirmed Anders indigent criminal or juvenile appeals. P.M. nods to part of the Code of Criminal Procedure that arguably belies its conclusion that “the exhaustion of appeals includes review sought in this Court.” 520 S.W.3d at 26 n.6 (“But see TEX. CODE CRIM. PROC. art. 1.051(d)(2)”). Code of Criminal Procedure article 1.051(d)(2) says “An eligible indigent defendant is entitled to have the trial court appoint an attorney to represent him in the following appellate and postconviction habeas corpus matters: . . . (2) an appeal to the Court of Criminal Appeals if the appeal is made directly from the trial court or if a petition for discretionary review has been granted . . . .” That statute, in concert with court of criminal appeals precedent, makes clear that criminal defendants have no right to appointed counsel for filing the petition for discretionary review. Kelly, 436 S.W.3d at 319–20; Ex parte Owens, 206 S.W.3d at 674 & n.28. Thus, when importing Anders to the TPR context, it would have seemed correct to continue the practice that courts of appeals may grant an Anders counsel’s motions to withdraw whenever the court agrees with counsel’s assessment of the record. See Meza, 206 S.W.3d at 689.3 We require convicted adult criminals to formulate their own petitions for discretionary review to the court of criminal appeals. Kelly, 436 S.W.3d at 319–20. We require committed juveniles to “advance [their] appeal through a parent, legal guardian, next friend, or guardian ad litem.” D.A.S., 973 S.W.2d at 299. But we provide for the continued appointment of counsel for 3 Except for the Waco court, every court of appeals considering the issue has concluded that P.M. forecloses granting motions to withdraw after Anders affirmances in the quasi-criminal juvenile appeals. The Waco court follows D.A.S., which tracks the traditional Anders procedure in criminal cases and which allows courts of appeals to grant motions to withdraw when attorneys file Anders briefs and the court of appeals affirms because the appeal is frivolous. See Matter of J.L.C., ___ S.W.3d ___, No. 10-18-00061-CV, 2018 WL 3763736, at *1 & n.1 (Tex. App.—Waco Aug. 8, 2018, pet. ref’d). The Waco court collected citations of cases in which courts of appeals applied P.M. to deny motions to withdraw in juvenile Anders affirmances in note 1: “See, e.g. In re C.F., No. 03-18-00008-CV, 2018 WL 2750007, 2018 Tex. App. LEXIS 4128 (Tex. App.— Austin June 8, 2018, no pet. h.) (mem. op.); In re A.H., 530 S.W.3d 715, 717 (Tex. App.—Fort Worth 2017, no pet.); In re A.C., Nos. 01-15-00932- CV, 01-15-00933-CV, 2016 WL 1658777, 2016 Tex. App. LEXIS 4285 (Tex. App.—Houston [1st Dist.] Apr. 26, 2016, no pet.) (mem. op.).” Eastland and Texarkana have joined the other courts in applying P.M. in that context. In re L.H., No. 11-17-00348-CV, 2018 WL 3763804, at * 1 (Tex. App.—Eastland Aug. 9, 2018, no pet.) (mem. op.); Matter of D.T.M., No. 06-18-00071-CV, 2019 WL 1645937, at *1 (Tex. App.—Texarkana Apr. 17, 2019, no pet.) (mem. op.). –4– parents whose actions (or inaction) have led a court to terminate their rights to their children, whose court-appointed appellate lawyer could find no non-frivolous issue to raise on appeal, and when an intermediate appellate court has agreed with that lawyer’s assessment. P.M., 520 S.W.3d at 27– 28. “Really?”4 /Cory L. Carlyle/ CORY L. CARLYLE JUSTICE 190161CF.P05 4 See Gamble v. United States, 139 S. Ct. 1960, 1999 (2019) (Gorsuch, J., dissenting); Va. House of Delegates v. Bethune-Hill, 139 S. Ct. 1945, 1957 (2019) (Alito, J., dissenting). –5– 

Order Michigan Supreme Court Lansing, Michigan December 27, 2005 Clifford W. Taylor, Chief Justice Michael F. Cavanagh 128910 Elizabeth A. Weaver Marilyn Kelly Maura D. Corrigan Robert P. Young, Jr. Stephen J. Markman, DEBORAH TUCKER, Personal Representative Justices of the Estate of JAMIE LYNN JENKINS, Plaintiff-Appellant, v SC: 128910 COA: 251771 Jackson CC: 01-003518-NZ MEIJER, INC. and GLENN MEYERS, Defendants-Appellees, and WENDY ADAMS, TOM TINKLEPAUGH, LAURIE JACOBS, JOHN DOE, employees and agents, and JANE DOE, employees and agents, Defendants. _________________________________________/ On order of the Court, the application for leave to appeal the May 5, 2005 judgment of the Court of Appeals is considered, and it is DENIED, because we are not persuaded that the questions presented should be reviewed by this Court. I, Corbin R. Davis, Clerk of the Michigan Supreme Court, certify that the foregoing is a true and complete copy of the order entered at the direction of the Court. December 27, 2005 _________________________________________ d1219 Clerk 

UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 06-6461 RICKY A. WALKER, Petitioner - Appellant, versus JON P. GALLEY, Warden, Defendant - Appellee. Appeal from the United States District Court for the District of Maryland, at Baltimore. Andre M. Davis, District Judge. (1:06-cv- 00228-AMD) Submitted: May 18, 2006 Decided: June 1, 2006 Before WIDENER and WILKINSON, Circuit Judges, and HAMILTON, Senior Circuit Judge. Dismissed by unpublished per curiam opinion. Ricky A. Walker, Appellant Pro Se. Unpublished opinions are not binding precedent in this circuit. See Local Rule 36(c). PER CURIAM: Ricky A. Walker seeks to appeal the district court’s order dismissing as successive his 28 U.S.C. § 2254 (2000) petition. The order is not appealable unless a circuit justice or judge issues a certificate of appealability. 28 U.S.C. § 2253(c)(1) (2000). 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) (2000). A prisoner satisfies this standard by demonstrating that reasonable jurists would find that any assessment of the constitutional claims by the district court is debatable or wrong and that any dispositive procedural ruling by the district court is likewise debatable. See Miller-El v. Cockrell, 537 U.S. 322, 336-38 (2003); Slack v. McDaniel, 529 U.S. 473, 484 (2000); Rose v. Lee, 252 F.3d 676, 683-84 (4th Cir. 2001). We have independently reviewed the record and conclude that Walker 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 the court and argument would not aid the decisional process. DISMISSED - 2 - 

716 F.2d 895 Haynesv.Procunier 83-6486 UNITED STATES COURT OF APPEALS Fourth Circuit 8/25/83 1 E.D.Va. VACATED AND REMANDED

163 F.3d 1355 U.S.v.Castro* NO. 98-20333 United States Court of Appeals,Fifth Circuit. November 12, 1998 Appeal From: S.D.Tex. , No.H-92-CR-25-5 Vacated. * Fed.R.App.P. 34(a); 5th Cir.R. 34-2

593 S.W.2d 828 (1980) John J. STEVENSON, Jr., Individually and as Trustee, Appellant, v. Travis B. REESE, Trustee, Appellee. No. A2232. Court of Civil Appeals of Texas, Houston (14th Dist.). January 16, 1980. Rehearing Denied February 6, 1980. *829 Thomas W. George, Nobles, George & Belt, Austin, Donald S. Stirman, Little & Dickey, Houston, for appellant. Eugene J. Pitman, DeLange, Hudspeth, Pitman & Katz, Houston, for appellee. Before J. CURTISS BROWN, C. J., and MILLER and PRESSLER, JJ. PAUL PRESSLER, Justice. This is an appeal from a summary judgment granted in a trespass to try title action. *830 Appellant was trustee and managing partner of the FM 359 Joint Venture, which purchased the property involved in this suit. The FM 359 group then sold the tract to the Brazos 125 Joint Venture and subsequently the two groups merged. As an express condition of the merger, appellant was given the exclusive right and duty to develop the tract in question. Appellant alleges that in spite of this condition, Dr. Ramon Garrido, head of the Brazos group, conspired with appellee and others to develop the tract in violation of appellant's partnership rights and obligations. Consequently, appellant brought a suit against the alleged conspirators on claims of fraud, conspiracy, breach of contract, and violation of the Deceptive Trade Practices Act. Proper venue for that suit was found to be in Fort Bend County, where the cause was transferred. Subsequently, appellee, as trustee, filed this suit as a trespass to try title action. Appellant filed his Motion to Dismiss this action and a Motion to Consolidate this suit with the case he had previously filed. He also filed his opposition to plaintiff's Motion for Summary Judgment in this cause. Final Judgment was entered granting appellee's Motion for Summary Judgment and denying appellant's Motions to Dismiss and to Consolidate. In his first point of error, appellant contends the court abused its discretion in overruling his Motion to Consolidate. Tex.R.Civ.P. 174(a) provides, "[w]hen actions involving a common question of law or fact are pending before the Court, it may order a joint hearing or trial of any or all the matters in issue in the actions ...." The trial court has broad discretion in the matter of consolidation of causes, and its action will not be disturbed on appeal except for abuse of discretion. Kemp v. Harrison, 431 S.W.2d 900 (Tex.Civ.App.-Houston [14th Dist.] 1968, writ ref'd n. r. e.). We hold that the trial court did not abuse its discretion in refusing to consolidate the two causes. Appellant contends in his second point of error that the court erred in overruling his Motion to Dismiss. This motion was based on appellant's contention that appellee's action constitutes a compulsory counterclaim under Tex.R.Civ.P. 97(a) and, having not been asserted in appellant's original answer, it is conclusively lost. Rule 97(a) requires that, "[a] pleading shall state as a counterclaim any claim within the jurisdiction of the court, not the subject of a pending action, which at the time of filing the pleading the pleader has against any opposing party, if it arises out of the transaction or occurrence that is the subject matter of the opposing party's claim...." We hold that dismissal was not mandated by Tex.R.Civ.P. 97(a). The rule does not apply where the plaintiff in the second suit is not a party defendant in the first suit. Price v. Couch, 462 S.W.2d 556 (Tex.1970). Nor does the rule apply where the plaintiff in the second suit is suing in a different capacity than that in which he was sued in the first suit. Robertson v. Estate of Melton, 306 S.W.2d 811 (Tex.Civ.App.-Beaumont 1957, writ ref'd). If in the first suit the defendant is designated in one capacity, but brings a second suit in another capacity, and such distinction is not frivolous, then Rule 97(a) will not apply since there is no identity of parties in the two suits. But if the change in capacity appears to be for no other reason than to escape the consequences of having failed to file a compulsory counterclaim in the first suit, dismissal of the second suit shall be required under Tex.R.Civ.P. 97(a). We hold that the change in capacities by the appellee in this case was not frivolous as he could have brought this trespass to try title action only in his capacity as trustee. In his third point of error, appellant contends the court erred in granting appellee's Motion for Summary Judgment because he alleges genuine issues of material fact exist. In appellant's Motion and Authorities in Opposition to Plaintiff's Motion for Summary Judgment, he alleges that the conveyance to Travis Reese, Trustee, was "a sham conveyance." This allegation constitutes an affirmative defense under Tex.R.Civ.P. 94. An affirmative defense *831 can be utilized by the non-movant in a Summary Judgment proceeding in order to raise "a genuine issue as to any material fact" and thereby defeat the Motion for Summary Judgment under Tex.R.Civ.P. 166-A. However, when the non-movant is relying on an affirmative defense for this purpose, he must present sufficient written evidence in support of that defense in order to give rise to an issue of fact. Seale v. Nichols, 505 S.W.2d 251 (Tex.1974). The pleading of an affirmative defense, alone, as was done by appellant in his Motion and Authorities in Opposition to Plaintiffs Motion for Summary Judgment, will not "defeat a motion for summary judgment by a plaintiff whose proof conclusively establishes his right to an instructed verdict if no proof were offered by his adversary in a conventional trial on the merits." Nichols v. Smith, 507 S.W.2d 518, 520 (Tex.1974). As the appellant failed to introduce written evidence in contravention of the evidence offered by appellee in support of his Motion for Summary Judgment, we hold that the trial court did not err in rendering a summary judgment for appellee. Affirmed.

891 F.Supp. 478 (1995) Hayes BARKER, Petitioner, v. UNITED STATES of America, Respondent. No. 95-C-181, [90-CR-22]. United States District Court, E.D. Wisconsin. June 20, 1995. *479 Hayes Barker, Florence, CO, pro se. Paul L. Kanter, Asst. U.S. Atty., Milwaukee, WI, for respondent. ORDER WARREN, District Judge. On April 17, 1990, petitioner Hayes Barker pled guilty to one count of conspiracy to possess with intent to distribute cocaine in violation of 18 U.S.C. § 2 and 21 U.S.C. § 846. On July 31, 1990, he was sentenced to a term of incarceration of 360 months. Although he initially appealed his sentence to the Seventh Circuit, he later stipulated to dismissal of the appeal. Since then, Barker has relentlessly pursued collateral relief through a series of post-conviction motions brought under 28 U.S.C. § 2255. On November 22, 1994, this Court dismissed Barker's fifth such motion; in doing so, we cited the following language from our May 26, 1993 Order denying Barker post-conviction relief: "Mr. Barker's dogged pursuit of post-conviction relief aptly defines the term `abuse of the writ.' Therefore, any future petitions will be summarily dismissed without legal commentary unless Mr. Barker can explain away his failure to address those issues previously." On February 17, 1995, Barker filed this, his sixth, § 2255 motion, along with a petition to proceed in forma pauperis; in it, he argues *480 that (1) "the seizure of his property was excessive in relation to his crime," and therefore constituted an "excessive fine" in violation of the Eighth Amendment, and (2) "the imposition of a criminal sentence following the civil forfeiture of Barker's property constituted a second punishment for the same offense in violation of the double jeopardy clause of the fifth amendment." He states that his "failure to raise a double jeopardy defense in the District Court was based on the fact that the 7th Cir. law [] in effect at the time he was before the Court precluded an argument under double jeopardy or excessive fines," and that the law only changed after the Supreme Court decided Austin v. United States, ___ U.S. ___, 113 S.Ct. 2801, 125 L.Ed.2d 488 (1993). Post-conviction relief under § 2255 is an exceptional remedy which, while designed as a "bulwark against convictions that violate fundamental fairness," entails significant costs. Engle v. Isaac, 456 U.S. 107, 126, 102 S.Ct. 1558, 1571, 71 L.Ed.2d 783 (1982). The most important of these costs is the uncertainty of criminal convictions. Coleman v. Thompson, 501 U.S. 722, 748-50, 111 S.Ct. 2546, 2564, 115 L.Ed.2d 640 (1991). As noted by the Supreme Court, "both the individual criminal defendant and society have an interest in insuring that there will at some point be the certainty that comes with an end to litigation and that attention will ultimately be focused not on whether the conviction was free from error but rather on whether the prisoner can be restored to a useful place in the community." Engle, 456 U.S. at 127, 102 S.Ct. at 1571. Given the importance of finality, a § 2255 petition, which may be brought years after conviction, does not serve as a substitute for a direct appeal. Belford v. United States, 975 F.2d 310, 313 (7th Cir.1992); Bontkowski v. United States, 850 F.2d 306, 312 (7th Cir.1988). As a result, when possible, all issues raised in a habeas petition must first be raised on direct appeal. Theodorou v. United States, 887 F.2d 1336, 1339 (7th Cir.1989); Williams v. United States, 805 F.2d 1301, 1304 (7th Cir.1986), cert. denied, 481 U.S. 1039, 107 S.Ct. 1978, 95 L.Ed.2d 818 (1987). When a party fails to properly raise a constitutional objection on direct appeal, he or she may not proceed in a federal habeas petition unless showing both (1) good cause[1] for failing to pursue the issue on direct appeal, and (2) actual prejudice[2] stemming from a constitutional violation. Wainwright v. Sykes, 433 U.S. 72, 87, 97 S.Ct. 2497, 2506, 53 L.Ed.2d 594 (1977); Belford, 975 F.2d at 313; Williams, 805 F.2d at 1306-07. A party is barred, without regard to "cause and prejudice," from raising non-constitutional challenges in § 2255 proceedings that could have been raised on direct appeal. Bontkowski, 850 F.2d at 313. The "cause and prejudice" test applies both to procedural defaults committed at trial and those made on appeal. Murray v. Carrier, 477 U.S. 478, 491, 106 S.Ct. 2639, 2647, 91 L.Ed.2d 397 (1986). None of Barker's claims may be brought in this, his sixth, § 2255 proceeding, or in any subsequent post-conviction petition. "Abuse of the writ" applies when a prisoner utilizes a post-conviction petition to raise grounds that were available, but not relied upon, in a prior petition. Kuhlmann v. Wilson, 477 U.S. 436, 445, 106 S.Ct. 2616, 2622, 91 L.Ed.2d 364 (1986) (citing Sanders v. United States, 373 U.S. 1, 15-19, 83 S.Ct. 1068, 1077-79, 10 L.Ed.2d 148 (1963)). Rule *481 9(b) of the Rules Governing § 2255 Proceedings authorizes a district court judge to dismiss a second or successive § 2255 motion upon finding "that it fails to allege new or different grounds for relief and the prior determination was on the merits or, if new and different grounds are alleged, the judge finds that the failure of the movant to assert those grounds in a prior motion constituted an abuse of the procedure governed by these rules." In such circumstances, the movant bears the burden of disproving abuse of the writ; "to excuse his failure to raise the claim earlier, he must show cause for failing to raise it and prejudice therefrom as those concepts have been defined in" Wainwright and its progeny. McCleskey v. Zant, 499 U.S. 467, 493-95, 111 S.Ct. 1454, 1470, 113 L.Ed.2d 517 (1991).[3] As previously indicated, Barker has continually abused the privilege of seeking a post-conviction writ by repeatedly filing baseless § 2255 petitions, including his fifth such petition filed on May 31, 1994. Ironically, as a result of this behavior, Barker cannot now show good cause for failing to raise the above-referenced claims in any of his previous § 2255 petitions as required under McCleskey. He purports to base his double jeopardy and excessive fine claims on Austin; however, that opinion was issued on June 28, 1993, or nearly one year prior to the date on which he filed his fifth § 2255 petition. As a result, he could, in fact, have brought the instant claims at that time; he offers no explanation for his failure to do so. Whether out of oversight or inadvertence, his failure (without good cause) to bring these claims in his prior petition precludes him from doing so now. Nor will Barker suffer actual prejudice if we refuse to hear his claims. In Austin, the Supreme Court held that the Eighth Amendment's excessive fines clause applies to in rem civil forfeiture proceedings; it did not address any Fifth Amendment issues. This effectively reversed the Seventh Circuit's prior position that "the Eighth Amendment does not apply to civil in rem actions." United States v. Certain Real Property, 943 F.2d 721, 727 (7th Cir.1991); United States v. On Leong Chinese Merchants Assoc. Building, 918 F.2d 1289, 1296 (7th Cir.1990), cert. denied, 502 U.S. 809, 112 S.Ct. 52, 116 L.Ed.2d 29 (1991). The issue of whether or not his civil forfeiture was an "excessive fine" under the Eighth Amendment, however, has nothing to do with the "fairness" of his criminal trial; as a result, it is not cognizable under § 2255, which provides a remedy for constitutional errors made during a criminal trial. Barker's Fifth Amendment claim, in turn, is actually based on United States v. Halper, 490 U.S. 435, 446-49, 109 S.Ct. 1892, 1900-02, 104 L.Ed.2d 487 (1989), in which the Supreme Court held that the Double Jeopardy clause prohibits post-conviction civil forfeiture proceedings where the forfeiture cannot be fairly characterized as remedial. Accord Montana Dept. of Revenue v. Kurth Ranch, ___ U.S. ___, 114 S.Ct. 1937, 128 L.Ed.2d 767 (1994).[4] Barker, then, could have raised his double jeopardy claim on direct appeal (or, indeed, in any of his five previous § 2255 petitions). His failure to do so without good cause precludes him from seeking post-conviction relief pursuant to Wainwright; as a result, and because this claim does not implicate actual innocence, he *482 again cannot be prejudiced by our refusal to recognize the instant petition. The Supreme Court noted in McCleskey that: "The doctrines of procedural default and abuse of the writ implicate nearly identical concerns flowing from the significant costs of federal habeas corpus review. To begin with, the writ strikes at finality ... Habeas review extracts further costs. Federal collateral litigation places a heavy burden on scarce federal judicial resources, and threatens the capacity of the system to resolve primary disputes. Finally, habeas corpus review may give litigants incentives to withhold claims for manipulative purposes and may establish disincentives to present claims when evidence is fresh. Far more severe are the disruptions when a claim is presented for the first time in a second or subsequent federal habeas petition ... Perpetual disrespect for the finality of convictions disparages the entire criminal justice system ... If re-examination of a conviction in the first round of federal habeas stretches resources, examination of new claims raised in a second or subsequent petition spreads them thinner still." McCleskey, 499 U.S. at 492, 111 S.Ct. at 1468-69. Were this Barker's first § 2255 petition, he would be allowed to attempt to show cause and prejudice for his failure to raise his double jeopardy claim on direct appeal. Because he has abused the writ, however, he cannot be afforded this opportunity; in effect, Barker's repeated and ill-considered attempts to seek collateral review of his conviction based on frivolous claims has precluded him from raising his Double Jeopardy (or any other) claim, whether meritorious or not, unless truly based on an intervening change in the law. See, e.g., Sanders, 373 U.S. at 17, 83 S.Ct. at 1078. Given his litigious past, the Court will continue viewing Barker's future submissions with heightened scrutiny; if he files any further § 2255 petitions which are not clearly based on an intervening change in law, or any other frivolous submissions, he risks being sanctioned accordingly, including monetary penalties and/or restrictions on the amount or frequency of filings. For the foregoing reasons, Barker's sixth § 2255 motion is summarily DISMISSED as an abuse of the writ; his in forma pauperis petition is DENIED, and his May 30, 1995 Motion for Writ of Mandamus is DENIED as moot. SO ORDERED. NOTES [1] "Good cause" exists when some external factor impedes a defendant's ability to comply with a procedural rule. Murray v. Carrier, 477 U.S. 478, 488, 106 S.Ct. 2639, 2645-46, 91 L.Ed.2d 397 (1986). Ineffective assistance of counsel in violation of the Sixth Amendment may constitute "cause" under Wainwright for a procedural default. Id. When assessing whether a party has established cause, the Court may only examine that party's proffered reasons for not appealing and not speculate about other possible explanations. Williams, 805 F.2d at 1309; Qualls v. United States, 774 F.2d 850, 851 (7th Cir.1985). [2] To prove "prejudice" under Wainwright, a party must show "not merely that the errors ... created a possibility of prejudice, but that they worked to his actual and substantial disadvantage, infecting his entire trial [or appeal] with error of constitutional dimensions." United States v. Frady, 456 U.S. 152, 170, 102 S.Ct. 1584, 1596, 71 L.Ed.2d 816 (1982). This requires "a showing that the prisoner was denied `fundamental fairness' at trial." Murray, 477 U.S. at 491, 106 S.Ct. at 2647. [3] We recognize that, pursuant to McCleskey, the government typically bears the burden of pleading abuse of the writ, which it satisfies by noting "with clarity and particularity" the movant's prior writ history and the claims that appear for the first time. McCleskey, 499 U.S. at 494, 111 S.Ct. at 1470. However, we do not read McCleskey as precluding a district court, in appropriate circumstances, from raising abuse of the writ sua sponte for purposes of Rule 9(b) analysis. A contrary understanding would impose unnecessary and purposeless burdens on the government, as well as require us to ignore our previous orders; both these results would be inimical to the policies underlying Rule 9(b). See, e.g., Liss v. United States, 915 F.2d 287, 290 (7th Cir.1990) (noting that summary dismissal of § 2255 motions under Rule 4(b) is encouraged where it will enhance "the chief virtues of the justice system—speed, economy and finality"). Accord Delgado v. United States, 936 F.2d 303, 309 (7th Cir.1991). [4] In United States v. Torres, 28 F.3d 1463, 1465 (7th Cir.1994), the Seventh Circuit recognized that, depending on the circumstances, parallel administrative and criminal drug proceedings may, in some circumstances, violate the Double Jeopardy clause.

J-S09020-20 NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37 COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF : PENNSYLVANIA : v. : : : TYREE JOHNSON : : Appellant : No. 2942 EDA 2018 Appeal from the Judgment of Sentence Entered September 24, 2018 In the Court of Common Pleas of Philadelphia County Criminal Division at No(s): CP-51-CR-0000327-2018 BEFORE: SHOGAN, J., LAZARUS, J., and COLINS, J.* MEMORANDUM BY LAZARUS, J.: Filed: April 30, 2020 Tyree Johnson appeals from the judgment of sentence, entered in the Court of Common Pleas of Philadelphia County, following his convictions for possession of a controlled substance,1 possession with intent to deliver (PWID),2 conspiracy—PWID,3 and possession of drug paraphernalia.4 Upon careful review, we affirm. ____________________________________________ * Retired Senior Judge assigned to the Superior Court. 1 35 P.S. § 780-113(a)(16). 2 35 P.S. § 780-113(a)(30). 3 18 Pa.C.S.A. § 903; 35 P.S. § 780-113(a)(30). 4 35 P.S. § 780-113(a)(32). J-S09020-20 Throughout the first week of November 2017, Officer Michelle Proctor of the Philadelphia Police Department and her partner, Officer Beattie,5 conducted surveillance of a residence located at 1841 Morris Street in Philadelphia, after receiving information that narcotics were being sold at that address. N.T. Suppression/Motion to Compel Hearing/Trial, 7/10/18, at 6-8. Over the course of the week, the officers conducted five controlled drug purchases at the house with the assistance of a confidential informant (CI) who previously participated in numerous investigations that led to several arrests and drug confiscations. Id. at 15-16. On November 1, 2017, the officers gave the CI twenty dollars of pre- recorded buy money and instructed the CI to purchase marijuana at the house. Id. at 8. From her vehicle, Officer Proctor observed the CI speak with Johnson and an unknown male outside the house. Id. at 8-9, 20. Officer Proctor watched the CI hand the buy money to the unknown male, who handed the CI a clear bag containing a substance that was later tested and confirmed to be marijuana. Id. at 8-10. Following the purchase, Johnson and the unknown male entered the house. Id. at 9. The next day, November 2, 2017, the officers gave the CI another twenty dollars of pre-recorded buy money and instructed the CI to purchase marijuana at the house again. Id. at 10. Officer Proctor observed Johnson exit the house and speak with the CI, ____________________________________________ 5 Only Officer Beattie’s surname and badge number (No. 9597) are provided in the certified record. See N.T. Suppression/Motion to Compel Hearing/Trial, 7/10/18, at 8, 12, 63. -2- J-S09020-20 who handed Johnson the buy money. Id. Johnson returned inside, came back out, and handed the CI a clear bag containing marijuana. Id. On November 3, 2017, the officers gave the CI forty dollars of pre-recorded buy money and instructed the CI to purchase crack cocaine and heroin at the house. Id. Officer Proctor watched Johnson exit the house, speak with the CI, and take the buy money from the CI. Id. at 10-11. Johnson went inside, came back out, and gave the CI two red packets containing a substance later tested and confirmed to be heroin, and one yellow packet containing a substance later tested and confirmed to be crack cocaine. Id. On November 6, 2017, the officers gave the CI twenty dollars of pre-recorded buy money and instructed the CI to purchase crack cocaine at the house again. Id. at 11. Officer Proctor saw Johnson on the front steps of the house and saw the CI walk to and from the house, but did not witness any exchange because traffic obstructed her view. Id. The CI returned to the officers with one orange packet containing crack cocaine. Id. Officer Proctor then applied for and obtained a search warrant for the house. Id. The following day, November 7, 2017, Officers Proctor and Beattie met with the CI near the house, handed the CI twenty dollars of pre-recorded buy money, and instructed the CI to purchase crack cocaine at the house a third time. Id. at 12. The CI spoke with Quadir Rodison on the front steps of the house and, as Rodison went inside, another man, Ramon Dixon, guarded the doorway. Id. Rodison returned and, in exchange for the pre-recorded buy money, handed the CI two clear packets containing crack cocaine before he -3- J-S09020-20 and Dixon went back inside. Id. Officer Beattie relayed this information to backup officers in the area and instructed them to execute the search warrant. Id. at 13. Johnson and his cousin Ramel6 entered the premises minutes before the warrant was executed. Id. at 24, 74-76. As seven or more officers dressed in full raid gear approached the house, they observed Rodison in the window beside the front door, and attempted to “play it off initially” by walking “a little bit past the first house.” Id. at 13, 33. Upon seeing the raid team ascend the steps, however, Rodison ran away from the window, away from the direction of the front door beside him. Id. at 13, 18, 31-33. Noticing Rodison’s flight, the raid team used force to open the front door of the house without knocking or announcing their identity and purpose.7 Id. at 13, 32. Inside the house, the raid team found Johnson, Rodison, Dixon, and Ramel in the front bedroom of the second floor. Id. All four men were detained, identified, and placed under arrest. Id. at 13. Police recovered two packets of heroin from underneath the bed, $178 in pre-recorded buy money from Dixon, and $63 in pre-recorded buy money from Rodison. Id. at 13-14. From the middle bedroom, police recovered one clear bag containing 13 ____________________________________________ 6Officer Proctor and the Commonwealth refer to Ramel as “Ramel Robinson,” N.T. Suppression/Motion to Compel Hearing/Trial, 7/10/18, at 13, 14, 18, 28, but Johnson testified that Ramel’s last name is “Rodison.” Id. at 76. 7 In that moment, Officer Proctor was behind the house securing the rear exit, and she did not personally observe Rodison flee from the window; she was informed of Rodison’s flight via police surveillance radio immediately prior to the raid team’s entry. N.T. Suppression/Motion to Compel Hearing/Trial, 7/10/18, at 28-33. -4- J-S09020-20 orange packets of crack cocaine, one clear bag containing 15 grams of bulk crack cocaine, six clear jars of marijuana, one tin can containing 98 packets of heroin, and a scale. Id. at 14. From the rear bedroom, police recovered five jars of marijuana, “one packet of [h]eroin stamped, El Chapo,” four brown boxes of unused blue glassine bags (used for packaging heroin), Johnson’s probation card, and a Pennsylvania ID bearing Johnson’s name and the address of that house, 1841 Morris Street. Id. at 14-16. On July 10, 2018, the trial court held a hearing on Johnson’s motion to suppress the evidence recovered from his house, during which Officer Proctor testified to the facts above. See id. at 7-36. The trial court denied Johnson’s motion. See id. at 47-49. The court proceeded to hear argument on Johnson’s motion to compel the disclosure of the identity of the CI, which the court also denied. See id. at 49-56. That same day, Johnson waived his right to a jury trial and the Honorable William Mazzola found him guilty of the above-stated crimes. See id. at 57-60, 84. On September 24, 2018, the court sentenced Johnson to an aggregate term of one to three years’ imprisonment followed by five years of probation. Johnson timely filed a notice of appeal and court-ordered Pa.R.A.P. 1925(b) concise statement of errors complained of on appeal. Johnson raises the following issues for our review: 1. [Whether t]he trial court erred by denying the [m]otion to [s]uppress where the police violated the knock and announce rule when entering [Johnson’s] premises without any exigent circumstances[?] -5- J-S09020-20 2. [Whether t]he trial court erred by denying the [m]otion to [c]ompel [d]isclosure of [CI] where the [CI’s] identity was material to the defense of mistaken identification, and the request was reasonable as disclosure would not jeopardize the [CI’]s safety[?] 3. [Whether t]he evidence was insufficient to adjudicate [Johnson] guilty of [c]riminal [c]onspiracy where the Commonwealth failed to prove that [Johnson] made an agreement with others to distribute narcotics[?] Brief of Appellant, at 11-14. Johnson first claims that the trial court erred by denying his motion to suppress. He argues that when police forcibly entered his home, in violation of the “knock and announce rule,” they violated his constitutional right to be free from unreasonable searches and seizures. Brief of Appellant, at 10. In an appeal from the denial of a motion to suppress, our review is “limited to determining whether the record supports the suppression court’s factual findings and the legitimacy of the inferences and legal conclusions drawn from those findings.” Commonwealth v. Hall, 199 A.3d 954, 959 (Pa. Super. 2018) (quotations and citations omitted). In making this determination, we may only consider the evidence of the prosecution’s witnesses and so much of the defense as, fairly read in the context of the record as a whole, remains uncontradicted. When the factual findings of the suppression court are supported by the evidence, we may reverse only if there is an error in the legal conclusions drawn from those factual findings. Commonwealth v. Lohr, 715 A.2d 459, 461 (Pa. Super. 1998). Where, as here, the appeal of the determination of the suppression court turns on allegations of legal error, the suppression court’s legal conclusions are not binding on an -6- J-S09020-20 appellate court, whose duty it is to determine if the suppression court properly applied the law to the facts. Thus, the conclusions of law of the courts below are subject to our plenary review. Commonwealth v. Jones, 988 A.2d 649, 654 (Pa. Super. 2010). Pennsylvania Rule of Criminal Procedure 207 provides that law enforcement officers are required to knock and announce their identity and purpose to any occupant of the premises and wait a reasonable period of time for a response before executing a search warrant, “unless exigent circumstances require the officer’s immediate forcible entry.” Pa.R.Crim.P. 207(A)-(B). In Pennsylvania, we have recognized four exigent circumstances that constitute “exceptions to the requirements of the knock and announce rule.” Commonwealth v. Wagstaff, 911 A.2d 533, 536 (Pa. Super. 2006). These exceptions are: (1) the occupants remain silent after repeated knocking and identification; (2) the police are virtually certain that the occupants already know their purpose; (3) the police have reason to believe that an announcement prior to entry would imperil their safety; and (4), the police have reason to believe evidence is about to be destroyed. Id.; see also Commonwealth v. Kane, 940 A.2d 483, 489 (Pa. Super. 2007) (“[I]n order to invoke an exception, police must only possess a reasonable suspicion that one of these grounds is present.”). To determine whether suppression is appropriate based on a violation of the knock and announce rule, “police conduct must be examined in light of the Fourth Amendment, which mandates that police [act] reasonabl[y].” Id. -7- J-S09020-20 at 491. “Under Rule 207 (and criminal law in general), what is ‘reasonable’ is a case-by-case determination based upon the information available to the police.” Wagstaff, supra at 535. “An action is ‘reasonable’ under the Fourth Amendment, regardless of the individual officer’s state of mind, as long as the circumstances, viewed objectively, justify the action.” Commonwealth v. Coughlin, 199 A.3d 401, 410 (Pa. Super. 2018). The Commonwealth possesses the burden of establishing by a preponderance of the evidence that the search or seizure satisfied the mandates of Rule 207 and that the evidence is therefore admissible. Wagstaff, supra at 535. Finally, we note that: There are no set rules as to the time an officer must wait before using force to enter a house; the answer will depend on the circumstances of each case. No case in this Commonwealth interpreting this rule has ever required officers to wait until the occupants destroy the evidence or flee and thus render a search unavailing or an arrest impossible. Commonwealth v. Walker, 874 A.2d 667, 674 (Pa. Super. 2005). Here, the Commonwealth admitted that the police did not knock and announce their identity and purpose before entering Johnson’s home by force, but contended that the entry was justified because the occupants knew they were coming and why, might have been armed and offered resistance, and because police had reason to believe that evidence would be destroyed. N.T. Suppression/Motion to Compel Hearing/Trial, 7/10/18, at 22, 32, 43-47. At the suppression hearing, Officer Proctor testified that the raid team used force to enter Johnson’s home because they saw Rodison run from the window and sought to get inside the house before evidence was destroyed by the -8- J-S09020-20 occupants. Id. at 32. Johnson argues that the police lacked any exigent circumstance to justify forcibly entering his home without knocking, announcing their purpose and identity, and waiting a reasonable period of time. Brief of Appellant, at 13. Specifically, Johnson argues that Rodison’s flight from the window as police approached the home was insufficient to establish that narcotics, paraphernalia, or currency would be destroyed. Id. At the hearing on Johnson’s motion to suppress, the trial court offered the following rationale for denying the motion: [I]t is clear that by a preponderance of the evidence[—]probably more[—]that the police were justified in believing, obviously, that there were drugs in the location, not only because of the surveillance that happened from the prior six days, but there was actually an alleged drug sale to the CI involved in this case made on the day the search warrant was executed not too long beforehand. As pointed out, [Johnson,] who had been identified by the officer as participating in prior drug sales from that location[,] had just arrived moments before. The police were, as stated, dressed in raid gear, which has blue and yellow police all over them so it is quite clear who they were. There were seven of them. You usually don’t see seven police officers walking together on routine patrol. They approached the house trying to be covert, but [were] unsuccessful. A person previously identified as one of the conspirators involved[, Rodison,] is at the bay window, sees them, and runs away from the window. He does not run in the direction of the door, which is to the left of the window. He runs away from the window. I think under all these circumstances the police were justified; and [t]he [c]ourt is justified in finding that the people inside the premise[s] know the purpose when seven police decked out in raid gear are at the front door. I see no evidence in anything that is recovered or during the various transactions of any weapons, I do not think the safety issue alone would justify the exigent circumstances. . . . The running away from the window evidence [supports] not only that the occupants knew what was happening, but that [there was] a strong -9- J-S09020-20 possibility that the evidence could be destroyed. I am going to deny the motion. Trial Court Opinion, 5/13/15, at 9-10 (emphasis added). In Commonwealth v. Beard, 461 A.2d 790, 792 (Pa. 1983), the Pennsylvania Supreme Court explained that, [t]he fact that [the appellant] recognized the police and[,] upon doing so, fled into the residence is sufficient evidence that he knew the identity and purpose of the police. Thus, the police had valid grounds for being virtually certain that [the Appellant] had ascertained their purpose and would attempt to destroy the evidence of narcotics. In such circumstances, noncompliance with the knock and announce requirement is excused. Id. at 792-93 (emphasis added); see also Commonwealth v. Dial, 285 A.2d 125, 127 (Pa. 1971) (“when [officers] heard the sounds of running and the door was not opened, they were warranted in thinking that they were refused admittance and that an effort was underway to destroy evidence”); Commonwealth v. Dean, 693 A.3d 1360 (Pa. Super. 1997) (officers with specific, articulable reason to believe exigent circumstances exist are justified in departing from knock and announce rule). Here, Rodison, who was previously identified as a drug dealer, and who sold drugs at the house just prior to the warrant’s execution, fled from the window and front door upon seeing the raid team approach.8 Rodison’s flight gave the raid team a specific, articulable basis for believing exigent ____________________________________________ 8 In fact, police apprehended Rodison (and the other coconspirators) on the second floor of the home where all of the contraband was located. N.T. Suppression/Motion to Compel Hearing/Trial, 7/10/18, at 13-14. - 10 - J-S09020-20 circumstances existed to justify a knock and announce violation; specifically, the police were virtually certain that the occupants already knew their purpose, and they had reason to believe evidence was about to be destroyed. Beard, supra; Dean, supra; Dial, supra. Accordingly, the suppression court properly denied Johnson’s suppression motion. Johnson also claims that the trial court erred by denying his motion to compel the disclosure of the CI. He contends that disclosure of the CI’s identity was material to the preparation of his defense and that his request for disclosure was reasonable in that the CI’s safety would not be jeopardized. Brief of Appellant, at 15-16. “Our standard of review of claims that a trial court erred in its disposition of a request for disclosure of an informant’s identity is confined to abuse of discretion.” Commonwealth v. Washington, 63 A.3d 797, 801 (Pa. Super. 2013). “Under Pennsylvania Rule of Criminal Procedure 573, a trial court has the discretion to require the Commonwealth to reveal the names and addresses of all eyewitnesses, including confidential informants, where a defendant makes a showing of material need and reasonableness.” Commonwealth v. Marsh, 997 A.2d 318, 321 (Pa. 2010); see also Pa.R.Crim.P. 573(B)(2)(a)(i). The Commonwealth enjoys a qualified privilege to withhold the identity of a confidential source; “only after the defendant shows that the identity of the confidential informant is material to the defense is the trial court required to exercise its discretion to determine whether the - 11 - J-S09020-20 information should be revealed by balancing relevant factors,[9] which are initially weighted toward the Commonwealth.” Commonwealth v. Watson, 69 A.3d 605, 607-08 (Pa. Super. 2019), quoting Marsh, supra at 321-22. Here, Johnson contends that he overcame the Commonwealth’s qualified privilege against disclosure with evidence establishing that disclosure was both material to his mistaken identity defense and reasonable. Brief of Appellant, at 15-16. Regarding the first prong, Johnson submits that he established a material need for disclosure because he denied his involvement in any drug sale and “testified that he looked like his cousin Ramel who also lived at the property.” Id. at 15. However, Johnson only testified that Ramel “looks like [him]”—having a “husky buil[d]” and “facial hair”—at trial, after ____________________________________________ 9In striking the proper balance, the court must consider the following principles: A further limitation on the applicability of the privilege arises from the fundamental requirements of fairness. Where the disclosure of an informer’s identity, or of the contents of his communication, is relevant and helpful to the defense of an accused, or is essential to a fair determination of a cause, the privilege must give way. In these situations[,] the trial court may require disclosure and, if the Government withholds the information, dismiss the action. [N]o fixed rule with respect to disclosure is justifiable. The problem is one that calls for balancing the public interest in protecting the flow of information against the individual’s right to prepare his defense. Whether a proper balance renders nondisclosure erroneous must depend on the particular circumstances of each case, taking into consideration the crime charged, the possible defenses, the possible significance of the informer’s testimony, and other relevant factors. Marsh, supra at 322. - 12 - J-S09020-20 the court denied his motion to compel disclosure. See N.T. Suppression/Motion to Compel Hearing/Trial, 7/10/18, at 76-77. In arguing the motion, Johnson simply averred that the CI would provide exculpatory information, but “failed to explain how the revelation of the CI’s identity would be material in preparing his defense” and “how the CI possessed relevant information.” Commonwealth v. Ellison, 213 A.3d 312, 318 (Pa. Super. 2019). Accordingly, Johnson failed to make the threshold showing that the identity of the CI was material to the preparation of his defense, and the trial court did not err in denying his motion to compel disclosure. See id. (mere assertion that CI’s identity is material to defense imposes no duty on trial court to balance competing interests and determine if disclosure required). Lastly, Johnson challenges the sufficiency of the evidence of his conviction for criminal conspiracy—PWID. Whether sufficient evidence exists to support the verdict is a question of law; our standard of review is de novo and our scope of review is plenary. Commonwealth v. Tejada, 107 A.3d 788, 792 (Pa. Super. 2015). We review the evidence in the light most favorable to the Commonwealth as verdict winner to determine whether there is sufficient evidence to allow the trier of fact to find every element of a crime beyond a reasonable doubt. Id. In applying the above test, we may not weigh the evidence and substitute our judgment for [that of] the fact-finder. In addition, we note that the facts and circumstances established by the Commonwealth need not preclude every possibility of innocence. Any doubts regarding a defendant’s guilt may be resolved by the - 13 - J-S09020-20 fact-finder unless the evidence is so weak and inconclusive that[,] as a matter of law[,] no probability of fact may be drawn from the combined circumstances. The Commonwealth may sustain its burden of proving every element of the crime beyond a reasonable doubt by means of wholly circumstantial evidence. Moreover, in applying the above test, the entire record must be evaluated and all evidence actually received must be considered. Finally, the [fact-finder,] while passing upon the credibility of the witnesses and the weight of the evidence produced, is free to believe all, part[,] or none of the evidence. Commonwealth v. Cahill, 95 A.3d 298, 300 (Pa. Super. 2014). A person commits the crime of PWID by knowingly creating, delivering, or possessing with intent to deliver a controlled substance or counterfeit controlled substance. 35 P.S. § 780-113(a)(30). To prove the crime of conspiracy, the Commonwealth must show a defendant entered into an agreement to commit or aid in an unlawful act with another person, that he and that person acted with shared criminal intent, and that an overt act was taken in furtherance of the conspiracy. Commonwealth v. Feliciano, 67 A.3d 19, 25-26 (Pa. Super. 2013) (en banc); 18 Pa.C.S.A. § 903. Johnson argues that the Commonwealth failed to prove beyond a reasonable doubt that he made an agreement with others to distribute narcotics. Brief of Appellant, at 18. Specifically, he submits that, “[a]t most, the evidence showed that multiple individuals sold their respective narcotics from the same house[;]” Johnson did not exchange narcotics or money with another individual, and none of the packets recovered from his bedroom matched the packets in the other bedrooms. Id. - 14 - J-S09020-20 “An explicit or formal agreement to commit crimes can seldom, if ever, be proved and it need not be, for proof of a criminal partnership is almost invariably extracted from the circumstances that attend its activities.” Commonwealth v. Johnson, 719 A.2d 778, 785 (Pa. Super. 1998). “The conspiratorial agreement can be inferred from a variety of circumstances including, but not limited to, the relation between the parties, knowledge of and participation in the crime, and the circumstances and conduct of the parties surrounding the criminal episode.” Feliciano, supra quoting Commonwealth v. Devine, 26 A.3d 1139, 1147 (Pa. Super. 2011). These factors “may create a web of evidence linking the accused to the alleged conspiracy beyond a reasonable doubt.” Devine, supra at 1147. In Feliciano, supra, we concluded that there was sufficient evidence to sustain the appellant’s conviction for conspiracy to commit PWID where a woman exited the defendant’s house and told an undercover agent, “He’s bagging it up. He will be out,” before the defendant exited the house and handed the agent five bags of cocaine. Id. at 26. We rejected the appellant’s argument that the Commonwealth failed to prove the existence of any agreement between the appellant and the woman, explaining that, because the appellant acted in accordance with her statement to the agent, it was “sufficiently evident that [a]ppellant entered into an agreement with [her] with the shared criminal intent of selling cocaine, and he committed the necessary overt act by selling the drug.” Id. Thus, here, it was not necessary for the - 15 - J-S09020-20 Commonwealth to prove that Johnson made an express agreement with the others to distribute narcotics or share in the profits. Johnson, supra; see also Feliciano, supra. The evidence, viewed in the light most favorable to the Commonwealth as verdict winner, shows that four individuals including Johnson were engaged in a drug sales operation together and exercised joint possession and control over the premises as well as the drugs and packaging materials inside. In addition to the drug sales Johnson made to the CI over several days, Johnson was present when an unidentified male sold marijuana to the CI from the premises on November 1, 2017. Furthermore, during the week the warrant was executed, both Johnson and Rodison sold crack cocaine to the CI, but all of the crack cocaine recovered from the house was kept outside of Johnson’s bedroom; this belies his argument that the individuals maintained their own “respective narcotics.” Brief of Appellant, at 18. We agree with the trial court’s conclusion that “[a]ny jury could have reasonably inferred that all of them were aiding each other in [their] endeavors in a tacit conspiratorial agreement based on the circumstantial evidence.” Trial Court Opinion, 5/13/18, at 18. In sum, the evidence is sufficient to sustain Johnson’s conviction for conspiracy to commit PWID. Judgment of sentence affirmed. - 16 - J-S09020-20 Judgment Entered. Joseph D. Seletyn, Esq. Prothonotary Date: 4/30/20 - 17 - 

NOT RECOMMENDED FOR FULL-TEXT PUBLICATION File Name: 19a0480n.06 No. 18-3317 UNITED STATES COURT OF APPEALS FILED FOR THE SIXTH CIRCUIT Sep 13, 2019 DEBORAH S. HUNT, Clerk MAC A. COLEMAN, ) ) Petitioner, ) ON PETITION FOR REVIEW ) OF AN ORDER OF THE ) BENEFITS REVIEW BOARD ) CHRISTEN COLEMAN TRUCKING; ) OPINION KENTUCKY EMPLOYERS MUTUAL ) INSURANCE; DIRECTOR, OFFICE OF ) WORKERS’ COMPENSATION PROGRAMS, ) U. S. DEPARTMENT OF LABOR, ) ) Respondents. ) BEFORE: NORRIS, DAUGHTREY, and LARSEN, Circuit Judges. ALAN E. NORRIS, Circuit Judge. Petitioner Mac Arthur Coleman applied for, and received, disability benefits under the Black Lung Benefits Act, 30 U.S.C. §§ 901-944 (“the Act”). At this juncture, no one disputes that he suffers from pneumoconiosis. The sole question on appeal concerns the date on which claimant qualified for these benefits. An administrative law judge concluded that his entitlement to benefits began in November 2008; the Benefits Review Board (“the Board”) disagreed and determined the date to be August 2012. The Board’s decision resulted in a loss to Mr. Coleman of $41,978.10 in benefits. He now seeks review. We conclude that the ruling of the administrative law judge was legally correct and grant the petition for review.  Coleman v. Coleman Trucking. No. 18-3317 I. Mr. Coleman was born in 1944 and began working as a coal miner in 1964. (ALJ Decision and Order, Nov. 21, 2016). He left the mining industry in 2006. His employer, for the purposes of this black lung claim, was respondent Christen Coleman Trucking; the Director of the Department of Labor’s Office of Workers’ Compensation Programs (“the Director”) is also a respondent, as is Kentucky Employers Mutual Insurance, which insures Coleman Trucking. Petitioner filed his first application for black lung benefits on January 14, 2008. The district director issued a proposed decision and order on September 30, 2008, denying the claim. In the order, the Director found that Mr. Coleman “was employed as a coal miner in the Nation’s coal mines for 23 years.” However, the Director went on to conclude that “the evidence does not show that the miner has pneumoconiosis.” Claimant did not seek review of the proposed order and it therefore became final after 30 days. 20 C.F.R. § 725.419(d). Mr. Coleman filed a second claim on August 7, 2012. On April 14, 2016, Administrative Law Judge Alice Craft conducted a hearing during which Mr. Coleman testified at length about the nature of his work history. On November 21, 2016, she issued a decision awarding disability benefits under the Act: The Claimant has met his burden to establish that he had more than 15 years of qualifying coal mine employment, and a totally disabling pulmonary or respiratory impairment. The Employer has failed to rebut the presumption that the Claimant is totally disabled due to pneumoconiosis. The Claimant is therefore entitled to benefits under the Act. .... In the case of a miner who is totally disabled due to pneumoconiosis, benefits commence with the month of onset of total disability due to pneumoconiosis. Medical evidence of total disability does not establish the date of the entitlement; rather, it shows that a claimant became disabled at some earlier date. Where the evidence does not establish the month of onset, benefits begin with 2  Coleman v. Coleman Trucking. No. 18-3317 the month that the claim was filed, unless the evidence establishes that the Miner was not totally disabled due to pneumoconiosis at any subsequent time. The regulation regarding subsequent claims [such as this one] also provides, however, that “[i]n any case in which a subsequent claim is awarded, no benefits may be paid for any period prior to the date upon which the order denying the prior claim became final.” I have found that the Claimant is totally disabled based on the results of his pulmonary function testing, which shows obstructive disease, and the medical opinions. I have also concluded that the Claimant’s obstructive disease constitutes legal pneumoconiosis based on the operation of the presumption. Review of the testing in his prior claim discloses that all of his pulmonary testing in that claim was qualifying as well, except for the pre-bronchodilator testing on July 29, 2008. . . . I do not credit the opinions of Drs. Broudy and Rosenberg given in the prior claim that the Claimant was not disabled. Their opinions were not consistent with the objective testing available to them. Drs. Forehand and Jarboe agreed that the Claimant was disabled even then. I find that the Claimant has been totally disabled by a pulmonary impairment since at least [February] 2008 when he was first examined by Dr. Forehand in connection with the prior claim. I also conclude that his disability has always been due to legal pneumoconiosis. The District Director issued his proposed decision and order denying the Claimant’s prior claim on September 8, 2008. As the Claimant took no further action on that claim, it became final one year later, on September 2009. There is no evidence that he was not disabled at any time thereafter. I find that Claimant is entitled to benefits commencing in September 2009, the month the denial of his prior claim became final. (Footnotes and citations omitted.) In short, the date of onset forms the crux of this appeal. Mr. Coleman’s total disability due to legal pneumoconiosis is not in dispute. On January 23, 2017, the administrative law judge granted a motion for reconsideration from the Director, which modified the commencement date for black lung benefits from September 2009 to November 2008. The revised date recognized that the administrative law judge had wrongly determined when the district director’s proposed order denying Mr. Coleman’s first claim for benefits became final. As cited earlier, the regulations provide that such orders become final after thirty days, not the one year initially applied by the administrative law judge. 20 C.F.R. § 725.419(d). 3  Coleman v. Coleman Trucking. No. 18-3317 Respondent Coleman Trucking appealed the administrative law judge’s decision to the Board, which held that the administrative law judge erred in is onset-date determination. The Board changed the date when Mr. Coleman’s benefits began to August 1, 2012, the date when Mr. Coleman filed his second claim, instead of November 1, 2008, the date when his first claim became final. The Board reasoned as follows: The district director determined in the prior claim that claimant had a totally disabling respiratory or pulmonary impairment but did not have pneumoconiosis, and therefore was not totally disabled due to pneumoconiosis. In this claim, however, the administrative law judge reconsidered the medical opinion evidence submitted in the prior claim and determined, contrary to the district director’s original finding, that claimant has been totally disabled due to pneumoconiosis since March 2008. That finding was improper. The district director’s decision in the prior claim, and its underlying findings, must be given effect as final and correct. The administrative law judge cited no other evidence to establish that claimant became totally disabled due to pneumoconiosis at any point between the denial of the prior claim and the filing date of this claim. Nor has claimant pointed to any such evidence. On the other hand, contrary to employer’s argument regarding Dr. Forehand’s opinion in this claim, a medical opinion diagnosing total disability due to pneumoconiosis does not establish an onset date, but establishes only that claimant became disabled due to pneumoconiosis at some point before the opinion was provided. Because the evidence does not reflect the date upon which claimant became totally disabled due to pneumoconiosis, we modify the administrative law judge’s decision to reflect that benefits are payable from August 2012, the month in which claimant filed his subsequent claim. (Footnotes and citations omitted.) This appeal followed. II. The Act defines pneumoconiosis as “a chronic dust disease of the lung and its sequelae, including respiratory and pulmonary impairments, arising out of coal mine employment.” 30 U.S.C. § 902(b); 20 C.F.R. § 718.201(a). With respect to the critical question of onset, the regulations provide as follows: Benefits are payable to a miner who is entitled beginning with the month of onset of total disability due to pneumoconiosis arising out of coal mine employment. 4  Coleman v. Coleman Trucking. No. 18-3317 Where the evidence does not establish the month of onset, benefits shall be payable to such miner beginning with the month during which the claim was filed. 20 C.F.R. § 725.503(b). When a miner files a second, or subsequent, claim for benefits more than a year after the final order denying a prior claim, he must show that “one of the applicable conditions of entitlement has changed since the date upon which the order denying the prior claim became final.” 20 C.F.R. § 725.309(c) (citation omitted). Furthermore, “[a]ny evidence submitted in connection with any prior claim must be made a part of the record in the subsequent claim, provided that it was not excluded in the adjudication of the prior claim.” 20 C.F.R. § 725.309(c)(2). Lastly, “[i]n any case in which a subsequent claim is awarded, no benefits may be paid for any period prior to the date upon which the order denying the prior claim became final.” 20 C.F.R. § 725.309(c)(6). There is one other wrinkle that affects our analysis. As of 2010, the Affordable Care Act, Pub. L. No. 111-48, § 1556(a), revived a former rebuttable presumption: “if a miner was employed for fifteen years or more in one or more underground coal mines, . . . and if other evidence demonstrates the existence of a totally disabling respiratory or pulmonary impairment, then there shall be a rebuttable presumption that such miner is totally disabled due to pneumoconiosis.” 30 U.S.C. § 921(c)(4); 20 C.F.R. § 718.305(b)(1)(i) (clarifying that the presumption includes “conditions substantially similar to those in underground mines”). Mr. Coleman’s first claim, filed in 2008, did not benefit from this rebuttable presumption. In denying that claim, the district director found that two of the breathing tests submitted by claimant met the regulatory standards required to establish total disability; however, in his view, they did not establish that this disability was “due to pneumoconiosis.” However, the presumption applies to the 2012 claim currently on appeal, 5  Coleman v. Coleman Trucking. No. 18-3317 which the administrative law judge recognized,(observing that “[e]mployer has failed to rebut the presumption that the Miner’s disability was due to pneumoconiosis.” The Director readily concedes that the regulations specifically provide for multiple black lung disability claims because pneumoconiosis is a progressive disease that may manifest itself only after the miner has stopped working. 20 C.F.R. § 718.201(c). For that reason, traditional notions of res judicata do not apply to these claims. See Lisa Lee Mines v. Director, OWCP, 86 F.3d 1358, 1362 (4th Cir. 1996) (en banc) (“[N]othing bars or should bar claimants from filing claims seriatim, and the regulations recognize that many will”). That said, a subsequent claim does not provide an opportunity to relitigate an earlier denial of benefits; the miner must show that his condition has changed. 20 C.F.R. § 725.309(c); Lisa Lee Mines, 86 F.3d at 1362 (“The duplicate claims regulation, 20 C.F.R. § 725.309(d), does not bar new claims, but rather directs that they shall be denied based on the earlier denial absent a threshold showing of a material change in conditions.”). Relying upon Lisa Lee Mines, we have specifically approved this approach to determine whether a claimant has shown enough of a “change” in circumstances to support a subsequent claim: [W]e construe the term “change” to mean “disproof of the continuing validity” of the original denial, Lisa Lee Mines, 86 F.3d at 1363, rather than the actual difference between the bodies of evidence presented at different times. Under this definition, the ALJ need not compare the old and new evidence to determine a change in condition; rather, he will consider only the new evidence to determine whether the element of entitlement previously found lacking is now present. Cumberland River Coal Co. v. Banks, 690 F.3d 477, 485—86 (6th Cir. 2012) (internal citation omitted). Turning to the record, the Director states that the only “relevant” evidence is Dr. Forehand’s report dated February 18, 2008. While the administrative law judge relied upon a 6  Coleman v. Coleman Trucking. No. 18-3317 variety of medical evidence when determining that claimant was disabled, she used the report of Dr. Forehand to set the onset date. The Director stakes out a simple position: since Mr. Coleman’s first claim was denied in September 2008, the administrative law judge’s reliance upon Dr. Forehand’s report dated February 18, 2008, is misplaced because an earlier denial of benefits cannot be undone by a subsequent claim. In order to establish an onset date of disability that predates the filing of a subsequent claim, the onus is on the miner to come forward with evidence of a change in his medical condition since the prior denial of benefits. Because Mr. Coleman does not point to any medical evidence submitted after the denial of his first claim but before the filing of his current claim, the Director contends that the appropriate onset date is when he filed his current claim. Counsel for petitioner focuses upon the significance of the reenactment of the fifteen-year rebuttable presumption in favor of a finding that a miner’s respiratory or pulmonary disease resulted in pneumoconiosis. As already mentioned, the district director who denied Mr. Coleman’s first claim concluded as follows: “Although the Pulmonary Function Studies establish the presence of a disease which would be considered to be totally disabling based upon the regulations, that total disability must be DUE TO PNEUMOCONIOSIS.” Counsel argues that the 2010 reenactment of the presumption changed that analysis by shifting the burden to the employer to rebut the presumption that coal dust exposure caused pneumoconiosis. Had the presumption been in place in 2008, counsel claims the district director would have been compelled to find pneumoconiosis unless Coleman Trucking came forward with evidence rebutting causation. Notably, the administrative law judge found in 2012 that Coleman Trucking failed to rebut the presumption of causation, and Coleman Trucking does not challenge that finding on appeal. 7  Coleman v. Coleman Trucking. No. 18-3317 Seen through the new lens provided by the presumption, the administrative law judge rightly reconsidered the medical evidence submitted with the 2008 claim and determined that, in conjunction with the presumption, an unrebutted finding that pneumoconiosis existed as of the date of Dr. Forehand’s report had been established. This approach is completely consonant with the regulations. First, “[a]ny evidence submitted in connection with any prior claim must be made a part of the record in the subsequent claim.” 20 C.F.R. § 725.309(c)(2). Second, the administrative law judge did not disturb the district director’s decision with her finding. To the contrary, she set the onset date for Mr. Coleman’s disability entitlement to begin after the district director’s decision became final. 20 C.F.R. § 725.309(c)(6). Because the Act is a remedial statute, it “has always been interpreted with any ambiguity weighed in favor of miners.” Arch of Kentucky, Inc. v. Director, OWCP, 556 F.3d 472, 482 (6th Cir. 2009). In this appeal, the parties agree that Mr. Coleman suffers from legal pneumoconiosis and is eligible for total disability benefits. The sole bone of contention is whether he is entitled to approximately four years of additional benefits based upon an earlier onset date. In our view, the reinstatement of the fifteen-year rebuttable presumption that preceded the filing of Mr. Coleman’s second claim supports the decision of the administrative law judge. In the earlier claim, the district director recognized that medical evidence existed that established “the presence of a disease which would be considered to be totally disabling based upon the regulations;” however, he found that Mr. Coleman had not proven that it was “due to pneumoconiosis.” Had the presumption been in place, the burden would have shifted to the employer to rebut the presumption that coal dust exposure caused Mr. Coleman’s disease. With the benefit of the presumption, the administrative law judge had reason to conclude that the medical evidence submitted during the first claim, coupled with the presumption that coal mining 8  Coleman v. Coleman Trucking. No. 18-3317 caused Mr. Coleman’s health problems, would have resulted in a finding of pneumoconiosis. In that sense, she was not reexamining the evidence as much as reevaluating its legal significance. III. The petition for review is granted and the matter is remanded with instructions to reinstate the award of black lung benefits to petitioner beginning on November 1, 2008. 9 

400 P.2d 899 (1965) Victor MORENO, Plaintiff in Error, v. The PEOPLE of the State of Colorado, Defendant in Error. No. 21408. Supreme Court of Colorado. En Banc. March 29, 1965. Rehearing Denied April 26, 1965. Victor Moreno, plaintiff in error, pro se. Duke W. Dunbar, Atty. Gen., Frank E. Hickey, Deputy Atty. Gen., John E. Bush, Asst. Atty. Gen., George H. Sibley, Special Asst. Atty. Gen., Denver, for defendant in error. SCHAUER, Justice. Plaintiff in error, hereinafter referred to as the defendant, or by name, was convicted of the crime of burglary, and sentenced to a term in the State Penitentiary. Motion for new trial was filed and denied. A brief summary of the facts contained in the transcript of the evidence should prove helpful in the consideration and determination of defendant's three assertions of error. Shortly after 11:00 o'clock P. M., on the night of August 30, 1963, one Ponds heard the sound of breaking glass. From his second-story window he observed a person, whom he could not definitely identify, entering the front door of a building owned by one Powell. Mr. Ponds' vantage point and the door through which entry was being made were separated by a distance of approximately twenty-five or thirty feet and were located in adjacent buildings. Witness Ponds had just gone to his window in response to the sound of a commotion directly below him when he was attracted to the crash of breaking glass. He then leaned out of the window and saw a man entering through the paneless door. The street was well lighted and Ponds observed that the person who entered the Powell building through the broken glass door was dressed in dark clothes. He also observed his build, height, head and hair and his apparent Spanish nationality. Ponds called Powell, who called the police, which set in motion an immediate investigation. No one was found in the building but it was determined that between $110.00 and $120.00 in currency had been taken. *900 Defendant was arrested in a tavern only three doors distant. He was wearing a dark suit when he entered the tavern and went to the men's rest room at the rear of the establishment, and shortly returned therefrom without his coat. He then occupied a stool at the bar near the front door. While he was at the bar, witness Ponds, at the request of the police, looked into the tavern and pointed out and identified the defendant as the person he had seen enter the Powell premises through the broken glass door. Arrest of the defendant was made immediately by the police. The following morning the police found a dark coat under the seat of a booth in the rear part of the tavern, and recovered $108.00 in currency partly hidden in a towel dispenser in the rest room. At the police station, after the arrest, an officer found imbedded in the sole of defendant's right shoe a fragment of glass. A sample of the glass taken from the sidewalk in front of the Powell building, resembling in size and character the fragment taken from defendant's shoe, was admitted in evidence. Such was the evidence before the court when the State closed its case and defendant made a motion for a directed verdict, which was denied. Defendant prosecutes this writ of error pro se, and sets forth the following arguments in his attempt to reverse the judgment of conviction: 1. That the trial court erred in not dismissing the case at the conclusion of the evidence of the People; and that the resultant verdict is contrary to the law and the evidence. 2. That the trial court erred in admitting into evidence a fragment of glass without proper foundation therefor. 3. That the trial court erred in allowing testimony of other unrelated offenses to go before the jury. Arguments Nos. 1 and 3 were not presented in defendant's motion for new trial. Rule 37(b), Colo.R.Crim.P., provides that: "* * * Only questions presented in such motions will be considered on review, except that plain error or defects affecting substantial rights may be noted although they were not brought to the attention of the trial court." We find nothing in the record indicating that the instant case falls within the exception noted; accordingly, we will therefore not consider on this review the questions raised in defendant's Arguments 1 and 3. Moreover, a careful reading of the transcript of evidence clearly supports the judgment of defendant's appointed trial counsel in not asserting these two points in his motion for a new trial. Responsible counselors do not submit contentions of error unless support therefor can be found in the record. It sufficeth to refer to Peterson v. People, 153 Colo. 23, 384 P.2d 460. In his motion for new trial, defendant did, however, assert error in the admission into evidence of his shoe and samples of glass from the door of Powell's building, as being prejudicial to his defense. The case against defendant was based upon circumstantial evidence and the jury was instructed as to the weight to be given such evidence. We find that the court was justified in receiving these exhibits into evidence as circumstances, in a series of circumstances, upon which the State's case was based. It appears appropriate to quote from the brief of the People as follows: "The fragment of glass, People's Exhibit B, the admission of which is charged as error was offered and admitted as an example of the small fragment (about the size of a matchhead) of the fragment found imbedded in the sole of one of the Defendant's shoes worn by him at the time of his arrest close-by the premises where the robbery occurred. As such, it was properly received to demonstrate the type, *901 size and character of the incriminating evidence which connected the Defendant to the scene of the robbery." This evidence may be denominated as corroborative evidence tending to establish the defendant's presence at the scene of the burglary. The defendant had been identified as the man seen making the entry into the building. This corroborative evidence takes on added significance in the light of defendant's unsuccessful effort to establish an alibi through other witnesses who were unable to testify as to defendant's whereabouts at the crucial time when the breakin took place, as observed by witness Ponds. We find no error, either assigned as such or otherwise, in the record, and therefore affirm the judgment of the trial court. PRINGLE, C. J., not participating.

MEMORANDUM DECISION Pursuant to Ind. Appellate Rule 65(D), this Memorandum Decision shall not be FILED regarded as precedent or cited before any May 29 2019, 9:56 am court except for the purpose of establishing the defense of res judicata, collateral CLERK Indiana Supreme Court Court of Appeals estoppel, or the law of the case. and Tax Court ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE Donald J. Berger Curtis T. Hill, Jr. Law Office of Donald J. Berger Attorney General of Indiana South Bend, Indiana Monika Prekopa Talbot Supervising Deputy Attorney General Indianapolis, Indiana IN THE COURT OF APPEALS OF INDIANA Tyrone Sims, May 29, 2019 Appellant-Defendant, Court of Appeals Case No. 18A-CR-2145 v. Appeal from the St. Joseph Superior Court State of Indiana, The Honorable Appellee-Plaintiff. Jeffrey L. Sanford, Judge Trial Court Cause No. 71D03-1801-F5-12 Kirsch, Judge. Court of Appeals of Indiana | Memorandum Decision 18A-CR-2145 | May 29, 2019 Page 1 of 5 [1] Tyrone Sims (“Sims”) was convicted after a jury trial of theft1 as a Class A misdemeanor and burglary2 as a Level 5 felony. Sims now appeals, claiming that the evidence was not sufficient to support his convictions. [2] We affirm. Facts and Procedural History [3] On Sunday, January 21, 2018, around 1:30 a.m., Mark Vanator (“Vanator”), the owner of a local automotive business (“the Store”), was notified by his security company that the alarm had been triggered by someone entering the Store. Tr. Vol. 2 at 72. Vanator drove to the Store. Id. [4] Roughly twelve minutes later, Vanator arrived at the Store and found that glass from a window was broken. Id. Vanator dialed 911. Id. When the police arrived, the officers asked Vanator to come into the Store to determine if anything was missing. Id. at 73. He went inside and noticed a jack, which was usually by the now-broken window, was missing. Id. The missing jack was blue with a yellow handle and weighed roughly seventy pounds. Id. [5] On the same day around 3:00 a.m., South Bend Police Department Officer Paul Daley (“Officer Daley”) heard an alarm go off while he was patrolling an industrial area just north of the Store. Id. at 104. While investigating the alarm, 1 See Ind. Code § 35-43-4-2(a). 2 See Ind. Code § 35-43-2-1. Court of Appeals of Indiana | Memorandum Decision 18A-CR-2145 | May 29, 2019 Page 2 of 5  Officer Daley saw Sims with a cart by an industrial building. Id. at 105. Officer Daley did not expect to see anyone in the area since it was the middle of the night and the weather was so cold. Id. at 106. Officer Daley went over to Sims to make sure he was okay, and he saw a blue jack with a yellow handle in the cart. Id. at 109. Vanator later identified the jack Sims had in his cart as the jack that was missing from the Store. Id. at 78. [6] The State charged Sims with Level 5 felony burglary and Class A misdemeanor theft. Appellant’s App. Vol. 2 at 10. A jury trial began on August 23, 2018 and concluded on August 24, 2018. Tr. Vol. 2 at 1. The jury found Sims guilty of both charges. The trial court then sentenced Sims to three years for the burglary and one year for the theft and ordered that the sentences would be served concurrently. Appellant’s App. Vol. 2 at 43. Sims now appeals. Discussion and Decision [7] Sims argues that there was insufficient evidence to support his convictions for Level 5 felony burglary and Class A misdemeanor theft. When we review the sufficiency of evidence, we do not determine the credibility of witnesses or reweigh the evidence. Boggs v. State, 928 N.E. 2d 855, 864 (Ind. Ct. App. 2010), trans. denied. We consider only the evidence most favorable to the verdict and the reasonable inferences that can be drawn from this evidence. Fuentes v. State, 10 N.E.3d 68, 75 (Ind. Ct. App. 2014), trans. denied. We will not disturb the jury’s verdict if there is substantial evidence of probative value to support it. Id. Circumstantial evidence can sustain a conviction. Baltimore v. State, 878 N.E. Court of Appeals of Indiana | Memorandum Decision 18A-CR-2145 | May 29, 2019 Page 3 of 5  2d 253, 258 (Ind. Ct. App. 2007), trans. denied. Circumstantial evidence does not need to exclude every reasonable hypothesis of innocence and can sustain a conviction if an inference may reasonably be drawn from the evidence to support the judgment. Id. We will affirm unless no reasonable fact-finder could find the elements of the crime proven beyond a reasonable doubt. Delagrange v. State, 5 N.E.3d 354, 356 (Ind. 2014). [8] Sims contends that the State failed to prove that he committed the crimes of burglary and theft. He states that there was no evidence to directly tie him to the burglary and argues that he was never identified as the person who broke and entered the Store, noting that there were no “signs of glass or abrasions” on his person that would connect him to the break-in. Appellant’s Br. at 8. Sims also argues that there is no evidence of theft since Sims was merely standing next to the jack when Officer Daley saw him, and Sims was not exerting control over the jack. To sustain a conviction for Class A misdemeanor theft, the State must prove that Sims knowingly or intentionally executed control over the property of another with the intent to deprive the other person of any part of its value. Ind. Code § 34-43-4-2(a). While the unexplained possession of recently stolen property standing alone is not sufficient to support a conviction for theft, such possession is to be considered along with the other evidence in the case. Holloway v. State, 983 N.E.2d 1175, 1179 (Ind. Ct. App. 2013). In order to sustain a conviction for Level 5 felony burglary, the State must prove beyond a reasonable doubt that Sims broke into and entered a building of another with the intent to commit theft. Ind. Code § 35-43-2-1. Court of Appeals of Indiana | Memorandum Decision 18A-CR-2145 | May 29, 2019 Page 4 of 5 [9] A conviction of burglary or theft may be sustained by circumstantial evidence. Williams v. State, 714 N.E.2d 671, 673 (Ind. Ct. App. 1999). The unexplained possession of recently stolen property supports an inference of guilt of theft of that property. See Jelks v. State, 720 N.E.2d 1171, 1174 (Ind. Ct. App. 1999); Williams, supra, 714 N.E.2d at 673. It is also well established that such unexplained possession of recently stolen property will support a burglary conviction so long as there is evidence that there was in fact a burglary committed. Steele v. State, 475 N.E.2d 1149 (Ind 1985). [10] Here, a rational trier of fact could find Sims guilty of burglary and theft beyond a reasonable doubt. Around 1:30 a.m. on January 21, 2018, an alarm sounded at the Store and a blue and yellow jack was missing. Approximately an hour later, Sims was found by Officer Daley a short distance from the Store. Sims had in his possession the jack that had recently been stolen from the Store. [11] A reasonable fact-finder could determine that Sims had committed burglary and theft. The entrances to the Store were locked and undamaged. To obtain the jack, Sims had to break the glass and enter through the window. The glass was broken at the Store, and a reasonable fact-finder could conclude that Sims broke the window to enter the Store and steal the jack. [12] The evidence was sufficient to support Sims’ theft and burglary convictions. [13] Affirmed. Vaidik, C.J., and Altice, J., concur. Court of Appeals of Indiana | Memorandum Decision 18A-CR-2145 | May 29, 2019 Page 5 of 5 

604 So.2d 842 (1992) Christopher BECKNER, Appellant, v. STATE of Florida, Appellee. No. 91-01892. District Court of Appeal of Florida, Second District. May 27, 1992. James Marion Moorman, Public Defender, and Stephen Krosschell, Asst. Public Defender, Bartow, for appellant. Robert A. Butterworth, Atty. Gen., Tallahassee, and Wendy Buffington, Asst. Atty. Gen., Tampa, for appellee. FRANK, Judge. We have for review three sentencing issues raised by Christopher Beckner who pleaded nolo contendere to charges of robbery and kidnapping. We agree with Beckner that the errors in the sentencing scheme designed by the trial court require reversal and resentencing. The trial court imposed concurrent sentences of five years incarceration for robbery, to be followed by ten years probation, and three years imprisonment for each of two kidnappings, also to be followed by ten year probationary terms. Consequently, the periods of probation stemming from the kidnapping convictions will precede the completion of the five year prison term. A trial court is *843 not authorized to impose intermittent periods of incarceration and probation. Humphrey v. State, 579 So.2d 335 (Fla. 2d DCA 1991). The trial court is to modify the sentences to insure that the probationary terms immediately succeed the incarcerative periods. Beckner also asserts, and we agree, that certain conditions of the probation, not announced orally below, bear no reasonable relation to the offenses for which he was convicted. Hence, we strike the probationary conditions restricting Beckner's consumption of alcohol, and prohibiting the visitation of premises upon which alcohol is served. See Daniels v. State, 583 So.2d 423 (Fla. 2d DCA 1991). Similarly, the probation order requires Beckner to obtain the consent of his probation officer to possess a firearm. As a convicted felon, Beckner has, at least for the present, forfeited his right to own and possess a firearm. This condition, too, is stricken. Hinton v. State, 439 So.2d 1008 (Fla. 2d DCA 1983). Finally, we find merit in Beckner's challenge to the public defender's fee imposed by the trial court without affording Beckner the opportunity to object to the amount. See Fla.R.Crim.P. 3.720(d)(1). We strike the fee without prejudice to its assessment after notice to Beckner advising him of his right to a hearing at which he may contest the amount. Bull v. State, 548 So.2d 1103 (Fla. 1989). We remand for further proceedings not inconsistent with this opinion. LEHAN, A.C.J., and ALTENBERND, J., concur.

[Cite as State v. Hurston, 2019-Ohio-3618.] IN THE COURT OF APPEALS TWELFTH APPELLATE DISTRICT OF OHIO BUTLER COUNTY STATE OF OHIO, : CASE NO. CA2019-01-023 Appellee, : OPINION 9/9/2019 : - vs - : MIRACLE HURSTON, : Appellant. : CRIMINAL APPEAL FROM MIDDLETOWN MUNICIPAL COURT Case No. 18CRB02797-A Zachary A. Barnhart, City of Middletown Staff Attorney, One Donham Plaza, Middletown, Ohio 45042, for appellee Michele Temmel, 6 South Second Street, Suite 305, Hamilton, Ohio 45011, for appellant M. POWELL, J. {¶ 1} Appellant, Miracle Hurston, appeals his conviction in the Middletown Municipal Court for assault. For the reasons stated below, we affirm. {¶ 2} In July 2018, appellant was charged by complaint with one count of assault, a first-degree misdemeanor, in violation of Middletown Codified Ordinances 636.02(a). The  Butler CA2019-01-023 charge resulted from a confrontation between appellant and the owner-landlord ("victim") of a house adjacent to appellant's mother's house. Specifically, the victim alleged appellant struck her in the face causing her to fall on the ground. The case proceeded to a bench trial in October 2018. The trial court found appellant guilty as charged and sentenced him to two years of community control, a suspended jail term, and a fine. {¶ 3} Appellant now appeals, raising one assignment of error for review. {¶ 4} Assignment of Error No. 1: {¶ 5} THE EVIDENCE WAS INSUFFICIENT TO SUPPORT APPELLANT'S CONVICTION FOR ASSAULT AND THE VERDICT OF GUILTY WAS AGAINST THE MANIFEST WEIGHT OF THE EVIDENCE. {¶ 6} In his sole assignment of error, appellant argues that the evidence was insufficient to convict because the prosecution failed to prove that he acted with the requisite mental state for the offense. Moreover, appellant argues that his conviction was against the manifest weight of the evidence. {¶ 7} A sufficiency of the evidence challenge requires the appellate court to examine the evidence in the light most favorable to the prosecution and determine whether any rational trier of fact could have found the essential elements of the crime proven beyond a reasonable doubt. State v. Gerdes, 12th Dist. Butler No. CA2018-03-056, 2019-Ohio- 913, ¶ 9. {¶ 8} On the other hand, a manifest weight of the evidence challenge requires the appellate court to examine the "inclination of the greater amount of credible evidence, offered at a trial, to support one side of the issue rather than the other." State v. Barnett, 12th Dist. Butler No. CA2011-09-177, 2012-Ohio-2372, ¶ 14. In conducting this examination, an appellate court must look at the entire record, weigh the evidence and all reasonable -2-  Butler CA2019-01-023 inferences, consider the credibility of the witnesses, and determine whether in resolving the conflicts in the evidence, the trier of fact clearly lost its way and created such a manifest miscarriage of justice that the conviction must be reversed and a new trial ordered. State v. Hall, 12th Dist. Preble No. CA2018-07-006, 2018-Ohio-5300, ¶ 9. An appellate court will only overturn a conviction for manifest weight in the exceptional case where the evidence weighs heavily against the conviction. State v. Holtman, 12th Dist. Clermont No. CA2018-11-078, 2019-Ohio-3052, ¶ 24. {¶ 9} This court has previously held that the "determination that a conviction is supported by the manifest weight of the evidence will also be dispositive of the issue of sufficiency." State v. Jones, 12th Dist. Butler No. CA2012-03-049, 2013-Ohio-150, ¶ 19. {¶ 10} To convict appellant for assault in violation of Middletown Codified Ordinances 636.02(a), the prosecutor had to prove that appellant knowingly caused or attempted to cause physical harm to another. Knowingly is defined in Middletown Codified Ordinances 606.02(b) as "regardless of purpose, when the person is aware that the person's conduct will probably cause a certain result or will probably be of a certain nature." {¶ 11} At the trial, the prosecutor called two witnesses: the victim and the victim's husband. The victim testified that she and her husband arrived at their property to inspect the damage to their fence and power lines from a fallen tree branch. While her husband was in the back yard, the victim saw appellant approach on the sidewalk. At this time, the victim was standing in her yard near the sidewalk. The victim asked appellant if he could provide the name of his mother's insurance company. Appellant denied having that information and suggested she ask his mother. The victim told appellant she did not speak to appellant's mother. According to the victim, appellant began to make disparaging remarks about her. Appellant's harangue continued for five to seven minutes. In response, the victim testified that she slowly retreated further into her yard to move away from -3-  Butler CA2019-01-023 appellant. At some point, she shouted for her husband to come to the front. As the victim turned to watch her husband come around the house, appellant struck her in the jaw. The victim fell to the ground and briefly lost consciousness. She regained consciousness in time to see appellant striking her husband and her husband also fall to the ground. The victim testified that she suffered bruising and had headaches as a result of the incident. {¶ 12} The victim's husband testified that he heard shouting coming from the front yard and the victim call his name. He then walked around the house to see what was happening. After he walked around the house, he got within three to five feet of the victim when appellant suddenly attacked both him and the victim, first striking her and then him. On cross-examination, both the victim and her husband denied making any contrary statements to the responding police officers. {¶ 13} In his defense, appellant and both of his parents testified about the incident. Appellant's mother testified that she was near her front porch when she saw appellant approaching from the sidewalk. Appellant's mother saw the victim stop appellant, circle around him, and ask him a question. While she could not hear the entire conversation, she saw appellant point at her in response to the victim's inquiry. Appellant's mother then heard the two exchange derogatory remarks with each other and saw the victim "smack" appellant. The victim continued to provoke appellant in what appellant's mother described as "flinching at him," so appellant used his hand to push the victim's face. The victim then fell to the ground. All the while, appellant's mother yelled for appellant's father to come to the front yard and for appellant to disengage. After the victim fell to the ground, appellant's mother saw the victim's husband and appellant's father come into the front yard and the victim's husband charge at appellant. {¶ 14} Appellant's father testified that he was in the back yard of the victim's property with the victim's husband when he heard a commotion in the front yard. He approached -4-  Butler CA2019-01-023 the front yard with the victim's husband and saw the victim and appellant together. Appellant's father then saw the victim's husband charge towards appellant and appellant push the husband away. Appellant's father did not see any physical altercation between the victim and appellant. {¶ 15} Finally, appellant testified that as he was walking along the sidewalk, the victim came onto the sidewalk in front of him and asked for his mother's insurance provider. In response to the inquiry, appellant told her to ask his mother. The victim then made a derogatory comment about his family to the person with whom she was talking on her phone. Insulted, appellant admitted that he began making derogatory comments about the victim. At that point, the victim turned around, slapped appellant, and lunged towards him. Appellant used his hand to push the victim away from him. As a result of the push, the victim fell to the ground and began yelling for her husband. The victim's husband and appellant's father came around the house and the victim's husband charged at appellant. Appellant pushed the victim's husband away causing him to also fall down. Appellant testified that he pushed the victim because he wanted to get away. {¶ 16} After review of the record, the evidence was sufficient to convict appellant. Appellant testified that he applied his hand to the victim's face and pushed her to the ground. As noted above, the state was only required to prove appellant acted knowingly, that is with an awareness that a certain result will be probable. As this court has previously held, "[a]bsent a defendant's admission regarding his knowledge, whether a person acts knowingly can only be determined from all the surrounding facts and circumstances, including the doing of the act itself." State v. Hilton, 12th Dist. Butler No. CA2015-03-064, 2015-Ohio-5198, ¶ 20. While appellant testified that he was not trying to hurt the victim, specific intent was not the mental state required to convict. Therefore, viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found all -5-  Butler CA2019-01-023 the essential elements, including the mental state, proven beyond a reasonable doubt. {¶ 17} Moreover, the conviction was not against the manifest weight of the evidence. A conviction is not against the manifest weight of the evidence merely because the trier of fact believed the prosecution testimony. State v. Martino, 12th Dist. Butler No. CA2017-09- 139, 2018-Ohio-2882, ¶ 13. The trial court specifically found that it did not believe that the victim, an elderly woman, would attack appellant. "As the trier of fact in this case, the trial court was in the best position to judge the credibility of the parties and the weight to be given the evidence." Hilton, 2015-Ohio-5198 at ¶ 22. As this court has previously explained, "credibility of the witnesses is paramount in cases * * * where the evidence amounts to little more than a matter of 'he said, she said.'" State v. Chasteen, 12th Dist. Butler No. CA2013-12-223, 2014-Ohio-4622, ¶ 14. Consequently, this court will not disturb the trial court's finding as to credibility, given the evidence does not weigh heavily in favor of acquittal. {¶ 18} Accordingly, appellant's sole assignment of error is overruled. {¶ 19} Judgment affirmed. S. POWELL, P.J., concurs. PIPER, J., concurs separately. PIPER, J., concurring separately. {¶ 20} While I concur in judgment, I write separately to address my reasoning for affirming Hurston's conviction specific to self-defense. Self-defense requires three elements: (1) the defendant was not at fault in creating the situation giving rise to the affray, (2) the defendant had a bona fide belief he was in imminent danger of death or great bodily harm and that his only means of escape from such danger was the use of deadly force, and (3) the defendant did not violate any duty to retreat or avoid the danger. State v. -6-  Butler CA2019-01-023 Delaffuente, 12th Dist. Butler Nos. CA2015-03-040, CA2015-03-042, 2015-Ohio-4917, ¶ 9. I would affirm Hurston's conviction because he was unable to prove the elements of self- defense. {¶ 21} A review of the transcript reveals that the trial court found credible the testimony that the victim approached Hurston, exchanged "ugly words" with him, and that "she smack[ed] at" Hurston. However, the court noted that regardless of "who caused those words," or the actions the victim took against Hurston, it could not accept that the 72-year- old victim "attacked" Hurston. The trial court also noted that even if the victim had attacked Hurston, he had a duty to retreat. These statements, made by the trial court during its disposition of the case, speak specifically to the elements of self-defense rather than to Hurston's credibility or lack thereof. {¶ 22} Specific to self-defense, the trial court also noted that Hurston used unreasonable force in response to whatever action the victim took against him; "you shove her and, according to her testimony, she lost consciousness briefly." While Hurston asserted that the victim attacked him first, the trial court went on to note, "there was a smack and then a shove, hard enough for her to go down to the ground * * *." The trial court's statements demonstrate its reasoning specific to whether or not Hurston used reasonable force in response to the danger posed to him. {¶ 23} While the trial court determined that the victim acted against Hurston, such action by the 72-year-old victim did not provide a reasonable basis for Hurston's reaction of pushing her hard enough to fall to the ground and lose consciousness. Given the lack of evidence to support self-defense, I agree that Hurston's conviction is supported by sufficient evidence and was not against the manifest weight of the evidence. As such, but for different reasons, I concur but do so in judgment only. -7- 

358 F.3d 674 Baltazar Hernandez BARRON; Margarita Hernandez Ramirez, Petitioners,v.John ASHCROFT, Attorney General, Respondent. No. 02-70887. United States Court of Appeals, Ninth Circuit. Submitted November 7, 2003.* — Pasadena, California. Filed February 10, 2004. Paul A. Schelly, Los Angeles, California, for the petitioners. Robert D. McCallum, Jr., Carl H. McIntyre, Jr., and John L. Davis, United States Department of Justice, for the respondent. On Petition for Review of an Order of the Board of Immigration Appeals. Before: Cynthia Holcomb HALL, Diarmuid F. O'SCANNLAIN, Circuit Judges, and Anna J. BROWN, District Judge.** Opinion by Judge O'Scannlain. OPINION O'SCANNLAIN, Circuit Judge: 1 We must decide whether we have jurisdiction to consider a due process claim that the petitioners did not present to the Immigration and Naturalization Service or to the Board of Immigration Appeals. 2 * Baltazar Hernandez Barron and Margarita Hernandez Ramirez ("the petitioners") are married natives and citizens of Mexico who illegally entered the United States near San Ysidro, California in February 1985 and January 1988, respectively. The Immigration and Naturalization Service ("INS") began removal proceedings against them on July 11, 1997 after serving Notices to Appear charging them as removable pursuant to § 212(a)(6)(A)(i) of the Immigration and Nationality Act ("INA"). The petitioners admitted their removability and asked for relief through either cancellation of removal or voluntary departure. 3 Although the petitioners' counsel failed to appear at their removal hearing on June 30, 1998,1 the Immigration Judge ("IJ") decided to proceed as scheduled. Ultimately, the IJ denied the petitioners' applications for cancellation of removal, but granted their request for voluntary departure.2 The Board of Immigration Appeals ("BIA") affirmed the IJ's decision without opinion on March 29, 2002. 4 The petitioners now appeal solely on the grounds that they were denied a full and fair hearing in violation of the Constitution.3 Specifically, the petitioners argue that the IJ denied them their Fifth Amendment due process rights because he conducted the hearing in the absence of their counsel, and because they were not given an opportunity to present their case. 5 Notably, however, the petitioners did not raise these issues at any stage of their administrative proceedings. In their appeal to the BIA, the petitioners only emphasized their good moral character, along with the anticipated personal hardships caused by removal, including the severing of U.S. community ties, the poor economic outlook in Mexico, and the unavailability of health services there. Even construed broadly,4 the petitioners cannot be interpreted to have presented a due process challenge. Their appeal nowhere mentions the absence of their lawyer, or alleges at any point that they were not given an opportunity to speak at their hearing. II 6 Because the petitioners did not raise their claim at the administrative level, we must decide whether we may consider it here. Due process challenges to immigration decisions are subject to de novo review. Ramirez-Alejandre v. Ashcroft, 320 F.3d 858, 869 (9th Cir.2003) (en banc). Similarly, the jurisdictional limitations of the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 ("IIRIRA") present questions of law reviewed de novo. Pondoc Hernaez v. INS, 244 F.3d 752, 756 (9th Cir.2001). 7 It is a well-known axiom of administrative law that "if a petitioner wishes to preserve an issue for appeal, he must first raise it in the proper administrative forum." Tejeda-Mata v. INS, 626 F.2d 721, 726 (9th Cir.1980); see also, e.g., Reid v. Engen, 765 F.2d 1457, 1460 (9th Cir.1985) ("As a general rule, if a petitioner fails to raise an issue before an administrative tribunal, it cannot be raised on appeal from that tribunal."). 8 The Supreme Court instructs us to apply the exhaustion doctrine with a "regard for the particular administrative scheme at issue." Weinberger v. Salfi, 422 U.S. 749, 765, 95 S.Ct. 2457, 45 L.Ed.2d 522 (1975). Generally, "[w]here Congress specifically mandates" it, exhaustion is not merely appropriate, but "required." McCarthy v. Madigan, 503 U.S. 140, 144, 112 S.Ct. 1081, 117 L.Ed.2d 291 (1992) (interpreting a specific statute that has since been amended); Coit Independence Joint Venture v. FSLIC, 489 U.S. 561, 579, 109 S.Ct. 1361, 103 L.Ed.2d 602 (1989) (establishing that "exhaustion of administrative remedies is required where Congress imposes an exhaustion requirement by statute"). 9 The statutory provision at issue here, 8 U.S.C. § 1252(d)(1), provides that a "court may review a final order of removal only if ... the alien has exhausted all administrative remedies available to the alien as of right." The plain language of § 1252(d)(1), therefore, specifically mandates that the exhaustion of administrative remedies is a prerequisite to our jurisdiction. In other contexts, we have found exhaustion provisions to be jurisdictional bars when they contain "sweeping and direct" language going beyond a "mere[]... codification of the exhaustion requirement." McBride Cotton & Cattle Corp. v. Veneman, 290 F.3d 973, 979 (9th Cir.2002) (internal quotations omitted). Section 1252(d)(1) is just such a provision: It is addressed specifically to the court and contains broad and clear language directing us only to review a petition if the petitioner has exhausted all remedies available to him or her. 10 We have previously held that IIRIRA's statutory predecessor also mandated exhaustion. See Socop-Gonzalez v. INS, 272 F.3d 1176, 1183-84 & n. 6 (9th Cir.2001) (en banc) (interpreting 8 U.S.C. § 1105a(c) (repealed 1996)). Section 1252(d)(1) is substantially similar to § 1105(a)c,5 and there appear to be no intervening grounds upon which to base an alteration in our immigration exhaustion precedent. Cf. Socop-Gonzalez, 272 F.3d at 1183-84 & n. 6 (holding that the pre-IIRIRA provision mandated exhaustion, while noting simply that the "post-IIRIRA exhaustion requirement is codified at INA § 242(d), 8 U.S.C. § 1252(d)"). Indeed, this Court has already suggested that § 1252(d)(1) serves as a general jurisdictional bar. See Rojas-Garcia v. Ashcroft, 339 F.3d 814, 819 (9th Cir.2003) (stating that "[b]efore a petitioner can raise an argument on appeal, the petitioner must first raise the issue before the BIA or IJ" and citing 8 U.S.C. § 1252(d)); Taniguchi v. Schultz, 303 F.3d 950, 955-56 (9th Cir.2002) (noting a jurisdictional effect of failing to exhaust pursuant to § 1252(d)(1)). 11 Other circuits have also interpreted § 1252(d)(1) as a jurisdictional bar to review. See Theodoropoulos v. INS, 358 F.3d 162, 169-72, 2004 WL 49118 (2d Cir. 2004), available at 2004 WL 49118, at *6-*8 (deeming § 1252(d)(1)'s exhaustion requirement as a jurisdictional bar to all forms of appellate review, including habeas corpus); Abdulrahman v. Ashcroft, 330 F.3d 587, 594-95 (3d Cir.2003) (citing § 1252(d)(1) in holding that "because [the petitioner] failed to raise [an] issue in his appeal to the Board, we do not have jurisdiction to consider the question"); Fernandez-Bernal v. Attorney General of the United States, 257 F.3d 1304, 1317 n. 13 (11th Cir.2001) (same); Singh v. Reno, 182 F.3d 504, 511 (7th Cir.1999) (same); Witter v. INS, 113 F.3d 549, 554 (5th Cir.1997) (same). Accordingly, we now join our sister circuits in squarely holding that § 1252(d)(1) mandates exhaustion and therefore generally bars us, for lack of subject-matter jurisdiction, from reaching the merits of a legal claim not presented in administrative proceedings below. 12 We recognize that the principle of exhaustion may exclude certain constitutional challenges that are not within the competence of administrative agencies to decide.6 See, e.g., Rashtabadi v. INS, 23 F.3d 1562, 1567 (9th Cir.1994); Reid, 765 F.2d at 1461. Among such challenges may be due process claims, but only if they involve more than "mere procedural error" that an administrative tribunal could remedy. See Agyeman v. INS, 296 F.3d 871, 877 (9th Cir.2002) (stating that "we may not entertain due process claims based on correctable procedural errors unless the alien raised them below"); Rashtabadi, 23 F.3d at 1567 (recognizing and applying this exception). Here, if the sole alleged error — absence of counsel and lack of opportunity to present a case — were presented and found to have merit, the BIA could simply have ordered a rehearing with counsel present. The petitioners' due process challenge is therefore procedural in nature, and because it was never presented below, we lack subject-matter jurisdiction to address it now. III 13 For the foregoing reasons, the petition for review is DISMISSED. Notes: * The panel unanimously finds this case suitable for decision without oral argument. Fed. R.App. P. 34(a)(2) ** The Honorable Anna J. Brown, United States District Judge for the District of Oregon, sitting by designation 1 Three weeks prior to the removal hearing, petitioners' counsel requested and was granted permission to withdraw as petitioners' attorney of record because she would be out of town on the scheduled date of the hearing. Her motion to withdraw alleged that she gave the petitioners the choice of filing a motion for a continuance with her remaining as counsel, or having three weeks to find new representation. Petitioners informed her they would find new counsel by the date of the hearing. Yet when asked at the hearing why their new counsel was not present, the petitioners answered that they did not know 2 The IJ found Ms. Ramirez statutorily ineligible for cancellation of removal because she conceded that she lacked ten years continuous presence in the United States, one of the statutory requirements necessary for cancellation relief. 28 U.S.C. § 1129b(b)(1)(A). The IJ also questioned if Mr. Barron's application met this requirement. Even assuming it did, the IJ nevertheless ruled that Mr. Barron had not established another necessary requirement: that his removal would result in exceptional and extremely unusual hardship to a "spouse, parent, or child, who is a citizen of the United States or an alien lawfully admitted for permanent residence." 28 U.S.C. § 1129b(b)(1)(D). While Mr. Barron did have a relative, his father, who legally resided in the United States, the IJ noted that Mr. Barron's testimony established no contact between the two since 1990 and that his father had not appeared to testify nor offered supporting documentation on his behalf 3 The petitioners simultaneously filed a motion for stay of removal, which this court denied on July 29, 2002 4 We liberally construe the petitioners' appeal to the BIA because it was pro seSee Estelle v. Gamble, 429 U.S. 97, 106, 97 S.Ct. 285, 50 L.Ed.2d 251 (1976). 5 Compare INA § 242(d), 8 U.S.C. § 1252(d) ("A court may review a final order of removal only if ... the alien has exhausted all administrative remedies available to the alien as of right...."), with INA § 106(c), 8 U.S.C. § 1105a(c) (repealed 1996) ("An order of deportation... shall not be reviewed by any court if the alien has not exhausted the administrative remedies available to him as of right...."). 6 Section 1252(d)(1) itself appears to recognize this exclusion, limiting the jurisdictional bar only to those "administrative remediesavailable to the alien" (emphasis added).

963 F.2d 171 37 Soc.Sec.Rep.Ser. 251, Unempl.Ins.Rep. (CCH) P 16606AEarl D. DODD, Appellant,v.Louis W. SULLIVAN, M.D., Secretary of Health and HumanServices, Appellee. No. 91-3148. United States Court of Appeals,Eighth Circuit. Submitted April 17, 1992.Decided April 28, 1992. Therese Schellhammer, Poplar Bluff, Mo., for appellant. Joseph Moore, Asst. U.S. Atty., St. Louis, Mo., for appellee. Before McMILLIAN and BOWMAN, Circuit Judges, and EISELE,* Senior District Judge. PER CURIAM. 1 Earl Dodd appeals from the final order entered in the United States District Court1 for the Eastern District of Missouri granting summary judgment in favor of Louis Sullivan, the Secretary of the Department of Health and Human Services (Secretary), and therefore denying Dodd disability benefits under 42 U.S.C. § 401 et seq. and supplemental security income benefits under 42 U.S.C. § 1381 et seq. Dodd v. Sullivan, No. S 90-0067-C (E.D.Mo. July 24, 1991). For reversal, Dodd argues that the district court erred in finding that there was substantial evidence to support the Secretary's denial of benefits because the Administrative Law Judge (ALJ) (1) improperly determined that he could perform medium range work, (2) improperly gave insufficient weight to his nonexertional impairments, and (3) improperly discounted Dodd's subjective complaints of pain. For the reasons discussed below, we affirm the order of the district court. 2 Dodd, a 58-year-old man, filed an application for disability insurance benefits and supplemental security income benefits, alleging a disability by reason of arthritis in both his shoulders and back. On October 18, 1989, a hearing was held before an ALJ. The evidence before the ALJ showed that Dodd had an eighth grade education. His last job was as a park maintenance worker and he was laid off in September 1988. He stated that he looked for work until January 1989, when he stopped because of back pain and problems in his right knee. 3 Dodd saw various doctors who performed tests and prescribed medication which Dodd said made him drowsy. Dodd complained of constant pain in his lower back and occasional pain in his upper back. He claimed that he could only perform an activity for 20 to 30 minutes before needing rest. Dodd said he could lift between 20 and 25 pounds and bend easily. Dodd's daily activities included going into town, helping his wife with gardening, watching television, visiting neighbors and fishing on two occasions (although he said that he could not sit in the boat for very long). Dodd's doctors recommended rest for his back pain, yet the doctors reported that Dodd had no trouble getting on and off the examining table and walking. 4 Dodd also testified about trouble with his knee and stated that at times he walked with a cane. His doctors had suggested surgery, but Dodd refused. Dodd saw doctors for his knee beginning in June, 1989, and various medications were prescribed. 5 Dodd also claimed he had a hearing problem which affected his hearing on the phone, but had no trouble with normal conversations. 6 The ALJ found that Dodd could not perform his past work because it involved lifting up to 100 pounds, but that Dodd had the residual functional capacity to perform the full range of medium work. The ALJ found that Dodd's subjective complaints of pain were not credible because he was able to perform normal daily activities, appeared to be financially motivated to qualify for disability benefits, did not seek frequent medical help or use assistive devices, and there was no evidence in the record that he told his doctors that his medication made him drowsy. The Secretary affirmed the denial of benefits. The district court, adopting the magistrate judge's2 report and recommendation, affirmed. 7 Dodd first claims that the record does not support the Secretary's finding that he can perform medium range work because there is no evidence that he can lift up to 50 pounds and can be on his feet all day performing work. Dodd next claims that the Secretary erred in not finding he has nonexertional impairments which significantly limit his ability to perform medium range work. He claims that his nonexertional impairments harm his ability to stand, walk, squat, bend and lift. Finally, Dodd claims that the Secretary erred by discounting evidence of pain and drowsiness as nonexertional impairments which effect his ability to engage in gainful employment. 8 The Secretary argues the denial of benefits is analytically correct and supported by substantial evidence. The Secretary points out that Dodd only recently began seeing a doctor regularly, exhibited normal movement in his back, and did not use a back brace. The Secretary argues that Dodd only told his doctor that his knee hurt "off and on" and refused the suggested surgery. The Secretary also points to Dodd's various daily activities, such as shopping, fishing, and fixing a bicycle, as evidence of his ability to perform medium range work. The Secretary argues that there is no evidence which indicates that the ALJ was incorrect in finding that Dodd can lift 50 pounds. 9 We have reviewed the record and hold that the Secretary's decision is supported by substantial evidence and therefore affirm the order of the district court. See 8th Cir.R. 47B. * The Honorable G. Thomas Eisele, Senior United States District Judge for the Eastern District of Arkansas, sitting by designation 1 The Honorable Stephen N. Limbaugh, United States District Judge for the Eastern District of Missouri 2 The Honorable Catherine D. Perry, United States Magistrate Judge for the Eastern District of Missouri

940 F.Supp. 176 (1996) GALLAGHER CORPORATION, an Illinois corporation, individually and in its capacity as sponsor of the Gallagher Corporation Employee Defined Benefit Pension Plan, Plaintiff, v. MASSACHUSETTS MUTUAL LIFE INSURANCE COMPANY, a corporation, Defendant. No. 95 C 6553. United States District Court, N.D. Illinois, Eastern Division. August 9, 1996. *177 *178 Edmund M. Tobin, Edward J. Whalen, Hedberg, Tobin, Flaherty & Whalen, P.C., Chicago, IL, for Gallagher Corporation. J. Robert Geiman, David Joseph Novotny, Peterson & Ross, Chicago, IL, for Massachusetts Mutual Life Insurance Company. MEMORANDUM AND ORDER MORAN, Senior District Judge. Plaintiff Gallagher Corporation (Gallagher) brought this seven-count lawsuit against defendant Massachusetts Mutual Life Insurance Co. (Mass Mutual) alleging in count I that defendant breached its fiduciary duty under the Employee Retirement Income Security Act of 1974 (ERISA), 29 U.S.C.A. §§ 1001 et seq. Counts II through VI deny Mass Mutual's status as a fiduciary and assert various state law claims based on theories of negligence (counts II and VI), negligent misrepresentation (counts III and V), and violations of the Illinois Consumer Fraud and Deceptive Practices Act, 815 ILCS 505/2 et seq. (Consumer Fraud Act) (counts IV and VII).[1] In each count plaintiff seeks $800,000. Mass Mutual is before this court, pursuant to Federal Rule of Civil Procedure 12(b)(6), on a motion to dismiss counts II-VII. For the following reasons, defendant's motion is denied. BACKGROUND The allegations are straightforward. In 1978, Mass Mutual designed, established and sold to Gallagher a split-funded defined benefit pension plan (the Plan) for the benefit of Gallagher's employees in their retirement (Cplt. ¶¶ 5, 6). The Plan is governed by ERISA (Cplt., count I, ¶ 6). In August 1993, Gallagher considered terminating the Plan pursuant to 29 U.S.C.A. § 1341, but was advised that it could not because of $800,000 in underfunded liabilities (Cplt., count V, ¶¶ 11-13). Gallagher filed a seven-count complaint alleging that Mass Mutual breached its fiduciary duty imposed by ERISA, 29 U.S.C.A. § 1104 (Cplt., count I, ¶ 12). In the alternative, Gallagher alleged that Mass Mutual was negligent or committed professional malpractice (counts II and VI). Plaintiff also asserted negligent misrepresentations (counts III and V) and violations of the Illinois Consumer Fraud Act (counts IV and VII).[2] Mass Mutual originally moved to dismiss all seven counts. On February 1, 1996, Judge Shadur, in a minute order, denied defendant's motion to dismiss count I. He also denied its motion to dismiss counts III and V insofar as he found the pleadings to sufficiently plead state law claims. Judge Shadur, however, left open the question of whether those claims (counts III and V), and the other state law claims (counts II, IV, VI, and VII), were preempted by ERISA. In this order we decide whether the pleadings in counts II, IV, VI, and VII state a claim upon which relief may be granted and, if so, whether the state law claims are nonetheless preempted by ERISA. DISCUSSION Since dismissal is a drastic measure, a complaint should be dismissed only if "it appears beyond a doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief." *179 Conley v. Gibson, 355 U.S. 41, 45-46, 78 S.Ct. 99, 102, 2 L.Ed.2d 80 (1957); Gorski v. Troy, 929 F.2d 1183, 1186 (7th Cir.1991) (quoting Conley). For purposes of the Rule 12(b)(6) motion, all well pled factual allegations are taken as true, Cruz v. Beto, 405 U.S. 319, 322, 92 S.Ct. 1079, 1081, 31 L.Ed.2d 263 (1972); Gomez v. Toledo, 446 U.S. 635, 637 n. 3, 100 S.Ct. 1920, 1921 n. 3, 64 L.Ed.2d 572 (1980), and all reasonable inferences are drawn and viewed in a light most favorable to the plaintiffs, H.J., Inc. v. Northwestern Bell Tel. Co., 492 U.S. 229, 249, 109 S.Ct. 2893, 2905, 106 L.Ed.2d 195 (1989); Gomez v. Illinois State Bd. of Educ., 811 F.2d 1030, 1039 (7th Cir.1987). Moreover, plaintiff is entitled to "state as many separate claims ... as the party has regardless of consistency. ..." Fed.R.Civ.Pro. 8(e)(2). A. Sufficiency of the Pleadings 1. Counts II and VI — Negligence or Professional Malpractice Mass Mutual first argues that Gallagher's negligence claim is barred by the Illinois economic loss doctrine. See Moorman Mfg. Co. v. National Tank Co., 91 Ill.2d 69, 61 Ill.Dec. 746, 435 N.E.2d 443 (1982). "In the absence of a decision by the highest state court, we should decide the matter in the way we divine that the highest state court would rule if the issue were squarely presented to it. Decisions of intermediate appellate state courts generally control unless there are persuasive indications that the highest state court would decide the issue differently." L.S. Heath & Son, Inc. v. AT & T Information Systems, Inc., 9 F.3d 561, 574 (7th Cir.1993). The latest pronouncement from the Illinois Supreme Court on professional malpractice, Congregation of the Passion, Holy Cross Province v. Touche, Ross & Co., 159 Ill.2d 137, 201 Ill.Dec. 71, 636 N.E.2d 503, cert. denied, ___ U.S. ___, 115 S.Ct. 358, 130 L.Ed.2d 312 (1994), guides our analysis. In Congregation, the state supreme court found that accountants, like attorneys, owe their clients extra contractual duties which are impossible to memorialize in contracts, and that therefore the economic loss doctrine would not bar tort recovery against them: The evolution of the economic loss doctrine shows that the doctrine is applicable to the service industry only where the duty of the party performing the service is defined by the contract that he executes with his client. Where a duty arises outside of the contract, the economic loss doctrine does not prohibit recovery in tort for the negligent breach of that duty. While a client contracts with an accountant regarding some general matters, an accountant must make his own decisions regarding many significant matters, and the final decision he makes is not necessarily contingent on the contract he executes with his client.... This knowledge and expertise cannot be memorialized in contract terms, but is expected independent of the accountant's contractual obligations. An analogy to the accountant-client relationship can be found in the attorney-client relationship. In both cases, the ultimate result of the relationship between the professional and client is something intangible. Whether the professional produces a legal brief or a financial statement, the value of the services rendered lies in the ideas behind the documents, not in the documents themselves. In contrast ... the relationship between an architect and his client produces something tangible, such as a plan that results in a structure. The characteristics of a tangible object are readily ascertainable, and they can be memorialized in a contract and studied by the parties.... It is not necessary or generally possible to memorialize all the elements of "competent representation" in a contract.... Application of the Moorman doctrine limiting recovery of purely economic losses to contract, therefore, is inappropriate where a relationship results in something intangible.... This duty to observe reasonable professional competence exists independently of any contract. The economic loss doctrine does not bar recovery in tort for the breach of a duty that exists independently of a contract. Congregation of the Passion, 201 Ill.Dec. at 82-84, 636 N.E.2d at 514-16. *180 On this motion to dismiss we will assume that the nature of Mass Mutual's services may be described as "business consulting." Business consultants generally hold themselves out as professionals who owe duties of care and loyalty to their clients which exist independent of any contract. Moreover, their products are often advisory in character and thus intangible, the way an attorney's brief is valuable for the ideas that it provides. Id. at 83, 636 N.E.2d at 515. Thus, based on the allegations before us, the stage in the proceedings, and the assumptions about the character of Mass Mutual's services, we think the Illinois Supreme Court would hold that the services Mass Mutual provides are more akin to those of an attorney or accountant than those of an architect and that the economic loss doctrine would not apply.[3] Plaintiff has, at this stage, properly stated a claim for relief in counts II and VI. 2. Counts IV and VII — Consumer Fraud Act Claims made pursuant to the Illinois Consumer Fraud Act (counts IV and VII) must be plead with specificity. E.g., Saladino v. Team Chevrolet, Inc., 242 Ill.App.3d 735, 183 Ill.Dec. 320, 326, 611 N.E.2d 583, 589 (2d Dist.1993), appeal denied, 152 Ill.2d 580, 190 Ill.Dec. 910, 622 N.E.2d 1227 (1993) (TABLE); Appraisers Coalition v. Appraisal Inst., 845 F.Supp. 592, 608-09 (N.D.Ill. 1994). Specifically, a plaintiff must state "the identity of the person making the misrepresentation, the time, place, and content of the misrepresentation, and the method by which the misrepresentation was communicated." Schiffels v. Kemper Fin. Svcs., Inc., 978 F.2d 344, 352 (7th Cir.1992) (quoting Bankers Trust Co. v. Old Republic Ins. Co., 959 F.2d 677, 683 (7th Cir.1992)). The purpose of the rule is to provide defendant with sufficient information to answer the allegations. See Uniroyal Goodrich Tire Co. v. Mutual Trading Corp., 749 F.Supp. 869, 872 (N.D.Ill.1990). Paragraph 11 of count IV and paragraph 10 of count VII allege: Mass Mutual violated the [Consumer Fraud Act] through the following false, unfair and deceptive practices and by misrepresenting the following material facts: a. that purchasing more expensive whole life insurance policies rather than less expensive term insurance would provide adequate funding for the Plan; b. that the levels of contributions were adequate to fund the Plan; c. that certain employees salaries should be increased without adequately reserving for liabilities; and d. that actuarial assumptions and methods were proper for establishing actuarial valuations for the Plan and were realistic in light of the actual experience of the Plan. These allegations, and those contained in paragraphs 7-10 in count I, do not satisfy the technical pleading requirements. We think defendant is entitled to somewhat more specificity by alleging at least some instances in which the misrepresentations were made. We dismiss counts IV and VII, with leave to amend within 21 days. B. Preemption Since we find that Gallagher has sufficiently pleaded his state law claims, or he may be able to do so, it is necessary for us to decide whether they are preempted by section 514(a) of ERISA, 29 U.S.C.A. § 1144(a). Whether a state law is preempted is a matter of congressional intent, see e.g., Shaw v. Delta Air Lines, Inc., 463 U.S. 85, 96-97, 103 S.Ct. 2890, 2899-2900, 77 L.Ed.2d 490 (1983); Maciosek v. Blue Cross & Blue Shield United of Wis., 930 F.2d 536, 539 (7th Cir.1991) (citing FMC Corp. v. Holliday, 498 U.S. 52, 111 S.Ct. 403, 112 L.Ed.2d 356 (1990)), so we begin with the statute: Except as provided in subsection (b) [the savings clause] of this section, the provisions *181 of this subchapter and subchapter III of this chapter shall supersede any and all State laws insofar as they may now or hereafter relate to any employee benefit plan described in section 1003(a) of this title and not exempt under section 1003(b) of this title. 29 U.S.C.A. § 1144(a) (emphasis added). The breadth of the preemption provision is wide, see e.g., Shaw, 463 U.S. at 96, 103 S.Ct. at 2899,[4] and it applies to both state common law and statutes, see e.g., FMC Corp. v. Holliday, 498 U.S. 52, 57, 111 S.Ct. 403, 407, 112 L.Ed.2d 356 (1990) (state statute); Metropolitan Life Insur. Co. v. Massachusetts, 471 U.S. 724, 105 S.Ct. 2380, 85 L.Ed.2d 728 (1985) (same); Pilot Life Insur. Co. v. Dedeaux, 481 U.S. 41, 43, 48 n. 1, 107 S.Ct. 1549, 1550, 1553 n. 1, 95 L.Ed.2d 39 (1987) (common law); Ingersoll-Rand v. McClendon, 498 U.S. 133, 111 S.Ct. 478, 112 L.Ed.2d 474 (1990) (same). The provision also reaches "generally applicable laws, not just laws aimed exclusively at employee benefit plans." General American Life Insur. Co. v. Castonguay, 984 F.2d 1518 (9th Cir.1993) (citing Dedeaux, 481 U.S. at 47-48, 107 S.Ct. at 1553). The provision is not, however, without bounds. See, e.g., Mackey v. Lanier Collection Agency & Serv., Inc., 486 U.S. 825, 832-33, 108 S.Ct. 2182, 2186-87, 100 L.Ed.2d 836 (1988) ("run-of-the-mill state-law claims such as unpaid rent, failure to pay creditors, or even torts committed by an ERISA plan" survive preemption);[5]Safeco Life Ins. v. Musser, 65 F.3d 647 (7th Cir.1995) (surcharge imposed on insurance companies so that state can pay for the uninsurable is not preempted); Redall Industries, Inc. v. Wiegand, 876 F.Supp. 147 (E.D.Mich.1995) (articulating the "remote and peripheral" exception from Shaw, 463 U.S. at 100 n. 21, 103 S.Ct. at 2901 n. 21). Only those laws which "relate to" an ERISA plan are preempted, and "[a] law `relates to' an employee benefit plan, in the normal sense of the phrase, if it has a connection with or reference to such a plan." Shaw, 463 U.S. at 96-97, 103 S.Ct. at 2900 (emphasis added). In addition, justice and common sense dictate that only those parties that are subject to ERISA's liability provisions are entitled to rely on its preemption provision to shield themselves from liabilities imposed by state law. Cf. Central States, Southeast and Southwest Areas Health & Welfare Fund v. Neurobehavioral Associates, 53 F.3d 172, 174 (7th Cir.1995) (holding that restitution for overpayment of benefits is actionable under ERISA; reasoning, in part, that plaintiff "could not pursue this action in state court because a state law claim would be preempted by ERISA."). Since it is the relationship among or between ERISA entities[6] that is the linchpin to ERISA preemption, see Castonguay, 984 F.2d at 1521; Central States, 53 F.3d at 173-74 (the fiduciary-beneficiary relationship is one "which is of primary concern under ERISA"), only those generally applicable state rules that affect the relationship between any two of the ERISA entities are preempted; those state laws which affect the relationship between one of these entities and an outside party will not disrupt *182 ERISA's comprehensive regulatory scheme and are not preempted. Castonguay, 984 F.2d at 1521-22.[7]Cf. Mertens v. Hewitt Associates, 508 U.S. 248, 255 n. 5, 113 S.Ct. 2063, 2067-68 n. 5, 124 L.Ed.2d 161 (1993) (expressing doubt about whether an ERISA entity can state a claim for breach of fiduciary duty against a non-fiduciary who knowingly aids a fiduciary in the breach of the latter's duty) (dictum).[8] Gallagher is certainly an ERISA entity. The question remains whether Mass Mutual is an ERISA entity. Section 3 defines a fiduciary[9] as one who (i) ... 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) ... 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) ... has any discretionary authority or discretionary responsibility in the administration of such plan. 29 U.S.C.A. § 1002(21)(A); Pohl v. National Benefits Consultants, Inc., 956 F.2d 126, 129 (7th Cir.1992) (discretion is the "sine qua non of [ERISA's] fiduciary duty"); Pappas v. Buck Consultants, Inc., 923 F.2d 531, 534 (7th Cir.1991) (equating discretion with decisionmaking authority). At this stage of the litigation, however, we do not know if Mass Mutual performs any discretionary functions. Count I alleges that Mass Mutual is a fiduciary; counts II through VII allege that Mass Mutual is not. At this juncture Mass Mutual insists it is not a fiduciary. At the pleading stage, plaintiffs are entitled to state alternative and conflicting causes of action. Fed.R.Civ.Pro. 8(e)(2); Pedre Co., Inc. v. Robins, 901 F.Supp. 660, 665-666 (S.D.N.Y. 1995). We therefore leave to a later date the determination of Mass Mutual's status. Cf. Pappas, 923 F.2d at 538 ("[T]here is no pro se rule" that prevents professionals who render advice to an ERISA plan from becoming fiduciaries.... [T]he question ... involves factual determinations....) (citation omitted). If Mass Mutual is a fiduciary, it will be shielded from these state liability laws; if it is not a fiduciary, it will be shielded from ERISA. Pedre, 901 F.Supp. at 666. CONCLUSION For the reasons stated above, defendant's motion to dismiss is denied. NOTES [1] Subject matter jurisdiction over the ERISA claim is taken pursuant to 29 U.S.C.A. §§ 1132(e)(1), 1132(f) and 28 U.S.C.A. § 1331 and over the state law claims pursuant to 28 U.S.C.A. §§ 1332, 1367. [2] Counts II, III and IV were brought by Gallagher as the Plan sponsor, while counts V, VI and VII were brought individually. [3] We do not think the Seventh Circuit's warning in Great Cent. Ins., Co. v. Insurance Svcs. Office, Inc., 74 F.3d 778, 786 (7th Cir.1996), that "a plaintiff who needs a common law departure or innovation to win should bring his suit in state court rather than in federal court," is contrary. Here, plaintiff does not seek to have an old body of law (negligence) extended, but to cabin a newer doctrine. [4] The scope of the provision is so wide that ERISA preempts even those state laws which are consistent with ERISA's substantive requirements. Metropolitan Life Ins. Co. v. Massachusetts, 471 U.S. 724, 739, 105 S.Ct. 2380, 2388, 85 L.Ed.2d 728 (1985). [5] In Mackey, plaintiff/respondent was a collection agency to whose clients certain ERISA plan participants owed money. Respondent sought and obtained money judgments against 23 participants, and tried to garnish the participants' benefits to collect. The state trial court granted the garnishment request; the appellate court reversed, based on a state statute which prohibited the garnishment of "`[f]unds or benefits of [an] ... employee benefit plan or program subject to ... [ERISA]'." Mackey, 486 U.S. at 828, 108 S.Ct. at 2184. The state supreme court reversed, holding the antigarnishment statute was preempted by ERISA. Petitioners, the plan trustees, appealed to the Supreme Court which affirmed, holding the antigarnishment statute preempted (as it mentioned ERISA plans on its face), but holding the general garnishment statute not preempted. [6] Plan participants, beneficiaries, trustees, fiduciaries or administrators. See generally 29 U.S.C.A. § 1001(b) (statement of purpose); §§ 1021-1031 (imposing disclosure and reporting requirements on plan administrators); § 1104 (imposing a fiduciary duty); § 1132(a)(3) (providing plan participants, beneficiaries, and fiduciaries with a private cause of action). [7] Other courts have considered a multiple of factors. The Tenth Circuit considers the general applicability of the law, whether it is specifically aimed at ERISA plans, whether it is a traditional area of state regulation, and whether its application would affect the relationship between two ERISA entities. Airparts Co., Inc. v. Custom Benefit Svcs. of Austin, Inc., 28 F.3d 1062, 1065 (10th Cir.1994) ("relating to" factors). The Sixth Circuit considers whether the state law is an exercise of traditional state authority, whether it affects the relationship between two ERISA entities, and whether the state's law has an incidental (merely economic) effect on the ERISA plan. Redall, supra, 876 F.Supp. at 150 (citing Firestone Tire & Rubber Co. v. Neusser, 810 F.2d 550, 555-56 (6th Cir.1987); Saylor v. Parker Seal Co., 975 F.2d 252 (6th Cir.1992)). [8] The Seventh Circuit seems to have adopted the Mertens dictum as law. See Reich v. Continental Casualty Co., 33 F.3d 754 (7th Cir.1994) ("[The Court] consider[ed] all the relevant considerations and adumbrate[ed] an unmistakable conclusion, [and] it would be reckless [for lower courts] to think the Court likely to adopt a contrary view in the future."), cert. denied, ___ U.S. ___, 115 S.Ct. 1104, 130 L.Ed.2d 1071 (1995). [9] It is clear that Mass Mutual is not an employer, employee, beneficiary or trustee in this matter.

525 F.2d 792 UNITED STATES of America, Plaintiff-Appellee,v.John Noehl SCHMITZ, Defendant-Appellant. Nos. 75--2056, 75--2372. United States Court of Appeals,Ninth Circuit. Aug. 5, 1975. Appeal from Central District Court of California; A. Andrew Hauk, judge. Robert Sarno, Hollywood, Cal., for defendant-appellant. William D. Keller, U.S. Atty., Los Angeles, Cal., for plaintiff-appellee. RESPONSE TO RESPONSE CHAMBERS, Chief Judge: 1 This summer in eight cases where a defendant-appellant sought a transcript here at government expense after denial in the district court, I have directed the defense counsel and the United States attorney to spend up to eight hours trying to develop an agreed statement of facts for an appeal. 2 In the first four cases to report back, we have the following results: 3 Case One--an agreed statement of facts. 4 Case Two--an agreed statement of facts to be supplemented with a few pages of testimony. 5 Case Three--defense counsel became convinced he had no case for appeal and obtained the client's consent to dismiss. Case dismissed. 6 Case Four--a clear showing that an agreed statement of facts is not feasible. 7 In Case Five (this one), a district judge objects to this procedure, saying that defendant isn't entitled to in forma pauperis because the judge thinks the defendant can pay for it. (The judge has filed objections in this court.) 8 The questions: Free transcript or agreed statement, are not brothers; perhaps only first cousins once removed. An agreed statement would eliminate any argument about who would pay for the transcript. I have a hunch that we may not get an agreed statement here, especially with the district judge opposing it. But if we fail in Case Five (this one), my batting average will drop to .600. 9 It is still hoped that eight hours of conference will produce an agreed statement. If it does not, I will then consider defendant's ability to pay for the thing, i.e., the transcript. 10 It is my belief that in 50 per cent of the cases where the trial judge regards an appeal as utterly frivolous, an agreed statement is feasible. Of course, this incident will not help my campaign for agreed statements. But the project is worth trying. 11 See also, 9 Cir., 525 F.2d 793.

Duff v 646 Tenth Ave., LLC (2014 NY Slip Op 07589) Duff v 646 Tenth Ave., LLC 2014 NY Slip Op 07589 Decided on November 6, 2014 Appellate Division, First Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and subject to revision before publication in the Official Reports. Decided on November 6, 2014 Sweeny, J.P., Andrias, Saxe, Richter, Feinman, JJ. 13416 103044/09 509197/11 [*1] Colleen Duff, Plaintiff, v646 Tenth Avenue, LLC, et al., Defendants, J.L. Heating & Contracting, LLC, Defendant-Respondent. J.L. Heating & Contracting, LLC, Third-Party Plaintiff-Respondent, M.J.D. Building Maintenance LLC, Third-Party Defendant-Appellant. Kaufman Borgeest & Ryan LLP, Valhalla (Jacqueline Mandell of counsel), for appellant. Farber Brocks & Zane LLP, Garden City (Tracy L. Frankel of counsel), for respondent. Order, Supreme Court, New York County (Joan A. Madden, J.), entered July 30, 2013, which, to the extent appealed from as limited by the briefs, denied third-party defendant's motion for summary judgment dismissing of the third-party complaint, unanimously reversed, on the law, without costs, and the motion granted. The Clerk is directed to enter judgment dismissing the third-party complaint. In this action for personal injuries allegedly sustained by plaintiff when she was burned by hot water while showering in the bathroom of an apartment located at 646 Tenth Avenue in Manhattan, third-party defendant M.J.D. Building Maintenance LLC, the building's superintendent, met its initial burden of demonstrating that it did not create or have actual or constructive notice of the alleged dangerous condition. Although third-party defendant acknowledges acting to address complaints of no heat or hot water on the upper floors of the building within two weeks of the incident which resulted in plaintiff's injuries, the undisputed evidence estabishles that the domestic hot water supply system and the heating system for the building were separate, and that adjustments made by third-party defendant to the heating system would have had no effect on the domestic hot water supply system (see Baumgardner v Rizzo, 35 AD3d 223, 224 [1st Dept 2006], lv denied 8 NY3d 806 [2007]). Third-party plaintiff failed to present evidence that any action taken by third-party defendant caused excessively hot water. Third-party plaintiff's expert expressly stated that he [*2]did not evaluate the heating system, which was different from the domestic hot water supply system. Although he opined that leaving the domestic hot water supply system in the hands of an inexperienced person, such as third-party defendant, was dangerous and negligent, no evidence was presented that any action by third-party defendant proximately caused plaintiff's injuries or that third-party defendant was responsible for repairs to the domestic hot water supply system (see LaTronica v F.N.G. Realty Corp., 47 AD3d 550, 550-551 [1st Dept 2008]; Baumgardner, 35 AD3d at 224-225). THIS CONSTITUTES THE DECISION AND ORDER OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT. ENTERED: NOVEMBER 6, 2014 CLERK

UNITED STATES COURT OF APPEALS FOR VETERANS CLAIMS NO. 09-4520 EXCELL WHITNEY, APPELLANT, V. ERIC K. SHINSEKI, SECRETARY OF VETERANS AFFAIRS, APPELLEE. Before HAGEL, MOORMAN, and LANCE, Judges. ORDER On April 29, 2010, the Court dismissed this appeal for lack of jurisdiction. On June 7, 2010, the appellant filed a timely motion for reconsideration or, in the alternative, for a panel decision pursuant to Rule 35 of the Court's Rules of Practice and Procedures. On consideration of the foregoing, and the parties' prior pleadings, it is ORDERED, by the single judge, that the motion for reconsideration is denied. It is further ORDERED, by the panel, that the motion for a panel decision is denied. DATED: July 26, 2010 PER CURIAM. Copies to: Excell Whitney VA General Counsel (027) 

722 A.2d 1129 (1999) TRI-STATE TRANSFER COMPANY, INC., Petitioner, v. DEPARTMENT OF ENVIRONMENTAL PROTECTION TINICUM TOWNSHIP, and ECO, Inc., Respondents. Tinicum Township, Petitioner, v. Department of Environmental Protection, Respondent. Commonwealth Court of Pennsylvania. Argued September 14, 1998. Decided January 8, 1999. *1130 Barry W. Sawtelle, Wyomissing, for petitioner. Kenneth A. Gelburd, Conshohocken, for respondent, DEP. Charles W. Elliott, Easton, for respondent, ECO, Inc. Robert Sugarman, Philadelphia, for respondent, Tinicum Township. Before DOYLE, J., PELLEGRINI, J., and RODGERS, Senior Judge. DOYLE, Judge. Before this Court is the appeal of Tri-State Transfer Company (TST) and the cross-appeal of Tinicum Township (Township) from an order of the Environmental Hearing Board (EHB), which determined that the Department of Environmental Protection (Department) abused its discretion in allowing TST to renew its permit to operate a municipal waste transfer station.[1] The relevant facts as found by the EHB are summarized as follows. In 1976, the Department issued solid waste permit no. 100972 (hereafter referred to as the permit or TST's permit) to T.R.A.S.H., Inc. The permit would allow T.R.A.S.H. to construct and operate a municipal waste transfer station on a site in the Township. T.R.A.S.H., however, did not construct the facility and, in August of 1982, the Department reissued the permit to TST. The Township filed an appeal with the EHB challenging the Department's decision to reissue the permit to TST. Thereafter, the *1131 parties entered into a settlement agreement in June of 1983 that allowed TST to retain the permit and construct the transfer station in return for certain modifications to the design of a building TST intended to erect on the site. Although TST was free to build and operate the transfer station under the terms of the 1983 settlement, it never completed construction of the facility and never processed any municipal waste at the site. In fact, development of the waste transfer station has not progressed beyond laying footers for the proposed building, the installation of septic systems and depositing fill for an access road. In 1988, the Department's regulations governing the transfer and disposal of municipal waste were completely overhauled and significantly expanded. The new regulations promulgated by the Department generally required persons holding solid waste permits to either upgrade their facilities or close them down. Most important for purposes of the instant appeal, the new regulations provided that, [i]f no municipal waste is processed or disposed at a facility within 5 years of the date of issuance by the Department of a permit for the facility, the permit is void. 25 Pa.Code §271.211(e). After the new regulations were promulgated, the Department determined that TST could not operate the transfer facility until it was upgraded to meet the design and operating standards of the 1988 regulatory scheme. Accordingly, on September 24, 1990, the Department issued a unilateral modification of TST's permit which stated that, because TST did not construct the waste facility within five years of the issuance of the permit, TST could not operate the facility until a "permit modification" was approved. TST appealed the Department's unilateral modification of its permit to the EHB. This appeal was ultimately settled, and, under the terms of a consent order and adjudication, TST agreed (1) to submit to the Department by July 1, 1992, an application for major modification and renewal of its permit, and (2) that it would not construct the waste transfer station prior to receiving the department's approval of that application. In March of 1993, TST filed an application for renewal of the permit, but it did not file the application for major modification of the permit as required by the terms of the consent order. Nevertheless, on November 20, 1995, the Department granted TST's application and renewed the permit. The Department determined that the renewal was proper, reasoning that the regulation at 25 Pa.Code §271.211(e) did not apply to the permit because it was first issued before the 1988 regulations were promulgated. Thereafter, the Township and ECO, Inc. (ECO), a nonprofit environmental organization, filed separate appeals to the EHB from the Department's decision to renew the permit. The EHB consolidated the appeals and conducted extensive hearings in this matter. On December 8, 1997, the EHB issued an order that sustained the appeals and voided the permit. The EHB reasoned, among other things, that the 1988 regulations applied to TST's permit and, under 25 Pa.Code §271.211(e), the permit was void for the reason that TST had never processed or disposed of any waste at the site since the permit was first issued.[2] Because the permit was void, the EHB concluded that the Department abused its discretion in renewing it. The appeal by TST and the Township's cross appeals followed; ECO is participating as an intervenor in this appeal. In its appeal, TST contends that the EHB erred as a matter of law in determining that the permit was void under 25 Pa.Code §271.211(e) because (1) the retroactive application of the 1988 regulation to its permit constitutes an unconstitutional and illegal *1132 taking of a vested property right, and (2) the EHB failed to give deference to the Department's interpretation of the 1988 regulations. On the other hand, the Township contends in its cross appeal that, even if the EHB's conclusion that the permit was void was erroneous, the EHB properly found that TST did not satisfy the criteria for renewal of the permit. See footnote 2 supra. Initially, we observe that, assuming that the regulation does apply to these circumstances, TST's permit is clearly voided by 25 Pa.Code §271.211(e). The record shows that approximately nineteen years passed between 1976, when the permit was first issued, and 1995, when the Department renewed the permit. And, approximately seven years passed from the date that the 1988 regulations were promulgated to the date the permit was renewed. The EHB found as fact that TST never constructed the waste transfer facility on the site, and it is undisputed that TST has never processed or disposed of any waste at the site. Therefore, because no municipal waste was processed or disposed of at the facility within five years of the date the Department first issued the permit for the facility, TST's permit is void under 25 Pa.Code §271.211(e). TST contends, however, that the EHB retroactively applied 25 Pa.Code § 271.211(e) to void its permit and thus engaged in an unconstitutional and illegal taking of its property interest. Specifically, TST believes that the permit gives it a vested right to use real property as a waste transfer station and that this right cannot be impaired by government regulation, citing Pennsylvania Northwestern Distributors, Inc. v. Zoning Hearing Board of Township of Moon, 526 Pa. 186, 584 A.2d 1372 (1991) (zoning ordinance amortizing pre-existing non-conforming uses was per se confiscatory and violated the Pennsylvania Constitution). In response, the Township, ECO, and the Department all assert that TST is raising this issue for the first time on appeal, and, thus, it is waived. After reviewing the record, we agree that this issue is waived. TST does not specify in the "Statement of the Case" or "Argument" portions of its brief where in the record it raised the regulatory taking issue, which is required by Pa. R.A.P. 2117(c) and 2119(e), and our independent review of the record does not reveal that TST raised this issue before the EHB. Hence, this issue is waived.[3] Pa. R.A.P. 1551(a); Wing v. Unemployment Compensation Board of Review, 496 Pa. 113, 436 A.2d 179 (1981); Dilliplaine v. Lehigh Valley Trust Co., 457 Pa. 255, 322 A.2d 114 (1974). Furthermore, the "Statement of Question Involved" in TST's brief, in its entirety, is as follows: "Did the Environmental Hearing Board commit an error of law in applying the provisions of 25 Pa.Code [§]271.211 to Appellant's permit in determining that the said *1133 permit was void." (TST's Brief at 1.) In our view, TST's regulatory taking issue is not set forth in or reasonably suggested by its "Statement of the Question Involved." Therefore, for this additional reason, we will not consider this issue. Pa. R.A.P. 2116(a); Appeal of Gemstar/Ski Brothers, 133 Pa.Cmwlth. 115, 574 A.2d 1201 (Pa.Cmwlth.1990). Next, TST contends that the EHB erred in not deferring to the Department's interpretation of 25 Pa.Code §271.211(e); namely, that the regulation may not be applied to pre-1988 permits. In TST's view, the EHB, by reaching the contrary conclusion that 25 Pa.Code §271.211(e) applied to TST's permit, merely substituted its judgment for that of the Department. We do not agree. An administrative agency's interpretation of its own regulations is to be given great weight unless the interpretation is plainly erroneous or inconsistent with the regulations. Carlson Mining Co. v. Department of Environmental Resources, 163 Pa.Cmwlth. 141, 639 A.2d 1332 (Pa.Cmwlth.), petition for allowance of appeal denied, 538 Pa. 675, 649 A.2d 676 (1994). This Court has held that we need not give deference to an agency where its construction of a regulation is contrary to its plain meaning, Leader Nursing Centers, Inc. v. Department of Public Welfare, 82 Pa.Cmwlth. 53, 475 A.2d 859 (Pa.Cmwlth.1984), or where the agency ignores the language of its own regulations. Delaney v. State Horse Racing Commission, 112 Pa.Cmwlth. 407, 535 A.2d 719 (Pa.Cmwlth.1988). The EHB rejected the Department's interpretation that 25 Pa.Code § 271.211(e) did not apply to TST for the reason that the Department's construction ignored the plain language of the 1988 regulations. The EHB explained as follows: The 1988 amendments to the Department's solid waste regulations constituted a complete overhaul of the solid waste management program. The old regulations, adopted in 1971 and amended in 1977, provided one regulation specific to transfer stations. 25 Pa.Code §75.27 (repealed). After 1988, an entire chapter in the regulations was devoted specifically to transfer stations. 25 Pa.Code §§ 279.1-279.262. The general provisions of the new regulations required existing permit holders to either upgrade their facilities to comply with the new regulatory scheme or close their facilities. 25 Pa.Code § 271.211. .... There is no language in the regulations which provides the Department with any explicit authority to exempt facilities with pre-1988 permits from application of [25 Pa.Code §271.211] subsection (e). In promulgating the 1988 solid waste regulations, it was the purpose of the Environmental Quality Board (EQB) to require more comprehensive and stringent regulations of solid waste management facilities. 18 Pa. Bull. 1601 (April 9, 1988). Where the EQB intended to exempt facilities which had been permitted prior to 1988 from the new requirements, it explicitly did so.... By promulgating Section 271.211, the EQB obviously intended to discourage the building of new facilities under outdated conditions as departmental regulation and technology progressed. Under subsection (e) facilities cannot defer their operation indefinitely and still claim rights under an existing permit.... .... The 1988 regulations allow for the transitioning of existing facilities which were originally permitted under the old regulations. The purpose of such a transition period was to require existing facilities to eventually conform to current regulation.... However, there is no evidence of an intent to grandfather unbuilt facilities whose permits had not been finalized. It simply makes no sense to allow such a transition for a facility which existed only on paper and which did not conform to all current regulations. (EHB decision at 17-19.) (Citations omitted.) After reviewing the applicable regulations, we agree with the EHB's analysis and conclude that the Department's determination that 25 Pa.Code § 271.211(e) did not apply to TST's pre-1988 permit is contrary to the plain language of the 1988 regulations. Therefore, the EHB was not required to defer to the Department's interpretation of 25 Pa.Code §271.211(e). *1134 Further, our review of the record shows that the Department has not expressed a consistent interpretation of the 1988 regulations at issue in this matter. In 1990, the Department, when it unilaterally modified the permit, stated that TST's facility had to be upgraded to comply with the 1988 regulations, and it warned TST that, if it did not agree to the modifications, it would assert that the permit was void under 25 Pa.Code §271.211(e). (ECO Exhibit 55.) When the unilateral modification was issued in the Pennsylvania Bulletin, the Department explained: Modification was issued due to the fact that the permittee did not construct the facility within 5 years of permit issuance.... The facility cannot operate until a permit modification is approved.... (20 Pa. Bull. 5473 (October 27, 1990); ECO Exhibit 14.) The record also shows that two Department officers, the Chief of the Division of Municipal and Residual Waste and a Facilities Manager in the Waste Management Program, both opined in 1990 that TST's permit had expired because the transfer station was not constructed within five years of the date of the permit's issuance. (Township Exhibit 510; Township's Supplemental Reproduced Record at 20b.) (EHB's decision, Findings of Fact Nos. 19-26.) The Department, however, later reversed itself and concluded that 25 Pa.Code §271.211(e) applied only to permits issued under the 1988 regulations. And, contrary to the 1992 consent order, the Department, applying its revised interpretation of the regulations, did not require TST to apply for a major modification of the permit to bring it into compliance with the 1988 regulations. Hence, considering the variety of interpretations of 25 Pa.Code §271.211(e) proffered by the Department in its dealings with TST, we believe that the EHB was not compelled to defer to the Department's revised interpretation of the regulation. Even if we were to assume for the sake of argument that the EHB should have adopted the Department's view that 25 Pa.Code §271.211(e) does not apply to the permit, we would nonetheless affirm the EHB on the ground that it correctly held that TST's permit lapsed by operation of law under 25 Pa.Code § 271.211(f). This regulation, which expressly applies to pre-1988 permits, provides: A municipal waste facility ... that was permitted by the Department prior to April 9, 1988 shall have a permit term that expires April 9, 1993. The operator may apply for a permit renewal under [25 Pa.Code] §271.233. Under 25 Pa.Code §271.233, a permit renewal application must be filed at least 180 days before the expiration date of the current permit. Because TST's permit was issued in 1976, 25 Pa.Code §271.211(f) would establish an expiration date for the permit of April 9, 1993, and 25 Pa.Code § 271.233 would require TST to apply for renewal of the permit 180 days before that expiration date. It is clear from the facts, however, that TST never submitted an application for renewal of the permit 180 days before April 9, 1993. Instead, TST filed its renewal application on March 9, 1993, approximately 30 days before the expiration date established by 25 Pa.Code § 271.211(f). (EHB's Decision, Finding of Fact No. 16.) The EHB properly concluded that TST's permit lapsed, because "by failing to submit a renewal application within 180 days before the expiration of its permit, [TST] lost the right to seek renewal of its permit and instead was required to seek a new permit under the 1988 regulations." (EHB Decision at 20.) Therefore, regardless of whether 25 Pa.Code §271.211(e) applies here, the permit lapsed by operation of law under 25 Pa.Code §271.211(f). Accordingly, the EHB's order is affirmed.[4] ORDER NOW, January 8, 1999, the order of the Environmental Hearing Board in the above-captioned matters is hereby affirmed. NOTES [1] During the time period relevant to this appeal, the term transfer facility was defined under 25 Pa.Code §271.1 as "[a] facility which receives and processes or temporarily stores solid waste at a location other than the generation site...." Also, the term "municipal waste is defined in that same section as [g]arbage, refuse, industrial lunchroom or office waste and other material, including solid, liquid, semisolid or contained gaseous material resulting from operation of residential, municipal, commercial or institutional establishments and from community activities.... 25 Pa.Code §271.1. [2] The EHB found that the Department abused its discretion in renewing the permit for the following additional reasons: (1) the site plan for the transfer facility did not include all items mandated by the Department's regulations; (2) the Department failed to adequately review TST's application in that it did not conduct an adequate environmental assessment and did not ensure that other environmental statutes would not be violated; (3) the Department did not explicitly require compliance with flood proofing requirements as a condition of the permit; and (4) the Department failed to require TST to erect a fence around the perimeter of TST's proposed facility. [3] Even if this issue was properly raised and preserved for our review, it would not succeed. A taking generally occurs when an entity with the power of eminent domain deprives an owner of the use and enjoyment of property. Machipongo Land and Coal Co. v. Department of Environmental Resources, 719 A.2d 19 (Pa.Cmwlth.1998). However, Pennsylvania Courts have repeatedly held that permits and licenses are a mere privilege, and do not constitute a property right of the holder. Plowman v. Department of Transportation, Bureau of Driver Licensing, 535 Pa. 314, 635 A.2d 124 (1993) (driver's license is a privilege); Crooks v. Pennsylvania Securities Commission, 706 A.2d 360 (Pa.Cmwlth.1998) (agent's license is not a guaranteed privilege); 1412 Spruce, Inc. v. Pennsylvania Liquor Control Board, 70 Pa.Cmwlth. 501, 453 A.2d 382 (Pa.Cmwlth.1982) (restaurant liquor license was a privilege and not personal property), aff'd 504 Pa. 394, 474 A.2d 280 (1984); Pennsylvania Public Utility Commission v. Zanella Transit, Inc., 53 Pa.Cmwlth. 359, 417 A.2d 860 (Pa.Cmwlth.1980) (certificate of public convenience is a mere privilege and confers no vested property right). Hence, because the waste permit did not rise to the level of a property interest, TST's regulatory taking argument is without merit. It is not clear from TST's brief whether it is raising retroactivity as a separate issue from its regulatory taking argument. Nevertheless, we do not believe that the EHB retroactively applied 25 Pa.Code §271.211(e) in this matter. Although the permit was issued in 1976, long before the 1988 regulations were promulgated, the permit was never used and the waste transfer facility was never constructed. Under these facts, we do not believe that TST acquired a vested right in the permit that would shield it from complying with the 1988 regulations. Moreover, as noted by the EHB, it did not have to decide whether TST's permit was void on the effective date of 25 Pa.Code §271.211(e), because the record demonstrates that TST processed no waste at all for more than five years after 25 Pa.Code § 271.211(e) went into effect. [4] Because of our disposition of this matter, we need not reach the issues raised by the Township in its cross appeal.

COURT OF APPEALS SECOND DISTRICT OF TEXAS FORT WORTH NO. 02-14-00265-CV IN THE INTEREST OF D.A., A CHILD ---------- FROM THE 323RD DISTRICT COURT OF TARRANT COUNTY TRIAL COURT NO. 323-100117-14 ---------- DISSENTING MEMORANDUM OPINION1 ---------- I respectfully dissent from the majority opinion’s conclusion that the trial court erred by dismissing Grandmother’s suit for lack of standing. In this case, standing is conferred by statute; thus, we must analyze whether the petition was filed by a proper party under the statutory framework. See In re J.C., 399 S.W.3d 235, 238 (Tex. App.—San Antonio 2012, no pet.). “The party seeking relief must allege and establish standing within the parameters of the statutory language.” Id. (emphases added). 1 See Tex. R. App. P. 47.4.  Grandmother alleged in her petition, in a section entitled “Residence Requirement,” that “[t]he child will have lived in the home of [Grandmother] for at least six (6) months when this cause is heard.” As statutorily required, she attached an affidavit to her petition in which she detailed where D.A. had lived since 2006. See Tex. Fam. Code Ann. § 152.209(a) (West 2014). After the Department filed its motion to dismiss Grandmother’s petition based on a lack of standing, Grandmother did not respond and failed to appear for the hearing although she had actual notice of the motion and the hearing. The Department noted that Grandmother did not “state under what provision she is asserting standing.” But the Department then argued that although Grandmother had not alleged standing under section 102.005, she could not meet that statutory standard. See id. § 102.005 (West 2014). In her motion for new trial, Grandmother again did not allege section 102.005 other than to state in a conclusory manner that she had “established a substantial past contact with child.” She then specified, however, that she based her standing on the fact that she had care, control, and possession of D.A. for at least six months, which had ended less than ninety days before she filed her petition. See id. § 102.003(a)(9) (West 2014). I would hold that Grandmother failed to sufficiently allege and establish standing. As the person asserting standing, Grandmother had the burden to allege and prove the applicable statute conferring standing. See In re S.M.D., 329 S.W.3d 8, 12–13 (Tex. App.—San Antonio 2010, pet. dism’d). This she did 2 not do. I do not believe that Grandmother’s factually incorrect allegation in her petition that D.A. had lived with her for six months (which she stated in support of a “residence requirement”), her affidavit that was attached as required by a section of the family code that has no application to standing, or her specific reference to section 102.003(a)(9) in her motion for new trial were sufficient to establish standing under either section 102.003(a)(9) or section 102.005. We cannot apply a different standard to Grandmother merely because she is proceeding pro se. See Mansfield State Bank v. Cohn, 573 S.W.2d 181, 184–85 (Tex. 1978); In re J.P., 365 S.W.3d 833, 837 (Tex. App.—Dallas 2012, no pet.); Stein v. Lewisville Indep. Sch. Dist., 481 S.W.2d 436, 439 (Tex. Civ. App.—Fort Worth 1972, writ ref’d n.r.e.), appeal dism’d & cert. denied, 414 U.S. 948 (1973). An attorney’s wholesale failure to address standing until raised in a motion for new trial after a jurisdictional dismissal, failure to specify which statute conferred standing, or the citation of an inapplicable standing statute would certainly be deemed insufficient to sustain the burden of pleading and proof on standing. Accordingly, the trial court correctly concluded that Grandmother failed to allege or establish standing and, therefore, correctly dismissed Grandmother’s petition. See In re C.M.C., 192 S.W.3d 866, 870 (Tex. App.—Texarkana 2006, no pet.). /s/ Lee Gabriel LEE GABRIEL JUSTICE DELIVERED: February 5, 2015 3 

United States Court of Appeals For the Eighth Circuit ___________________________ No. 13-2753 ___________________________ Nebraska Machinery Company lllllllllllllllllllll Plaintiff - Appellee v. Cargotec Solutions, LLC, formerly known as Kalmar Industries, USA, LLC lllllllllllllllllllll Defendant - Appellant ____________ Appeal from United States District Court for the District of Nebraska - Omaha ____________ Submitted: May 14, 2014 Filed: August 7, 2014 ____________ Before SMITH, BEAM, and SHEPHERD, Circuit Judges. ____________ BEAM, Circuit Judge. Cargotec Solutions, LLC, ("Cargotec") appeals from the district court's determination that Cargotec's contract with Nebraska Machinery Company ("NMC") did not contain arbitration and indemnification provisions. We reverse and remand for the district court to hold a trial and resolve remaining fact issues. I. BACKGROUND1 Cargotec, formerly known as Kalmar Industries, is in the business of manufacturing heavy machinery used in the shipping and container industry. NMC is an authorized dealer for Caterpillar, Inc., and specializes in the sales, rental, and servicing of Caterpillar equipment. On March 23, 2007, Cargotec sent NMC purchase order number 754399 ("PO No. 1") for CAT C6.6 engines. PO No. 1 provided that "Standard Kalmar terms and conditions Form F-027 and Packing & Shipping Requirements Form F-058 will apply to this order. If you do not have a copy of these forms on file, please contact the buyer indicated." Form F-027 contained both an indemnification provision and an arbitration provision. The indemnification provision indicates: Seller agrees to indemnify, save and keep harmless the Buyer from and against any and all loss, damage, cost, charges or expenses including attorney fees or claims for the same which the Buyer may suffer or sustain or be in any way subjected to on account of . . . damage to or loss from or in any way connected with the products or services which are provided by seller pursuant to this contract. The arbitration provision provides: At Buyer's sole election, any controversy or claim arising out of or related to this Purchase Order shall be resolved by arbitration under the Federal Arbitration Act and according to the Commercial Arbitration Rules of the American Arbitration Association (AAA) . . . . Notice of demand for arbitration shall be filed in writing with the seller and AAA. NMC claims that it never received Form F-027. 1 Similar to the district court, to the extent the parties have not objected, we primarily present the facts as outlined in the magistrate judge's order. -2-  On March 28, 2007, in response to Cargotec's order, NMC sent Cargotec a purchase order ("NMC PO No. 1") and, on a separate form, an invoice for the sale of the engines. NMC PO No. 1 provides that the order is "SUBJECT TO THE TERMS AND CONDITIONS ON THE REVERSE SIDE HEREOF WHICH SHOULD BE READ CAREFULLY AND COMPLETELY BEFORE SIGNING." These additional terms and conditions did not contain any indemnification or arbitration provisions. Cargotec claims that it received the invoice for the engines but never received NMC PO No. 1. On April 20, 2007, the parties engaged in a transaction bearing many similarities to the first transaction. That is, Cargotec sent NMC purchase order number 754473 ("PO No. 2") containing similar language to PO No. 1. On April 25, NMC responded with its own purchase order (NMC PO No. 2) and separate invoice. NMC PO No. 2 contained similar terms to NMC PO No. 1. Again, similar to the first transaction, the parties claim they did not receive the other party's terms and conditions concerning the second purchase order. Subsequently, NMC delivered the engines to Cargotec, and Cargotec remitted payment for the engines. In May and July 2007, Sharron Group, Inc. ("Sharron"), an authorized Cargotec dealer, sold six Cargotec yard trucks to Containerport Group, Inc. ("Containerport"). Cargotec equipped the yard trucks with CAT C6.6 engines purchased from NMC. Unsatisfied with the yard trucks' performance, Containerport sued Sharron in early 2009 in Ohio state court. On July 20, 2009, Sharron filed third-party claims against Cargotec and NMC, among other parties. Cargotec agreed to indemnify Sharron and was dismissed from the suit. On November 11, 2009, Cargotec sent NMC a letter demanding indemnification based upon the previous purchase order documents. NMC rejected Cargotec's demand. In February 2010, Sharron dismissed its claims against NMC. -3-  On September 29, 2012, Cargotec filed a demand for arbitration against NMC in Kansas. Cargotec alleged that NMC had contractually agreed to indemnify Cargotec for losses associated with the purchased engines. As the basis for arbitration, Cargotec alleged NMC entered into arbitration agreements on March 23, 2007, and April 20, 2007, i.e., PO No. 1 and PO No. 2. On November 8, 2012, NMC commenced action in the United States District Court for the District of Nebraska, seeking a declaration that Cargotec's demand for arbitration and indemnification was improper. Subsequently, NMC moved to dismiss or stay the arbitration proceedings and to determine arbitrability ("motion to determine arbitrability"), alleging that Cargotec's arbitration and indemnification provisions did not become part of the contract for the sale of goods between Cargotec and NMC. On December 21, 2012, Cargotec moved to compel arbitration. These motions were referred to a magistrate judge. After concluding that it had jurisdiction to determine whether the parties entered into an arbitration agreement, the magistrate judge analyzed whether the arbitration and indemnification provisions became part of the parties' agreement under the Uniform Commercial Code (U.C.C.). According to the magistrate judge, two scenarios were possible: (1) "Nebraska Machinery received Cargotec's purchase orders and Cargotec received Nebraska Machinery's invoices[,] [but] [n]either party received any terms and conditions," or (2) "the parties are assumed to have received all documents sent." If the first scenario was the operative state of facts under the U.C.C., the magistrate judge determined that the parties were bound to arbitrate any dispute under the contract. However, the magistrate judge found that "the second scenario represents the most plausible explanation of the parties' interaction," and concluded the U.C.C. did not require NMC to arbitrate under such circumstances. Accordingly, the magistrate judge granted NMC's motion to determine arbitrability and denied Cargotec's motion to compel arbitration. -4-  Cargotec objected to the magistrate judge's order. The district court conducted a de novo review of the magistrate judge's order and, although agreeing with many of the magistrate judge's findings and conclusions, the district court did not agree with the magistrate judge's assessment of the two scenarios, observing: The most the court can assume from the evidence presented is that there was a meeting of the minds as to purchase, sale, and payment. The parties go on and on about how they did not receive each others documents relating to terms and conditions. There are issues with Cargotec's argument that they sent these documents, when in fact the electronic systems were not available to Nebraska Machinery at that time, and further, not all the identification numbers for sales match up to the purchase orders/invoices. There is no definitive answer other than that. Cargotec wants the court to submit this issue to a trier of fact at trial. However, there are no facts to try. Everything has been submitted to the court. There is nothing to submit to the jury. Therefore, in the district court's view, the contract consisted only of the purchase, sale, and payment for the engines. Accordingly, the district court granted NMC's motion to determine arbitrability, denied Cargotec's motion to compel arbitration, and entered judgment in NMC's favor. Cargotec appeals. II. DISCUSSION In this dispute concerning the formation of an arbitration agreement, "we review the district court's decision de novo." PCS Nitrogen Fertilizer, L.P. v. Christy Refractories, L.L.C., 225 F.3d 974, 978 (8th Cir. 2000). "To the extent that the district court's order concerning arbitrability is based on factual findings, we review those findings for clear error." Id. -5-  A. Arbitrability Before reaching the merits of this dispute, Cargotec challenges the district court's authority to determine whether the parties agreed to arbitrate. According to Cargotec, an arbitrator, not the court, must determine issues of arbitrability. We disagree. As we have recognized in the past, "[t]o decide questions of arbitrability, we must determine whether a valid arbitration agreement exists between the parties and, if so, whether the subject matter of the dispute falls within the scope of the arbitration clause." Koch v. Compucredit Corp., 543 F.3d 460, 463 (8th Cir. 2008). "These issues are presumptively committed to judicial determination . . . ." Id. Although parties may eliminate that presumption by providing clear and unmistakable language to the contrary, AT&T Techs. v. Commc'n Workers of Am., 475 U.S. 643, 649 (1986), here, the parties did not do so.2 Accordingly, whether the arbitration clause became part of the parties' agreement remains a question "presumptively committed to judicial determination." We now turn to that question. 2 Cargotec relies on the disputed arbitration agreement itself in arguing that the parties intended to submit the present case to an arbitrator. Cargotec insists that because the arbitration provision incorporates the AAA's Commercial Rules of Arbitration, which vests an arbitrator with authority to determine its own jurisdiction, an arbitrator must determine arbitrability. In Fallo v. High-Tech Institute, we held that an arbitration provision that incorporated the AAA Rules was "a clear and unmistakable expression of the parties' intent to reserve the question of arbitrability for the arbitrator and not the court." 559 F.3d 874, 878 (8th Cir. 2009). However, Fallo did not address the threshold question we now confront: whether the arbitration agreement itself is valid. Thus, Cargotec's argument puts the cart before the horse, as it presumes the arbitration provision formed part of the contract at issue. -6-  B. Merits Cargotec argues that, as a matter of law,3 the parties agreed to arbitrate. However, even if the arbitration provision did not become part of the parties' contracts as a matter of law, Cargotec contends that the district court erred in failing to order a trial to resolve material factual disputes concerning whether the parties agreed to arbitration and indemnification. We agree with Cargotec's latter contention. Although neither the magistrate judge nor the district court stated the legal standard that applied to the parties' competing motions, the motions should have been analyzed under a standard akin to competing motions for summary judgment. To be sure, in NMC's complaint, it sought a declaration that NMC was not required to arbitrate Cargotec's claims and that NMC incurred no contractual indemnity obligations as a result of Cargotec's purchase of the Caterpillar engines. When NMC filed its motion to determine arbitrability, it attached exhibits and affidavits to the motion. Cargotec opposed this motion and filed an affidavit, implying that it did not receive some of the operative contractual documents from NMC. Although not denominated as such, in substance, NMC filed a motion for summary judgment, and Cargotec opposed that motion in the usual summary judgment fashion. 5 Charles Alan Wright & Arthur R. Miller, Federal Practice and Procedure § 1196 (3d ed.) ("[U]nder federal practice the technical name attached to a motion or pleading is not as important as its substance."); see also Evans v. McDonnell Aircraft Corp., 395 F.2d 359, 361 (8th Cir. 1968) ("Since both parties filed affidavits and exhibits in support of their respective positions, which were not excluded by the District Court, the 3 Cargotec suggests that Kansas contract law applies to this dispute, but concedes that we need not engage in a choice-of-law analysis because, as the district court determined, "there is no discernible difference between Nebraska and Kansas [contract] law." NMC suggests Nebraska law applies but agrees that the relevant legal principles are the same. With no real conflict, and for the sake of brevity, we limit our discussion to Nebraska law. -7- motion to dismiss should properly have been treated as one for summary judgment."). Then, Cargotec moved to compel arbitration, citing materials outside the pleadings. NMC opposed this motion. See Tinder v. Pinkerton Security, 305 F.3d 728, 735 (7th Cir. 2002) ("The [Federal Arbitration Act ("FAA")] does not expressly identify the evidentiary standard a party seeking to avoid compelled arbitration must meet. But courts that have addressed the question have analogized the standard to that required of a party opposing summary judgment under Rule 56(e) of the Federal Rules of Civil Procedure."). Given that both parties relied on matters outside the pleadings and sought summary judgment-type rulings, a summary judgment standard–viewing the evidence and resolving all factual disputes in the nonmoving party's favor–should have been used to evaluate the motions. However, this standard was never applied. After reviewing the evidence attached to the parties' competing motions, the magistrate judge analyzed two factual scenarios. Under the second scenario–the factual scenario the magistrate judge found the "most plausible"–the magistrate judge assumed the parties received all documents sent. When the district court reviewed the magistrate judge's order, it did not "totally agree" with either factual scenario. Indeed, the district court noted that the parties disputed whether they received each other's documents and "[t]here are issues with Cargotec's argument that they sent these documents, when in fact the electronic systems were not available to Nebraska Machinery at that time, and further, not all the identification numbers for sales match up to the purchase orders/invoices." Notwithstanding these observations, the district court determined "there are no facts to try" because "[e]verything has been submitted to the court." But there were facts left to try, namely determining which side was credible and resolving the factual disputes surrounding the documents the parties actually sent and received.4 See, e.g., 4 In determining that the second scenario was the most plausible, the magistrate judge indicated that the parties are presumed to have received all documents that were properly sent to them. See Am. Boat Co. v. Unknown Sunken Barge, 418 F.3d 910, -8- Jenkins v. S. Farm Bureau Cas., 307 F.3d 741, 744 (8th Cir. 2002) (determining "competing arguments, both in the form of affidavits, create a genuine issue of fact" on a particular issue); Star-Chronicle Pub. Co. v. United Press Ass'ns, 204 F. 217, 224 (8th Cir. 1913) (determining that question of whether letter was received properly submitted to trier of fact in contracts case). A brief review of the relevant U.C.C. provisions reveals why this factual dispute requires resolution. The U.C.C. provides that "[a] contract for sale of goods may be made in any manner sufficient to show agreement, including conduct by both parties which recognizes the existence of such a contract." Neb Rev. Stat. U.C.C. § 2-204(1). Unless the language or circumstances unambiguously indicate otherwise, "an offer to make a contract shall be construed as inviting acceptance in any manner and by any medium reasonable in the circumstances." Id. § 2-206(1)(a). In a battle of the forms situation, like we have here, an expression of acceptance that is sent within a reasonable amount of time shall operate as an acceptance, even if it contains additional and different terms, "unless acceptance is expressly made conditional on assent to the additional or different terms." Id. § 2-207(1). If acceptance is expressly made conditional on assent to the additional or different terms, the acceptance acts as a non-binding counter-offer. PCS Nitrogen Fertilizer, 225 F.3d at 979. Finally, if the writings between parties do not form a contract but the parties' actions indicate a contract has been formed, § 2-207(3) directs that "the terms of the particular 914 (8th Cir. 2005) (holding that a presumption of delivery applies to reliable forms of electronic communication). However, even if a legal presumption of delivery arises, "it may be rebutted by any relevant evidence and positive testimony that a letter was not received[,] [which] simply raises a question of fact to be decided by the trier of fact. Troy & Stalder Co. v. Cont'l Cas. Co., 290 N.W.2d 809, 812 (Neb. 1980). Here, the affidavits rebutted any presumption of delivery. See Am. Boat Co., 418 F.3d at 914 (recognizing "it is never easy to prove a negative" and "there is often little a party can do except swear he or she did not receive the communication" (quotation omitted)). -9- contract consist of those terms on which the writings of the parties agree, together with any supplementary terms incorporated under any other provisions of the Uniform Commercial Code." Both the magistrate judge and the district court determined that the parties' writings did not form a contract but concluded that the parties' conduct created a contract under § 2-207(3). What if, however, the factual disputes had been resolved according to the magistrate judge's first scenario–that is, NMC received Cargotec's purchase orders and Cargotec received NMC's invoices, but neither party received any terms and conditions? Under these circumstances, the magistrate judge reasoned that the contract contained the arbitration provision. Likewise, what if NMC had received all of Cargotec's documents, including Form-027, and Cargotec only received NMC's invoices? This state of the facts is not merely hypothetical, but the standard upon which the district court should have evaluated NMC's initial motion, viewing the evidence in the light most favorable to Cargotec and resolving all factual disputes in its favor. And, in this light, it may have been unnecessary to resort to § 2-207(3) for contract formation, as the writings may have formed a contract and possibly included the arbitration clause. See Neb. Rev. Stat. U.C.C. § 2-206(1)(a) ("an offer to make a contract shall be construed as inviting acceptance in any manner and by any medium reasonable in the circumstances"). Recognizing the various contractual possibilities that exist when the facts are in limbo, the Tenth Circuit recently confronted an FAA case with similar factual unknowns, opining, "without factual findings about what was said and whose story to credit . . . we don't know whether the parties agreed to arbitrate a dispute like this one." Howard v. Ferrellgas Partners, L.P., 748 F.3d 975, 979 (10th Cir. 2014). The instant case presents the same difficulties in applying the U.C.C. Although we think issues of fact precluded proper application of the U.C.C., NMC argues that the FAA does not permit a jury trial to be held in present circumstances. While NMC is correct that a jury trial is not presently available, a -10- close reading of the FAA indicates that a bench trial resolving the factual disputes is necessary. Indeed, the FAA provides that "[i]f the making of the arbitration agreement . . . be in issue, the court shall proceed summarily to the trial thereof." 9 U.S.C. § 4. "If no jury trial be demanded by the party alleged to be in default . . . the court shall hear and determine such issue." Id. At times, a district court may "decide the arbitration question as a matter of law through motions practice and viewing the facts in the light most favorable to the party opposing arbitration." Howard, 748 F.3d at 978. To this end, "the [FAA's] summary trial can look a lot like summary judgment." Id. However, if the motions record reveals a material issue of fact, the FAA maintains that the court move summarily to trial. Id. And, when that trial is not demanded by the party opposing arbitration, "the court shall hear and determine such issue." 9 U.S.C. § 4. Here, because NMC resisted Cargotec's demand for arbitration–"the party in default"–only it, and not Cargotec, had the statutory authority to demand a jury trial. But that reality only obviated the prospect of a jury trial, not a bench trial. The same factual disputes that appeared in NMC's motion to determine arbitrability also became apparent through Cargotec's motion to compel arbitration. In the end, the district court never resolved the factual issues concerning the making of the contract but merely recognized their existence. Therefore, because issues of fact remained on the formation of the arbitration agreement, the district court erred in failing to summarily proceed to trial on those issues as the FAA instructs. See Howard, 748 F.3d at 980 (determining that, after fact issues appeared through summary judgment, the district court erred in not ordering a bench trial where "the court must lift that thumb from the scales, evaluate the conflicting evidence even-handedly, and decide which side's account is more likely true"). -11- III. CONCLUSION We vacate the district court's July 15, 2013, order and corresponding entry of judgment in NMC's favor. We remand for the district court to hold a non-jury trial, make findings of fact, and apply the appropriate U.C.C. provisions in light of those facts. ______________________________ -12- 

934 N.E.2d 1268 (2010) MOORE v. STATE. No. 49A04-1002-CR-58. Court of Appeals of Indiana. October 5, 2010. VAIDIK, J. Disposition of Case by Unpublished Memorandum Decision Affirmed. MAY, J., concurs. ROBB, J., concurs.

67 Cal.App.2d 146 (1944) RODERICK SECKEL, Appellant, v. LEE W. ALLEN et al., Respondents. Civ. No. 12314. California Court of Appeals. First Dist., Div. Two. Dec. 1, 1944. Theodore M. Monell for Appellant. William E. Ferriter, James C. Purcell, Dudley F. Miller, Gerald C. Halsey, Frederic T. Leo and Halsey & Leo for Respondents. STURTEVANT, J. The plaintiff commenced an action against the defendants to recover damages for fraud imposed on the plaintiff in the sale to him of a lot and garage building located thereon. He named many defendants, L. W. Allen as the owner, Elsie M. Allen as his wife, W. A. Smith as tenant, and several individuals as real estate agents. The defendants answered and the action was tried in the trial court before a jury. At the end of the plaintiff's case the trial court granted the motions for nonsuit made by the several defendants. The plaintiff consented to the granting of the motion of Elsie M. Allen but complains of the orders granting the other motions. He contends that the trial court erred in taking the case from the jury, and that on this appeal he is entitled *148 to the benefit of all evidence that was substantial, including every inference reasonably to be drawn therefrom. On the trial of the action the plaintiff, a man of about thirty years of age, took the stand and testified in his own behalf. Among other things he testified that the defendant McCormick represented the property as being of a value much in excess of $55,000. He also testified that McCormick represented to him that the property was leased to the defendant W. A. Smith and that there was a cash deposit of $4,200 to secure the payment of the rent. The plaintiff testified that he believed the representations and acted thereon. Some of his witnesses were experts who testified the property was worth only $35,000. Other facts deemed material will be stated as we proceed. Prior to April 1, 1940, Lee W. Allen and Elsie M. Allen, his wife, were the owners of the lot and concrete garage building located thereon, number 640 O'Farrell Street in San Francisco. On April 1, 1940, they leased the property to W. A. Smith for a term of ten years for a total rental of $81,000. The lease provided that $650 per month should be paid as rental for five years and $700 per month for the next five years. Shortly afterwards the owners employed J. W. Wright & Co., a corporation, to negotiate a sale of the property. Mr. Allen executed a written listing thereof which he signed and delivered. Among other things that listing had written on the face thereof: "Income: Leased to: W. A. Smith for ten years April 1, 1940 for total rental of $81,000. $650 per month for five years $700 per month for five years. Average rental $675 month $8100 year $4200 cash security up on lease." Prior to July 31, 1940, the plaintiff appeared at the office of J. W. Wright & Co. and there he met J. F. McCormick a real estate broker acting for said company. In his complaint he alleged that "Plaintiff did inform the defendants above named that he had no experience in the real estate business in San Francisco, nor in the State of California, nor in the United States of America, and that his principal place of business had been in South Africa and in London, England, and that he was relying upon defendants above named to properly assist, and instruct, and guide him in the purchase of property suitable for garage purposes." He also alleged other averments necessary to plead a cause of action for fraud. (12 Cal.Jur. 806.) On the trial he testified that when he applied to Mr. McCormick the latter produced the list above mentioned and said, "'Here is something I would like to buy *149 myself; this is a wonderful thing.' Then he pointed out that the lease was secured by a cash deposit of $4200. He thought I could get the lot and building for $55,000 and that it was worth much more than $55,000." The plaintiff also testified that McCormick also told him the property had a wonderful return, paying 44 1/2 per cent on the investment of $16,800 and 12 3/4 per cent on the total value of the property, and that it was worth much more than $55,000. The plaintiff took the stand as a witness in his own behalf and was examined and cross-examined. Under section 2055, Code of Civil Procedure, he called the defendant Lee W. Allen and the defendant W. A. Smith. Each was examined and cross-examined. There is no dispute in the testimony that the said list was exhibited to the plaintiff and the passage above quoted was specifically called to his attention by Mr. McCormick. Mr. Smith testified that he took from a strong box in his bureau $4,200 and paid it to Mr. Allen as a deposit. The latter testified he received the cash and put it in a hollow brick for safekeeping. No other evidence of the payment was offered. The written lease was produced. On its face it recited the making of the deposit. It called for no interest to be paid thereon. The plaintiff stresses these facts and claims he should have been allowed to present them to the jury and ask it to hold and infer that both Mr. Allen and Mr. Smith were not telling the truth, and that there was not in fact any deposit for the security of the rental and that the entire leasehold claim was a fiction. [1] J. W. Wright & Co. and J. F. McCormick, the broker, contend that they were not parties to the framing of the list and that they were entitled to accept it as tendered by their client, Mr. Allen. (Restatement of the Law of Agency, 348, p. 762; Graham v. Ellmore, 135 Cal.App. 129 [26 P.2d 696].) That claim we think is sound so far as the real estate agents are concerned. However it is no reply so far as the owners and Mr. Smith are concerned. If, in fact, said recital contained in the list was a fiction and a fraud, those who perpetrated the fraud were liable in an action based on fraud. (Hunter v. McKenzie, 197 Cal. 176, 185 [239 P. 1090]; Cooper v. Kincaid, 151 Wash. 535 [276 P. 557, 558]; Karst v. Seller, 45 Cal.App. 623, 626 [188 P. 298].) [2] The defendant L. W. Allen, and the defendant W. A. Smith, both cite authorities holding that fraud is never presumed. That, of course, is the law. However, the rule has no pertinency when a motion *150 for a nonsuit in an action based on a claim of fraud is the question involved. If defendants would make use of the rule they should have waited until the cause was submitted to the jury and then have argued for and against presumptions. In other words it was for the trier of the facts, in this instance for the jury, to draw its own inferences and to apply such presumptions, when the whole case was submitted, as the trial court might direct by the instructions which would then have been given. Reviewing a judgment of nonsuit in Mitchell Camera Corp. v. Fox Film Corp., 8 Cal.2d 192, at page 197 [64 P.2d 946], the court said: "Where evidence is fairly susceptible of two constructions, or if one of several inferences may reasonably be made, the court must take the view most favorable to the plaintiff. If contradictory evidence has been given it must be discarded. (Estate of Arnold, 147 Cal. 583 [82 P. 252].) The plaintiff must be given the benefit of every piece of evidence which tends to sustain his averments and such evidence must be weighed in a light most favorable to plaintiff's claim. (Anderson v. Wickliffe, 178 Cal. 120 [172 P. 381].)" So in the instant case, the plaintiff was entitled to argue that an inference might properly be drawn in favor of or against L. W. Allen and W. A. Smith. [3] As to the claim that the value of the property was misrepresented, J. W. Wright & Co. and J. F. McCormick assert that the facts show no case was made against them. We think that is so. In pleading his case the plaintiff alleged that the defendants represented that the property "was reasonably worth greatly in excess of the sum of $55,000." Continuing, the plaintiff also alleged "that the statements and representations made by defendants herein were and are and each of them was and is false ... and each of them knew that the said statements were and are false." In other words, the plaintiff attempted to plead subdivision 1 of section 1572 of the Civil Code. To make a case the plaintiff was bound to produce some evidence that when J. F. McCormick made the alleged statement he did not know it to be true nor did he have any information which reasonably justified him in believing it to be true. (Graham v. Ellmore, 135 Cal.App. 129, 132 [26 P.2d 696]; Nash v. Rosesteel, 7 Cal.App. 504, 508 [94 P. 850]; Nunemacher v. Western Motor etc. Co., 82 Cal.App. 233, 239 [255 P. 266].) But there is not a particle of evidence, direct or indirect, that J. F. McCormick wilfully or knowingly misrepresented the value of said property. On the other hand there was considerable evidence that he believed *151 said representations to be true. It follows no case was made against him nor against J. W. Wright & Co., his employer. [4] Something is said in the briefs touching the liability of the defendants as in an action for deceit. (Civ. Code, 1709-1711.) We need not pause to discuss that contention. An action for deceit was not pleaded, nor was a request made to amend to conform to the proof. Therefore that issue was not before the trial court. (Williams v. Spazier, 134 Cal.App. 340, 347 [25 P.2d 851]; Camm & Hedges Co. v. Bank of Covelo, 208 Cal. 246 [280 P. 962].) The judgment in favor of L. W. Allen and W. A. Smith is reversed but as to all other defendants it is affirmed. Nourse, P. J., and Spence, J., concurred.

THE ATTORNEY GENERAL OF TEXAS March 19, 1990 Honorable Wilhelmina Delco Opinion NO. JM-1146 Chairman Higher Education Committee Re: Authority of a univer- Texas House of Representatives sity to allocate space in a P. 0. Box 2910, Office 413-C campus building to be used Austin, Texas 78769-2910 exclusively by a private group of faculty members (RQ-1845) Dear Representative Delco: You ask whether Texas A & M University may allocate space in a campus building‘ to be used exclusively for an auxiliary enterprise of the university known as the Faculty Club (hereinafter the club). The primary question is 0 whether such an arrangement is constitutional. This question was previously asked of this office, but the request was withdrawn prior to the issuance of an opinion. Attorney General Opinion Request RQ-1407 (1988). Since that original opinion request, the operation of the club has changed considerably with the university assuming more responsibility. We have separately received a brief from the university system explaining the operation of the club and its rela- tionship with the university. The brief informs us that the club is now being operated as an auxiliary enterprise of Texas A 8 M University. The vice president for finance and administration of Texas A 8 M University administers the club, and university employees staff it. The brief further states that a nonprofit corporation provides bar services to the faculty club and uses the bar receipts to purchase bar supplies and to reimburse the university for its administra- tion of the faculty club. The vice president directs the payment of expenses of the corporation. The club serves its members and their guests as well as visiting professors, former students, parents, friends and others. However, visitors (who we understand to be non- members) may not make reservations but are accommodated only as space permits. p. 6051 Honorable Wilhelmina Delco - Page 2 (JM-1146) ? With that understanding of the club, we must look at the controlling law. Governance of A L M University and the A 61M University System is vested in the board of regents. Educ. Code 55 85.11, 86.02. Section 85.21 of the Education Code generally establishes the authority of the board as follows: The board shall make bylaws, rules, and regulations it deems necessary and proper for the government of the university system and its institutions, agencies, and services. The board shall regulate the course of study. and prescribe the course of discipline necessary to enforce the faithful discharge of the duties of the officers, faculty, and students. Those Education Code provisions generally vest the board of regents with the power to manage and control university property.. sfn w . Woo- 287 S.W. 677 (Tex. Civ. App. - Austin 1926, io writ).' The board of regents has delegated its responsibility for the management and control of university property to the chief executive officer of each part of the system. Texas A & M University System, Administrative Policy and Reporting Manual g c-11.2 (April 25, 1989). While we find no express authority for the university system to operate auxiliary enterprises, we believe that the university is authorized to operate such non-educational facilities. m Educ. Code 55 51.008(b), 61.003(14); Attorney General Opinions H-513 (1975); H-456 (1974); LA-6 (1973). Furthermore, a faculty club fits within the para- meters of "auxiliary enterprises" indicated by the examples listed in section 61.003(14), which reads as follows: 'Educational and general buildings and facilities* means buildings and facilities essential to or commonly associated with teaching, research, or the preservation of knowledge, including the proportional share used for those activities in any building or facility used jointly with auxiliary enter- prises. Excluded are auxiliary enterprise buildings and facilities, including but not limited to dormitories, cafeterias, student union buildings, stadiums, and alumni centers, used solely for those purposes. p. 6052 Honorable Wilhelmina Delco - Page 3 (JM-1146) The faculty club under consideration here is very similar to the student food cooperative addressed ' Attorney General Opinion H-513. In that opinion, th:: office determined that a state university, with the approval of the governing board, was authorized either to house and supply a private food coop or to operate one as an auxiliary enterprise. Attorney General Opinion H-513 (1975). The governing board of the A 8 M University System apparently has not given direct approval for the operation of the faculty club. However, the board has indirectly approved the club in its adoption of the university budget, which includes a separate line item for the club. We believe that the regent's inclusion of club expenses in the university budget is tantamount to approval by the regents of the operation of the club. It is our further opinion that the regents may delegate responsibilities for adminis- tration of the club to university officers. The court in 8ache Halsev Stuart Shields. Inc. v. Universitv of Houston, 638 S.W.2d 920 ITex. ADD. - Houston rlst Dist.1 1982, writ ref'd n.r.e.) examined-kections of the Education Code- rela- tive to the power of the board.of regents of the University of Houston. Those provisions were very similar to the sections cited above relative to the board of regents of the A & M University System. The court addressed the issue of whether the board of regents was authorized to delegate some of its duties to university officers and found that, inasmuch as the board of regents had a certain power, it also had the power to delegate "the details of management to a President and other officers." & at 926. The court noted: By enacting the above mentioned sections, the Legislature obviously contemplated that the Board could not run a large University with- out a great deal of aid from individuals intimately familiar with the details of the University on a day to day basis. The Board has been given the authority to delegate the actual running of the University and to select people qualified to do so, and has been authorized to retain power of approval, power to hire, and power to fire, should the employees not perform adequately. a at 927. p. 6053 Honorable Wilhelmina Delco - Page 4 (JM-1146) For tbe above reasons, we believe that Texas A brM University is authorized to operate a faculty club as an auxiliary enterprise of the university. We understand that-your principle concern is that this allocation of university property might contravene article III, section 51, of the Texas Constitution, which provides in part as follows: The Legislature shall have no power to make any grant or authorize the making of any grant of public moneys to any individual, association of individuals, municipal or other corporations whatsoever. While the terms of that section appear to prohibit only grants of money, the provision has been construed to pro- hibit tbe grant of any public property without the receipt of.an adequate ouid nro -&lo. Q&son v; Warsu 118 S.W.2d 621 (Tex. Civ. App. - Waco 1938, writ dism#dj; Attorney General Opinions JW-551 (1986); &lW-89 (1979); WW-790 (1960). We do not think that use of university funds, property, 1 or staff for then club is necessarily prohibited by article III, section 51. If it is determined that the operation of the club furthers university purposes, for example by en- hancing faculty relations or by helping to attract more qualified faculty members, and that such uuid nro ou proportionate to the club's use of public funds, prop:&: or staff, then we think that article III, section 51 is no obstacle to its operation. The board of regents has apparently made such determination, in the first instance, by implicitly approving the club's operation when it approved an item for the club's expenses in the university budget. Whether the university receives an adequate gl&j pro aupfor the club's use of public property and funds ultimately involves questions of fact. We think that this determination is for the regents in the first instance. We assume, for the purposes of this opinion, that other legal requirements have been met. See. e.a., V.T.C.S. art. 6252-5~ (corporation performing an auxiliary enterprise service must present a financial statement, provide payment statements, and execute a bond payable to the state): j& art. 6252-llf (state agencies must enact rules governing the relationship between the agency and "a private organization ? P. 6054 Honorable Wilhelmina Delco - Page 5 (JR-1146) designed to further the purposes and duties of the agency"); Educ. Code 5 61.0572 (coordinating board approval of space utilization in all educational and general buildings). SUMMARY The operation of a faculty club as an auxiliary enterprise of Texas A L M Univer- sity does not violate article III, section 51, of the Texas Constitution as long as it serves a public purpose or the university receives an adequate ouid ore QUO. J b Very truly yo , nl, JIM MATTOX Attorney General .of Texas MARYRELLER First Assistant Attorney General JUDGE ZOLLIE STRARLEY Special.Assistant Attorney General RENEA HICKS Special Assistant Attorney General RICK GILPIN Chairman, Opinion Committee Prepared by Karen C. Gladney Assistant Attorney General P. 6055 

IN THE COURT OF APPEALS OF TENNESSEE AT JACKSON JANUARY 25, 2008 Session JOSH W. NEWELL v. JEFF MAITLAND, ET AL. Direct Appeal from the Circuit Court for Gibson County No. 8226 Donald Paul Harris, Senior Judge No. W2007-01704-COA-R3-CV - Filed May 21, 2008 This appeal involves a negligence action filed after the plaintiff was charged with child rape. The plaintiff sued the sheriff’s deputy and Department of Children’s Services employee who interviewed the alleged victim; the sheriff; the county mayor; the county itself; a Department of Children’s Services supervisor; and the District Attorney General. The plaintiff contended that if a “child protective team” had interviewed the victim, he would not have been arrested and charged with child rape. The trial court dismissed the claims against the state employees for lack of jurisdiction, and it dismissed the claims against the county employees pursuant to the Tennessee Governmental Tort Liability Act, Tenn. Code Ann. § 29-20-101, et seq. The sheriff’s deputy was also named as a defendant in his individual capacity, and the trial court granted his motion for summary judgment. The plaintiff appeals. We affirm. Tenn. R. App. P. 3; Appeal as of Right; Judgment of the Circuit Court Affirmed ALAN E. HIGHERS, P.J., W.S., delivered the opinion of the court, in which DAVID R. FARMER , J., and HOLLY M. KIRBY , J., joined. Sam J. Watridge, Humboldt, TN, for Appellant James I. Pentecost, Jon A. York, Brent S. Usery, Jackson, TN, for Appellees, Gibson County, Joe Shepard, Ronnie Riley and Jeff Maitland Robert E. Cooper, Jr., Attorney General and Reporter, Douglas Earl Dimond, Senior Counsel, Nashville, TN, for Appellees Perry Sharpe and Beth Dudley Robert E. Cooper, Jr., Attorney General and Reporter, Michael E. Moore, Solicitor General, Heather C. Ross, Senior Counsel, Nashville, TN, for Appellee District Attorney General Garry Brown OPINION  I. FACTS & PROCEDURAL HISTORY On October 12, 2005, Josh Newell (“Plaintiff”) was arrested by Gibson County Sheriff’s deputies and charged with rape of a child. The eleven-year old alleged victim had been interviewed earlier that day by Sheriff’s Deputy Jeff Maitland and Perry Sharpe, an employee of the Tennessee Department of Children’s Services (“DCS”). Initially, the victim insisted that she could not remember the alleged incident, but eventually she told the interviewers that the incident did occur. Plaintiff entered a plea of nolo contendere to the offense of aggravated assault, and the child rape charge was dismissed. On October 11, 2006, Plaintiff filed this lawsuit naming as defendants Deputy Maitland, Mr. Sharpe, Gibson County, the Gibson County Sheriff, the Gibson County Mayor, a DCS Supervisor, and the District Attorney General. Plaintiff alleged negligence in the investigation and interviews leading to his arrest, and he claimed that the prosecution against him was maliciously initiated and pursued because the defendants knew or should have known the rape allegations were false.1 Plaintiff claimed that Deputy Maitland and Mr. Sharpe were negligent in interviewing the victim because they allegedly failed to acknowledge her statements that she could not remember the incident and coerced her into making untrue allegations. Plaintiff claimed that Tennessee Code Annotated section 37-1-607 requires that a Child Protective Team investigate child sexual abuse cases, and that Deputy Maitland and Mr. Sharpe should have ceased interviewing the victim and “called in” the Child Protective Team. Plaintiff alleged that “if Gibson County had a Child Protective Team in place to interview the alleged victim in the case against the Plaintiff[,] an arrest warrant would not have been issued for his arrest and charges would not have been brought against the Plaintiff.” Plaintiff accused Deputy Maitland of fabricating evidence to obtain the arrest warrant. Plaintiff named the District Attorney General, Garry Brown, and a DCS Supervisor, Beth Dudley, as defendants, alleging that they had failed to appoint or create a Child Protective Team for Gibson County. He also alleged, upon information and belief, that Ms. Dudley participated in the investigation and had an ulterior motive of harming Plaintiff’s father, a local judge. Plaintiff alleged that the Gibson County Sheriff, Joe Shepherd, was negligent by failing to ensure that Deputy Maitland was properly trained to investigate cases involving minor children. Plaintiff also claimed that he was damaged by the negligent actions of the Gibson County Mayor, Ronnie Riley, in that he allegedly failed to provide proper funding for training Deputy Maitland. Plaintiff also named Gibson County as a defendant, alleging that it was vicariously liable for the acts of its employees. 1 The complaint simply lists “Count I – Compensatory Damages” and “Count II – Punitive Damages.” At a later hearing, Plaintiff’s attorney clarified that his claim was not one for malicious prosecution, but for negligence. -2-  Plaintiff claimed the allegedly negligent actions were operational in nature, therefore the defendants’ governmental immunity was removed. He sought compensatory and punitive damages.2 Relevant to the facts of this case, Title 37, Chapter 1, Part 4, Tennessee Code Annotated, entitled “Mandatory Child Abuse Reports,” provides as follows: § 37-1-403. Reporting of brutality, abuse, neglect or child sexual abuse. ... (c)(1) If a law enforcement official or judge becomes aware of known or suspected child abuse, through personal knowledge, receipt of a report, or otherwise, such information shall be reported to [DCS] immediately and, where appropriate, the child protective team shall be notified to investigate the report for the protection of the child in accordance with the provisions of this part. Further criminal investigation by such official shall be appropriately conducted in coordination with the team or [DCS] to the maximum extent possible. ... § 37-1-405. Reference of reported cases to local director – Notice to judge. (a)(1) All cases reported to . . . state or local law enforcement officers shall be referred immediately to the local director of the county office of [DCS] for investigation. ... (b)(2) If the case appears to involve severe child abuse as defined in § 37-1-102, including child sexual abuse, the county director of [DCS] shall immediately notify and consult with the district attorney general where the harm occurred, and the district attorney general may take such action as the district attorney general deems appropriate . . . . Whenever there are multiple investigations, [DCS], the district attorney general, law enforcement, and, where applicable, the child protection team, shall coordinate their investigations to the 2 In the section of Plaintiff’s complaint entitled “Count II - Punitive Damages,” he alleged that the defendants’ failure to refer the case to a Child Protective Team resulted in irreparable harm and “a violation of due process,” although he did not set forth a separate claim for a violation of his due process rights. His complaint also requested “an injunction which prohibits interviews of children involved in sexual abuse cases by law enforcement who are not on the Child Protective Team.” Plaintiff’s appellate brief describes his case against the defendants as one “for negligence,” and he does not mention a due process claim or request for injunctive relief. Therefore, on appeal, we will not address whether Plaintiff was entitled to such relief. It is not the function of the appellate court to research and construct the parties’ arguments, and we are under no duty to consider issues not argued in the brief. Newcomb v. Kohler Co., 222 S.W.3d 368, 400 (Tenn. Ct. App. 2006); Bean v. Bean, 40 S.W.3d 52, 56 (Tenn. Ct. App. 2000). -3-  maximum extent possible so that interviews with the victimized child shall be kept to an absolute minimum. . . . ... § 37-1-406. Availability for receiving reports – Commencement of investigations – Examination and observation of child – Reports – Services provided. (a) [DCS] shall be capable of receiving and investigating reports of child abuse twenty-four (24) hours a day, seven (7) days a week. The county office shall make a thorough investigation promptly after receiving either an oral or written report of harm. . . . (b) In cases involving child sexual abuse, the investigation shall be conducted by a child protective investigation team as defined in § 37-1-602 relative to child sexual abuse pursuant to the provisions of § 37-1-606. . . . ... (l) The legislative intent of this section is to protect the legal rights of the family in an investigation and to ensure that no activity occurs that compromises [DCS]’s child abuse investigation or any ongoing concurrent criminal investigation conducted by law enforcement. ... Title 37, Chapter 1, Part 6, Tennessee Code Annotated, entitled “Child Sexual Abuse,” further provides, in pertinent part: § 37-1-602. Part definitions – Harm to child’s health or welfare. (a) For purposes of this part . . . (2) “Child protection team” means the investigation team created by § 37-1-607; . . . . § 37-1-605. Reports of known or suspected child sexual abuse – Investigations ... (b)(2) If a law enforcement official or judge becomes aware of known or suspected child sexual abuse, through personal knowledge, receipt of a report or otherwise, such information shall be reported to [DCS] immediately and the child protective team shall be notified to investigate the report for the protection of the child in accordance with the provisions of this part. Further criminal investigation by such official shall be appropriately conducted. ... § 37-1-606. Departmental availability for receiving reports – Commencement of investigations – Institutional abuse. -4- (a) [DCS] shall be capable of receiving and investigating reports of known or suspected child sexual abuse twenty-four (24) hours a day, seven (7) days a week. If it appears that the immediate safety or well-being of a child is endangered, that the family may flee or the child will be unavailable for purposes of conducting a child protective investigation, or that the facts otherwise so warrant, [DCS] shall commence an investigation immediately, regardless of the time of day or night. In all other child sexual abuse cases, a child protective investigation shall be commenced within twenty-four (24) hours of receipt of the report. ... § 37-1-607. Child protective teams – Investigations – Services. (a)(1) [DCS] shall coordinate the services of child protective teams. At least one (1) child protective team shall be organized in each county. The district attorney general of each judicial district shall, by January 15 of each year, report to the judiciary committees of the senate and house of representatives on the status of the teams in the district attorney general’s district as required by this section, and the progress of the child protective teams that have been organized in the district attorney general’s district. . . . (2) Each team shall be composed of one (1) person from [DCS], one (1) representative from the office of the district attorney general, one (1) juvenile court officer or investigator from a court of competent jurisdiction, and one (1) properly trained law enforcement officer with countywide jurisdiction from the county where the child resides or where the alleged offense occurred. The team may also include a representative from one (1) of the mental health disciplines. It is in the best interest of the child that, whenever possible, an initial investigation shall not be commenced unless all four (4) disciplines are represented. An initial investigation may, however, be commenced if at least two (2) of the team members are present at the initial investigation. In those geographical areas in which a child advocacy center meets the requirements of § 9-4-213(a) or (b), child advocacy center directors, or their designees, shall be members of the teams under this part and part 4 of this chapter for the purposes of provision of services and functions established by § 9-4-213 or delegated pursuant to that section. . . . (3) It is the intent of the general assembly that the child protective investigations be conducted by the team members in a manner that not only protects the child but that also preserves any evidence for future criminal prosecutions. It is essential, therefore, that all phases of the child protective investigation be appropriately conducted and -5- that further investigations, as appropriate, be properly conducted and coordinated. (b)(1) [DCS] shall convene the appropriate team when a report of child sexual abuse has been received. . . . The role of the teams shall be to conduct child protective investigations of reported child sexual abuse and to support and provide services to sexually abused children upon referral as deemed by the teams to be necessary and appropriate for such children. (2) For each child sexual abuse report it receives, [DCS] shall immediately notify the child protection investigation team, which shall commence an on-site child protective investigation. The team shall: (A) Determine the composition of the family or household, including the name, address, age, sex and race of each child named in the report; any siblings or other children in the same household or in the care of the same adults; the parents or other persons responsible for the child's welfare; and any other adults in the same household; (B) Determine whether there is any indication that any child in the family or household is sexually abused, including a determination of harm or threatened harm to each child; the nature and extent of present or prior injuries, or abuse, and any evidence thereof; and a determination as to the person or persons apparently responsible for the abuse; (C) Determine the immediate and long-term risk to each child if the child remains in the existing home environment; and (D) Determine the protective, treatment and ameliorative services necessary to safeguard and ensure the child's well-being and development and, if possible, to preserve and stabilize family life. The team shall seek to interview the child in a neutral setting, other than where the alleged abuse occurred, whenever possible. (3) Immediately upon receipt of a report alleging, or immediately upon learning during the course of an investigation, that: (A) Child sexual abuse has occurred; . . . [DCS] shall orally notify the team, the appropriate district attorney general and the appropriate law enforcement agency whose criminal investigations shall be coordinated, whenever possible, with the child protective team investigation. . . . If independent criminal investigations are made, interviews with the victimized child shall be kept to an absolute minimum and, whenever possible, reference to the videotape or tapes made by the child protective teams should be utilized. ... -6-  All defendants moved to dismiss. The “County Defendants,” including Deputy Maitland, Sheriff Shepherd, Mayor Riley, and Gibson County, also moved for summary judgment. Senior Judge Donald P. Harris was assigned to hear the case by order of the Tennessee Supreme Court. Judge Harris held a hearing on the motions on June 22, 2007, and announced his ruling from the bench. An order incorporating his oral ruling was entered on July 9, 2007. Plaintiff’s claims against the “State Defendants” (Mr. Sharpe and Ms. Dudley from DCS, and the District Attorney General, Garry Brown) were dismissed because the trial court found it lacked jurisdiction to hear such claims. Plaintiff’s claims against the County Defendants in their official capacities were also dismissed on the basis that Tennessee Code Annotated section 29-20-205(5) provides immunity to governmental entities for injury caused by a negligent act or omission of an employee if the injury arises out of “the institution or prosecution of any judicial or administrative proceeding, even if malicious or without probable cause.” Plaintiff had also named Deputy Maitland as a defendant in his individual capacity, and upon considering Plaintiff’s subsequent plea of nolo contendere to the offense of aggravated assault, the trial judge granted Deputy Maitland’s motion for summary judgment. Plaintiff filed a timely notice of appeal to this Court. II. ISSUES PRESENTED The appellant has timely filed his notice of appeal and presents the following issues, as we perceive them, for review: 1. Whether the trial court had jurisdiction over the claims against the State Defendants; 2. Whether the trial court erred in dismissing the claims against the County Defendants; 3. Whether the trial court erred in granting summary judgment to Deputy Maitland. For the following reasons, we affirm the decision of the circuit court. III. STANDARD OF REVIEW A motion to dismiss for failure to state a claim only tests the sufficiency of the complaint, seeking to determine whether the pleadings state a claim upon which relief can be granted. Trau-Med of Am., Inc. v. Allstate Ins. Co., 71 S.W.3d 691, 696 (Tenn. 2002); Smith v. First Union Nat. Bank of Tenn., 958 S.W.2d 113, 114-15 (Tenn. Ct. App. 1997). The basis for the motion is that the allegations in the complaint, when considered alone and taken as true, are insufficient to state a claim as a matter of law because they do not constitute a cause of action. Smith, 958 S.W.2d at 115 (citations omitted). In making this determination, we construe the complaint liberally in favor of the plaintiff, taking all allegations of fact therein as true. Id. (citing Fuerst v. Methodist Hosp. South, 566 S.W.2d 847, 848-49 (Tenn. 1978); Holloway v. Putnam County, 534 S.W.2d 292, 296 (Tenn. 1976)). However, “[t]here is no duty on the part of the court to create a claim that the pleader does not spell out in his complaint.” Trau-Med, 71 S.W.3d at 704 (quoting Donaldson v. Donaldson, 557 S.W.2d 60, 61 (Tenn. 1977)). Where “no claim for relief is stated by a party, a court may properly dismiss the action, either on motion or sua sponte.” Donaldson, 557 S.W.2d at 62 (citations omitted). -7-  Summary judgment is appropriate only when there is no genuine dispute of material fact with regard to the claim or defense asserted in the motion, and when the moving party is entitled to a judgment as a matter of law. Burgess v. Harley, 934 S.W.2d 58, 62 (Tenn. Ct. App. 1996) (citing Byrd v. Hall, 847 S.W.2d 208, 210 (Tenn. 1993); Anderson v. Standard Register Co., 857 S.W.2d 555, 559 (Tenn. 1993)). IV. DISCUSSION A. The State Defendants First, we will consider the claims against the DCS employees and the District Attorney General in their official capacities. A suit against a state official in his or her official capacity is a “suit against the state.”3 Whitaker v. Whirlpool Corp., 32 S.W.3d 222, 229 (Tenn. Ct. App. 2000); Greenhill v. Carpenter, 718 S.W.2d 268, 271 (Tenn. Ct. App. 1986) (citing Cox v. State, 217 Tenn. 644, 399 S.W.2d 776, 778 (1965)). “Historically, the doctrine of sovereign immunity has provided that a sovereign governmental entity cannot be sued in its own courts absent legislative consent.” Wells v. Tenn. Bd. of Regents, 231 S.W.3d 912, 916 (Tenn. 2007) (citing Hawks v. City of Westmoreland, 960 S.W.2d 10, 14 (Tenn. 1997); Williams v. State, 139 S.W.3d 308, 311 (Tenn. Ct. App. 2004)). The doctrine has both a constitutional and a statutory basis. Id. (citing Jones v. L & N R.R. Co., 617 S.W.2d 164, 170 (Tenn. Ct. App. 1981)). Article I, section 17 of the Tennessee Constitution provides in part that “[s]uits may be brought against the State in such manner and in such courts as the Legislature may by law direct.” Tennessee Code Annotated section 20-13-102(a) prohibits courts from entertaining suits against the State, absent waiver, and requires dismissal on proper motion. The Tennessee Claims Commission has exclusive jurisdiction to determine all monetary claims against the state based on acts or omissions of state employees falling within certain categories, including: (N) Negligent deprivation of statutory rights created under Tennessee law, except for actions arising out of claims over which the civil service commission has jurisdiction. The claimant must prove under this subdivision (a)(1)(N) that the general assembly expressly conferred a private right of action in favor of the claimant against the state for the state’s violation of the particular statute’s provisions. Tenn. Code Ann. § 9-8-307(a)(1)(N) (1999 & Supp. 2007). Therefore, even assuming that Plaintiff could establish a violation of the statutes regarding child protective teams, and a private right of 3 “State officers and employees are absolutely immune from liability for acts or omissions within the scope of the officer’s or employee’s office or employment, except for willful, malicious, or criminal acts or omissions or for acts or omissions done for personal gain.” Tenn. Code Ann. § 9-8-307(h) (1999 & Supp. 2007). -8- action for such violation, exclusive jurisdiction for his negligence claims against the State Defendants is vested in the Tennessee Claims Commission. Nonetheless, Plaintiff argues that he could file his claims in circuit court, relying on Tennessee Code Annotated section 9-8-404, which provides, in part: (a) Prior to hearing, upon the petition of either party showing the approval of the attorney general and reporter, the claim shall be removed to the appropriate chancery or circuit court with venue for handling in accordance with the provisions of this part, except the normal procedural rules of the court shall be applicable. Appeal from the chancery or circuit court shall be to the court of appeals. (b) The commission may transfer the action to the appropriate chancery or circuit court with venue on its own after a determination, in writing, by the commission that fair and complete resolution of all claims involved cannot be accomplished in administrative proceedings before the commission. Such transfers shall be limited to tort claims arising out of the same fact situation where much of the evidence to be presented would be admissible against the state and one (1) or more additional defendants. . . . (emphasis added). Contrary to Plaintiff’s argument, this statute does not authorize a plaintiff to file a claim in circuit court based upon his own decision of whether the claim can be resolved fairly before the Claims Commission. A transfer pursuant to subsection (a) requires the consent of the Attorney General and Reporter. “Subsection (b) authorizes, but does not mandate, the transfer of claims in certain circumstances.” Mullins v. State, No. E2007-01113-COA-R9-CV, 2008 WL 199854, at *7 (Tenn. Ct. App. Jan. 24, 2008). Although a transfer pursuant to this statute “may be likely in some cases, it is not a guaranteed certainty.” Id. The statute provides “discretionary authority” to the Claims Commission to transfer a case, and the Claims Commission’s denial of a motion to transfer is reviewed for abuse of discretion. Hungerford v. State, 149 S.W.3d 72, 76 (Tenn. Ct. App. 2003). Plaintiff’s argument that this statute allowed him to file his claims in circuit court is without merit. Plaintiff also argues that the trial court had jurisdiction over his claims based upon the Tennessee Governmental Tort Liability Act, Tenn. Code Ann. § 29-20-101, et seq. The Tennessee Governmental Tort Liability Act “governs claims against counties, municipalities, and other local governmental agencies, but does not apply to state government.” Hawks v. City of Westmoreland, 960 S.W.2d 10, 14 (Tenn. 1997); see also Lucius v. City of Memphis, 925 S.W.2d 522, 525 (Tenn. 1996). Plaintiff’s arguments involving the State Defendants in their official capacities are without merit. Although it is not mentioned in Plaintiff’s brief, we note that his complaint also contained the following paragraph regarding Ms. Dudley, the DCS Supervisor for Gibson County: -9-  Plaintiff alleges that Beth Dudley in her official and individual capacities, at the time of the investigation into the allegations against the Plaintiff, was opposed to [Plaintiff’s] father Judge Robert Newell and that she, based upon information and belief, assisted in the investigation, but not as a member of the Child Protective Team, with the ulterior motive of harming Judge Robert Newell, by assisting in the prosecution of his son. (emphasis added). As previously noted, “[s]tate officers and employees are absolutely immune from liability for acts or omissions within the scope of the officer’s or employee’s office or employment, except for willful, malicious, or criminal acts or omissions or for acts or omissions done for personal gain.” Tenn. Code Ann. § 9-8-307(h) (1999 & Supp. 2007). To the extent that Plaintiff’s complaint could be construed to allege willful conduct on the part of Ms. Dudley, we nevertheless conclude that the complaint fails to state a claim for relief. Plaintiff does not allege that Ms. Dudley was not authorized to participate in the investigation or that he was injured in any way by her participation. Taking the allegations in the complaint as true, Plaintiff does not state a cause of action, and “[t]here is no duty on the part of the court to create a claim that the pleader does not spell out in his complaint.” Trau-Med of Am., Inc. v. Allstate Ins. Co., 71 S.W.3d 691, 704 (Tenn. 2002). Thus, Plaintiff’s claim against Ms. Dudley was properly dismissed. B. The County Defendants Plaintiff’s complaint alleged that “if Gibson County had a Child Protective Team in place to interview the alleged victim in the case against the Plaintiff[,] an arrest warrant would not have been issued for his arrest and charges would not have been brought against the Plaintiff.” Plaintiff contended that Deputy Maitland, Mayor Riley, and Sheriff Shepherd, acting in their official capacities, were negligent in a manner that contributed to Plaintiff’s injury. Plaintiff also claimed that Gibson County was vicariously liable for the other defendants’ allegedly negligent acts. “A suit against a governmental official in his official capacity is no different from a suit against the governmental entity itself.” Bly v. Keesling, No. E2002-01115-COA-R3-CV, 2002 WL 31863297, at *6 (Tenn. Ct. App. Dec. 23, 2002); see also Cizick v. Bass, No. 02A01-9809-CV- 00244, 1999 WL 145209, at *2 (Tenn. Ct. App. W.S. Mar. 18, 1999). “Local governmental entities are immune from suit except when the General Assembly has, by statute, explicitly permitted them to be sued.” Doe v. Coffee County Bd. of Educ., 852 S.W.2d 899, 906 (Tenn. Ct. App. 1992) (citing Fretwell v. Chaffin, 652 S.W.2d 755, 756 (Tenn. 1983); Tenn. Code Ann. § 29-20-201(a)). Tennessee Code Annotated section 29-20-205 begins by stating, “Immunity from suit of all governmental entities is removed for injury proximately caused by a negligent act or omission of any employee within the scope of his employment . . . .” However, the statute goes on to list several exceptions to that rule. For example, immunity is not removed if the plaintiff’s injury arises out of: (1) the exercise or performance or the failure to exercise or perform a discretionary function, whether or not the discretion is abused; [or] -10-  (2) false imprisonment pursuant to a mittimus from a court, false arrest, malicious prosecution, intentional trespass, abuse of process, libel, slander, deceit, interference with contract rights, infliction of mental anguish, invasion of right of privacy, or civil rights; [or] ... (5) the institution or prosecution of any judicial or administrative proceeding, even if malicious or without probable cause; . . . . Tenn. Code Ann. § 29-20-205 (2000). Plaintiff’s brief only discusses the first exception to the removal of immunity regarding discretionary functions, but the trial court based its decision on the fifth exception, and we agree that it controls the issue before us. Plaintiff’s alleged injury clearly arose out of the institution or prosecution of a judicial proceeding, so the County Defendants are immune from suit in their official capacities even if the proceeding was instituted maliciously or without probable cause. The claims against the County Defendants were properly dismissed. C. Deputy Maitland Plaintiff’s final issue is whether the trial court properly granted summary judgment to Jeff Maitland individually. Plaintiff’s sole argument as to why summary judgment was improper is that Deputy Maitland’s motion for summary judgment was not accompanied by a statement of undisputed material facts.4 Our Supreme Court recently emphasized “the importance of attorneys using Rule 56.03 statements of material facts to their fullest,” explaining that trial courts and appellate courts should not be required to sift through the record to find any information that is essential to a summary judgment decision. Bennett v. Trevecca Nazarene Univ., 216 S.W.3d 293, 299, n.4 (Tenn. 2007). However, a trial court, acting within its discretion, may waive the requirements of the rule in an appropriate situation. Williams v. Watson, No. E2005-02403-COA-R3-CV, 2007 WL 187925, at *10 (Tenn. Ct. App. Jan. 25, 2007) (citing Butler v. Diversified Energy, Inc., No. 03A01-9804- 4 Rule 56.03 of the Tennessee Rules of Civil Procedure provides, in pertinent part: In order to assist the Court in ascertaining whether there are any material facts in dispute, any m otion for summary judgment made pursuant to Rule 56 of the Tennessee Rules of Civil Procedure shall be accompanied by a separate concise statement of the material facts as to which the moving party contends there is no genuine issue for trial. Each fact shall be set forth in a separate, numbered paragraph. Each fact shall be supported by a specific citation to the record. Any party opposing the motion for summary judgment must, not later than five days before the hearing, serve and file a response to each fact set forth by the movant either (i) agreeing that the fact is undisputed, (ii) agreeing that the fact is undisputed for purposes of ruling on the motion for summary judgment only, or (iii) demonstrating that the fact is disputed. Each disputed fact must be supported by specific citation to the record. Such response shall be filed with the papers in opposition to the motion for summary judgment. ... -11- CV-00146, 1999 WL 76102, at *3 (Tenn. Ct. App. E.S. Jan. 28, 1999)). Here, Plaintiff did not even raise the issue in the trial court that Deputy Maitland failed to file a statement of undisputed facts. Therefore, we find no abuse of discretion in the trial court’s decision to grant summary judgment without the benefit of a statement of undisputed facts. Plaintiff does not point to any disputed facts or cite any authority to suggest that Deputy Maitland was not entitled to judgment as a matter of law; thus, we affirm the trial court’s grant of summary judgment. V. CONCLUSION For the aforementioned reasons, we affirm the decision of the circuit court. Costs of this appeal are taxed to the appellant, Josh W. Newell, and his surety, for which execution may issue if necessary. ___________________________________ ALAN E. HIGHERS, P.J., W.S. -12- 

410 So.2d 1155 (1981) Nolan GAMBLE, Plaintiff-Appellee, v. BILL LOWREY CHEVROLET, INC., et al., Defendants-Appellants. No. 8544. Court of Appeal of Louisiana, Third Circuit. December 16, 1981. On Rehearing February 18, 1982. *1156 William P. Polk, Alexandria, for defendants-appellants. Watson, Murchison, Crews, Arthur & Corkern, William P. Crews, Jr., Natchitoches, for defendant-appellee-appellant. Kelly & Salim, Robert L. Salim, Natchitoches, for plaintiff-appellee. Before FORET, SWIFT and LABORDE, JJ. SWIFT, Judge. In this redhibition suit the defendants, Bill Lowrey Chevrolet, Inc. (Lowrey Chevrolet) and General Motors Corporation (General Motors), have appealed from a judgment in favor of the plaintiff, Nolan Gamble. Lowrey Chevrolet's appeal is also directed at the failure to grant its third party demand, based on an indemnification agreement, against General Motors. On December 12, 1978, Mr. Gamble purchased a new 1979 Chevrolet half ton diesel pick-up truck for $9,104.99 from Lowrey Chevrolet in Natchitoches, Louisiana. The sale of the vehicle included an express warranty of one year or 12,000 miles, whichever came first. In February, 1979, the plaintiff began to experience problems in the engine overheating. At the end of June extensive engine repair, including the replacement of an engine assembly, became necessary. This was done by Lowrey Chevrolet and completed on August 2 at a cost of $1,305.45. The following day transmission fluid lines burst rendering the vehicle immobile. The truck was towed to the plaintiff's yard where it has remained. At the last breakdown the vehicle had travelled approximately 30,900 miles. At the request of Lowrey Chevrolet General Motors paid $671.00 on the June repair bill. However, the dealer continued to bill the plaintiff for the full amount of the invoice. On November 27, 1979, the plaintiff filed this rehibitory action alleging that the engine continued to run hot despite two attempts *1157 by Lowrey Chevrolet to correct this condition by changing the thermostat; that the vehicle had a defective oil pump shaft which Bill Lowrey Chevrolet attempted to repair; and its transmission is defective. In an agreement between the defendants, General Motors agreed to indemnify Lowrey Chevrolet against any judgment for monetary damages resulting from a defect in the manufacture of their products. The trial court rescinded plaintiff's purchase of the truck and held the seller, Lowrey Chevrolet, and the manufacturer, General Motors, liable in solido for the purchase price of $9,104.99, minus a credit of $3,000.00 for the plaintiff's use of the vehicle, and for $3,000.00 as attorney fees. The plaintiff was also granted judgment against Lowrey Chevrolet for $1,305.45 as the cost of the repair work done in June and July, but no mention was made of Lowrey Chevrolet's third party demand against General Motors. The principal issues presented by these appeals are: 1) whether the trial court erred in rescinding the sale based on rehibitory defects; 2) whether it erred in failing to apply the express sales warranty limitation provisions; and 3) whether the court erred in failing to give effect to the indemnification agreement between Lowrey Chevrolet and General Motors. The defendants argue that the plaintiff failed to prove the defects existed at the time of purchase and that the seller was unable to correct them. They contend the evidence clearly showed that the vehicle's transmission could be repaired for $500 and that there was no evidence of any other presently existing defect which would require rescission. We disagree. In Associates Financial Services Co. v. Ryan, 382 So.2d 215 (La.App. 3 Cir. 1980), this court stated: "To prevail in an action for redhibition, the purchaser must establish that the thing sold is absolutely useless for its intended purpose or that its use is so inconvenient that it must be supposed that the purchaser would not have made the purchase had he known of the defects. He must also prove that the defects existed at the time of the purchase, but were neither known nor apparent to him, and that seller could not, or would not, correct the defects when given the opportunity to do so. LSA-C.C. Articles 2520, 2521, 2530, 2531; Purvis v. Statewide Trailer Sales, Inc., 339 So.2d 403 (La.App. 1 Cir. 1976). In an action of redhibition, however, it is not necessary for the purchaser to prove the particular and underlying cause of the defect in a complicated piece of machinery. It is sufficient that the buyer merely show that the vehicle was defective prior to the sale. Guillory v. Morein Motor Company, Inc., 322 So.2d 375 (La.App. 3 Cir. 1975). Proof that the defect existed at the time of the sale can be either direct or circumstantial evidence giving rise to the reasonable inference that the defect existed at the time of sale. Newman v. Dixie Sales & Service, 387 So.2d 1333 (La.App. 1 Cir. 1980). In the instant case the plaintiff testified he purchased the truck in December, 1978, for extensive travel on his paper route. In February, 1979, he noticed the engine was overheating. Lowrey Chevrolet installed two new thermostats for the cooling system. However, the engine continued to overheat so long as it was used. On April 5 it was necessary to replace a swing bearing. On June 27 the plaintiff had to bring the truck to Lowrey Chevrolet for further engine repair. The truck's pump shaft had rounded off and burned a bearing in the motor. A new engine assembly was installed to correct the problem. The plaintiff got the truck back on August 2. The next day transmission fluid lines burst and the gaskets on the new engine were leaking oil. Plaintiff called Lowrey Chevrolet and reported that his truck had gone out on him. He was told by Mr. Troquille, one of Lowrey Chevrolet's employees, that no work could be done on the truck until he paid the balance of $1305.45 on the previous bill and also the additional repairs. Plaintiff acknowledged that the truck's engine *1158 runs now, but he said the vehicle will not move because of transmission problems. The plaintiff's case was supported by an experienced mechanic, who testified that he inspected the truck at plaintiff's request after the last breakdown and found that the transmission fluid lines were not even "finger tight." The injectors and valve cover gaskets were leaking motor oil. This witness estimated the cost to repair the transmission at $500.00. Two other witnesses testified on behalf of the plaintiff and said that they were familiar with the truck running hot and occasionally stopping. Lowrey Chevrolet's service manager testified the Company records did not show any overheating problems until early June, 1979, when the thermostat was replaced and the cooling system flushed. At the end of June there was a major breakdown, requiring replacement of the engine assembly, with General Motors paying for one-half the cost of the block. He had heard about the subsequent transmission trouble, but said that Lowrey Chevrolet had never touched the transmission hoses on the truck. He said the truck could not have been driven over five or ten miles had there been a leak in its transmission when it left their shop. The sales manager at Lowrey Chevrolet said he knew the plaintiff had complained that the truck was overheating. He also testified he had no personal knowledge of Mr. Troquille, the seller's credit correspondent, telling plaintiff that he would have to pay for the June repair invoice before further work could be done on the transmission. Troquille was unavailable to testify since he no longer resides in Louisiana. The General Motors area service manager testified he examined the truck at Gamble's premises. When the engine was cranked it ran fine. However, he did not try to move the vehicle, because it had two or three flat tires. Nor did he check the transmission lines. He acknowledged that it would be unusual to have to replace two thermostats in six months. From this evidence the trial judge concluded that the plaintiff had sustained the required burden of proof as to the elements of the action, stating in his written reasons for judgment: "The Court finds that the truck did in fact have redhibitory vices and defects from the time that it was purchased and accepts the plaintiff's testimony concerning the installation of thermostats in the cooling system; the Court further accepts the plaintiff's testimony concerning the problems which led to the repair bill of June of 1979 which totalled $1,305.45. "There has been some evidence and the Court finds that these defects existed at the time plaintiff purchased the vehicle sold by Lowrey but manufactured by GMC." From our review of the record, we cannot say that the trial judge's findings were clearly wrong. Therefore we must affirm his rescission of the sale. Canter v. Koehring Co., 283 So.2d 716 (La.1973); Arceneaux v. Domingue, 365 So.2d 1330 (La.1978). Lowrey Chevrolet also argues that the express sales warranty, limiting the plaintiff's warranty to 12 months or 12,000 miles, prevented recovery by the plaintiff in this action since the vehicle had slightly over 30,000 miles on its odometer at the final breakdown. Again we must disagree. It is clear that express warranty provisions in automobile manuals and other documents delivered with the vehicle have no effect upon the statutory warranty of fitness. Media Pro. Consult., Inc. v. Mercedes-Benz of N.A., Inc., 262 La. 80, 262 So.2d 377 (1972). The record does not indicate that the plaintiff renounced the implied warranty of fitness. Since the plaintiff has not paid any part of the June 27, 1979, invoice of $1305.45 for replacement of the truck's engine, the judgment of the trial court in this respect must be amended. Our decree will simply provide that plaintiff is not indebted to Lowrey Chevrolet in any amount for such repair work and that credit must be given him on the latter's records for any sum that may be shown thereon as being owed for such repairs. We are convinced the trial court was manifestly in error in concluding that the *1159 seller in this instance was in bad faith and therefore its judgment against Lowrey Chevrolet for an attorney's fee must be reversed. A seller is in good faith if he did not know of the vices of the thing sold. Of course, the manufacturer is presumed to know the vices of the thing he sells and consequently it must pay a successful plaintiff a reasonable fee for his attorney in this type of action. Associates Financial Services Co. v. Ryan, supra. Although neither defendant has sought return of the truck, plaintiff's counsel has acknowledged in brief that they are entitled thereto in view of the rescission of the sale and we will so decree. Lowrey Chevrolet also contends that the trial court erred in failing to award judgment in its favor against General Motors on the third party demand. With this we agree. The indemnification agreement between these two parties states in pertinent part: "General Motors will assume the defense of Dealer and indemnify Dealer against any judgment for monetary damages, less any offset recovered by Dealer, in any lawsuit naming Dealer as a defendant relating to any Product that has not been altered by or for Dealer when the lawsuit concerns: "(a) Breach of the General Motors warranty related to the Product, bodily injury or property damage claimed to have been caused solely by a defect in the design, manufacture or assembly of a Product by General Motors (other than a defect which should have been detected by Dealer in a reasonable inspection of the Product);" Having concluded that the truck contained redhibitory vices and defects prior to the sale and there being no evidence in the record that Lowrey Chevrolet caused same or knew or should have known thereof, the latter is entitled to judgment against General Motors for indemnification of the monetary judgment, less the offset, rendered against it herein. For the foregoing reasons the judgment of the trial court is recast to read as follows: IT IS ORDERED, ADJUDGED AND DECREED that the sale of the 1979 Chevrolet diesel half ton truck, Vehicle Identification No. CCZ149S137030, on December 12, 1978, by defendant, Bill Lowrey Chevrolet, Inc., to plaintiff, Nolan Gamble, be and is hereby rescinded and set aside. IT IS FURTHER ORDERED, ADJUDGED AND DECREED that there be judgment herein in favor of the plaintiff, Nolan Gamble, and against the defendants, Bill Lowrey Chevrolet, Inc. and General Motors Corporation, in solido, in the sum of $9,104.99, less a credit of $3,000.00 for the use of the vehicle by the plaintiff, together with legal interest from judicial demand until paid. IT IS FURTHER ORDERED, ADJUDGED AND DECREED that there be judgment herein in favor of the plaintiff, Nolan Gamble, and against the defendant, General Motors Corporation, in the sum of $3,000.00 for attorney's fees. IT IS FURTHER ORDERED, ADJUDGED AND DECREED that the plaintiff, Nolan Gamble, is not indebted to the defendant, Bill Lowrey Chevrolet, Inc., in any amount for repair work performed on the said truck as shown on the latter's invoice No. 1555, dated June 27, 1979, in the sum of $1305.45; and if any charge for such work exists on the latter's books it is ordered to delete same. IT IS FURTHER ORDERED, ADJUDGED AND DECREED that the plaintiff, Nolan Gamble, return the said truck to defendants, Bill Lowrey Chevrolet, Inc. and General Motors Corporation, free and clear of encumbrances. IT IS FURTHER ORDERED, ADJUDGED AND DECREED that there be judgment herein on the third party demand in favor of third party plaintiff, Bill Lowrey Chevrolet, Inc., and against third party defendant, General Motors Corporation, for all sums which the third party plaintiff is obligated to pay to the plaintiff under this judgment. IT IS FURTHER ORDERED, ADJUDGED AND DECREED that the costs *1160 of court, including this appeal, be and they are hereby assessed to General Motors Corporation. AFFIRMED IN PART, REVERSED IN PART AND RENDERED. ON REHEARING In our original decision we overlooked Lowrey Chevrolet's request for an attorney's fee from General Motors and thus erred. LSA-C.C. Art. 2545; Paul v. Ford Motor Co., 392 So.2d 704 (La.App. 3 Cir. 1980); Davidson v. New Roads Motor Co., Inc., 385 So.2d 319 (La.App. 1 Cir. 1980). From our review of the record we find that $2500.00 will be a reasonable attorney's fee for such services rendered the seller in this case, including this appeal, and we will add this award to our original decree. For the foregoing reasons, we amend the decision originally rendered herein so as to add to the judgment in favor of the third party plaintiff, Bill Lowrey Chevrolet, Inc., against the third party defendant, General Motors Corporation, an award of $2500.00 as an attorney's fee for all services rendered in this case. In all other respects our original decision shall remain in effect as rendered.

800 F.2d 1143 *Ghaediv.I.N.S. 86-4211 United States Court of Appeals,Fifth Circuit. 9/12/86 1 I.N.S. AFFIRMED 2 --------------- * Fed.R.App.P. 34(a); 5th Cir.R. 34.2.

605 F.2d 1202 Jacksonv.Garrison No. 79-6476 United States Court of Appeals, Fourth Circuit 8/30/79 1 E.D.N.C. VACATED AND REMANDED

Case: 17-50382 Document: 00514280652 Page: 1 Date Filed: 12/20/2017 IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT No. 17-50382 Conference Calendar United States Court of Appeals Fifth Circuit FILED December 20, 2017 UNITED STATES OF AMERICA, Lyle W. Cayce Clerk Plaintiff-Appellee v. WARREN ANTHONY JOHNSON, Defendant-Appellant Appeal from the United States District Court for the Western District of Texas USDC No. 1:08-CR-96-2 Before JONES, DENNIS, and GRAVES, Circuit Judges. PER CURIAM: * The Federal Public Defender appointed to represent Warren Anthony Johnson 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). Johnson has not filed a response. We have reviewed counsel’s brief and the relevant portions of the record reflected therein. We concur with counsel’s assessment that the appeal presents no nonfrivolous * Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR. R. 47.5.4.  Case: 17-50382 Document: 00514280652 Page: 2 Date Filed: 12/20/2017 No. 17-50382 issue for appellate review. Accordingly, counsel’s motion for leave to withdraw is GRANTED, counsel is excused from further responsibilities herein, and the APPEAL IS DISMISSED. See 5TH CIR. R. 42.2. 2 

United States Court of Appeals Fifth Circuit F I L E D IN THE UNITED STATES COURT OF APPEALS March 6, 2007 FOR THE FIFTH CIRCUIT Charles R. Fulbruge III Clerk No. 06-10807 Summary Calendar UNITED STATES OF AMERICA, Plaintiff- Appellee, versus TIMOTHY S. LEE, Defendant- Appellant. ------------------------------------------------------------ Appeal from the United States District Court for the Northern District of Texas USDC No. 4:01-CR-15-ALL ------------------------------------------------------------ Before DeMOSS, STEWART and PRADO, Circuit Judges. PER CURIAM:* Timothy S. Lee appeals from the sentence imposed following revocation of his term of supervised release. Lee argues that his 23-month sentence is unreasonable because it is higher than the advisory guidelines sentencing range and because there has been no allegation that he engaged in additional criminal activity. Lee contends that the district court did not provide an adequate explanation for its departure from the advisory sentencing range. * 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.  The Government has moved to dismiss the appeal or for summary affirmance on the ground that this court lacks jurisdiction to consider the appeal under 18 U.S.C. § 3742(a)(4). Because Lee cannot prevail on the merits of his appeal, we pretermit consideration of the jurisdictional issue. See United States v. Weathersby, 958 F.2d 65, 66 (5th Cir. 1992). The Government’s motion for dismissal of the appeal or for summary affirmance is therefore denied. The Government’s alternative request for an extension of time to file an appellate brief is denied as unnecessary. The district court properly considered the 18 U.S.C. § 3553(a) factors when imposing Lee’s sentence. See United States v. Gonzalez, 250 F.3d 923, 930 (5th Cir. 2001). The sentence is neither unreasonable nor plainly unreasonable. See United States v. Hinson, 429 F.3d 114, 120 (5th Cir. 2005), cert. denied, 126 S. Ct. 1804 (2006). AFFIRMED; MOTION FOR DISMISSAL OR SUMMARY AFFIRMANCE DENIED; ALTERNATIVE REQUEST FOR EXTENSION OF TIME DENIED AS UNNECESSARY. -2- 

366 N.E.2d 229 (1977) Judith A. COLLINS, Appellant (Defendant below), v. STATE of Indiana, Appellee (Plaintiff below). No. 2-176A19. Court of Appeals of Indiana, Second District. August 25, 1977. *230 William C. Erbecker, James Manahan, Indianapolis, for appellant. Theodore L. Sendak, Atty. Gen., David A. Arthur, Deputy Atty. Gen., Indianapolis, for appellee. BUCHANAN, Judge. STATEMENT OF THE CASE Defendant-Appellant Judith A. Collins (Collins) appeals from a conviction in a bench trial of Aiding Escape of a Prisoner,[1] claiming the evidence is insufficient to show she had the requisite knowledge that Turner Lee Boles was a prison escapee.[2] We reverse. FACTS The evidence most favorable to the State reveals the following: On April 21, 1975, Ronald Wentland, an officer of the Indiana State Prison, escorted Gilbert Beck, an inmate of the prison, to Robert Long Hospital in Indianapolis for treatment of hypertension. Another inmate, a trusty, Turner Lee Boles, acted as driver. After leaving the hospital to return to the prison, Beck who was sitting in the back seat, grabbed Wentland from behind. Boles seized Wentland's weapon and gave it to Beck. Boles and Beck continued to drive around Indianapolis for some time with their captive. After several stops to make telephone calls, Beck told Boles that he would be able to get another car. The convicts proceeded with their captive to Leonard Street. They parked in an alley opening onto Leonard near its intersection with Minnesota Street. Beck got out of the car and went to the corner of Leonard and Minnesota. He motioned to Boles who left the car and Officer Wentland in the alley. Both men got into a blue Mustang parked by the curb on Minnesota. A young blond woman (Collins) approached, got into the driver's seat and drove the car away. Collins was charged with Conspiracy to Commit a Felony to-wit: Escape from Prison and Aiding the Escape of Prisoner.[3] ISSUE The sole issue is: Was there sufficient evidence of probative value to permit the trier of fact to conclude beyond a reasonable doubt that Collins knowingly aided in the escape of Boles?[4] PARTY'S CONTENTIONS — Collins contends there is no evidence tending to show she knew Boles was a prison escapee. *231 The State simply counters that the evidence was sufficient to allow a reasonable inference that Collins knew he was an escaped prisoner. DECISION CONCLUSION — There was insufficient evidence introduced at trial to establish that Collins knew Boles was an escapee. Collins was convicted under this statute: XX-X-XX-X Sec. 3. Whoever, not being a person having the lawful custody of any prisoner charged with or convicted of a felony, shall aid in or accomplish the escape, of such prisoner, shall, on conviction, be imprisoned in the state prison not less than two (2) years nor more than twenty-one (21) years. (hereinafter Statute) At trial, a witness positively identified Collins as the driver of the blue Mustang which picked up the escaped prisoners. The same witness positively identified photographs of the two escapees as those he saw on the day of the escape. The Information charged Collins with aiding in the escape of prisoner Turner Lee Boles. The State admitted into evidence the commitment papers of prisoner Boles showing that he was in the custody of the State of Indiana and that he had committed a felony. Thus it appears the State adequately established the elements of the crime set out in the Statute ... all, says Collins, except knowledge on her part that Boles was an escaped convict. Such knowledge must be established by the State beyond a reasonable doubt in order to show criminal intent. State v. Sutton (1908), 170 Ind. 473, 84 N.E. 824. Knowledge may be inferred from evidence of circumstances surrounding the commission of the crime. However, an inference cannot be based on evidence which is uncertain or speculative or which raises merely a conjecture or possibility. Serrano v. State (1977), Ind., 360 N.E.2d 1257; Shutt v. State (1954), 233 Ind. 169, 117 N.E.2d 892; Johnson v. State (1926), 199 Ind. 73, 155 N.E. 196. Officer Wentland testified that Beck left the car to make a phone call. When he returned he said to Boles, "They'll get us the car." Soon after, the two drove off with Collins. It is reasonable to infer that Collins came to pick up Boles and Beck in response to Beck's phone call. However, in the absence of any other evidence linking her to the two, it is mere conjecture to assume she came knowing them to be escapees. The State claims that such knowledge can be inferred from the "fact" that Collins is the sister of Gilbert Beck, and the "fact" that she had visited both in prison. We agree that had these facts been established at trial, evidence of knowledge would have been sufficient. However, a careful search of the record reveals no such evidence. At the trial, the State presented and had provisionally admitted into evidence prison visit logs of Gilbert Beck and Turner Lee Boles. Each had a notation which showed a 1973 visit from a Judy Beck. However, at no time did the State present any evidence which established a link between the Judy Beck who visited the escaped prisoners in prison and the Judith A. Collins on trial for aiding in their escape. Nor was any evidence presented showing Collins was the sister of Gilbert Beck. Although it is apparent from the record that everyone including the judge assumed that Judith A. Collins is the Judy Beck on the visitor's log, we find no evidence in the record to that effect. The only part of the record which tends to connect Judith A. Collins with Judy Beck, whose name appears on the visit logs, is defense counsel's argument in support of his Motion for Judgment on the Evidence at the end of the State's case, in which he alluded to Beck as Collins' brother and Boles as being incarcerated with Beck.[5] *232 Such an inadvertent admission made by counsel in the heat of argument does not fill the void in the State's case.[6] An admission must be an intentional act of waiver — not merely assertion or concession made for some independent purpose. 9 J. Wigmore, A Treatise on Evidence § 2594 (3d ed. 1940). Improvident or erroneous statements or admissions resulting from unguarded expressions or mistake or mere casual remarks, statements or conversations are not generally treated as judicial admissions presented for the purpose of dispensing with testimony or facilitating the trial. 7 C.J.S. Attorney and Client § 100 (1937). As the Court pointed out in State v. Thomas (1932), 136 Kan. 400, 405, 15 P.2d 723, 725-26, it is particularly important in a criminal case that the defendant be protected from inadvertent slips of the tongue of his attorney: Of course counsel for the defendant in a criminal case may, in the course of the proceedings, make an admission of fact voluntarily and purposely to avoid the necessity of proving it, and the court has a perfect right to accept such as an admitted fact for which no proof will be necessary. Such admission, however, is properly made to the court and a record is made of it as such. Then the court conveys to the jury such admission, through its instructions, and it becomes a judicial admission. "The admissions of attorneys of record bind their clients in all matters relating to the progress and trial of the cause; but, to this end, they must be distinct and formal, or such as are termed solemn admissions, made for the express purpose of alleviating the stringency of some rule of practice, or of dispensing with the formal proof of some fact at the trial. * * *" (1 Greenleaf on Evidence, 16th Ed. 311.) In criminal cases, more particularly than in civil, the defendant is protected against any and every statement of his counsel which is not definitely and purposely intended as and for an admission. (Emphasis supplied.) Thus, the informal, inadvertent admissions made by Collins' counsel for another purpose, cannot be recognized as evidence of facts on which his client's guilt could be based. *233 We therefore necessarily hold that the record reveals insufficient evidence from which knowledge could be attributed to Collins that Boles was an escapee. Because Collins' assertion that she could not have aided in the escape of Boles because the escape was complete at the time the two grabbed the prison guard and took control of the automobile is likely to arise in a new trial, we consider that question here. Until the two escapees drove away in the blue Mustang, they were hindered by an identifiable prison automobile and had a prison guard as hostage. Although the guard was restrained, there was still the risk that he might regain control. Whether knowingly or not, Collins provided the means by which Boles effectively separated himself from the guard's restraint and completed his escape. Reversed and remanded for a new trial. WHITE, J., and ROBERTSON, C.J. (by designation), concur. NOTES [1] IC XX-X-XX-X. [2] Because we reverse on this issue, it is unnecessary to consider Collins' other allegations of error. [3] The conspiracy charge was dismissed at the end of the State's evidence. [4] The Information charges Collins only with aiding Boles in his escape, not Beck and Boles. [5] Your Honor, the Defendant, Judith Collins, respectfully moves the Court for a finding of not guilty and a finding of not guilty and for a discharge because of the insufficiency of the evidence in that first, it fails to establish that she aided, abetted, counseled or commanded or conspired in any way with the, in this cause under which she is being charged, secondly, assuming arguendo but not conceding that she was identified, by somebody after the commission of the crime, after the episode out at the hospital, assuming, but not conceding she was, that does not in any way prove that she aided or abetted, and as I understand from the memorandum that they very graciously provided me today, a few minutes ago, that, and from my talking with Mr. Ackerman, that the evidence connecting her, if it could be deemed evidence and not assuming that it is, but for the sake of discussion that it was, she visited the person who escaped about two years prior to this episode out there at the instance of her brother, who is an inmate at Michigan City also. And that assuming that she did meet with two men, but not conceding that she did, but assuming that she did, the evidence indicates from the memorandum and what Mr. Ackerman told me, they were not in prison garb, they were dressed like any other people on the street, I think it was at night, and there was no evidence that she knew who they were, and you can't guess a person into prison ... From my meager, very meager knowledge of it, and from what Mr. Ackerman tells me and from this memorandum, the conspiracy would be, from the record and from what Mr. Ackerman told me, her meeting this man at the invitation of her brother two weeks, or two years prior to this episode out at the hospital, and just merely talking with a person falls far short of a conspiracy charge, if there is enough for a conspiracy, if a two year later meeting is the overt act, it's kind of far-fetched, because the only act as I get from the record, and I'm poorly equipped to even argue this case because I wasn't here, but I roughly went over that, and talked to the, Mr. Ackerman, and I can't see any evidence of a conspiracy whatsoever other than the chance meeting up at the Indiana State Prison where her brother was incarcerated with Boles. [6] An attorney of record has the authority to admit a fact (stipulate) in the course of a trial for the purpose of obviating the need to prove it even though the fact admitted is against the defendant's interest. See 3 C. Torcia, Wharton's Criminal Evidence § 707 (13th ed. 1973).

655 F.2d 1016 115 L.R.R.M. (BNA) 3484, 1 Indiv.Empl.Rts.Cas. 129 Edaleen VINYARD, Plaintiff-Appellant,v.Robert J. KING, in his individual capacity and asAdministrator of the Clinton Regional Hospital, Eph Monroe,Charles E. Engleman, Bud Miskel, Romney M. Chaffin, DavidStratton, individually and in their official capacities asmembers of the Board of Directors of the Clinton RegionalHospital, State of Oklahoma, their servants, agents,representatives, assigns and successors, Defendants-Appellees. No. 80-1109. United States Court of Appeals,Tenth Circuit. Argued May 14, 1981.Decided July 23, 1981. 1 Stephen Jones, Enid, Okl. (James Craig Dodd, Enid, Okl., with him on the brief), for plaintiff-appellant. 2 H. Leonard Court, Oklahoma City, Okl. (Gary L. Betow, Oklahoma City, Okl., with him on the brief), of Crowe, Dunlevy, Thweatt, Swinford, Johnson & Burdick, Oklahoma City, Okl., for defendants-appellees. 3 Before BARRETT and LOGAN, Circuit Judges, and O'CONNOR, District Judge*. 4 O'CONNOR, District Judge. 5 Plaintiff brought this action pursuant to 42 U.S.C. § 1983 alleging that her due process rights were violated when her employment at Clinton Regional Hospital was terminated by defendants. Defendants include the hospital administrator and the members of the hospital board of directors. Upon motion by defendants, the district court abstained in accordance with the Pullman Doctrine stating that Oklahoma law was unclear with respect to the existence of plaintiff's claimed property interest in continued employment with the hospital.1 The court below invoked the Pullman Doctrine to permit the state law issue to be litigated, thereby avoiding a premature decision on the constitutional questions presented. The sole issue before us is whether the district court properly abstained. 6 Plaintiff was hired as Director of Volunteer Services for Clinton Regional Hospital in November 1972 and worked in that position until her termination in January 1978. Although plaintiff concedes that she had no written or oral contract of employment for a specific number of years, she contends that Oklahoma law recognizes a general property right in employment in Nation v. Chism, 154 Okl. 50, 6 P.2d 766 (1931), and further, that she had an implied year-to-year contract with the hospital. The existence of an implied annual contract is based upon plaintiff's allegations (1) that she was not a probationary employee who could be terminated without cause or notice under the hospital rules, (2) that she had been employed at the hospital for five years, (3) that she received an annual salary, (4) that her job performance was reviewed annually, (5) that she received annual increases in salary, (6) that grievance procedures existed for the protection of non-probationary employees that were not followed in her termination, and (7) that she had given special consideration for her employment in the form of working long hours for low pay and sacrificing time that she would otherwise have spent with her invalid mother. 7 The District Court held that Nation v. Chism, supra, does not create a property interest for plaintiff under the circumstances of this case. The court then abstained "within the narrow exception known as the Pullman Doctrine where resolution of a federal constitutional issue is controlled by the interpretation of state law which is susceptible to a construction which would avoid or modify the necessity of a constitutional adjudication."2 In support, the court relied upon a broad statement in the concurring opinion of Chief Justice Burger in Board of Regents v. Roth, 408 U.S. 564, 92 S.Ct. 2701, 33 L.Ed.2d 548 (1972), and Perry v. Sindermann, 408 U.S. 593, 92 S.Ct. 2694, 33 L.Ed.2d 570 (1972), wherein the Chief Justice suggested that abstention would be proper in cases involving nonrenewal of teacher contracts, if relevant state contract law is unclear. Reliance was also placed upon three Western District of Oklahoma cases dealing with teacher contracts that were not renewed. Smith v. Griffith, 437 F.Supp. 18 (W.D.Okl.1977); Summers v. Civis, 420 F.Supp. 993 (W.D.Okl.1976); and Fanning v. School Board of Independent School District # 23, 395 F.Supp. 18 (W.D.Okl.1975). Thereupon, plaintiff's claims were dismissed by the court without prejudice.3 8 Abstention pursuant to the Pullman Doctrine permits a federal court to stay its hand in those instances where a federal constitutional claim is premised on an unsettled question of state law, whose determination by the state court might avoid or modify the constitutional issue. Railroad Commission of Texas v. Pullman Co., 312 U.S. 496, 61 S.Ct. 643, 85 L.Ed. 971 (1941). The Supreme Court has consistently characterized abstention as 9 an extraordinary and narrow exception to the duty of a District Court to adjudicate a controversy properly before it. Abdication of the obligation to decide cases can be justified under this doctrine only in the exceptional circumstances where the order to the parties to repair to the State court would clearly serve an important countervailing interest. County of Allegheny v. Frank Mashuda Co., 360 U.S. 185, 188-189, 79 S.Ct. 1060, 1063, 3 L.Ed.2d 1163 (1959). 10 Colorado River Water Conservation District v. United States, 424 U.S. 800, 813, 96 S.Ct. 1236, 1244, 47 L.Ed.2d 483 (1976). 11 The mode of analysis to be applied by a district court when the issue of Pullman abstention arises was explained by the Third Circuit in D'Iorio v. County of Delaware, 592 F.2d 681, 686 (3d Cir. 1978), as follows: 12 The special circumstances generally prerequisite to the application of this doctrine are threefold. First, there must be uncertain issues of state law underlying the federal constitutional claims brought in the federal court. Second, these state law issues must be amenable to an interpretation by the state courts that would obviate the need for or substantially narrow the scope of the adjudication of the constitutional claims. And third, it must appear that an erroneous decision of state law by the federal court would be disruptive of important state policies. In addressing an abstention claim, a district court must first consider whether the particular case falls within the ambit of Pullman as defined by these criteria, and must then make a discretionary determination, based on the weight of these criteria and other relevant factors, as to whether abstention is in fact appropriate. 13 The sufficiency of a property interest triggering constitutional due process considerations is determined by state law. Bishop v. Wood, 426 U.S. 341, 344, 96 S.Ct. 2074, 2077, 48 L.Ed.2d 684 (1976). A person must have a legitimate claim of entitlement to have a property interest in a benefit; a mere unilateral expectation, abstract need or desire for the benefit is insufficient. Board of Regents v. Roth, supra, 408 U.S. at 577, 92 S.Ct. at 2709. In Perry v. Sindermann, supra, 408 U.S. at 601, 92 S.Ct. at 2699, the Court stated: "A person's interest in a benefit is a 'property' interest for due process purposes if there are such rules or mutually explicit understandings that support his claim of entitlement to the benefit and that he may invoke at a hearing." 14 The question of the clarity of state law is essentially legal in nature and our review is de novo. D'Iorio, supra, at 686. In the instant case, we are of the opinion that the state law of Oklahoma is not so unclear as to permit abstention. 15 We agree with the district court's view that Nation v. Chism, supra, does not recognize a general property right in employment under the circumstances of this case. The very broad language of Nation that purports to recognize such a right in employment cases is at most dicta. See Taylor v. State ex rel. Rutherford, 291 P.2d 1033 (Okl.1955). Furthermore, the state and federal courts in Oklahoma have given no indication that a general property right may arguably exist in teacher nonrenewal contract cases. Smith, supra; Summers, supra; Fanning, supra; King v. Board of Regents, Claremore Junior College, 541 P.2d 836 (Okl.1975). 16 Far more recently than Nation, the Oklahoma Supreme Court had occasion to speak to the issue of when an employee has a property right in employment. In Singh v. City Service Oil Co., 554 P.2d 1367 (Okl.1976), the United States District Court for the Northern District of Texas certified the following question: "Under Oklahoma law, does a hiring at a specified sum 'per year' dictate the duration of employment, or does such language merely connote the rate of compensation for an employment agreement which is otherwise terminable at will?" The Oklahoma court answered: 17 In the absence of facts and circumstances which indicate that an agreement is for a specific term, an employment contract which provides for an annual rate of compensation, but makes no provision as to the duration of the employment, is not a contract for one year, but is terminable at will by either party. 18 Without doubt, a property interest in employment can be created by an implied contract. Bishop, supra, 426 U.S. at 344, 96 S.Ct. at 2077. In Oklahoma, if there exist indicia that the agreement is for a specific term, then the employment contract is not terminable at will and the employee has a property right therein. The Singh court offers guidance in footnotes 2 and 3 by citations to cases stating that the presence of special circumstances can indicate a specific term of employment. Although the defendants contend that the cases cited offer insufficient guidance as to the state of the law in Oklahoma, one cannot expect the courts to have considered each of the infinite factual situations that could possibly arise.4 In short, the difficulty in determining whether plaintiff in the case before us has a property right in employment exists not because of an unclear standard,5 but because the precise set of facts posed here has not been addressed by the Oklahoma Supreme Court. We do not in any way minimize how difficult it may be to apply the law to the facts, but abstention is inappropriate on this basis. Under such circumstances the district court may not abdicate its duty to adjudicate the matter. See, e. g., Kusper v. Pontikes, 414 U.S. 51, 54-55, 94 S.Ct. 303, 306-307, 38 L.Ed.2d 260 (1973); Wisconsin v. Constantineau, 400 U.S. 433, 437-39, 91 S.Ct. 507, 510-511, 27 L.Ed.2d 515 (1971); Zwickler v. Koota, 389 U.S. 241, 250-251, 88 S.Ct. 391, 396-397, 19 L.Ed.2d 444 (1967). 19 Furthermore, even if Oklahoma law were unclear, no important state policies would be disrupted by an erroneous decision of the federal court. The appraisal of whether an erroneous federal court determination of state law would have a disruptive effect on state policies is more discretionary in character than the determination of the clarity of state law, "and greater deference will generally be accorded to a district court's appraisal if it is adequately explained." D'Iorio, supra, at 686. However, the case before us is not the usual Pullman abstention situation where the construction of a state statute or the authority of a state agency to promulgate a regulation is at issue. See Babbitt v. United Farm Workers National Union, 442 U.S. 289, 99 S.Ct. 2301, 60 L.Ed.2d 895 (1979); Bellotti v. Baird, 428 U.S. 132, 96 S.Ct. 2857, 49 L.Ed.2d 844 (1976); Carey v. Sugar, 425 U.S. 73, 96 S.Ct. 1208, 47 L.Ed.2d 587 (1976); Boehning v. Indiana State Employees Ass'n, Inc., 423 U.S. 6, 96 S.Ct. 168, 46 L.Ed.2d 148 (1975); Harris County Commissioners Court v. Moore, 420 U.S. 77, 95 S.Ct. 870, 43 L.Ed.2d 32 (1975); and cases cited in Field, Abstention in Constitutional Cases: The Scope of the Pullman Abstention Doctrine, 122 U.Pa.L.Rev. 1071 (1974).6 Since a state statute or regulation inherently involves state interests to some degree, the considerations of comity and federalism underlying the Pullman Doctrine are immediately raised in an attack on the statute or regulation in federal court. In the case at bar, no statute or regulation is at issue and we must look elsewhere for possible interference with important state interests. 20 Although the trial court states in its order of abstention that consideration of the issues in this case "would entail a severe intrusion into a sensitive area of state law," we have difficulty in sharing that concern. The federal court is not treading upon hallowed state ground in determining the due process rights of a Director of Volunteer Services at a municipal hospital.7 Abstention in this instance is unnecessary to avoid " 'needless friction' between federal pronouncements and state policies." Reetz v. Bozanich, 397 U.S. 82, 87, 90 S.Ct. 788, 790, 25 L.Ed.2d 68 (1970). In a very similar case alleging deprivation of due process in discharge from employment, the Third Circuit assumed that state law was unclear, but concluded that countervailing interests to the general obligation to decide cases properly before the court were not present. McKnight v. Southeastern Pennsylvania Transportation Authority, 583 F.2d 1229 (3d Cir. 1978). The court stated as follows: 21 (T)he question whether summary dismissal of an employee who has a property interest in not being dismissed "except for just cause" violates due process would not appear to be a difficult or novel one. Rather, it involves the application of settled principles to a clear fact pattern. Furthermore, such a determination would not upset sensitive state programs. The state would still be free to dismiss its employees; it would only have to afford them notice and an opportunity to be heard to the limited extent mandated by due process. 22 Id. 23 The case was remanded for other reasons with the suggestion that the district court consider the property interest issue. Id. In the case before us, as was true in McKnight, settled principles of law are applicable to the due process question once the property interest issue is resolved. A determination that plaintiff had a property interest and should have been afforded due process would not upset sensitive state programs. In addition, the facts of plaintiff's claim to a property right are peculiar to this plaintiff; no property right in employment for a large class of employees would be determined by state court resolution of the question under these particular facts. Rather, this case presents no more than a run-of-the-mill dispute over whether a particular set of facts arises to a property interest in employment under Oklahoma law. 24 Affirmance of the instant case would vastly expand the Pullman Doctrine by ignoring the limiting prerequisites of an unclear issue of state law and the potential disruption of important state policies. In the absence of these conditions, the issue before the district court in this civil rights action is analogous to the garden variety state law determinations that are inevitably involved in diversity of citizenship cases. See, Meredith v. City of Winter Haven, 320 U.S. 228, 64 S.Ct. 7, 88 L.Ed. 9 (1943). Under such circumstances the district court is fully competent to apply state law to the facts of the case before it and has a duty to do so. 25 While we have concluded that abstention is improper when state law is clear and when no important state policies would be disrupted by an erroneous application of state law by the federal court, we add the caveat that nothing said herein is to imply that we have reached the ultimate issue of whether plaintiff has a property interest in employment under state law. 26 REVERSED AND REMANDED for further proceedings consistent with this opinion. * Of the United States District Court for the District of Kansas, sitting by designation 1 Plaintiff also alleged below that the hospital administrator King told the local newspaper an erroneous reason for her dismissal that was subsequently published in a front page story. Accordingly, plaintiff contended that she was stigmatized by the publication and deprived of her right to liberty. The status of the liberty interest claim is not clear in the record and has not been raised on appeal. Therefore, we shall confine ourselves to the property interest claim and the trial court's decision to abstain 2 Contrary to the plaintiff's contention on appeal, we infer that the trial court did not ignore the plaintiff's theory of an implied year-to-year contract of employment. The court expressly recognized the implied contract theory in its order of abstention and at the motion hearing the theory was presented and argued in conjunction with the case upon which it is based, Singh v. City Service Oil Co., 554 P.2d 1367 (Okl.1976). Under these circumstances we can only conclude that the court abstained because state law remained unclear after Singh 3 The Supreme Court has noted that it is a better practice for a trial court invoking the Pullman Doctrine to retain jurisdiction, rather than to dismiss. Zwickler v. Koota, 389 U.S. 241, 244 n.4, 88 S.Ct. 391, 393 n.4, 19 L.Ed.2d 444 (1967). We have remanded Pullman type abstention cases in which the trial court had dismissed the action without prejudice so that the cases could be reinstated and held in abeyance pending resolution of state issues. Arrow v. Dow, 636 F.2d 287 (10th Cir. 1980); Western Food Plan, Inc. v. MacFarlane, 588 F.2d 778 (10th Cir. 1978) 4 Several of the cases touch on various aspects of the particular circumstances the plaintiff raises to establish that she has a property interest in employment. Garza v. United Child Care, 88 N.M. 30, 536 P.2d 1086 (N.M.App.1975), and Edwards v. Kentucky Utilities Co., 286 Ky. 341, 150 S.W.2d 916 (1941), address the effect of classification as a "permanent" employee. Edwards also states that the mere fact that an employee gave up other employment with seniority rights is not consideration moving from the employee to the employer in return for employment. Hindle v. Morrison Steel Co., 92 N.J.Super. 75, 223 A.2d 193 (N.J.App.1966) deals with the effect of yearly increases and bonuses. McKelvy v. Choctaw Cotton Oil Co., 52 Okl. 81, 152 P. 414 (1915), recognizes that the employment contract will not be considered terminable at will if the employee gave valuable consideration for the employment such as relinquishing a claim for personal injury damages against the employer In addition to the cases cited in footnotes 2 and 3 of Singh, an Oklahoma wrongful discharge case holds that an employee with an indefinite term employment contract containing a discharge for just cause clause was terminable at will. Freeman v. Chicago, Rhode Island & Pacific R.R. Co., 239 F.Supp. 661 (W.D.Okl.1965). 5 For an excellent discussion of the importance of a significant lack of clarity in state law, see Field, Abstention in Constitutional Cases: The Scope of the Pullman Abstention Doctrine, 122 U.Pa.L.Rev. 1071, 1090-93 (1974) 6 This is not to say that Pullman abstention is only appropriate when an unclear statute or regulation is at issue. The Supreme Court remanded an unclear question of state common law for certification to the state supreme court in Elkins v. Moreno, 435 U.S. 647, 662, 98 S.Ct. 1338, 1347, 55 L.Ed.2d 614 (1978). Abstention and use of certification procedures are grounded upon similar considerations. Bellotti v. Baird, 428 U.S. 132, 96 S.Ct. 2857, 49 L.Ed.2d 844 (1976) 7 On this basis the nonrenewal of nontenured teacher contract cases relied upon by the district court may be distinguished. Education has traditionally been an area in which the states have been given wide latitude in which to operate. Education is primarily a function of the state. Okla.Const. Art. 13, § 1; Tyron Dependent School District No. 125 of Lincoln County v. Carrier, 474 P.2d 131 (Okl.1970). The teacher cases are also distinguishable because state law was far less clear

765 F.2d 146 Unpublished DispositionNOTICE: 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.MARK PIPPINS, PLAINTIFF-APPELLANT,v.SECRETARY OF HEALTH AND HUMAN SERVICES, DEFENDANT-APPELLEE. NO. 84-1473 United States Court of Appeals, Sixth Circuit. 5/8/85 ON APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF MICHIGAN Before: MERRITT and CONTIE, Circuit Judges; KINNEARY, District Judge.* MERRITT, Circuit Judge. 1 Claimant Mark Pippins alleges disability based on hypertension, short leg syndrome, degenerative joint disease and arthritis, and chronic lumbosacral myositis. His work history includes farm labor, foundry labor, construction, and trash collecting, all of which required lifting in excess of 50-100 pounds. Claimant testified that he has not worked since April 30, 1981; at the time of the hearing Pippins was 59 years old. 2 Pippins first applied for disability benefits on April 30, 1981, alleging disability onset date of March 10, 1981, due to high blood pressure and numbness in his extremities. His application was denied initially and upon reconsideration, and he did not appeal from that denial. His present disability application was filed on February 25, 1982; he again alleged disability onset date of March 10, 1981. This application was also denied initially and upon reconsideration, at which time claimant requested a hearing. 3 At the hearing, the ALJ determined that Pippins did not have a severe impairment significantly limiting his physical or mental capacity to perform basic work activity. The ALJ therefore denied disability at the second stage of the sequential process by deciding that claimant's impairment was not 'severe' within the meaning of the statute.1 4 The ALJ determined that '[i]n this case there is a paucity of clinical or diagnostic evidence which would support claimant's symptomatology' and that '[c]laimant's subjective complaints appear far out of proportion to the objective medical evidence.' JA at 10. The ALJ noted that Pippins' hypertension was controlled, that he had worked successfully for years with his congenital short leg syndrome, and that no diagnosed medical condition created any severe impairment for claimant. The ALJ relied on the report of the Secretary's consultative doctor, who had concluded that claimant was not disabled. The ALJ discounted the conclusions of two other doctors, one of whom was claimant's treating physician, and the other a consultative physician, who had concluded that claimant was disabled. 5 On appeal from the Secretary's denial, the Magistrate who initially heard the case recommended reversing the Secretary and stated that the ALJ's decision was not supported by substantial evidence. The Magistrate noted that the reports of a treating doctor are to be given greater weight than those of the Secretary's consulting doctors. The District Court did not accept the Magistrate's recommendation, however, and the court affirmed the Secretary's denial. 6 On appeal before this Court, Pippins argues that he does have severe impairment, which the findings and conclusions of his treating doctor have documented. He maintains that, had the Secretary employed the entire 5-step evaluation sequence, Pippins could prove disability using the criteria of the grid. He points to what he characterizes as the Secretary's prevasive current practice of short-cutting the evaluation sequence by readily finding disability at the 'severe impairment' stage of the process. 7 The crux of the Secretary's argument is that objective medical evidence fails to support Pippins' claim that he suffers from an impairment severe enough to significantly limit his work activities. The Secretary argues that this lack of objective medical data, coupled with claimant's having worked for some time subsequent to his alleged disability onset date of March 10, 1981, compels the conclusion that Pippins did not have a severe impairment as of his asserted onset date. 8 Although this determination is a close one, we find that the Secretary's decision is supported by substantial evidence. We agree with claimant's argument that the second step 'severe impairment' stage of the evaluation process is correctly perceived as a minimal, threshold level of impairment. See, e.g., Brady v. Heckler, 724 F.2d 914 (9th Cir. 1984). But the lack of objective medical findings supporting a significant physical or mental limitation, as well as the claimant's continued work activities past his claimed onset date, support the Secretary's finding that Pippins did not have a severe impairment at the relevant time for consideration in this case. 9 It is certainly possible that the degenerative nature of claimant's physical problems have now risen to a level severe enough to significantly limit his basic work activities. The present decision is without prejudice to the claimant's ability to file for disability benefits on the basis of a more recent or current disability. 10 Accordingly, the judgment of the District Court is affirmed. * The Honorable Joseph P. Kinneary, United States District Court Judge for the Southern District of Ohio, sitting by designation 1 The regulation defining severe impairment is 20 C.F.R. Sec. 404.1521(a)(b) which provides: (a) Non-severe impairment. An impairment is not severe if it does not significantly limit your physical or mental abilities to do basic work activities. (b) Basic work activities. When we talk about basic work activities, we mean the abilities and aptitudes necessary to do most jobs. Examples of these include: (1) Physical functions such as walking, standing, sitting, lifting, pushing, pulling, reaching, carrying, or handling; (2) Capacities for seeing, hearing and speaking; (3) Understanding, carrying out, and remembering simple instructions; (4) Use of judgment; (5) Responding appropriately to supervision, co-workers, and usual work situations; and (6) Dealing with changes in a routine work setting.

101 F.3d 695 NOTICE: Fourth Circuit Local Rule 36(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 Fourth Circuit.Stephen TALMAGE, Petitioner-Appellant,v.COMMISSIONER OF INTERNAL REVENUE, Respondent-Appellee. No. 96-1970. United States Court of Appeals, Fourth Circuit. Submitted Oct. 17, 1996.Decided Nov. 15, 1996. Stephen V. Talmage, Appellant Pro Se. Gilbert Steven Rothenberg, Gary R. Allen, Randolph L. Hutter, UNITED STATES DEPARTMENT OF JUSTICE, Washington, D.C., for Appellee. U.S.T.C. AFFIRMED. Before MURNAGHAN and WILLIAMS, Circuit Judges, and BUTZNER, Senior Circuit Judge. PER CURIAM: 1 Stephen V. Talmage appeals from the tax court's orders (1) entered March 11, 1996, granting summary judgment to the Commissioner and imposing a penalty under 26 U.S.C. § 6673(a)(1)(B) (1994) for pursuing a frivolous action in tax court; and, (2) entered April 17, 1996, denying his motion for reconsideration. We affirm, based on the reasoning of the tax court. 2 The government has filed a motion seeking sanctions against Talmage for noting a frivolous appeal. Fed. R.App. P. 38. We deny the motion without prejudice to file another motion should Talmage file another appeal in this court raising similar claims as those raised in this appeal. We dispense with oral argument because the facts and legal contentions are adequately presented in the materials before the court and argument would not aid the decisional process. 3 AFFIRMED.

422 F.Supp.2d 252 (2006) Seth RESNICK, Paula Lerner and Michael Grecco v. COPYRIGHT CLEARANCE CENTER, INC. No. 01-11520-RWZ. United States District Court, D. Massachusetts. March 16, 2006. *253 *254 Jonathan M. Feigenbaum, Phillips & Angley, Boston, MA, for Seth Resnick, Paula Lerner, Michael Grecco. Elizabeth Stotland Weiswasser, Josh A. Krevitt, Kerry C. Foley, R. Bruce Rich, Sondra Roberto, Weil, Gotshal & Manges, LLP, New York, NY, Marie F. Mercier, William S. Strong, Amy C. Mainelli, Kotin, Crabtree & Strong, Boston, MA, for Copyright Clearance Center, Inc. MEMORANDUM OF DECISION ZOBEL, District Judge. Plaintiffs Seth Resnick, Paula Lerner, and Michael Grecco are freelance photographers. Defendant Copyright Clearance Center, Inc. ("CCC") is a clearinghouse through which anyone may obtain the right to copy articles from various publications with whom CCC has agreements. Plaintiffs are the registered copyright holders of certain photographic images, which appear in articles whose copyrights are managed by CCC. They allege that CCC has facilitated and encouraged copyright infringement by allowing third parties to copy articles that contain plaintiffs' copyrighted images and that, in doing so, CCC has reaped significant profits. Their first amended complaint, filed in 2002, alleged contributory and vicarious copyright infringement (Count I), false advertising (Count II), and a state law claim (Count III); Count III was dismissed on defendant's motion to dismiss. Currently pending are (1) plaintiffs' motion to amend the amended complaint, (2) defendant's motion for summary judgment, and (3) plaintiffs' motion for partial summary judgment. I. Plaintiffs' Motion to Amend the Complaint Plaintiffs' amended complaint, filed in February 2002, alleged false advertising under both the Lanham Act (Count II) and Mass. Gen. L. ch. 93A, § 11 (Count III). (Am.Compl. ¶ ¶ 91-100). In April 2002, defendant moved to dismiss all counts. As to both false advertising claims, defendant argued that plaintiffs had failed to state a claim and that the false advertising claims essentially duplicated plaintiffs' copyright claim. As to Count III, specifically, defendant argued in addition that the claim was preempted by the federal Copyright Act. By order entered July 9, 2002, I granted the motion to dismiss as to Count III, but denied it as to Counts I and II. Following this ruling, the parties proceeded with discovery, litigated plaintiffs' motions for preliminary injunction and for class certification (both of which were denied), and proceeded to file cross motions for summary judgment. On September 23, 2005, defendant brought to the court's attention the First Circuit's decision in Venegas-Hernandez v. Asociacion De Compositores v. Editores De Musica Latinoamericana, 424 F.3d 50 (1st Cir.2005), suggesting that it was relevant to the outstanding copyright claim. (Docket # 37). One month later, plaintiffs filed a motion for leave to amend the amended complaint. The motion is silent with respect to Venegas-Hernandez's impact on their copyright claims; instead, plaintiffs argue that the case "authorize[s] pursuit of state law claims" in cases of copyright infringement, thus entitling *255 them to reinstate their state-law false advertising claim. Plaintiffs' motion is somewhat disingenuous. The amended complaint alleged two kinds of unlawful conduct: unlawful authorization of copyright violations, and false advertising statements. Count I, which claimed contributory or vicarious copyright infringement, alleged that defendant had "knowingly and systematically included], caus[ed], and materially contributed] to the unauthorized reproductions and/or distributions of copyright Images." (Am.Compl. ¶ 84). Counts II and III, however, were false advertising claims, focusing on specific statements made in CCC publications. These counts were, therefore, unrelated to the allegation that defendant had unlawfully facilitated copyright infringement, but instead concerned only alleged false representations. Count III thus never claimed injury based on contributory or vicarious infringement, but rather claimed injury based on defendant's false statements. Indeed, plaintiffs themselves repeatedly emphasized that their false advertising claims were not the same as their copyright infringement claim. (Pls.' Opp. to Mot. to Dismiss 15-20). Plaintiffs now contend that "their state law claim for violation of M.G.L. c. 93A should not have been dismissed by this Court" based on Venegas-Hernandez. (Pls.' Mot. to Amend 3). Plaintiffs claim that they seek only "to assert a claim already articulated and now deemed viable by the recent decision of the First Circuit." (Id. at 4). The problem with this line of argument, however, is that what plaintiffs seek to assert is not the claim that they "already articulated," but rather something different. Plaintiffs are not attempting to reinstate their false advertising claim, but are rather seeking to assert an infringement claim under state law. Thus, their proposed second amended complaint alleges a violation of chapter 93A based on both the alleged contributory infringement and the alleged false advertising. (Proposed Second Am. Compl. ¶ 83). For example, the proposed Count III asserts that defendant violated chapter 93A not only by making certain misrepresentations, but also by "authorizing its customers to make photocopies," "unjustly enriching itself by licensing Plaintiffs' copyrighted materials," and "undercutting and interfering with the Plaintiffs' efforts and ability to license their respective copyrights." (Id. ¶ 84). In other words, plaintiffs seek to recast their 93A claim as alleging copyright infringement, in addition to false advertising. Plaintiffs' reasons for doing so are clear. In Venegas-Hernandez, the First Circuit addressed the question of whether a publisher's unauthorized grant of a license to a third party to copy a copyrighted work is itself an act of infringement, without further proof that the third party ever undertook an infringing act. 424 F.3d at 57. The First Circuit, after analyzing the statutory language and legislative history, ruled that authorization alone could not constitute infringement. Id. at 58. In doing so, the court noted, however, that, even if wrongful authorization of infringement could not be punished under federal law, "state law provides ample remedies." Id. The court specified that: if the authorizing entity collected a flat payment regardless of copying or performance, a state claim for unjust enrichment might lie; and if the authorization undercut efforts of the true owner to license the copyright, the true owner might sue for interference with contractual or advantageous economic relationships. Id. (internal citations omitted). In other words, the First Circuit held that where a plaintiff can show that a defendant has wrongfully authorized infringement of *256 plaintiffs copyrights by a third party, that plaintiff may have remedies under state law, though none are available under federal law without further proof of actual infringement by the third party. But whatever Venegas-Hernandez may say about the availability of state-law remedies for claims of unlawful authorization of infringement, the case says nothing about false advertising claims. Thus, to the extent that plaintiffs claim that Venegas-Hernandez allows them to reinstate their state-law false advertising claim, they are incorrect. With this procedural and legal background in mind, I now turn to plaintiffs' motion. Fed.R.Civ.P. 15(a) provides that "a party may amend the party's pleading only by leave of court . . . and leave shall be freely given when justice so requires." Rule 15(a) amendments are typically allowed "in the absence of any apparent or declared reason such as undue delay, bad faith or dilatory motive on the part of the movant, repeated failure to cure deficiencies by amendments previously allowed, undue prejudice to the opposing party, [or] futility of the amendment." Vargas v. McNamara, 608 F.2d 15, 18 (1st Cir.1979). To the extent that plaintiffs seek to revive the false-advertising portion of their 93A claim, I deny the motion based on undue delay. Over three years passed between the date on which Count III was dismissed and the date that plaintiffs' filed their motion to amend. In the interim, discovery proceeded and the parties litigated two substantive motions, without any attempt by plaintiffs to renew their false advertising claim under 93A. "When considerable time has elapsed between the filing of the complaint and the motion to amend, the movant has the burden of showing some valid reason for his neglect and delay." Acosta-Mestre v. Hilton Int'l of P,R., 156 F.3d 49, 52 (1st Cir.1998) (internal quotation marks omitted). Here, no such reason has been given. Plaintiffs argue that "there has been no undue delay" because their motion was filed soon after the First Circuit issued its decision in Venegas-Hernandez (Pls.' Mot. for Leave to Amend 4), but, as explained above, Venegas-Hernandez is irrelevant to the false advertising claims. Plaintiffs have offered no other "valid reason" for delay, and have therefore failed to sustain their burden. Acosta-Mestre, 156 F.3d at 52 (plaintiff filed motion to amend fifteen months after initial complaint filed, when discovery almost closed, and "nearly all the case's pre-trial work was complete," court found it would cause undue delay to allow plaintiff to amend complaint). To the extent that plaintiffs seek to amend the complaint by filing an essentially new state-law claim, the motion is denied based on futility. See Foman v. Davis, 371 U.S. 178, 182, 83 S.Ct. 227, 9 L.Ed.2d 222 (1962). A "proposed amendment is futile if it serves no legitimate purpose or is without legal merit." Savoy v. White, 139 F.R.D. 265, 267 (D.Mass. 1991). Where leave to amend is sought only after discovery has closed and summary judgment motions have been filed, "the proposed amendment must be not only theoretically viable but also solidly grounded in the record," and "substantial evidence" must support the allegations of the proposed amended complaint. Hatch v. Dep't for Children, Youth and Their Families, 274 F.3d 12, 19 (1st Cir.2001). In this case, amendment would be futile because the record does not support the level of "rascality" required to sustain a 93A claim. See, e.g., Henry v. Nat'l Geographic Soc'y, 147 F.Supp.2d 16 (D.Mass.2001) ("[S]uch unfair practices must reach a level of rascality that would raise an eyebrow of someone inured to the *257 rough and tumble of the world of commerce, and be unscrupulous, intolerable, and unethical." (internal quotation marks and footnotes omitted)); PMP Assocs. v. Globe Newspaper Co., 366 Mass. 593, 596, 321 N.E.2d 915 (1975) (conduct must be "immoral, unethical, oppressive []or unscrupulous"). None of the allegations in the proposed amended complaint, and none of the evidence in the record suggests that CCC's conduct has been "unscrupulous" or "oppressive." Instead, the record indicates (1) that CCC is aware that a copyright problem exists when a photographer holds a copyright to a photograph that appears in a printed work to which CCC holds copying rights, (2) that CCC is interested in creating a licensing system for such photographs and has asked various photographer associations to participate, and (3) that, based on the information that CCC receives from the publishers who assign it copyrights, CCC is unable to determine whether those publishers or the original photographers hold the copyrights to any photographs that appear in the published works. That CCC is aware of a potential problem but feels unable to resolve the problem does not rise to the level of unscrupulous or unethical conduct requisite in a 93A case. CCC has averred that it authorized reproductions only where a rightsholder, usually the publisher, authorized CCC to do so, that CCC relies on the assurances of those rightsholders regarding their ability to authorize CCC to license, and that those rightsholders are generally sophisticated businesses. (Reynolds Decl. ¶ ¶ 6-8). That position is reasonable, cf. Faulkner v. National Geographic Society, 211 F.Supp.2d 450, 475 (S.D.N.Y.2002) (finding that co-sponsor was entitled to rely on publication's representation that it had dealt with rights issues where it made reasonable inquiry and received satisfactory assurances from publisher), and is surely not unscrupulous or oppressive. Though they try, plaintiffs are unable to create a factual dispute on the rascality element. For example, plaintiffs argue that CCC knew which pages some of its customers copied, but—assuming that is true—plaintiffs have not explained how that knowledge would have told CCC that its customers were infringing plaintiffs' rights. Plaintiffs also point out that they told CCC representatives to stop infringing their rights, but just because plaintiffs told CCC that their rights were being violated does not necessarily mean that CCC was required to believe them. See Faulkner, 211 F.Supp.2d at 474 (while co-sponsor may have had knowledge of adverse claims several years earlier, "it is not apparent that [the co-sponsor] should have known from the existence of these claims that [plaintiffs' copyrights were being infringed"). Because no factual dispute exists as to whether CCC's conduct reached the level of rascality required under 93A, amendment would be futile and is denied. II. Defendant's Motion for Summary Judgment Defendant moves for summary judgment on both remaining counts. Summary judgment may be granted when "there is no genuine issue as to any material fact." Fed.R.Civ.P. 56©. I view the evidence in the light most favorable to plaintiffs and draw all reasonable inferences in their favor. See Feliciano de la Cruz v. El Conquistador Resort & Country Club, 218 F.3d 1, 5 (1st Cir.2000). A. Contributory or Vicarious Infringement Count I of the amended complaint alleges contributory and vicarious infringement by CCC. Defendant raises several arguments as to why plaintiffs cannot, as a *258 matter of law, show contributory or vicarious infringement. Because I agree with defendant that plaintiffs have proffered no evidence of direct infringement by a third party, I do not consider defendant's other grounds. A defendant is not liable under a contributory or vicarious theory of liability unless plaintiffs show direct infringement by a third party. See, e.g., Polygram Int'l Publ'g, Inc. v. Nevada/Tig, Inc., 855 F.Supp. 1314, 1320-21 (D.Mass.1994) (citing Sony Corp. v. Universal City Studios, Inc., 464 U.S. 417, 434, 104 S.Ct. 774, 78 L.Ed.2d 574 (1984)). Plaintiffs fail adequately to address this principle. Their opposition to defendant's motion fails to offer or even refer to any direct infringement by a third party. Plaintiffs' motion for partial summary judgment and reply memorandum offer three arguments, but none is satisfactory. First, they claim that they have shown direct infringement through the investigative work of Richard Hamilton, who obtained copies of plaintiffs' copyrighted work from CCC at their direction. (Pls.' Mem. in Supp. of Mot. for Partial Summ. J. 11; Pls.' Reply Mem. 3). But Hamilton's activities were authorized by plaintiffs themselves. Where the person making the copies has been "authorized by the copyright owner to use the copyrighted work," he has not infringed. Sony Corp., 464 U.S. at 433, 104 S.Ct. 774. Thus, Hamilton's work does not constitute direct infringement by a third party. Second, plaintiffs argue that they need not show direct infringement. Specifically, they say that an "evidentiary exception" excuses them from having to plead or demonstrate direct infringement by third parties. (Pls.' Mem. in Supp. of Mot. for Partial Summ. J. 11). The cases cited by plaintiffs in support of this proposition provide little help. In all of the cases, the defendants were alleged to have directly infringed the plaintiffs' copyrights by unlawfully distributing copies of the plaintiffs' works. The issue addressed in the cases was therefore whether plaintiffs could show "distribution," within the meaning of the Copyright Act, by showing that defendants had made the copyrighted works available, or whether they needed to provide evidence that third parties had actually obtained the copyrighted works from defendants. In Hotaling v. Church of Jesus Christ of Latter-Day Saints, 118 F.3d 199 (4th Cir.1997), for example, there was no dispute that the defendant had made unauthorized copies and had made the copies available to the public at its library branches. The question was whether this latter act could constitute unlawful distribution within the meaning of the Copyright Act. The court found that it could. In this case, however, there is no allegation that defendant directly infringed plaintiffs' rights by unlawfully distributing copies of their works. Instead, the allegation is that defendant unlawfully facilitated and encouraged third parties to making unauthorized copies. What a plaintiff must show to make out a claim of direct infringement by distribution does not speak to what a plaintiff must show to make out a claim of contributory or vicarious infringement.[1] Such a claim is, at *259 bottom, a claim that the defendant encouraged, facilitated, or assisted a third party in copyright infringement; in the absence of any proof that a third party engaged in such infringement, it is hard to imagine how the defendant could be held liable. Plaintiffs' third argument is that they need not show direct infringement by a third party because they are claiming direct infringement by defendant. This strategy is apparent in plaintiffs' reply memorandum, in which they argue that "a direct cause of action lies against one who authorizes acts that violate [statutory] rights." (Pls.' Reply Mem. 4). They further claim that "[a]uthorizing customers to copy from the CCC's index . . . is a violation of Plaintiffs' rights of distribution and reproduction." (Id.). The argument presents two difficulties. First, the amended complaint does not allege direct infringement by defendant. The original complaint did include a claim of direct infringement (Original Compl. ¶ ¶ 61-72), but plaintiffs voluntarily and expressly withdrew that claim when they filed their first amended complaint (Pls.' Opp. to Mot. to Dismiss 1-2 ("The First Amended Complaint does not maintain an action for direct copyright infringement.")). They expressly abandoned the direct infringement claim by filing an amended complaint. See Kolling v. Am. Power Conversion Corp., 347 F.3d 11, 16 (1st Cir.2003). Thus, despite the representations of plaintiffs' counsel at the summary judgment hearing, they are not entitled to pursue such a claim. Plaintiffs' summary judgment papers indicate that they "intend to file a motion to revive their claim for direct infringement" (Pls.' Reply Mem. 6 n. 7), but no such motion has been filed. Indeed, although plaintiffs have since moved to amend the complaint to revive their state law claim (see supra), they have never sought to revive their direct infringement claim. The other problem with plaintiffs' argument is that it contradicts prevailing First Circuit law. Plaintiffs claim that someone who "authorizes the use of a copyrighted work without actual authority from the copyright owner" has directly infringed the owner's rights. (Pls.' Reply Mem. 4). They argue that defendant, by authorizing third parties to make copies of plaintiffs' work, has infringed plaintiffs' rights. But in a recently issued decision, the First Circuit expressly rejected this argument. The court found that "a music publisher's unauthorized grant of a license to a third party to perform or copy a copyrighted work" is not itself an act of infringement, "where there is no adequate proof that the third party ever undertook an infringing act." Venegas-Hernandez, 424 F.3d at 57. In other words "wrongful authorization alone" cannot constitute infringement under the statute. Id. Where there is "no direct proof of an infringing act after the authorization," no infringement has occurred. Id. at 59. Thus, to the extent that plaintiffs advance a claim of direct infringement, that claim has been expressly abandoned and is, moreover, without merit. In sum, plaintiffs have failed to present any evidence of direct infringement by a third party, which is a necessary element of any claim for contributory or vicarious infringement. Because no factual dispute exists on this issue, defendant is entitled to summary judgment on Count I. B. False Advertising Defendant also moves for summary judgment on Count II, which alleges false *260 advertising under § 43(a) of the Lanham Act, 17 U.S.C. § 1125(a). Specifically, plaintiffs allege that defendant violated the Lanham Act when it represented to customers (1) that CCC licenses "allow[ ] all your U.S. employees to legally make unlimited copies . . . from nearly two million registered titles without the administrative hassle and expense of individual permissions," and (2) that once a CCC license is obtained, licensees "have a green light to duplicate from CCC's repertory of copyrighted works as often as needed." (Am. Compl. ¶ 92 (citing CCC publication)). Plaintiffs contend that these statements gave "false reassurance to the public that plaintiffs' . . . copyrights would be respected." (Id. ¶ 94). To make out a claim of false advertising, plaintiffs must prove that defendant made a false statement of fact in a commercial advertisement. See Clorox Co. P.R. v. Proctor & Gamble Commercial Co., 228 F.3d 24, 33 n. 6 (1st Cir.2000). "A plaintiff can succeed on a false advertising claim by proving either that an advertisement is false on its face or that the advertisement is literally true or ambiguous but likely to mislead or confuse customers." Id. at 33. Defendant argues that because plaintiffs have failed to present a material factual issue as to the falsity of the statements at issue, the claim must be dismissed as a matter of law. I agree. Plaintiffs' theory is that defendant's statement falsely reassured its customers that obtaining a CCC license would allow customers to engage in copying without infringing copyrights. But this statement is only false if, in fact, customers who obtained CCC licenses were not able to engage in copying without infringing copyrights. In other words, in order for the disputed statements to be false or misleading, one must assume that CCC's licensees actually infringed copyrights when they engaged in copying under CCC licenses. As discussed above, plaintiffs have presented no evidence of actual infringement by third parties. If no infringement occurred, then the statements were not false or misleading, and the false advertising claim must be dismissed. III. Conclusion Plaintiffs' motion to amend the complaint (# 98) is denied. Defendant's motion for summary judgment (# 73) is granted. Plaintiffs' motion for partial summary judgment (# 62) is denied as moot. NOTES [1] Nor are the other cases cited by plaintiffs helpful. Indeed, one cited case makes exactly the opposite point. See Arista Records, Inc. v. MP3Board, Inc., No. 00 Civ. 4460, 2002 WL 1997918, at *3 (S.D.N.Y.2002) ("In order to establish liability for contributory or vicarious copyright infringement, a plaintiff must first prove that direct infringement of its works occurred by showing that it owned a valid copyright and unauthorized infringement of its protected material occurred."). Both Arista and Peer Int'l Corp. v. Latin American Music Corp., 161 F.Supp.2d 38, 55 (D.P.R.2001), concern direct infringement via distribution. Thus, while Arista, Peer, and Hotaling may be relevant in cases of infringement by distribution, they are irrelevant in a case involving contributory or vicarious infringement.

556 F.2d 630 UNITED STATES of America, Appellee,v.James Seeley CYPHERS and James W. Ferro, Appellants. Nos. 328, 329, Dockets 76-1131, 76-1160. United States Court of Appeals,Second Circuit. Argued Oct. 18, 1976.Decided Feb. 8, 1977.Rehearing En Banc Denied April 18 and June 29, 1977.Certiorari Denied June 13, 1977.See 97 S.Ct. 2937. Jonathan Silbermann, New York City (William J. Gallagher, The Legal Aid Society, Federal Defender Services Unit, New York City), for Ferro. Thomas W. Evans, New York City (P. Jay Wilker and Lance Gotthoffer, New York City, of counsel), for Cyphers. Douglas J. Kramer, Asst. U. S. Atty., Brooklyn, N. Y. (David G. Trager, U. S. Atty., for the Eastern District of New York, Bernard J. Fried, Asst. U. S. Atty., Brooklyn, N. Y., of counsel), for appellee. Before SMITH, OAKES and TIMBERS, Circuit Judges. J. JOSEPH SMITH, Circuit Judge: 1 This is an appeal by James Cyphers and James Ferro from judgments of conviction on three counts, based on two indictments, of violating 18 U.S.C. § 1341 (mail fraud) after a jury trial in the United States District Court for the Eastern District of New York, Thomas C. Platt, Jr., Judge. Both Cyphers and Ferro claim that the evidence was not sufficient to establish any violation of § 1341 and that they were denied their right to a speedy trial. Cyphers also claims that Judge Platt erred in admitting certain evidence and in denying his request that he be allowed to make the argument to the jury. Ferro also claims that his trial violates the Interstate Agreement on Detainers. We reverse on two counts as to Ferro's claim involving the Interstate Agreement on Detainers. We find some possible merit in the speedy trial claim on all counts and therefore remand for further consideration. We find no merit in the other claims. I. 2 Cyphers and Ferro were found guilty by a jury on three counts of using the mail to defraud airline companies by means of altered credit cards and identifications, in violation of 18 U.S.C. § 1341.1 The essence of the government's case was that Cyphers and Ferro had a scheme for fraudulently obtaining airline tickets by using lost or altered credit cards and that they mailed airline tickets so obtained to Dr. I. Simon on or about February 3, 1973 and on or about February 26, 1973 and to Dr. Stuart Sylvan on or about February 19, 1973. 3 Relying on United States v. Maze, 414 U.S. 395, 94 S.Ct. 645, 38 L.Ed.2d 603 (1974), Cyphers and Ferro claim that the evidence was insufficient to establish any violation of § 1341. In Maze the only mailings were of credit invoices by motel employees, and the Supreme Court held that Maze's use of one Meredith's credit card to obtain goods and services at motels did not constitute a violation of § 1341, since Maze "probably would have preferred to have the (credit) invoices misplaced by the various motel personnel and never mailed at all." Id., at 402, 94 S.Ct. at 649. Cyphers and Ferro claim there was no violation of § 1341 because in each case they had purchased the ticket and received payment from either Dr. Simon or Dr. Sylvan prior to mailing the ticket, and so "the mailing here bore no relation to appellants' acquisition of the fruits of their fraud" (Brief of Appellant Ferro at 20); "any fraudulent scheme would have been no less successfully consummated had the airline tickets never been delivered" (Brief for Appellant Cyphers at 25). Cyphers and Ferro also claim that there was no evidence showing that either the tickets received by Dr. Simon on February 3 or the tickets received by Dr. Sylvan were fraudulently purchased by appellants. 4 In United States v. Finkelstein, 526 F.2d 517, 526-27 (2d Cir. 1975), cert. denied, Scardino v. United States, 425 U.S. 960, 96 S.Ct. 1742, 48 L.Ed.2d 205 (1976), we set out the elements involved in a violation of § 1341: "sufficient evidence in the record to permit a jury to infer beyond a reasonable doubt that a scheme or artifice to defraud existed, that the participants in the scheme caused the mails to be used in furtherance of that scheme, and that the defendant was a participant in the fraudulent scheme. . . . (I)rrelevant is the fact that he (the defendant) did not personally mail the count letter or directly involve himself in the transaction . . . . It is enough that he participated in the scheme and that it was foreseeable that the scheme would involve use of the mails."Construing the evidence in the light most favorable to the government, United States v. Barash, 412 F.2d 26, 31 (2d Cir.), cert. denied, 396 U.S. 832, 90 S.Ct. 86, 24 L.Ed.2d 82 (1969), we hold that the evidence was sufficient to show that both Cyphers and Ferro committed three violations of § 1341. 5 Dr. Simon, a dentist, testified that he frequently traveled to Florida from Long Island and was told by George Nagin, a friend, that airline tickets for Florida could be obtained at a discount. Dr. Simon called Nagin and had him order round-trip tickets for a February 8, 1973 flight from John F. Kennedy Airport ("JFK") to West Palm Beach. After he paid Nagin, Dr. Simon received the tickets in the mail on or about February 3, 1973. This transaction was the basis of Count I of indictment 74 CR 322. Again in February, 1973 Dr. Simon needed tickets to Florida; since Nagin was in Florida, Dr. Simon went to Nagin's Manhattan office to pick up the tickets ordered through Nagin's business associate. At Nagin's office Dr. Simon met a man who gave him the tickets he had ordered; at the same time Dr. Simon ordered tickets for his partner, Dr. Sylvan. Dr. Sylvan testified that he received these tickets in the mail on or about February 14, 1973; this transaction was the basis of Count II of indictment 74 CR 322. At the end of February, 1973 Dr. Simon again purchased airline tickets through Nagin for a flight between JFK and Florida, and he received these tickets through the mail. This transaction was the basis of Count I of indictment 75 CR 259. 6 George Nagin testified that he had been told by Cyphers about the availability of cheap airline tickets and that he had purchased tickets from Cyphers, at a discount, for his own use. Nagin also testified that either Cyphers or Ferro, Cyphers' nephew, picked up the money when Dr. Simon had ordered tickets. Cyphers had given Nagin a telephone number, 832-1211, in order that he could be reached for orders, and Nagin had given this number to Dr. Simon. This telephone number was proven to have been installed, together with an answering device, in Cyphers' apartment. 7 On March 19, 1973 an arrest warrant for Cyphers and Ferro was issued pursuant to a complaint of a Postal Inspector, and the warrant was executed against Cyphers and Ferro at Cyphers' apartment on March 20, 1973. Consent to search the apartment was obtained from Cyphers, and various drivers' licenses, credit cards, a credit card validator, and various credit card company bulletins reporting stolen credit cards were found in Cyphers' briefcase and in his apartment. 8 One of the seized credit cards bore the name of Richard Redstrom. Richard Rooney, manager of commercial credit for United Airlines, testified that a credit card bearing the account number found on the Redstrom credit card was issued by United Airlines to Richard Hedstrom and that the credit card had been altered to read Richard Redstrom. Richard Hedstrom testified he lost his credit card on February 23, 1973. Rooney testified that numerous airline tickets had been purchased on February 26, 1973 at Boston on the Hedstrom/Redstrom credit card and that the airline had received no payment for these tickets. The signatures on the Hedstrom/Redstrom charge slips were identified as Ferro's. The airline tickets purchased on February 26 included the one received by Dr. Simon at the end of February and others for flights leaving from Newark, Chicago, Cleveland, and Los Angeles. 9 It was stipulated that a Fred Preston Staff credit card had been reported lost and that three airline ticket charge slips were incurred with the use of the credit card after its reported loss. There was evidence from which the jury could believe that Cyphers had signed these airline tickets charge slips. One of these charge slips involved an airline ticket purchased in Newark for a flight scheduled to depart from Los Angeles. 10 While there is no direct evidence that either Cyphers or Ferro purchased either the tickets received by Dr. Simon on February 3 or the tickets received by Dr. Sylvan, the jury could find from the evidence summarized above and other evidence (including two other lost credit cards that were found in Cyphers' briefcase on March 20 and had been altered and used by Ferro to purchase airline tickets that were not paid for)2 that Cyphers and Ferro had a scheme that included the fraudulent purchase of Dr. Simon's February 3 tickets and Dr. Sylvan's tickets. 11 While Cyphers and Ferro might have delivered the tickets to Dr. Simon and Dr. Sylvan in person, they were mailed and the jury could find that these mailings were part of the general scheme to mail airline tickets to people in New York, Chicago, Cleveland, and Los Angeles. The jury could also find that the fraudulent scheme depended on repeat business from satisfied customers of Cyphers and Ferro and that the delivery of the tickets was an essential part of the scheme. Under the standards set out in Finkelstein the evidence was sufficient to support the conviction of both Cyphers and Ferro on all three counts. II. 12 Cyphers was represented by an attorney during the trial. Relying on Faretta v. California, 422 U.S. 806, 95 S.Ct. 2525, 45 L.Ed.2d 562 (1975), and Herring v. New York, 422 U.S. 853, 95 S.Ct. 2550, 45 L.Ed.2d 593 (1975), Cyphers claims he has a sixth amendment right to make his own summation. 13 This reliance is misplaced. Herring does say that "a defendant who has exercised the right to conduct his own defense has, of course, the same right to make a closing argument." 422 U.S. 864, n. 18, 95 S.Ct. 2556. But neither Faretta nor Herring deals with a defendant who is represented by counsel and wishes to participate as co-counsel. In United States v. Wolfish, 525 F.2d 457, 462-63 (2d Cir., 1975) (per curiam), cert. denied, 423 U.S. 1059, 96 S.Ct. 794, 46 L.Ed.2d 649 (1976), which was decided after Faretta and Herring, we held that a defendant who is represented by counsel has no sixth amendment right to participate as co-counsel. We reaffirm that holding. III. 14 On July 19, 1973 Ferro, who was on bail, surrendered to Ohio authorities to begin serving his prison term for a previous unrelated offense. On September 20, 1973 a writ of habeas corpus ad prosequendum was served, and on October 12, 1973 he appeared in the United States District Court for the Eastern District of New York and entered a plea of not guilty. He was then returned to the custody of Ohio authorities. On November 12, 1973 the United States lodged a detainer in Ohio against Ferro, and on January 25, 1974 the government served another writ of habeas corpus ad prosequendum. In the spring of 1974 Ferro appeared several times in the United States District Court for the Eastern District of New York, and on June 26, 1974 Judge Travia ordered Ferro "to be returned from whence he came." The records of the Bureau of Prisons indicate that he was returned to Ohio State Reformatory, Mansfield, Ohio. He was tried in January, 1976. 15 Ferro claims that his 1974 transfer to Ohio violates Article IV(e) of the Interstate Agreement on Detainers ("the Agreement"), 18 U.S.C.A. Appendix. Ferro first raised this claim in a supplemental brief filed with this court in October, 1976, and the government argues that his failure to raise this claim prior to trial constitutes a waiver under Rule 12(f) of the Federal Rules of Criminal Procedure. 16 While the policies underlying Rule 12(f) are helpful guides, they are not determinate in construing a statute. Article III of the Agreement provides that the defendant shall be brought to trial within 180 days after the detainer has been lodged provided that he makes a written request to that effect. Article IV(e), on the other hand, makes no reference to a request by the prisoner and says "if trial is not had on any indictment . . . prior to the prisoner's being returned to the original place of imprisonment . . . such indictment . . . shall not be of any further force or effect, and the court shall enter an order dismissing the same with prejudice." In other words, if a state in which a prisoner is charged does not take the initiative to bring a prisoner back for trial the prisoner may require it to do so rather than suffer indefinitely the effects of the detainer on his imprisonment in the state of his incarceration. If a state does take the initiative and bring him from the state of imprisonment to the accusing state it must complete the prosecution before returning him. The main purpose of the Act is to provide means for expeditious resolution of all outstanding charges which may affect the conditions or duration of imprisonment and treatment. Article I of the Agreement says that one "purpose of this agreement (is) to encourage the expeditious and orderly disposition of such charges . . . ." Bringing Ferro from Ohio to New York in January, 1974, returning him to Ohio in the summer of 1974, and then again bringing him to New York for trial in New York in January, 1976, is not an "orderly disposition" of his federal case and violates Article IV(e). 17 Article IX of the Agreement says "(t)his agreement shall be liberally construed so as to effectuate its purposes." While the government initially argued on appeal (Supplemental Brief at 3, n. 2) that there was nothing in the record indicating that a detainer had been lodged against Ferro, the record now before us indicates that a detainer was lodged against Ferro. There is no showing that Ferro knew, prior to trial, that the detainer had been lodged against him. In such a situation we hold that Ferro may invoke Article IV(e) for the first time on appeal to this court. 18 We therefore order indictment 74 CR 322, which was filed on April 23, 1974, dismissed with prejudice as to Ferro. United States v. Mauro, 544 F.2d 588 (2d Cir., 1976). Indictment 75 CR 259 involving a separate transaction was filed on April 1, 1975 after Ferro had been returned to Ohio. Prosecution under it did not violate the Agreement and it will not be dismissed. IV. 19 Based on a complaint by Postal Inspector Robert McDowall, an arrest warrant was issued for Cyphers and Ferro on March 19, 1973 and they were both arrested on March 20, 1973. On September 18, 1973 a 43-count indictment, 73 CR 848, was filed against Cyphers and Ferro; 40 counts involved the mailing of credit invoices and three counts (counts 20, 21 and 22) involved the mailing of airline tickets to individual purchasers. On September 19, 1973 a notice of readiness was filed. Cyphers entered a plea of not guilty on September 20, 1973, and Ferro entered a plea of not guilty on October 12, 1973. 20 Following the Supreme Court's decision in Maze in January, 1974, appellants moved on February 19, 1974 to dismiss the original indictment. The motion was granted on April 5, 1974, and on April 23, 1974 a new indictment, 74 CR 322, was filed, charging Cyphers and Ferro with two counts of mailing of airline tickets. Count I of 74 CR 322 was derived from Count 20 of the original indictment. The government filed its new notice of readiness on May 13, 1974. 21 On April 1, 1975 the government filed another indictment, 75 CR 259, charging Cyphers and Ferro with one count of mailing an airline ticket. The government filed its notice of readiness on this indictment on June 6, 1975. 22 Trial on indictments 74 CR 322 and 75 CR 259 began on January 5, 1976. Cyphers and Ferro claim that the long delay between their arrest and the government's readiness for trial violates Rule 4 of the Eastern District Plan for the Prompt Disposition of Criminal Cases ("the Plan"). Ferro also claims that the 33-month delay between his arrest and the trial violates his sixth amendment right to a speedy trial. 23 In Barker v. Wingo, 407 U.S. 514, 92 S.Ct. 2182, 33 L.Ed.2d 101 (1972), the Supreme Court set forth some of the factors the Court should consider in deciding whether a defendant's sixth amendment right to a speedy trial has been violated: "length of delay, the reason for the delay, the defendant's assertion of his right, and prejudice to the defendant." Id. at 530, 92 S.Ct. at 2192. 24 In Barker the delay was over five years; here it was less than three years. Part of the delay is attributable to the illness of a key government witness (Dr. Sylvan), the change in legal theory necessitated by the Supreme Court's decision in Maze, and a shift in defense counsel. On April 9, 1975 Ferro moved to dismiss the indictments on the ground that his sixth amendment right was violated. Ferro does not claim that the delay prejudiced his defense. He claims (Brief for Appellant Ferro at 31-32) that he was prejudiced because his incarceration in New York during the spring of 1974 prevented a timely consideration of his parole by Ohio authorities and interfered with the rehabilitative possibilities of being incarcerated in Ohio; he also claims he was prejudiced by not being able to receive a federal sentence partly concurrent with his Ohio sentence. These types of prejudice, to the extent they are included in the holding of Barker, are less serious than the prejudice of an impaired defense. Barker v. Wingo, 407 U.S. at 532, 92 S.Ct. 2182. Engaging "in a difficult and sensitive balancing process," Barker, 407 U.S. 533, 92 S.Ct. 2193, we hold that Ferro's sixth amendment right to a speedy trial was not violated.3 25 Rule 4 of the Plan provides that "in all cases the government must be ready for trial within six months from the date of the arrest . . . or the filing of a complaint or of a formal charge upon which the defendant is to be tried (other than a sealed indictment), whichever is earliest."4 Rule 5 of the Plan gives various provisions for tolling the six-month period.5 26 On December 18, 1974 Judge Platt denied appellants' motion to dismiss indictment 74 CR 322, and on April 18, 1975 he denied their motion to dismiss indictment 75 CR 259. In his first ruling he relied on Postal Inspector McDowall's affidavit that the investigation and preparation of this complex case extended beyond the date on which appellants were arrested, and Judge Platt ruled that Rule 5(c)(ii) of the Plan therefore tolled the six-month period. Judge Platt did not, however, make a finding as to when the government's investigation and preparation of the case was completed. Judge Platt's April 18, 1975 ruling does not fully articulate his reasons for denying appellants' motion. 27 For purposes of computing the six-month period of Rule 4 of the Plan, the time begins when Ferro and Cyphers were arrested on March 20, 1973. In this case the period initially stops when the government filed its notice of readiness on September 19, 1973.6 Since Ferro was continuously incarcerated in New York and Cyphers was continuously on bail, the six-month period resumes when indictment 73 CR 848 was dismissed on April 5, 1974 and ends (1) on indictment 74 CR 322 when the government filed its notice of readiness on May 13, 1974 and (2) on indictment 75 CR 259 when the government filed its notice of readiness on June 6, 1975. Without taking account of any of the tolling provisions of the Plan, the period under Rule 4 of the Plan is, therefore, 7 months and 7 days for indictment 74 CR 3227 and 20 months for indictment 75 CR 259.8 We therefore remand for determination as to whether any of the tolling provisions of the Plan are applicable. United States v. Flores, 501 F.2d 1356 (2d Cir. 1974) (per curiam).9 28 Reversed and dismissed with prejudice as to indictment 74 CR 322 as to Ferro and remanded for further consideration in light of this opinion. 29 TIMBERS, Circuit Judge, concurring in part and dissenting in part: 30 I concur in the judgment and opinion of the Court in all respects with the exception of Part III, as to which I respectfully dissent, since I believe that Ferro's failure to raise his claim under Article IV(e) of the Interstate Agreement on Detainers (the Agreement) until his supplemental brief on appeal never in the district court constituted a waiver under Fed.R.Crim.P. 12(f). 31 A claim founded on a violation of Article IV(e) of the Agreement stems from the government's administrative treatment of the defendant after indictment and before trial. As such, it is a defense "based on defects in the institution of the prosecution" within the meaning of Fed.R.Crim.P. 12(b)(1) and "must be raised prior to trial" or it is waived under Fed.R.Crim.P. 12(f). Those defenses "capable of determination without the trial of the general issue" which may be raised at the defendant's option prior to or at trial the principal examples being double jeopardy, res judicata, statute of limitations and immunity concern matters as to which only the fact of the prosecution's institution and not the details attending it are relevant. Furthermore, Article I of the Agreement states as its purpose "to encourage the expeditious and orderly disposition of . . . charges . . . ." In light of this, Ferro's Article IV(e) claim fairly may be characterized as a species of speedy trial claim. It is well established that a speedy trial claim must be timely asserted. See, e. g., Barker v. Wingo, 407 U.S. 514, 531-32 (1972); United States v. Lustman, 258 F.2d 475 (2 Cir.), cert. denied, 358 U.S. 880 (1958).1 32 I disagree with the majority's construction of the Agreement so as to render an Article IV(e) claim not subject to waiver. Such construction is not required by the Agreement or by any decision of the Supreme Court of which I am aware. On the contrary, the orderly administration of criminal justice, in my view, requires that Rule 12 and the Agreement be accommodated. The manifest purpose of Article IV(e) is deterrence. It bespeaks a judgment that only the ultimate sanction of dismissal of the indictment will insure the government's compliance with the Agreement's purpose of securing the expeditious disposition of charges which require the lodging of detainers. Since the government hardly can rely on defendants to fail to raise Article IV(e) claims in pre-trial motions,2 no material interference with the deterrent purpose of Article IV(e) would result from the application of Rule 12(f). 33 Finally, the majority's holding that Ferro may invoke Article IV(e) for the first time on appeal on the ground that "(t)here is no showing that Ferro knew, prior to trial, that the detainer had been lodged against him", ante 635, strikes me as blinking at the hard facts. Whatever may have been the state of Ferro's knowledge of the detainer, he obviously knew of his own transfer to New York at the end of January 1974 and his return to Ohio prior to trial pursuant to Judge Travia's order of June 26, 1974. Under these circumstances, Ferro clearly had knowledge of facts sufficient to put him on notice of the existence of the claim which he waived under Rule 12(f). Cf. Shotwell Manufacturing Co. v. United States, 371 U.S. 341, 362-63 (1963); United States v. Reynolds, 300 F.Supp. 503, 505-06 (D.D.C.1969). 34 I therefore dissent from the dismissal of indictment 74 Cr. 322 as to Ferro and would include his two count conviction under that indictment in the remand for determination as to the applicability of the Eastern District Plan for the Prompt Disposition of Criminal Cases. Ferro himself, in his brief before us, suggested such a remand with respect to both indictments. 1 18 U.S.C. § 1341 provides: Whoever, having devised or intending to devise any scheme or artifice to defraud, or for obtaining money or property by means of false or fraudulent pretenses, representations, or promises, or to sell, dispose of, loan, exchange, alter, give away, distribute, supply, or furnish or procure for unlawful use any counterfeit or spurious coin, obligation, security, or other article, or anything represented to be or intimated or held out to be such counterfeit or spurious article, for the purpose of executing such scheme or artifice or attempting so to do, places in any post office or authorized depository for mail matter, any matter or thing whatever to be sent or delivered by the Postal Service, or takes or receives therefrom, any such matter or thing, or knowingly causes to be delivered by mail according to the direction thereon, or at the place at which it is directed to be delivered by the person to whom it is addressed, any such matter or thing, shall be fined not more than $1,000 or imprisoned not more than five years, or both. 2 This evidence was properly admitted during the government's case in chief, since it was not introduced solely to show the defendants' criminal character and its probative worth on the existence of the fraudulent scheme outweighed its potential prejudice. United States v. Grady, 544 F.2d 598, 604 (2d Cir., 1976); United States v. Torres, 519 F.2d 723, 727 (2d Cir.), cert. denied, 423 U.S. 1019, 96 S.Ct. 457, 46 L.Ed.2d 392 (1975) 3 But cf. United States v. Vispi, 545 F.2d 328 (2d Cir., 1976) (20-month delay violates sixth amendment) 4 The full text of Rule 4 of the Plan is printed at United States v. Flores, 501 F.2d 1356, 1358 n. 1 (2d Cir., 1974) 5 The full text of Rule 5 of the Plan is printed at Flores, 501 F.2d 1359 n. 2 6 Normally the period would end when the government filed its notice of readiness after the defendants had entered their pleas of not guilty. United States v. Bowman, 493 F.2d 594, 597 (2d Cir. 1974). But in this case the defendants' pleas were entered within a reasonable time of the government's filing of its notice of readiness and before our decision in Bowman 7 NOTE: OPINION CONTAINS TABLE OR OTHER DATA THAT IS NOT VIEWABLE 8 NOTE: OPINION CONTAINS TABLE OR OTHER DATA THAT IS NOT VIEWABLE 9 Assuming, arguendo, that the district court, after the hearing, dismisses indictment 75 CR 259 with prejudice as to both Cyphers and Ferro and does not dismiss indictment 74 CR 322 as to Cyphers, a new trial would be unnecessary for Cyphers. The evidence concerning the transaction which forms the basis of indictment 75 CR 259 and the evidence dealing with Ferro's participation in the scheme were admissible as to Cyphers on indictment 74 CR 322 (see fn. 2, supra ) 1 Even if the pre-trial motion requirement of Rule 12(f) were inapplicable, surely Ferro waived his claim under Article IV(e) for failure to have raised it at trial. See 8 Moore's Federal Practice P 12.03(1) (2 ed. 1976); United States v. Friedland, 391 F.2d 378 (2 Cir. 1968), cert. denied, 404 U.S. 867 (1969) 2 Fed.R.Crim.P. 12(c) provides that the district court may set the time for making pre-trial motions. The Rule 12(f) waiver provision applies to any Rule 12(b)(1) motion not made at that time. It is not difficult to conceive of a situation in which a return to custody giving rise to an Article IV(e) claim might occur after the disposition of motions under Rule 12. Precisely that situation arose here. Ferro made a motion to dismiss indictment 74 Cr 322 on May 14, 1974. The motion was denied on June 4. He was not returned to Ohio until after June 26. But since the Article IV(e) claim did not come into existence until his return to custody, there was nothing to be waived by his earlier motion to dismiss. The obvious course would have been for the district court to entertain a second motion. Nothing in Rule 12 forecloses such a motion, since no Rule 12(f) waiver would have occurred. Significantly, Ferro could have included his Article IV(e) claim in the motion to dismiss which he made on November 20, 1974

41 F.3d 1501 Grossbardv.President Container NO. 94-7150 United States Court of Appeals,Second Circuit. Sept 20, 1994 1 Appeal From: S.D.N.Y., 93-cv-435 840 F.Supp. 296 2 AFFIRMED.

221 Md. 597 (1959) 155 A.2d 668 INGRAM v. WARDEN OF MARYLAND HOUSE OF CORRECTION [P.C. No. 47, September Term, 1959.] Court of Appeals of Maryland. Decided November 24, 1959. Before BRUNE, C.J., and HENDERSON, HAMMOND, PRESCOTT and HORNEY, JJ. HORNEY, J., delivered the opinion of the Court. This is the third time that the applicant has applied to this Court for leave to appeal from the denial and dismissal of his petitions for relief after he had been convicted and sentenced *599 to eight years in the Penitentiary on a charge of attempted burglary, to which he plead guilty on March 16, 1956. The second application, which was for post conviction relief, was granted in Ingram v. Warden, 219 Md. 690, 149 A.2d 915 (1959), because the lower court had made no finding as to the applicant's indigency and had not appointed counsel as the Uniform Post Conviction Procedure Act [Code (1959 Cum. Supp.), Art. 27, secs. 645A-645J] required. On this application, also for post conviction relief, the applicant contends, inter alia, as he did below, (i) that he was not offered or allowed counsel; (ii) that the eight-year sentence was cruel and unusual punishment; (iii) that he was not afforded an opportunity to speak as to why sentence should not be passed; and (iv) that he was not informed of his right to a new trial and to an appeal. All of these questions, with one minor exception, were previously and finally litigated in Ingram v. Warden, 218 Md. 649, 145 A.2d 766 (1958), and cannot be raised again in this proceeding. Section 645A (a), supra; Byrd v. Warden, 219 Md. 681, 147 A.2d 701 (1959). In the first Ingram case [218 Md. 649], supra, which was an application for leave to appeal from a denial of the writ of habeas corpus, the per curiam stated that the application was denied for the reasons set out in the opinion of Judge McLaughlin below. A re-examination of that opinion, which is in the record, confirms our finding that all of the questions there presented had been passed upon below. However, we note now that Judge McLaughlin in passing on the question of whether the sentence of eight years was cruel and unusual punishment — although he knew that the applicant had been sentenced for attempted burglary — inadvertently stated that the crime of burglary carried a maximum penalty of twenty years whereas the punishment for attempted burglary, a common-law offense, is unlimited so long as the sentence imposed is not cruel and unusual. Lloyd v. State, 219 Md. 343, 353, 149 A.2d 369, 375 (1959). See also Apple v. State, 190 Md. 661, 668, 59 A.2d 509, 512 (1948); Casey v. Warden, 198 Md. 645, 647, 80 A.2d 896, 897 (1951). In any event the question is one which should have been raised by direct appeal. *600 Another contention — raised below by a supplemental petition, but not passed upon by the lower court — to the effect that the applicant should have been warned of the consequences of a guilty plea is without merit. Tillett v. Warden, 220 Md. 677, 154 A.2d 808 (1959); Culley v. Warden, 220 Md. 687, 154 A.2d 813 (1959). Lastly, in lengthy letters addressed to judges of this Court, the applicant contends that he was entitled on this application for leave to appeal to (a) a transcript of the testimony and (b) the appointment of counsel to prepare a brief for him. Even if the Post Conviction Procedure Act made provision for the furnishing of a transcript of the proceeding at the hearing under that Act (and it does not in terms do so), there is nothing to suggest that such a transcript could serve any useful purpose in this case. This application turns simply on (i) the question of whether all but one of the issues here sought to be raised had been previously adjudicated, as they had been, and (ii) on whether or not the one additional issue presented any ground for relief under the Act, and we have held that it does not. None of these questions depends on anything which may have transpired at the Post Conviction Procedure Act hearing. We find no requirement or occasion for the appointment of counsel on this application, and the Act makes no provision therefor. Application denied.

707 P.2d 1051 (1985) 109 Idaho 412 INTERMOUNTAIN HEALTH CARE, INC., a nonprofit Utah Corporation doing business as Primary Children's Medical Center, Plaintiff-Appellant, v. BOARD OF COMMISSIONERS OF BLAINE COUNTY, Idaho, Defendant-Respondent. No. 15334. Supreme Court of Idaho. September 23, 1985. Larry Lee Goins, Idaho Falls, for plaintiff-appellant. Ray Keith Roark, Hailey, for defendant-respondent. HUNTLEY, Justice. By this appeal we are asked to determine whether a United States born child of illegal alien parents may be denied coverage for medical care pursuant to the Idaho medical indigency statutes, I.C. §§ 31-3501 et seq. Karen Regalado was born in Blaine County, Idaho. At birth she had numerous medical problems for which she was first treated at Magic Valley Memorial Hospital in Twin Falls, Idaho, then sent to Primary Children's Medical Center in Salt Lake City, Utah. While hospitalized at Primary, Karen incurred charges of $135,877.54. Mario and Celia Regalado, Karen's parents, applied to Blaine County for assistance pursuant to the medical indigency statutes. Mario and Celia were illegal *1052 aliens. The Regalados earned approximately $700.00 a month which was supplemented by free housing, utilities and meat supplied by Mario's employer. They had no medical insurance and no property of any value. The Blaine County Board of Commissioners ("County") denied Regalados' application on the ground that the family was not medically indigent because they could have purchased medical insurance. Intermountain Health Care, Inc., ("IHC") then requested, and was granted, an administrative hearing before the County. Again the Regalados' claim was denied, the basis again being that they were not medically indigent, but also that Mr. and Mrs. Regalado were illegal aliens, could not have maintained legal residence in any Idaho county, and therefore were precluded from receiving medical indigency benefits. IHC appealed to the district court. The district court upheld the County's denial on the grounds that a U.S. born citizen who has illegal alien parents cannot establish a residence in Idaho, and that Karen was not thereby denied equal protection of the laws. IHC appeals to this Court contending (1) that Idaho's medical indigency statutes were not intended to excuse counties from obligation for a U.S. born resident who happens to be the child of illegal alien parents; and (2) that Karen, a U.S. citizen, being classified as nonresident because of her parents' illegal alienage, has been denied equal protection of the laws. We reverse. This case does not in fact present to us the issue of whether illegal aliens are entitled to coverage under medical indigency statutes. The only issue before us is whether Karen Regalado is eligible for benefits. I.C. § 31-3502(1) defines "medically indigent" as: "[A]ny person who is in need of hospitalization and who, if an adult, together with his or her spouse, or whose parents or guardian if a minor, does not have income and other resources available to him from whatever source which shall be sufficient to enable the person to pay for necessary medical services." (Emphasis supplied.) IHC argues that the words "any person" mean "every person," because those words are in no way qualified. Because Karen Regalado is a "person," she is thereby potentially medically indigent for the purposes of these statutes. In response the County asserts that the "any person" language in I.C. § 31-3502(1) must be qualified by the language of I.C. § 31-3506. I.C. § 31-3506 provides: 31-3506. Determination of obligated county. — Payment for hospitalization of a medically indigent individual shall be provided by the county in which such individual maintained a residence immediately preceding hospitalization or institutionalization. If such individual has not resided in any county of Idaho for a period of six (6) months within the five (5) years preceding hospitalization, then the county where the individual maintains a residence immediately preceding hospitalization shall be the obligated county. A husband's place of residence shall be deemed the place of residence of his wife and children, unless the husband's residence is out of state, in which case the place of residence of the wife in Idaho shall control. If a man maintains a family residence in one (1) county and maintains another residence in a different county for purposes of employment, the county where the family residence is maintained shall be deemed the man's place of residence. The County suggests that the legislature intended to limit eligibility to persons who have maintained a "residence" in a county of Idaho at the time of hospitalization. Further, it argues, the place of residence of a child is irrelevant because the statute provides that a husband's place of residence is deemed to be the place of residence of his wife and children. The County contends that a person with no legal right to be in the state, such as an illegal alien, could not possibly maintain "residence." *1053 Because Mario Regalado is an illegal alien and could not maintain residence in Idaho, and because Karen's residence is deemed to be the same as her father's, the County contends that Karen cannot be a resident for purposes of eligibility under the medical indigency statutes. "Residence" is defined as "personal presence at some place of abode ... and is made up of fact and intention, the fact of abode and intention of remaining... ." Black's Law Dictionary 1176 (rev. 5th ed. 1979). It is "the place where one actually lives or has his home; a person's dwelling place or place of habitation; an abode; the house where one's home is; a dwelling house." Perez v. Health and Social Services, 91 N.M. 334, 573 P.2d 689, 692 (1977). The medical indigency statutes do not define the words "residence," or "resident," though this Court held in Cartwright v. Gem County, 108 Idaho 160, 697 P.2d 1174 (1985) that as used in I.C. § 31-3404, governing application for nonemergency aid to medical indigents, residency "requires physical presence coupled with an intent to remain, or an absence of intent to move elsewhere." 108 Idaho at 161, 697 P.2d at 1175. It has been uniformly held, however, that words denote their ordinary meaning unless a different intent is clearly indicated. Specifically, the word "resident" or the word "residence" as used in a statute pertaining to liability for payment for medical assistance should be given its ordinary and common meaning. Perez, 573 P.2d at 691. There is no indication in our statutes that the legislature meant to do otherwise. Further, the words "residence" and "resident" as used in statutes do not have a uniform meaning. "They are to be construed in the light of the context, with consideration of the purpose of the statutory enactment." (Emphasis omitted.) Catalanotto v. Palazzolo, 259 N.Y.S.2d 473, 476, 46 Misc.2d 381 (N.Y. 1965). Therefore, the meaning of "resident" in statutes dealing with other matters, such as fishing licenses and college tuition, are not relevant here absent specific evidence of a legislative intent to give them similar meaning. Karen Regalado was born in Blaine County, Idaho. She is therefore a United States citizen. She is clearly a "person." I.C. § 31-3502(1) provides that where a person in need of hospitalization is a child, the income and resources of that child's parents or guardian will be considered in the determination of that person's indigency. The statute does not state or imply that the parents or guardians stand in the place of the child, or that the child, whether or not he or she has resources, is considered not to exist for the purpose of determining medical indigency. Karen resides with her parents in a dwelling in Blaine County. Karen is therefore clearly a resident of Blaine County. Nothing in the record indicates otherwise. The County's argument that the last two sentences of I.C. § 31-3506 require that a child's residence be deemed the residence of the child's father and that therefore the child cannot be a resident of Idaho because her illegal alien father by definition cannot be a resident is without merit. The last two sentences of that statute apply only to those circumstances where a husband and wife do not reside together. Since Mario, Celia and Karen Regalado reside together in Blaine County the two sentences are inapplicable. We therefore hold that in her own right, as a resident of Blaine County, Idaho, Karen Regalado is eligible to receive medically indigent benefits if she, together with her parents, are found to be without income or resources sufficient to pay for necessary medical services. Reversed and remanded for entry of judgment consistent with this opinion. Costs to appellant. No attorney fees on appeal. DONALDSON, C.J., and McFADDEN, J., pro tem, concur. BAKES, J., concurs in the result. SHEPARD, J., dissents without opinion. *1054 DONALDSON, Chief Justice, specially concurring. I agree with the analysis of the majority in this case. However, I feel the basic definitional and constitutional arguments raised by the parties and the district court merit further discussion by this Court. First, under the statute for hospital care for the indigent sick, when we speak of residence, we speak of the residence of the patient. Residence of a newly born child is determined by reference to the location of his or her parents or guardians. The status of the parents as illegal aliens does not defeat the fact that they and their children are located in a particular place in the United States, in this case Blaine County, Idaho. The basic common law concept of residence, which has often been used interchangeably with domicile, is in fact distinct and more broad than the concept of domicile. Many years ago this Court noted that "a residence is different from a domicil, although it is a matter of great importance in determining the place of domicil. The essential distinction between residence and the domicil is that the first involves the intent to leave when the purpose for which one has taken up his abode ceases. The other has no such intent; the abiding is animus manendi. One may seek a place for the purpose of pleasure, of business or of health. If his intent be to remain, it becomes his domicil; if his intent be to leave as soon as his purpose is accomplished, it is his residence." Reubelmann v. Reubelmann, 38 Idaho 159, 164, 220 P. 404, 405 (1923) (citing Bouvier's Law Dictionary 2920 (Rawle's rev. 3d ed.)). The concept of residence, although broad in its pure form, is malleable and capable of being limited in its application by statute — typically by the imposition of a requirement of presence within the state or a county for a specific number of months or years. The Idaho legislature has taken the term "residence" and limited it in many ways to serve the purposes of different statutes. This reveals an implicit belief by the legislature that the concept of residence in its pure form is too broad to serve the specific purposes and promote the specific policies of the various statutes. Since each statutory definition of residency is inexorably linked to the purposes and policies of the statute in which it appears, we cannot rely on the definition in one statute to interpret another, as the county in this case would have us do. The lack of statutory restraints on the definition of residency in the statute on indigent health care at issue must, therefore, be construed as legislative intent that the basic common law concept of residency is adequate. Absent legislative direction, this Court in Cartwright v. Gem County, 108 Idaho 160, 697 P.2d 1174 (1985), necessarily imposed the least restrictive definition of residency as it is used in I.C. § 31-3404. We stated, "Residency, as used in the statute, requires physical presence coupled with an intent to remain, or an absence of intent to move elsewhere." Id. at 161, 697 P.2d at 1175. Thus, with respect to this statute, "residency" can be read as virtually synonymous with "domicile." The county's argument and the district court's opinion are based on the premise that residency, even in its pure form, cannot exist if the person is not a United States citizen, or at least, a legal alien. However, the concepts of residency and domicile do not distinguish between persons who have legally or illegally entered the county. It is possible that the legislature could impose citizenship or legal alienage as a requirement to attain residency in a particular statute. In this case, this could conceivably have been done by amendment to the statute.[1] Even if it *1055 were, however, the patient in this case is a United States citizen and would satisfy that requirement. Every person born in the United States becomes a citizen thereof and needs no naturalization. United States v. Wong Kim Ark, 169 U.S. 649, 675, 18 S.Ct. 456, 467, 42 L.Ed. 890 (1898). Karen Regalado's citizenship cannot be divested simply because she resides with and is cared for by non-citizen parents.[2] In Plyler v. Doe, 457 U.S. 202, 102 S.Ct. 2382, 72 L.Ed.2d 786 (1982), the United States Supreme Court held that the right of an illegal alien child to receive a free public education cannot be denied simply because of his illegal status. It is possible, however, that the high Court would not extend this equal protection analysis to include indigent medical care, as the county has pointed out. In fact, the Court did make a distinction when it said, "Public education is not a `right' granted to individuals by the Constitution. (Citation omitted). But neither is it some governmental `benefit' indistinguishable from other forms of social welfare legislation. Both the importance of education and maintaining our basic institutions, and the lasting impact of its deprivation on the life of the child, mark the distinction." Id. at 220-21, 102 S.Ct. at 2396. On the other hand, the Court seemed particularly concerned with the fact that the classification was of vulnerable and innocent children who were not accountable for their disabling status; but since they were undocumented, they were still subject to possible future deportation. The Court noted that, "Even if the State found it expedient to control the conduct of adults by acting against their children, legislation directing the onus of a parent's misconduct against his children does not comport with fundamental concepts of justice." Id. at 220, 102 S.Ct. at 2396. Therefore, this class of illegal alien children can avail itself of equal protection guarantees in areas where their parents cannot; guarantees that children who are not illegal aliens enjoy. The standard of review employed by the Court was an "intermediate" one, allowing the disparate treatment of illegal alien children only if it furthers a "substantial state interest." Id. at 230, 102 S.Ct. at 2401. Arguably, denying indigent medical care to these children would not be justified under this standard anymore than denying them an education. See, e.g., Darces v. Woods, 35 Cal.3d 871, 201 Cal. Rptr. 807, 679 P.2d 458 (1984) (excluding undocumented siblings from the definition of essential persons for AFDC purposes violated state's constitutional guarantee of equal protection). In fact, Justice Powell, in his concurring opinion in Plyler, found the court's reasoning may be applicable in the welfare context and noted that "If the resident children of illegal aliens were denied welfare assistance, made available by government to all other children who qualify, this also — in my opinion — would be an impermissible penalizing of children because of their parents' status." Plyler, supra, at 239, n. 3, 102 S.Ct. at 2406, n. 3 (Powell, J., concurring). Even if we were to accept the county's interpretation that the Plyler analysis could not be extended to indigent medical care, that argument would be relevant only to the care provided to illegal aliens, such as Mr. and Mrs. Regalado themselves. Here, the care is being provided to a United States citizen. The statute allows us to look to the parents only as a reference in *1056 answering two questions: (1) what is the residence of the child? and (2) does the child qualify for indigency status? The statute cannot — and under no reasonable interpretation does it — transform a United States citizen into an illegal alien simply by this process of referencing to the parents. Indeed, the parents benefit from being relieved of the obligation to pay for the hospitalization of their child, but no one will dispute that the child is the primary beneficiary of the life-saving medical care paid for under I.C. § 31-3501 et seq. A recent federal district court decision noted that "The mere fact that the parent's circumstances determine eligibility [for Aid For Dependent Children] does not by itself mean that the parent is the primary beneficiary." Ruiz v. Blum, 549 F. Supp. 871, 876 (S.D.N.Y. 1982); see also King v. Smith, 392 U.S. 309, 88 S.Ct. 2128, 20 L.Ed.2d 1118 (1968). The court in Ruiz also noted that if "a native born citizen who is otherwise eligible is denied, on the grounds of his mother's [undocumented] status, day care services which are granted to all other eligible native born children, ... it clearly penalizes him solely by reason of his mother's status." Ruiz, supra, at 877. The classification the county would have us accept would be based solely on the status of the parents of a U.S. citizen. The United States Supreme Court has ruled that classifications based on alienage of a person, let alone alienage of a person's parents, are "inherently suspect and subject to close judicial scrutiny." Nyquist v. Mauclet, 432 U.S. 1, 7, 97 S.Ct. 2120, 2124, 53 L.Ed.2d 63 (1977); Graham v. Richardson, 403 U.S. 365, 372, 91 S.Ct. 1848, 1852, 29 L.Ed.2d 534 (1971). "In undertaking this scrutiny, `the governmental interest claimed to justify the discrimination is to be carefully examined in order to determine whether that interest is legitimate and substantial, and inquiry must be made whether the means adopted to achieve the goal are necessary and precisely drawn.' Examining Board v. Flores de Otero, 426 U.S. [572] at 605, 96 S.Ct. [2264] at 2283 [49 L.Ed.2d 65 (1976)]. See In re Griffths, 413 U.S. [717] at 721-722, 93 S.Ct. [2851] at 2854-2855 [37 L.Ed.2d 910 (1973)]. Alienage classifications by a State that do not withstand this stringent examination cannot stand." Nyquist, supra at 7, 97 S.Ct. at 2124. A review of the record and arguments of this case reveals no substantial or compelling justification for the state[3] to treat Karen Regalado differently from other U.S. citizen children based on the alienage of her parents. Thus, under either the intermediate test of scrutiny of Plyler, or the strict test of scrutiny under Nyquist, such a classification would be unconstitutional. I share the concern of Justice Powell when he noted in Plyler that "visiting ... condemnation on the head of an infant for misdeeds of the parents is illogical, unjust and contrary to the basic concept of our system that legal burdens should bear some relationship to individual responsibility or wrong doing." Plyler, supra, at 238, 102 S.Ct. at 2406 (Powell, J., concurring); Weber v. Aetna Casualty & Surety Co., 406 U.S. 164, 175, 92 S.Ct. 1400, 31 L.Ed.2d 768 (1972). In summary, therefore, with the proper light cast on the definition of residency and the equal protection guarantees implicated by this decision, I concur with the majority in reversing the holding of the district court. NOTES [1] Such a requirement limiting benefits by restricting the definition of residency would, of course, be subject to constitutional scrutiny. It is helpful to note that the U.S. Supreme Court in Memorial Hospital v. Maricopa County, 415 U.S. 250, 94 S.Ct. 1076, 39 L.Ed.2d 306 (1974) found Arizona's one-year durational residency requirement as a condition to receiving nonemergency indigent medical care to be an invidious classification impinging on the right of interstate travel and therefore unconstitutional. See also, Toll v. Moreno, 458 U.S. 1, 102 S.Ct. 2977, 73 L.Ed.2d 563 (1981), where the U.S. Supreme Court applied the Supremacy Clause to bar Maryland from denying aliens the ability to establish instate status for purposes of tuition at state universities. [2] It is somewhat shocking that in its brief, the county begins its argument with a question, "What then does it gain us to consider Karen Regaldo's citizenship in this litigation?" Then answers by saying, "Absolutely nothing." Upon this faulty assertion the county proceeds to argue as if Karen and her parents were legally indistinguishable. For an exhaustive discussion of how the Fourteenth Amendment to the United States Constitution did not change the fundamental principle of citizenship by birth, see United States v. Wong Kim Ark, 169 U.S. 649, 18 S.Ct. 456, 42 L.Ed. 890 (1898). [3] The Court in Nyquist distinguished actions that states could take in classifying aliens from actions that Congress could take, noting "Congress, as an aspect of its broad power over immigration and naturalization, enjoys rights to distinguish among aliens that are not shared by the States." Id. at 7, n. 8, 97 S.Ct. at 2124, n. 8; Mathews v. Diaz, 426 U.S. 67, 84-87, 96 S.Ct. 1883, 48 L.Ed.2d 478 (1976).

120 F.3d 276 Albert Robinsonv.Orange County, Florida NO. 96-3089 United States Court of Appeals,Eleventh Circuit. July 17, 1997 M.D.Fla., 116 F.3d 492 1 DENIALS OF REHEARING EN BANC.

76 F.3d 372 NOTICE: Fourth Circuit Local Rule 36(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 Fourth Circuit.Earnest E. HALL, Jr.; Jean T. Hall, Plaintiffs-Appellees,v.Walter W. DAVENPORT, Defendant-Appellant. No. 95-1359. United States Court of Appeals, Fourth Circuit. Argued: December 7, 1995.Decided: January 30, 1996. ARGUED: John Leyburn Mosby, Jr., J. Leyburn Mosby, Jr., P.C., Lynchburg, VA, for Appellant. Stephen Alan Chaplin, Chaplin, Papa & Gonet, Richmond, VA, for Appellees. Before HALL and HAMILTON, Circuit Judges, and THORNBURG, United States District Court Judge for the Western District of North Carolina, sitting by designation. OPINION PER CURIAM: 1 In November 1970, defendant Walter W. Davenport and wife purported to convey to plaintiffs by warranty deed a tract of land containing 120.7 acres. In 1987, the commissioner in chancery for Circuit Court of the County of Cumberland, Virginia, determined that the defendant was seized of only a one-half interest in the subject property at the time of conveyance. This determination was affirmed by the Circuit Court of the County of Cumberland, Virginia, in the same cause. Plaintiffs then demanded judgment for $6,250 (one-half of the purchase price) plus interest and costs. 2 In October 1988, before conclusion of plaintiffs' action, defendant Davenport filed a Chapter 7 voluntary petition in bankruptcy in the United States Bankruptcy Court for the Western District of Virginia listing plaintiffs' claim of $6,250 as disputed. On January 30, 1989, plaintiffs filed a complaint to determine the dischargeability of debts pursuant to 11 U.S.C. § 523(a)(2)(A). In the "dischargeability" action, plaintiffs sought recovery of $6,250, plus interest, costs, and attorneys fees, as well as punitive damages for breach of fiduciary duty and fraud. On December 21, 1989, the bankruptcy judge in a memorandum opinion found the defendant acted fraudulently when he conveyed the property to the Halls. "Thus, the debt owed to them of $6,250 plus interest is nondischargeable." By Order of the same date it was, "Adjudged and Ordered that the debt of $6,250 plus interest at the legal rate from November 10, 1970 is nondischargeable pursuant to 11 U.S.C. § 523(a)(2)(A). " 3 The foregoing order was filed as a judgment lien in the Circuit Court of Cumberland County, Virginia, on March 15, 1993. 4 In 1994, defendant filed in the Circuit Court for the County of Cumberland, Virginia, a bill to remove cloud on title to real estate and for declaratory judgment striking the bankruptcy court order and declaring any resulting lien to be invalid. The bill also correctly alleged that the proceeds from a land sale by defendant in the amount of $40,000 was being held in escrow by Southern Title Insurance Company pending final determination of lien status. After a December 1, 1994, hearing on the bill, the Circuit Court judge for the County of Cumberland, Virginia, entered an order on December 31, 1994, as follows: 5 [The order of the Bankruptcy Court Judge] is not a money judgment and not a lien upon any real property formerly, now or hereafter, owned by Walter W. Davenport. 6 It is further ordered that this cause is stricken from the docket. 7 Based on the bankruptcy court order however, on December 19, 1994, the Clerk of the United States District Court for the Western District of Virginia, Lynchburg Division, had issued a garnishment summons to Southern Title Insurance Corporation, garnishee, for judgment principal in the amount of $6,250, interest in the amount of $13,544.50, and judgment costs of $120, for a total of $19,914.50. 8 After hearing on motion to quash garnishment filed by the defendant, the Chief Judge for the United States District Court for the Western District of Virginia, Lynchburg Division, found the bankruptcy court's order of December 21, 1989, to be a judgment for the payment of money sufficient to invoke Rule 69(a) of the Federal Rules of Civil Procedure, and ordered that the motion to quash garnishment summons be denied. From this order of February 13, 1995, the defendant appeals. For the reasons set forth below, we affirm the district court. I. 9 This court will first address the plaintiffs-appellees' contention that the district court order of February 13, 1995, was not a final order from which an appeal could be taken; and therefore, that this court has no jurisdiction to consider the lower court's ruling. This contention is without merit. 10 The order of the district court entered February 13, 1995, finally disposes of all matters in controversy to be adjudicated between the parties. 28 U.S.C. § 1291; United States v. al Con Dev. Corp., 271 F.2d 901 (4th Cir.1959). The order "disposes of the whole subject, gives all the relief contemplated, provides with reasonable completeness for giving effect to the [judgment order of the bankruptcy court], and leaves nothing to be done in the cause save to superintend ministerially the execution of the order." Burns v. Equitable Ass'n, 265 S.E.2d 737, 742 (Va.1980). 11 On March 31, 1995, the district court did in fact enter two additional orders relating to this case. The first March 31 order was simply an order of garnishment entered by the court pursuant to its final order determining that garnishment summons was valid. The second March 31 order, agreed to by the parties, stayed execution of the garnishment order pending a decision by this court. The two orders entered by the district court on March 31, 1995, did nothing more than "superintend ministerially the execution of the [February 13, 1995] order." Id. For this court to rule that either March 31 order was the "final decision" from which the appeal should have been taken would represent a technical approach to finality and ignore the practical effect and substance of the lower court's February 13, 1995, ruling. II. 12 We next address the defendant-appellant's contention that the district court was bound by the decision of the Circuit Court for the County of Cumberland, Virginia, which held that the order of the bankruptcy court judge was not a money judgment and, therefore, not enforceable against the defendant. 13 In support of this contention, defendant relies on 28 U.S.C. § 1738 which provides that state "judicial proceedings ... shall have the same full faith and credit in every court within the United States ... as they have by law or usage in the courts of such state...." In short, defendant contends the state circuit court order is entitled to full faith and credit by the federal district court. To further support his contention that this case is controlled by the full faith and credit doctrine, defendant cites a variety of state and federal cases dealing with its application. Suffice it to say that neither cited authority supports a state court's right to void the enforcement of the final judgment of a federal court. 14 In voicing his contention, defendant ignores the significance and consequences of the federal bankruptcy court order of December 21, 1989, which "Adjudged and Ordered that the debt of $6,250 plus interest at the legal rate from November 10, 1970," was due and owing to plaintiffs. As concluded by the district court, this order constituted an enforceable "judgment for the payment of money" entered by a federal court. Therefore, under Rule 69(a), the federal district court could and should enforce the judgment. The fact that the order lacked the word "judgment" and may not have complied with Virginia code provisions relating to recordation, Va.Code Ann. § 8.01-446 or § 8.01-466, did not oust a federal court's jurisdiction to enforce its own judgments. Duchek v. Jacobi, 646 F.2d 415, 418-19 (9th Cir.1981). The fact that the bankruptcy court order had initially been docketed in Cumberland County, Virginia, and was later stricken, did not preclude the supplementary proceedings initiated by plaintiffs in federal district court in aid of execution of that order. Meridian Investing & Dev. Corp. v. Suncoast Highland Corp., 628 F.2d 370, 372 (5th Cir.1980); Atlantic Purchasers, Inc. v. Aircraft Sales, Inc., 101 F.R.D. 779, 782 (W.D.N.C.1984); 12 Wright & Miller, Federal Practice and Procedure, § 3013. Nor is there reason to doubt that bankruptcy courts have the authority to enter money judgments. In re Harris, 162 B.R. 466, 468-69 (E.D.Va.1993). The order uses the word "adjudged." Adjudge means, in the context of the order, "to pass on judicially, to decide, settle or decree ... [the] judgment of a court of competent jurisdiction. Implies a judicial determination of a fact, and the entry of a judgment." Black's Law Dictionary 42 (6th ed.1990). The order also names the parties, recites the amount of the obligation and refers to it as Davenport's "debt," recites the interest rate and date from which interest is due, and declares the debt to be nondischargeable. Surely to be nondischargeable, the court must have found a debt to be due and owing. All of these indicia support the lower court's ruling that a final judgment has been entered. Further help may be garnered by reference to Rule 54(a) of the Federal Rules of Civil Procedure which defines judgment as "a decree and any order from which an appeal lies." Obviously, the December 21, 1989, order of the bankruptcy court could have been appealed to the district court, thus bringing the order within the rule's definition of judgment. 15 As observed in the opening paragraph of this opinion, the case had its genesis in the warranted transfer of title to real property 25 years ago. The title was defective and so declared by court order in 1987. Defendant's actions relating to the land transaction were found to be fraudulent by the bankruptcy court in 1989. The defendant has consistently refused to compensate plaintiffs for his wrongful act. The matter should be laid to rest. While the bankruptcy court's order could have been stated with more clarity, its intent is obvious. A money judgment was awarded plaintiffs. Therefore, the district court was correct in making that determination. AFFIRMED

227 Pa. Superior Ct. 257 (1974) Commonwealth v. Merritt, Appellant. Superior Court of Pennsylvania. Argued September 20, 1973. April 3, 1974. *258 Before WRIGHT, P.J., WATKINS, JACOBS, HOFFMAN, CERCONE, and SPAETH, JJ. (SPAULDING, J., absent). Cecil B. Moore, for appellant. Vram Nedurian, Jr., Assistant District Attorney, with him Ralph B. D'Iorio, Assistant District Attorney, and Stephen J. McEwen, Jr., District Attorney, for Commonwealth, appellee. OPINION BY CERCONE, J., April 3, 1974: This case comes on appeal from judgment of sentence on defendant's argument that he was denied his constitutional right to be represented by counsel of his choice. Defendant was found guilty by a jury on two *259 counts of involuntary manslaughter and fifteen counts of leaving the scene of an accident. Following denial of a motion in arrest of judgment and for a new trial, defendant was sentenced to consecutive terms of 1 to 2 years on the involuntary manslaughter indictments and to consecutive terms of 5½ to 11 months on four counts of failure to stop a motor vehicle, for a total sentence of 2 years 5½ months minimum to 4 years 11 months maximum. A brief summary of the history of the case will illuminate the problem. On December 3, 1971, an automobile struck a group of persons as they were leaving a basketball game at a local high school. Two were fatally injured. When the auto finally stopped, the occupants fled the scene. Defendant was subsequently arrested, charged with involuntary manslaughter, leaving the scene of an accident, and operating a motor vehicle after his license was suspended. A preliminary hearing was held on December 15, 1971, at which defendant was represented by an attorney of his choice, Cecil B. Moore, Esq. of Philadelphia. Defendant was bound over to the Grand Jury which approved Bills of Indictment on March 6, 1972. On that date, defendant was arraigned, but his counsel, Mr. Moore, was not present at the arraignment. At this time defendant was informed by the court that his trial was being set for April 17, 1972, and that if Mr. Moore failed to appear on that date, the court would appoint a Public Defender to represent him so that the trial could proceed. When the case was first called for trial on April 17, 1972, the defendant again appeared in court without his counsel, Mr. Moore. No application for a continuance had been made prior to that time. The case was continued by the court stating that the case would be tried at the next term, but defendant was also informed that a member of the Public Defender's *260 Office was being appointed to represent him as "co-counsel" in the event that Mr. Moore failed to appear on that date. When the case was again called for trial, on June 12, 1972, defendant appeared without Mr. Moore. Again no application for a continuance had been received from Mr. Moore. Jury selection then took place with the defendant being represented by John G. McDougall, Esq., a Public Defender. At 2:00 P.M. on that day the Court received in chambers a letter from Mr. Moore requesting a continuance because of his unavailability. However, Mr. Moore also informed the court that, because of his heavy caseload, he could not promise to be available on any given day. The request was refused and the trial proceeded with the defendant being represented by Mr. McDougall. Post-trial motions were filed on defendant's behalf by both Mr. McDougall and by Mr. Moore. Defendant does not raise any trial errors or allege that he was not adequately represented by Mr. McDougall. Traditionally, the question of whether a request for a continuance should be granted or refused rests within the discretion of the trial judge and that ruling will be upheld where there has been no abuse of discretion. Commonwealth v. Snow, 178 Pa. Superior Ct. 319, 116 A. 2d 283 (1955). Of course, if the denial of such a request is so arbitrary that it violates due process it cannot stand. As the Supreme Court stated in Ungar v. Sarafite, 376 U.S. 575, 589 (1964): "There are no mechanical tests for deciding when a denial of a continuance is so arbitrary as to violate due process. The answer must be found in the circumstances present in every case, particularly in the reasons presented to the trial judge at the time the request is denied." The factors to which the trial judge should look were considered by the court in Gilmore v. United States, 273 F. 2d 79 (D.C. Cir. 1959). In order to determine whether the trial judge there had abused his discretion *261 in denying defendant's request for continuance because of the unavailability of out of town counsel on that date, the court looked to the nature of the charge to determine whether it was complicated or difficult, or whether defenses were available which were obvious to any lawyer. It also looked to the nature of the evidence produced at trial to sustain those charges in order to determine whether it was of sufficient weight to justify the conviction. Lastly, the court looked to see if the party seeking the continuance has shown that the denial of the continuance has resulted in any prejudice at trial. To the same effect is United States v. Jones, 369 F. 2d 217 (7th Cir. 1966). While adequate representation by qualified counsel is indispensable, and as a result, parties have a right to choose counsel if they can afford one, or to have counsel appointed if they cannot, the intrinsic professional competence of counsel is all that matters despite the defendant's preference for the name or fame of a particular attorney. See Dennis et al. v. United States, 340 U.S. 887 (1950). As stated in Majeske v. United States, 266 F. 2d 947, 948 (9th Cir. 1959): "So far as [the defendant] was concerned, no prejudice has been shown [as a result of the denial of a continuance.] So far as the record before us shows [counsel appointed by the court] properly represented him. Therefore, irrespective of the fact that he was not represented by counsel whom he originally employed, the conviction must be affirmed." Considering a similar problem in Avery v. Alabama, 308 U.S. 444 (1940), the Supreme Court found it significant that defendant's post-conviction appeal had shown nothing further that could or would have been done had the continuance been granted. See also United States v. Inman, 483 F. 2d 738 (4th Cir. 1973), requiring full disclosure of reasons for requested continuance. It is clear therefore that there is no constitutionally mandated right to the counsel of one's choosing in all *262 circumstances. U.S. ex rel. Baskerville v. Deegan, 428 F. 2d 714 (2d Cir. 1970). As the court stated in Lee v. United States, 235 F. 2d 219, 221 (App. D.C. 1956): "[T]he accused's `right to select his own counsel cannot be insisted upon in a manner that will obstruct an orderly procedure in courts of justice, and deprive such courts of the exercise of their inherent powers to control the same.'"[1] In the recent case of Budget Laundry Co. v. Munter, 450 Pa. 13 (1972), our Supreme Court concluded that the trial judge had abused his discretion in refusing to grant a continuance where the opposition did not object and when it was obvious that the trial, if continued, would be held in that same term without prejudice to the parties; and further, where there had been a "working agreement" in existence between the Court of Common Pleas and the Federal District Court where the plaintiff's attorney was in court on the day that the case was called for trial. The Court also pointed out that such conflicts occurred infrequently in civil litigation such as this, and decided the question solely on the basis that the trial judge had abused his discretion in refusing a continuance. Nerkowski v. Yellow Cab Co., 436 Pa. 306 (1969), also considered the trial judge's refusal to grant a continuance in a civil case an abuse of discretion, especially in light of the "detailed medical testimony on the controversial and difficult question of personality disorders" which could be effectively presented only by a particular counsel, who was unavailable on the day the case was called for trial. In Commonwealth v. Snow, supra, we set forth several factors which the court should weigh when considering a request for a continuance based upon the unavailability *263 of the defendant's chosen counsel. Among these factors was the fact that the defendant had previous courtroom experience, that the sentence imposed was not unduly harsh, that no additional defense had been presented which would have been available had the requested continuance been granted, and that the nature of the offense was such that the defendant was not unfairly treated by being forced to proceed to trial without the counsel of his choice. The Pennsylvania Supreme Court addressed itself to this problem in a related context in Moore v. Jamieson, 451 Pa. 299 (1973).[3] In considering the alleged infringement upon the right of a criminal defendant to counsel of his choice, the Court held that the right to counsel of one's own choosing is important to one facing criminal prosecution, but, that this right is not an absolute one, particularly when it obstructs the state's constitutional duty to provide speedy trials and its obligation to its citizens to have criminal violations adjudicated quickly. Thus, the court in effect declared that in balancing the conflicting demands of the administration of the court calendar with the right of the accused, the trial judge must determine which of those *264 two rights in a particular case outweighs the other. And in doing so the trial court must consider, in addition, other defendants awaiting trial, whose rights may be affected by the consequences of trial delay. See also U.S. ex rel. Carey v. Rundle, 409 F. 2d 1210, 1214-15 (3d Cir. 1969). A review of the record in the present case convinces us that the trial judge acted properly in refusing to grant defendant's requested continuance. First of all, no alternative solution to that chosen by the trial judge appears to us, nor has any been suggested by the appellant, other than the unacceptable one of continued delay. Furthermore, the state had, for the second time, called all of its sixty-six witnesses to the tragic incident, and the granting of a second continuance would place an undue hardship on them. Finally, the trial court took every possible precaution to insure that the defendant's cause would not be prejudiced by the unavailability of Mr. Moore, especially in its appointment of co-counsel two months before the date fixed for trial. The sagacity of the court in this respect is underscored by the fact that the appellant does not point to any defect in his defense which would indicate that the appointed counsel was ill-prepared, or allege that anything further could have been done in his defense had the requested continuance been granted. Since the nature of the charges against the defendant were such that they could effectively be defended by the counsel appointed by the trial judge, and since the evidence of the defendant's guilt was overwhelming, the defendant was not prejudiced in any way by being required to proceed to trial with counsel appointed by the court. Judgment of sentence of the lower court is affirmed.[2] NOTES [1] Quoting from Smith v. United States, 288 F. 259, 261, 53 App. D.C. 53, 55 (1923). [2] The Court expressly declined to consider the presence or absence of a constitutional right to counsel of one's choice. [3] In that case the Supreme Court struck down, as unconstitutionally overbroad, a local rule of the Philadelphia Court of Common Pleas which prohibited an attorney who represented ten or more criminal defendants whose indictments were more than twelve months old from entering an appearance in any additional cases. The Court reasoned that while such a rule could be properly drafted to limit the caseload of attorneys without infringing upon either their right to practice or an individual's right to the counsel of his choice, such a rule must take into account the fact that some clients may not have come to trial through no fault of the attorney. We note in passing that the "Moore" in Moore v. Jamieson is also the Cecil B. Moore who was unable to appear, or state when he could appear, in the instant case.

IN THE UNITED STATES COURT OF APPEALS United States Court of Appeals FOR THE FIFTH CIRCUIT Fifth Circuit FILED _____________________ May 15, 2008 No. 07-11179 Summary Calendar Charles R. Fulbruge III _____________________ Clerk OSAMA ‘SAM’ ODEH Plaintiff-Appellant v. MATTHEW ORWIG, in personal capacity; RICHARD ROPER, in personal capacity; THOMAS GIBSON, in personal capacity; PAUL STICKNEY, in personal capacity; WILLIAM G STEWART, II, in personal capacity; JOHN R POSEKER, in personal capacity; ALBERTO R GONZALEZ, in personal capacity; JAMES E KINKEADE, in personal capacity; A JOE FISH, in personal capacity Defendants-Appellees Appeal from the United States District Court for the Northern District of Texas (4:07-CV-270) Before WIENER, GARZA, and BENAVIDES, Circuit Judges. PER CURIAM:* Affirmed. See Rule 47.6. Plaintiff-Appellant Odeh is cautioned that any further efforts to continue, prolong, or otherwise maintain this or any other action arising from or connected with the facts underlying the instant appeal could, and likely * 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. will, result in the imposition of sanctions for frivolous appeals and maintaining baseless, meritless, and contumacious litigation. 2 

834 F.2d 862 1987-2 Trade Cases 67,820 AMBULANCE SERVICE OF RENO, INC., dba 911 Paramedics,Plaintiff-Appellant,v.NEVADA AMBULANCE SERVICES, INC., dba Medic I, et al.,Defendants-Appellees. No. 87-1851. United States Court of Appeals,Ninth Circuit. Submitted Dec. 4, 1987*.Decided Dec. 21, 1987. I.R. Ashelman II, Reno, Nev., for plaintiff-appellant. George E. Leonard, Kansas City, Mo., Edward Dannan and Kirk S. Schumacher, Reno, Nev., for defendants-appellees. Appeal from the United States District Court for the District of Nevada; Bruce R. Thompson, District Judge, Presiding. Before SNEED, BEEZER and HALL, Circuit Judges. ORDER 1 Appellees' motion to submit this case without oral argument is granted. This case shall stand submitted on the briefs without oral argument on December 4, 1987. 2 This appeal raises the same issues raised in appellant's earlier motion seeking a temporary injunction. The district court's grant of summary judgment in favor of the appellees is affirmed for the same reasons as the temporary injunction motion was denied in Ambulance Serv. of Reno, Inc. v. Nevada Ambulance Serv., Inc., 819 F.2d 910 (9th Cir.1987). 3 AFFIRMED. * The panel finds this case appropriate for submission without oral argument pursuant to 9th Cir.R. 34-4 and Fed.R.App.P. 34(a)

502 F.Supp.2d 719 (2007) John DOE, Plaintiff, v. SEXSEARCH.COM, et al., Defendants. No. 3:07 CV 604. United States District Court, N.D. Ohio, Western Division. August 22, 2007. *720 *721 Brandie L. Hawkins, Lima, OH, Dean M. Boland, Lakewood, OH, for Plaintiff. Scott R. Torpey, William D. Adams, Jaffe, Raitt, Heuer & Weiss, Southfield, MI, Max Kravitz, Michael D. Dortch, Kravitz, Dortch & Brown, Columbus, OH, Gary J. Kaufman, Dana Milmeister, Kaufman Law Group, Los Angeles, CA, for Defendants. MEMORANDUM OPINION AND ORDER ZOUHARY, District Judge. This matter is before the Court on Defendants' Motion to Dismiss pursuant to Rule 12(b)(6) (Doc. No. 123) and Plaintiffs Motion to. Strike Defendants' Joint Reply (Doc. No. 149). The Court has jurisdiction *722 over this matter pursuant to 28 U.S.C. § 1332. For the reasons detailed below, Defendants' Motion is granted, and Plaintiffs Motion is denied. BACKGROUND Sexsearch.com (SexSearch) is a website offering an online adult dating service which encourages its members to meet and engage in sexual encounters (Complaint ¶¶ 53, 96). Members are permitted to provide information for a profile, which consists of a list of responses to specific questions posed by the website. Members may also upload photographs and video content to their profile (Complaint ¶¶ 121-22, 149, 151). Plaintiff John Doe became a gold member of SexSearch in October 2005 (Complaint ¶ 173). Shortly thereafter, Plaintiff located Jane Roe's profile, which contained the following information: Birthdate June 15, 1987; Age 18; an authentic image of Jane Roe at her then-current age; and the statement that her ideal match included a male "who could last for a long time" (Complaint ¶¶ 198, 205). Plaintiff began chatting online through SexSearch with Jane Roe, and the two eventually decided to schedule a sexual encounter to take place at Jane Roe's home on November 15, 2005. The meeting went as planned, and Plaintiff and Jane Roe engaged in consensual sexual relations (Complaint ¶¶ 219, 222). However, as it turned out, Jane Roe was not actually 18, but a 14-year-old child. On December 30, 2005, Plaintiffs home was surrounded by law enforcement officers, and he was arrested and charged with three separate counts of engaging in unlawful sexual conduct with a minor, all felonies of the third degree (Complaint ¶¶ 226-33). As a result of the charges, Plaintiff could face fifteen (15) years in prison, and a classification that might include lifetime registration as a sex offender (Complaint ¶¶ 235-36). Procedural Posture On March 1, 2007, Plaintiff filed this Complaint, naming as Defendants the owners of SexSearch, which include: Sexsearch.com; Sexsearchcom.com; Cyber Flow Solutions, Inc.; Manic Media, Inc.; Stallion.com FSC Limited; DNR; Experienced Internet, Inc.; Fiesta Catering International, Inc.; Adam Small; Camelia Francis; Damian Cross; Ed Kunkel; Mauricio Bedoya; Patricia Quesada; and Richard Levine (Defendants) (Complaint ¶¶ 115-33, 40). Defendants contend Defendant/Intervenor Cytek, Ltd. is the true owner of the SexSearch website and business, and thus is the only proper party. The Court initially granted Plaintiff an Ex-Parte Temporary Restraining Order on March 2, 2007 (Doc. No. 11), which was extended on March 13, 2007 after Defendants failed to appear at a Preliminary Injunction Hearing (Doc. Nos. 25, 26). After Defendants retained counsel and entered appearances, the Court held a Preliminary Injunction Hearing on April 16, 2007. At this hearing, the Court denied Plaintiffs Motion for a Preliminary Injunction and vacated the existing TRO (Doc. No. 130). Defendants have filed individual Motions to Dismiss, both on the merits (pursuant to Rule 12(b)(6)) and for lack `of personal jurisdiction (pursuant to Rule 12(b)(2)) (Doc. Nos. 113, 117, 118, and 123). For the sake of judicial economy, Defendant/Intervenor Cytek, Ltd. agreed to enter an appearance and waive all service of process and personal jurisdiction issues, allowing the Court to consider a Rule 12(b)(6) motion to dismiss on the merits before undertaking the weighty task of evaluating personal jurisdiction for each of the sixteen remaining Defendants (Doc. No. 110). Defendants' Motions to Dismiss on Personal Jurisdiction Grounds were *723 held in abeyance pending the outcome of their Motion on the merits (Doc. No. 142). Plaintiff's Claims Plaintiff alleges that upon becoming a member of SexSearch, he reviewed SexSearch's warranties, and agreed to SexSearch's Terms and Conditions and profile guidelines (Complaint ¶¶ 173-78). He contends Defendants warranted "all persons within this site are 18 +" (Complaint ¶ 186). It is also alleged SexSearch's contractual agreement included the Terms and Conditions, in which Defendants promised to review, verify and approve all profiles on its website and remove materials depicting minors (Complaint ¶¶ 188-92). Plaintiff alleges the following fourteen claims: 1. Count One alleges SexSearch breached its contract by permitting minors to become paid members, and by delivering a minor to Plaintiff for the purpose of sexual relations (Complaint ¶¶ 295-97). 2. Count Two alleges Defendants engaged in fraud by representing that all persons on its site were over the age of 18, but allowed a minor to become a member and failed to remove her profile (Complaint ¶¶ 301, 303-04). 3. Count Three alleges Defendants negligently inflicted emotional distress by failing to remove the profile of a minor from its website, and by delivering a minor to Plaintiff for the purpose of engaging in sexual relations (Complaint ¶ 307). 4. Count Four alleges negligent misrepresentation because Defendants promised all members were adults, 11. but failed to remove the profile of a minor (Complaint ¶ 316). 5. Count Five alleges breach of warranty because Defendants Warranted all paid members were persons 18 years of age or older but delivered a minor to Plaintiff for the purpose of engaging in sexual relations (Complaint ¶¶ 323, 325). 6. Counts Six alleges Defendants committed a deceptive trade practice in violation of the Ohio Consumer Sales Practices Act by falsely warranting that no members were under the age of 18 (Complaint ¶¶ 342-43). 7. Counts Seven alleges Defendants committed unfair and deceptive acts in violation of the Ohio Consumer Sales Practices Act by falsely representing that no members were under the age of 18 (Complaint ¶ 354). 8. Count Eight alleges unconscionability in violation of the Ohio Consumer Sales Practices Act by incorporating into the contract a clause limiting damages to the amount of the contract (Complaint ¶ 358). 9. Count Nine alleges unconscionability in violation of the Ohio Consumer Sales Practices Act by incorporating into the contract a clause allowing the supplier to unilaterally cancel the contract after the consumer's three (3) day right to cancel has passed without allowing the consumer the option (Complaint ¶ 362). 10. Count Ten alleges unconscionability in violation of the Ohio Consumer Sales Practices Act by including clauses in the contract that are substantially one-sided (Complaint ¶ 366). 11. Count Eleven alleges unconscionability by requiring Plaintiff to agree to terms and conditions that contained no guarantee Defendants would or could perform their contractual promises (Complaint ¶ 370). *724 12. Count Twelve alleges unconscionability by including a limitation on liability that was unreasonably favorable to Defendants (Complaint ¶¶ 375-78). 13. Count Thirteen alleges unconscionability by including a clause in the contract disclaiming all liability (Complaint ¶ 383). 14. Count Fourteen alleges Defendants failed to warn that minors may be members of the website (Complaint ¶¶ 393-95). These fourteen causes of action essentially boil down to either (a) Defendants failed to discover Jane Roe lied about her age to join the website, or (b) the contract terms are unconscionable. STANDARD OF REVIEW When deciding a motion to dismiss under Federal Rule of Civil Procedure 12(b)(6), the function of the Court is to test the legal sufficiency of the Complaint. In scrutinizing the Complaint, the Court is required to accept the allegations stated in the Complaint as true, Hishon v. King & Spalding, 467 U.S. 69, 73, 104 S.Ct. 2229, 81 L.Ed.2d 59 (1984), while viewing the Complaint in a light most favorable to the Plaintiff. Scheuer v. Rhodes, 416 U.S. 232, 236, 94 S.Ct. 1683, 40 L.Ed.2d 90 (1974); Westlake v. Lucas, 537 F.2d 857, 858 (6th Cir.1976). The Court is without authority to dismiss the claims unless it can be demonstrated beyond a doubt that Plaintiff can prove no set of facts which would entitle him to relief. Conley v. Gibson, 355 U.S. 41, 45-46, 78 S.Ct. 99, 2 L.Ed.2d 80 (1957); Westlake, 537 F.2d at 858. See generally 2 JAMES W. MOORE, MOORE'S FEDERAL. PRACTICE, § 12.34[1] (3d ed.2003). DISCUSSION Immunity under the Communications Decency Act Defendants first argue they are immune from most of Plaintiffs claims by the Communications Decency Act (CDA), 47 U.S.C. § 230. More specifically, they contend an interactive computer service cannot be held liable on any state or federal claim which would render that service liable for content provided by third parties, and thus the CDA bars Plaintiffs claims based on the purported failure of the website to prevent Jane Roe from misrepresenting her age. These claims are: (1) breach, of contract (First cause of action); (2) fraud (Second cause of action); (3) negligent infliction of emotional distress (Third cause of action); (4) negligent misrepresentation (Fourth cause of action); (5) breach of warranty (Fifth cause of action); (6) violation of the Ohio Consumer Sales Practices Act (Sixth and Seventh causes of action); and (7) failure to warn (Fourteenth cause of action) (Def.Reply, p. 4). Plaintiff responds that because SexSearch reserves the right to modify the content of profiles when they do not meet the profile guidelines, they are an information content provider and thus not immune under the CDA. In the alternative, Plaintiff argues the CDA only preempts claims relating to defamation (Pl.Opp., p. 5). Section 230 of the CDA states "[n]o provider or user of an interactive computer service shall be treated as the publisher or speaker of any information provided by another information content provider," 47 U.S.C. § 230(c)(1), and "[n]o cause of action may be brought and no liability may be imposed under any State or local law that is inconsistent with this section." Id. at § 230(e)(3). Thus, Defendants are immune from liability from state law claims if: (1) SexSearch is a "provider or user of an interactive computer service"; (2) the claim is based on "information provided by another information content provider"; and (3) the claim would treat SexSearch "as publisher or speaker" of that information. *725 Universal Commun. Sys., Inc. v. Lycos, Inc., 478 F.3d 413, 418 (1st Cir. 2007). Although the Sixth Circuit has yet to interpret this section, "[n]ear-unanimous case law holds that Section 230(c) affords immunity to [interactive computer services (ICSs)] against suits that seek to hold an ICS liable for third-party content." Eckert v. Microsoft Corp., No. 06-11888, 2007 U.S. Dist. LEXIS 15295, at *6 (E.D.Mich. Jan. 8, 2007) (quoting Chi. Lawyers' Comm. for Civ. Rights Under the Law, Inc. v. Craigslist, Inc., 461 F.Supp.2d 681, 688 (N.D.Ill.2006)). "Interactive Computer Service" Provider The statute defines interactive computer service as "any information service, system, or access software provider that provides or enables computer access by multiple users to a computer, server, including specifically a service or system that provides access to the Internet." 47 U.S.C. § 230(f)(2). Here, there is no question (and Plaintiff does not argue otherwise) that SexSearch is an interactive computer service, as the website "functions as an intermediary by providing a forum for the exchange of information between third party users." Doe v. MySpace, Inc., 474 F.Supp.2d 843, 849 (W.D.Tex.2007). "Information Provided by Another" The statute defines information content provider to be "any person or entity that is responsible, in whole or in part, for the creation or development of information provided through the Internet or any other interactive computer service." 47 U.S.C. § 230(f)(3). Here, Plaintiff alleges SexSearch is an information content provider because the website "reserves the right, and does in fact, modify the content of profiles when they do not meet the profile guidelines and as such they are responsible in whole or part for the creation or development of the information" (Pl.Opp., p. 5). In support of this contention, Plaintiff cites Anthony v. Yahoo! Inc., 421 F.Supp.2d 1257 (N.D.Cal.2006), in which the court found an online dating service not immune under Section 230 from claims it deliberately "create[d] false profiles." Id. at 1262. The CDA clearly does not immunize a defendant from allegations that it created tortious content by itself, as the statute only grants immunity when the information that forms the basis for the state law claim has been provided by "another information content provider." 47 U.S.C. § 230(c)(1) (emphasis added); Universal Commun. Sys., 478 F.3d at 419-20. Although the court in Anthony noted that a website such as SexSearch may simultaneously be both an interactive computer service and an information content provider, the critical issue is whether SexSearch "acted as an information content provider with respect to the information that [Plaintiff] claim[s] is false." 421 F.Supp.2d at 1263, n. 6; Carafano v. Metrosplash.com, Inc., 339 F.3d 1119, 1123 (9th Cir.2003) ("an `interactive computer service' qualifies for immunity so long as it does not also function as an `information content provider' for the portion of the statement or publication at. issue"). While SexSearch may have reserved the right to modify the content of profiles in general, Plaintiff does not allege SexSearch specifically modified Jane Roe's profile, and is thus not an information content provider in this case. See Ben Ezra, Weinstein & Co. v. America Online, Inc., 206 F.3d 980, 986 (10th Cir.2000) (upholding immunity for the on-line provision of stock information even though AOL communicated frequently with the stock quote providers and had occasionally deleted stock symbols and other information from its database in an effort to correct errors). Additionally, the *726 mere fact SexSearch provided the questionnaire Jane Doe answered falsely is not enough to consider SexSearch the developer of the false profile. See Carafano, 339 F.3d at 1124-25. Treatment "as the Publisher" The last prong of Section 230 provides that SexSearch will be immune from liability if the state law claims would involve treating the website "as the publisher" of the false information. 47 U.S.C. 230(c)(1). Plaintiff contends the CDA only applies to defamation cases, and hence is inapplicable to the present action. However, of the courts that have reviewed Section 230, there seems to be a consensus that its grant of immunity is broad and far reaching. E.g., Universal Commun. Sys., 478 F.3d at 418 ("[t]he other courts that have addressed these issues have generally interpreted Section 230 immunity broadly"); Carafano, 339 F.3d at 1123 ("reviewing courts have treated [Section 230] immunity as quite robust"). In fact, several courts have expressly held that the CDA's immunity is not limited only to claims of defamation. See Beyond Sys. v. Keynetics, Inc., 422 F.Supp.2d 523, 536 (D.Md.2006) (applying Section 230 to a claim under the Maryland Commercial Electronic Mail Act); Universal Commun. Sys., 478 F.3d at 421 (applying Section 230 to a claim under a Florida securities law and cyber-stalking law); Novak v. Overture Services, Inc., 309 F.Supp.2d 446 (E.D.N.Y.2004) (applying Section 230 to a claim of tortious interference with prospective economic advantage); Noah v. AOL Time Warner, Inc., 261 F.Supp.2d 532, 538 (E.D.Va.2003) (applying Section 230 to a claim based on Title II of the Civil Rights Act of 1964). In Carafano, a case in which the plaintiff unsuccessfully attempted to hold an online dating service liable for a third party's creation of a false profile that eventually led to the plaintiff receiving highly-threatening and sexually-explicit messages, the court explained the policy reasons underlying the CDA as follows: Congress made a policy choice . . . not to deter harmful online speech through the separate route of imposing, tort liability on companies that serve as intermediaries for other parties' potentially injurious messages . . . The specter of tort liability in an area of such prolific speech would have an obvious chilling effect. It would be impossible for service providers to screen each of their millions of postings for possible problems. Faced with potential liability for each message republished by their services, interactive computer service providers might choose to severely restrict the number and type of messages posted. Congress considered the weight of the speech interests implicated and chose to immunize service providers to avoid any such restrictive effect. Carafano, 339 F.3d at 1123-24 (quoting Zeran v. America Online, Inc., 129 F.3d 327, 330-31 (4th Cir.1997) (holding AOL immune under Section 230 from claims it failed to remove a false advertisement after specific notice of its falsity)). Moreover, another important purpose of Section 230 is to remove "the disincentives of self-regulation that would otherwise result if liability were imposed on intermediaries that took an active role in screening content." Universal Commun. Sys., 478 F.3d at 419 (citing Zeran, 129 F.3d at 331). While both Carafano and Zeran speak only in terms of tort liability, as there was no occasion to address non-tort claims in those cases, their reasoning does not preclude Section 230 immunity from extending to Plaintiffs non-tort claims. Indeed, the plain language of Section 230 does not limit its grant of immunity to tort claims: "No cause of action may be brought and no liability may be imposed under any State or local law that is inconsistent with *727 this section." 47 U.S.C. at § 230(e)(3) (emphasis added). Further, the legislative history demonstrates Congress intended to extend immunity to all civil claims: "This section provides `Good Samaritan' protections from civil liability for providers or users of an interactive computer service for actions to restrict or to enable restriction of access to objectionable online material." 142 Cong. Rec. H1078 (1996) (emphasis added). Thus, the CDA grants immunity from all civil liability, except for the few exceptions expressly laid out in the statute: (1) federal criminal law; (2) intellectual property law; (3) State law that is consistent with this section; and (4) the Electronic Communications Privacy Act of 1986. 47 U.S.C. § 230(e). In fact, several courts have specifically applied Section 230 to breach of contract claims. Jane Doe One v. Oliver, 46 Conn.Supp. 406, 755 A.2d, 1000, 1002, 1004 (2000); Schneider v. Amazon.com, Inc., 108 Wash.App. 454, 464, 31 P.3d 37 (Wash.Ct.App.2001); Green v. America Online, 318 F.3d 465, 471 (3d Cir.2003) (holding AOL did not waive Section 230 immunity by the terms of its membership contract). Therefore, in determining whether to apply the CDA, the Court should not ask what particular form the plaintiff's claim takes — whether it sounds in tort or specifically alleges defamation (if such were the case, plaintiffs could plead their way around the CDA and undermine the will of Congress) — but whether the claim is directed toward the defendant in its publishing, editorial, and/or screening capacities, and seeking to hold it "liable for its publication of third-party content or harms flowing from the dissemination of that content." Doe v. MySpace, 474 F.Supp.2d at 849. See also Green, 318 F.3d at 471; Noah, 261 F.Supp.2d at 538-39; For example, in Doe v. MySpace, the plaintiffs asserted they were not suing for Myspace's posting of content, but rather for the website's failure to keep minors off the website or to prevent sexual predators from communicating with minors. The court found the "artful pleading" to be "disingenuous," and held that the CDA immunized Myspace from liability because plaintiffs were seeking to hold Myspace liable for publishing content provided by third parties. Doe v. MySpace, 474 F.Supp.2d at 849-50 ("It is quite obvious the underlying basis of Plaintiffs' claim is that, through postings on Myspace, Pete Solis and Julie Doe met and exchanged personal information which eventually led to an in-person meeting and the sexual assault of Jane Doe. If Myspace had not published [their content], Plaintiffs assert they never would have met and the sexual assault never would have occurred"). In the present action, Plaintiff attempts to do the same thing as the plaintiffs in Doe v. MySpace and, in fact, comes right out and tells the Court his Complaint is artfully pled to avoid the CDA (Pl.Opp., p. 5) ("That is precisely why Plaintiff is asserting the content of the profiles are not at issue. It is the fact that a minor was on the SexSearch website, and not, the content of the minor's profile that is at issue"). At the end of the day, however, Plaintiff is seeking to hold SexSearch liable for its publication of third-party content and harms flowing from the dissemination of that content. The underlying basis for Plaintiff's claim is that if SexSearch had never published Jane Roe's profile, Plaintiff and Jane Roe never would have met, and the sexual encounter never would have taken place. Plaintiff thus attempts to hold SexSearch liable for "decisions relating to the monitoring, screening, and deletion of content from its network — actions quintessentially related to a publisher's role." Green, 318 F.3d at 471. Section *728 230 specifically proscribes liability in such circumstances. Zeran, 129 F.3d at 332-33. Therefore, Defendants are immune from liability with regard to Counts One through Seven and Count Fourteen, as they all hinge on SexSearch's failure to remove Jane Roe's profile, or their failure to prevent John Doe from communicating with her. Further, even if Defendants were not immune under the CDA, each of Plaintiffs individual claims fails on the merits. A discussion of these individual claims follows. The Merits of the Individual Claims As an antecedent matter, the Court must address Plaintiffs Motion to Strike Defendants' Joint Reply (Docket No. 149) on the grounds that it is replete with references to matters outside the pleadings (Docket No. 149, p. 3-4). The Court must determine whether it can consider the Terms and Conditions, the Privacy Policy, the WARNING, and the age-check box attached to Defendants' Motion to Dismiss. It is well established that a Rule 12(b)(6) motion attacks the sufficiency of the pleadings, and a court ordinarily may not consider documents outside the four corners of the complaint. Weiner v. Klais & Co., 108 F.3d 86, 88 (6th Cir.1997). However, documents a defendant attaches to a motion to dismiss are considered part of the pleadings if they are (1) referred to in the plaintiffs complaint and (2) are central to his claims. Id. "Otherwise, a plaintiff with a legally deficient claim could survive a motion to dismiss simply by failing to attach a dispositive document upon which it relied!' Id. Here, the documents attached to Defendants' Motion to Dismiss are extensively referenced in the Complaint (see Complaint ¶¶ 106, 175-78, 182-92, 246-48, 330-35, 343, 361-89). Moreover, the documents are central to Plaintiffs claims — not only does he allege Defendants breached the Terms and Conditions and the purported warranty (Complaint ¶¶ 291-96, 322-26), but six of his fourteen claims allege that clauses in the Terms and Conditions are unconscionable (Complaint ¶¶ 356-89). Therefore, the documents attached to Defendants' Motion to Dismiss may properly be considered by the Court, and Plaintiffs Motion to Strike (Docket No. 149) is denied. Defendants have also asked the Court to take judicial notice of the fact that numerous other adult dating websites exist (Def. Req. for Jud. Not.). When deciding a Rule 12(b)(6) motion, the Court may consider materials in addition to the complaint "if such materials are public records or are otherwise appropriate for the taking of judicial notice." New Eng. Health Care Employees Pension Fund v. Ernst & Young, LLP, 336 F.3d 495, 501 (6th Cir. 2003). The Court may take judicial notice of facts "not subject to reasonable dispute" which are "either (1) generally known within the territorial jurisdiction of the trial court or (2) capable of accurate and ready determination by resort to sources whose accuracy cannot reasonably be questioned." Fed.R.Evid. 201(b). The fact that numerous adult-dating websites exist is capable for ready and accurate determination and is not subject to reasonable dispute. Accordingly, the Court takes judicial notice of the existence of numerous other adult-dating websites. Breach. of Contract Under Ohio law, to prove breach of contract, a plaintiff must demonstrate by a preponderance of evidence that: (1) a contract existed; (2) plaintiff fulfilled his obligations; (3) defendant failed to fulfill his obligations; and (4) damages resulted from this failure. Lawrence v. Lorain Cty. Community College, 127 Ohio App.3d 546, 548-49, 713 N.E.2d 478 (1998). Therefore, the Court must first determine *729 whether a contract existed and its essential terms. In order to gain access to SexSearch as a member, all potential members must check a box that appears on the webpage, which states: "I am over 18, I have read and, agree to the terms and conditions and the privacy policy " (Def. Mot. to Dismiss, p. 29) (emphasis in original). This type of contract is commonly referred to as a "clickwrap" agreement. "A clickwrap agreement appears on an internet webpage and requires that a user consent to any terms or conditions by clicking on a dialog box on the screen in order to proceed with the internet transaction."[1]Feldman v. Google, Inc., No. 06-2540, 2007 WL 966011, at *6, 2007 U.S. Dist. LEXIS 22996, at *17 (E.D.Pa. Mar. 29, 2007) (citing Specht v. Netscape Comms. Corp., 306 F.3d 17, 22 (2d Cir.2002)). Although they are electronic, clickwrap agreements are considered "writings" because "they are printable and storable." Id. Here, it is undisputed the contract consisted of the Terms and Conditions and the Profile Guidelines (Complaint ¶¶ 291-96; Def. Mot. to Dismiss, pp. 15-17). Plaintiff alleges Defendants breached the contract by "permitting minors to become paid members" and by "deliver[ing] a minor to Plaintiff for the purpose of sexual relations" (Complaint ¶¶ 296-97). However, the Terms and Conditions provide that SexSearch does not "assume any responsibility for verifying[] the accuracy of the information provided by other users of the Service" (Def. Mot. to Dismiss, Ex. A, ¶ 17). Therefore, Defendants complied with the Terms and Conditions, and Plaintiffs breach of contract claim fails as a matter of law. Ohio Univ. Bd. of Trustees v. Smith, 132 Ohio App.3d 211, 221, 724 N.E.2d 1155 (Ohio Ct.App.1999) ("[w]hen the terms of a contract are unambiguous, courts look to the plain language of the document and interpret it as a matter of law"). Fraud Plaintiff alleges in his Second cause of action that SexSearch fraudulently represented "all persons on its site are '18+' years of age," and that it "verifies all members profiles prior to posting." Plaintiff further contends he reasonably relied on these representations (Complaint ¶¶ 301-03). The elements of a claim of fraud are: (a) a representation . . ., (b) which is material to the transaction at hand, (c) made falsely, with knowledge of its falsity, or with such utter disregard and recklessness as to whether it is true or false that knowledge may be inferred, (d) with the intent of misleading another into relying upon it, (e) justifiable reliance upon the representation or concealment, and (1) a resulting injury proximately caused by the reliance. Orbit Electronics, Inc. v. Helm Instrument Co., Inc., 167 Ohio App.3d 301, 313-14, 855 N.E.2d 91 (2006) (citations omitted). As a matter of law, Plaintiff could not have reasonably relied on a purported representation somewhere on the SexSearch website that all persons using the site were over the age of 18. Plaintiff, as a registered member of the site, knew the membership-registration process did not involve an age-verification procedure. But more importantly, Plaintiff cannot claim he *730 was misled or he reasonably relied on the representation that "all members are 18 +" when the Terms and Conditions clearly state the website did not guarantee (and took no responsibility for verifying) members' ages (Def. Mot. to Dismiss, Ex. A, ¶ 17). Further, the Terms and Conditions state that no "information, whether oral or written, obtained by you from SexSearch or through or from SexSearch shall create any warranty not expressly stated in the TAC." Id. at ¶ 15(d). Plaintiff specifically agreed to these Terms and Conditions when registering as a member, and acknowledges they constitute the contract between himself and SexSearch (Complaint ¶¶ 175, 182, 184). Whether he actually read the Terms and Conditions is of no consequence. ABM Farms, Inc. v. Woods, 81 Ohio St.3d 498, 503, 692 N.E.2d 574 (1998) (quoting McAdams v. McAdams, 80 Ohio St. 232, 240-41, 88 N.E. 542 (1909)). Lastly, Plaintiff clearly had the ability to confirm Jane Roe's age when he met with her in person, before they had sex, yet failed to do so. Although Plaintiffs Complaint alleges his reliance was reasonable, "conclusory allegations or legal conclusions masquerading as factual conclusions will not suffice to prevent a motion to dismiss." MacDermid v. Discover Fin. Servs., 488 F.3d 721, 733 (6th Cir.2007) (quoting Mezibov v. Allen, 411 F.3d 712, 716 (6th Cir.2005)) (holding plaintiffs conclusory allegation that the application process is "inherently deceptive" is not enough to survive a 12(b)(6) motion). Accordingly, Plaintiff's reliance upon the purported representations was not reasonable as a matter of law in light of the language in the Terms and Conditions, and his fraud claim must be dismissed. Negligent Infliction of Emotional Distress The Ohio Supreme Court has recognized the tort of negligent infliction of emotional distress. See Paugh v. Hanks, 6 Ohio St.3d 72, 74, 451 N.E.2d 759 (1983). However, a plaintiff may only bring a claim for negligent infliction of emotional distress where "the plaintiff is cognizant of real physical danger to himself or another." King v. Bogner, 88 Ohio App.3d 564, 569, 624 N.E.2d 364 (Ohio Ct.App.1993) (emphasis added) (citation omitted) (the plaintiff could not maintain a claim for negligent infliction of emotional distress where she was not cognizant of any physical danger resulting from a slanderous statement); Heiner v. Moretuzzo, 73 Ohio St.3d 80, 86-87, 652 N.E.2d 664 (1995) (Ohio courts have limited "recovery for negligent infliction of emotional distress to instances where the plaintiff has either witnessed or experienced a dangerous accident or appreciated the actual physical peril"). Although Plaintiffs arrest and criminal indictment certainly may have caused him emotional distress, he was in no physical peril. Further, in his Complaint, Plaintiff does not allege he was cognizant of any physical danger to himself or others (see Complaint ¶¶ 306-313). Therefore, this is simply not a case in which Plaintiff can recover for negligent infliction of emotional distress. See Wigfall v. Society Nat'l Bank, 107 Ohio App.3d 667, 670, 676, 669 N.E.2d 313 (1995) (where the plaintiff was falsely accused of robbing a bank and was subsequently arrested, fingerprinted, interrogated by FBI agents, and his picture was published in the newspaper and broadcast on television, his negligent infliction of emotional distress claim was denied because the defendant's negligence produced no actual threat of physical harm to him or any other person); see also Reeves v. Fox TV Network, 983 F.Supp. 703, 707, 711 (N.D.Ohio 1997) (plaintiff could not maintain a claim of negligent Infliction of emotional distress resulting from the videotaping and broadcast of his arrest). *731 Negligent Misrepresentation Plaintiff next alleges Defendants made a negligent misrepresentation by promising all members were adults (Complaint ¶ 316). A defendant is liable for negligent misrepresentation if he: (1), supplies false information; (2) for the guidance of others in their business transactions; (3) causing pecuniary loss to the plaintiff; (4) while the plaintiff justifiably relied upon the information; (5) and the defendant failed to exercise reasonable care or competence in obtaining or communicating the information. Delman v. City of Cleveland Heights, 41 Ohio St.3d 1, 4, 534 N.E.2d 835 (1989). Further, this Court has recognized that "[a] core requirement in a claim for negligent misrepresentation is a special relationship under which the defendant supplied information to the plaintiff for the latter's guidance in its business transaction." Ziegler v. Findlay Indus., 464 F.Supp.2d 733, 738 (N.D.Ohio 2006) (quoting Hayes v. Computer Assoc. Inc., No. 03:02 CV 7452, 2003 WL 21478930, 2003 U.S. Dist. LEXIS 10712 (N.D. Ohio June 24, 2003)). "Usually the defendant is a professional (e.g., an accountant) who is in the business of rendering opinions to others for their use in guiding their business, and the plaintiff is a member of a limited class. This `special relationship' does not exist in ordinary business transactions." Id. The transaction in the instant case is not the type of "special relationship" required to state a claim for negligent misrepresentation. Further, the Complaint does not allege that such a special relationship exists here. Accordingly, Plaintiffs negligent misrepresentation claim must be dismissed. Breach of Warranty The only apparent basis for Plaintiffs breach of warranty claim is Ohio Rev.Code § 1302.26, which provides in pertinent part: (A) Express warranties by the seller are created as follows: (1) Any affirmation of fact or promise made by the seller to the buyer which relates to the goods and becomes part of the basis of the bargain creates an express warranty that the goods shall conform to the affirmation or promise. This Section clearly states that it applies only to the sale of goods. A membership to SexSearch is a service, not goods, and therefore Plaintiff cannot maintain a claim for breach of warranty under this statute. Brown v. Christopher Inn Co., 45 Ohio App.2d 279, 283, 344 N.E.2d 140 (1975) (Section 1302.26 does not apply where there has been no sale of goods as defined under the Uniform Commercial Code, U.C.C. § 2-105) ("`Goods' means all things . . . which are movable at the time of identification to the contract for sale other than the money in which the price is to be paid, investment securities (Article 8) and things in action."). Plaintiff cites Litehouse Products, Inc. v. A.M.I. International Ltd., No. 46834, 1984 WL 4539, at *3 (Ohio Ct.App. Mar. 8, 1984), for the proposition that Section 1302.26 applies to products and services (131.Opp., p. 9). However, that case did not involve services, and nowhere in the opinion did the court mention Section 1302.26 applies to services. Litehouse Products, 1984 WL 4539, at *1, 3. Accordingly, Plaintiffs breach of warranty claim fails. Violations of the Ohio Consumer Sales Practices Act Plaintiff alleges numerous violations of the Ohio Consumer Sales Practices Act (OCSPA). Causes of action Six and Seven allege Defendants engaged in deceptive trade practices in violation of Ohio Rev.Code §§ 1345.02(B)(10) and 1345.02(A) by warranting that no member *732 of the SexSearch website was a minor (Complaint ¶¶ 1343, 354). Causes of action Eight through Ten allege Defendants incorporated unconscionable clauses into the Terms and Conditions in violation of Ohio Rev.Code §§ 1345.02(A) and 1345.03, including a clause limiting damages for its breach to the amount of the contract and a clause allowing the supplier to unilaterally cancel the contract after the consumer's three (3) day right to cancel has passed without allowing the consumer the same option (Complaint ¶¶ 358, 362, 366). Before reaching the merits of these claims, Defendants argue the OCSPA is inapplicable because the sale of a SexSearch membership is not a "consumer transaction" within the meaning of the OCSPA (Def. Mot. to Dismiss, pp. 24-25). "Whether the parties have engaged in a consumer transaction is a question of law for the court to determine." Riley v. Supervalu Holdings, Inc., No. C-040668, 2005 WL 3557395, *2, 2005 Ohio 6996, at ¶ 10, 2005 Ohio App. LEXIS 6318, at *7 (Ohio Ct.App. Dec. 30, 2005). Under the OCSPA, a consumer transaction is defined as "a sale . . . of goods, a service, . . . or an intangible, to an individual for purposes that are primarily personal, family, or household." Ohio Rev.Code § 1345.01(A). Defendants argue the membership is not a "service" within the meaning of the OCPA because services are defined as the "performance of labor for the benefit of another" (emphasis added). They cite Hoang v. E*Trade Group, 151 Ohio App.3d 363, 372, 784 N.E.2d 151 (2003), in which the court held "the common ordinary meaning of the word `labor' implies work performed with some physical exertion," and "[s]ervices provided electronically do not require any physical exertion and therefore do not require any `labor.'" Id. However, this position is at odds with common sense. First, the OCSPA is a remedial law which must be liberally construed in favor of the consumer; yet the court in Hoang gives a hyper-technical definition of the word "labor" which, in effect, denies consumers protection with regard to virtually all internet transactions. Einhorn v. Ford Motor Co., 48 Ohio St.3d 27, 29, 548 N.E.2d 933 (1990); Whitaker v. M.T. Auto., Inc., 111 Ohio St.3d 177, 185, 855 N.E.2d 825 (2006). Secondly, courts have specifically found a website membership to be a service. Bosley v. Wildiwett.com, 310 F.Supp.2d 914, 921 (N.D.Ohio 2004). In this case, the service rendered by SexSearch is, among other things, the delivery of communications among members via the internet (see Complaint ¶ 213). Merely because the communications are delivered electronically does not alter the fact that a service has been performed. The only difference here is that the service is performed by computers acting on behalf of actual people. There is no reason why this distinction alone should render Ohio's consumer protection legislation inapplicable to transactions over the internet. Therefore, the sale of a SexSearch membership is a "consumer transaction" within the meaning of the OCSPA. Deceptive Acts With regard to the Sixth and Seventh causes of action, when determining whether an act or practice is deceptive, the Court must view the incident from the consumer's standpoint. Chesnut v. Progressive Cas. Ins. Co., 166 Ohio App.3d 299, 307, 850 N.E.2d 751 (2006). "The basic test is one of fairness; the act need not rise to the level of fraud, negligence, or breach of contract." (citation omitted). Id. "A deceptive act has the likelihood of inducing a state of mind in the consumer that is not in accord with the facts.'" (quoting McCullough v. Spitzer Motor Ctr., No. 64465, 1994 WL 24281, at *8 (Ohio Ct.App. Jan. 27, 1994)). Id. *733 In this case, there was nothing deceptive with regard to the WARNING language on SexSearch that "all persons within this site are 18+." Plaintiff was not an unsuspecting consumer. He was aware the SexSearch membership registration process did not include an age-verification procedure. As noted above, Plaintiff specifically agreed to Terms and Conditions which stated that SexSearch did not guarantee or verify any information provided by users of the website, and nothing outside of the Terms and Conditions creates warranties (Def. Mot. To Dismiss, Ex. A, ¶¶ 17, 15(d)). This WARNING language is not deceptive because the parties contracted that no warranties could be created outside the Terms and Conditions. See, e.g., Rusk Industries v. Alexander, No. L-01-1328, at ¶ 46, 2002 WL 850232, at *7 (Ohio Ct.App. May 3, 2002) ("the Consumer Sales Practices Act was not promulgated as a panacea by which any consumer would be able to avoid unpleasant contractual obligations"). Accordingly, causes of action Six and Seven fail. Unconscionable Acts Plaintiff also alleges Defendants committed unconscionable acts in violation of Ohio Rev.Code § 1345.03 because the contract (a) limited damages to the amount of the contract and (b) provided Defendants a unilateral right to cancel the contract (causes of action Eight through Ten). Ohio Rev.Code § 1345.03 provides: (A) No supplier shall commit an unconscionable act or practice in connection with a consumer transaction. Such an unconscionable act or practice by a supplier violates this section whether it occurs before, during, or after the transaction (B) In determining whether an act or practice is unconscionable, the following circumstances shall be taken into consideration: (5) Whether the supplier required the consumer to enter into a consumer transaction on terms the supplier knew were substantially one-sided in favor of the supplier. "In order to recover under Section 1345.03, a consumer must show that a supplier acted unconscionably and knowingly." Karst v. Goldberg, 88 Ohio App.3d 413, 418, 623 N.E.2d 1348 (1993). While proof of intent is not required to prove deception under Section 1345.02, proof of knowledge is a requirement to prove an unconscionable act under Section 1345.03. Suttle v. DeCesare, No. 81441, 2003 WL 21291053, at *6 (Ohio Ct.App. June 5, 2003) (citing Karst, 88 Ohio App.3d at 418, 623 N.E.2d 1348). "Knowledge," under Section 1345.01(E), "means actual awareness, but such actual awareness may be inferred where objective manifestations indicate that the individual involved acted with such awareness." Id. While viewed critically by the courts, limitation of liability clauses may be freely bargained for in Ohio, and "[a]bsent important public policy concerns, unconscionability, or vague and ambiguous terms, [such] provisions will be upheld. . . ." Nahra v. Honeywell, Inc., 892 F.Supp. 962, 969 (1995) (citations omitted) (quoting Collins v. Click Camera & Video, Inc., 86 Ohio App.3d 826, 832, 621 N.E.2d 1294 (Ohio Ct.App.1993)). For example, in Motorists Mut. Ins. Co. v. ADT Sec. Systems, 1995 WL 461316 (Ohio Ct.App. Aug. 4, 1995), where the limitation on damages clause was disproportionate to the actual damages suffered by the plaintiffs, but not disproportionate to the contract price, the court held the contract was not substantially one-sided and unconscionable because the defendants "could reasonably take the position that it could not afford to undertake a potential liability greater than $1,000 in view of the price it was charging for its [alarm] system," which was an annual *734 fee of $1,033, for a period of five years. Id. at *7 The instant action is analogous to Motorists Mut. Ins. Co. Not only is the limitation on damages here the same as the contract price (Def. Mot. to Dismiss, Ex. A, ¶), but given the nature of Defendants' adult dating website (i.e., SexSearch cannot control its member's actions when they meet), the extent of potential liability is unpredictable and potentially astronomical. See Collins, 86 Ohio App.3d at 834-35, 621 N.E.2d 1294. A SexSearch gold membership costs $29.95 per month, and a basic membership is free (Complaint ¶¶¶ 113, 116). In this case, a limitation on damages clause is commercially reasonable to avoid the specter of potential liability which far exceeds the meager price paid, if any, for membership. Collins, 86 Ohio App.3d at 835, 621 N.E.2d 1294; Royal Indem. Co. v. Baker Protective Services, Inc., 33 Ohio App.3d 184, 186, 515 N.E.2d 5 (1986) (citations omitted) ("Ohio courts have held the concept of `freedom of contract' to be fundamental to our society," and "an important function of contract law is to enforce the parties' agreed-upon allocation of risk"). Therefore, the limitation on damages clause here is not substantially one-sided. With regard to the provision in the contract providing SexSearch a unilateral right to cancel the contract after the consumer's three (3) day right to cancel has passed without allowing the consumer the same option does not render the contract substantially one-sided and unconscionable. In fact, this provision is intended to protect members by allowing SexSearch to monitor and remove members that harass each other, post advertisements, or otherwise violate the Terms and Conditions. Moreover, even if the website cancels the membership, the member will receive a pro-rata refund (Def. Mot. to Dismiss, Ex. A, ¶ 3). Thus, this clause is entirely reasonable and not substantially one-sided. Moreover, Plaintiff provides no legal support for this claim. Plaintiff's Eighth, Ninth, and Tenth causes of action fail and must be dismissed. Unconscionability Plaintiff's causes of action Eleven, Twelve, and Thirteen allege common-law claims based on alleged unconscionability of the Terms and Conditions. Specifically, Plaintiff claims (1) the limitation of liability and the disclaimer of warranties were misleading, and he was not provided a meaningful choice with regard to accepting those terms; and (2) the Terms and Conditions provide no guarantee Defendants would or could perform their contractual promises (Complaint ¶¶ 368-389). Unconscionability is a question of law, and "is generally recognized to include an absence of meaningful choice on the part of one of the parties to a contract, combined with contract terms that are unreasonably favorable to the other party." Collins, 86 Ohio App.3d at 834, 621 N.E.2d 1294; Ins. Co. of N. Am. v. Automatic Sprinkler Corp. of Am., 67 Ohio St.2d 91, 98, 423 N.E.2d 151 (1981). Thus, Ohio's unconscionability doctrine consists of two prongs: (1) procedural unconscionability, and (2) substantive unconscionability. Dorsey v. Contemporary Obstetrics & Gynecology, Inc., 113 Ohio App.3d 75, 80, 680 N.E.2d 240 (Ohio Ct.App.1996). A contract is unconscionable only if it meets both tests. Collins, 86 Ohio App.3d at 834, 621 N.E.2d 1294. Procedural unconscionability involves factors relating to the "relative bargaining position of the contracting parties, e.g., `age, education, intelligence, business acumen and experience, relative bargaining power, who drafted the contract, whether the terms were explained to the weaker *735 party, whether alterations in the printed terms were possible, and whether there were alternative sources of supply for the goods in question.'" Id. (quoting Johnson v. Mobil Oil Corp., 415 F.Supp. 264, 268 (E.D.Mich.1976)) Here, Plaintiff does not allege lack of education, intelligence, or business experience. Rather, he claims he was not provided any meaningful choice with regard to accepting the Terms and Conditions, and he was not represented by counsel at the time (Complaint ¶¶ 376, 397, 386, 387). Even assuming Plaintiff could not have bargained with SexSearch to alter the terms, "this inability alone is insufficient to establish procedural unconscionability." Collins, 86 Ohio App.3d at 835, 621 N.E.2d 1294 (citing Richard A. Berjian, D. 0., Inc. v. Ohio Bell Tel. Co., 54 Ohio St.2d 147, 157, 375 N.E.2d 410 (1978)). Further, "there were alternative sources of supply for the goods in question;" specifically, numerous other, adult-dating websites exist, from which Plaintiff could have received the same service if he did not agree with SexSearch's Terms and Conditions.[2]Collins, 86 Ohio App.3d at 834, 621 N.E.2d 1294 (citation omitted). Thus, the fact that Plaintiff "was not provided any meaningful choice" regarding the wording of the Terms and Conditions did not constitute procedural unconscionability here. Moreover, although the Court should consider whether Plaintiff was represented by counsel at the time the contract was executed, the crucial question is whether "each party to the contract . . . [had] a reasonable opportunity to understand the terms of the contract, or were the important terms hidden in a maze of fine print?" Post v. ProCare Automotive Serv. Solutions, No. 87646, 2007 WL 1290091, at *4 (Ohio Ct.App. May 3, 2007) (citations omitted); Collins, 86 Ohio App.3d at 835, 621 N.E.2d 1294 (the court should consider whether the terms were explained, or otherwise brought to Plaintiffs attention). Here, Plaintiff had an adequate opportunity to read the Terms and Conditions, and there is no allegation that a time limitation was placed on Plaintiffs opportunity to read them. Therefore, the fact Plaintiff was not represented by counsel does not create procedural, unconscionability in this case. Anderson v. Delta Funding Corp., 316 F.Supp.2d 554, 565 (N.D.Ohio 2004). Additionally, the limitation of liability and the disclaimer of warranties were not hidden from Plaintiff or in fine print, but were sufficiently conspicuous. See Hubbert v. Dell Corp., 359 Ill.App.3d 976, 987, 296 Ill.Dec. 258, 835 N.E.2d 113 (Ill.Ct. App.2005) (terms in a clickwrap agreement were sufficiently conspicuous where the website had hyperlinks for the Terms and Conditions in contrasting blue colors, the clauses in question were partially in capital letters, and the beginning of the terms were in bold, capital letters); Anderson, 316 F.Supp.2d at 565 (holding no unconscionability where the language was not particularly complex and the terms were not typed in abnormally fine print). Here, the terms are highlighted in bold, capital letters and with hyperlinks to highlight some of the more important terms (Def. Mot. to Dismiss, ¶¶ 12, 15). Therefore, there was no procedural unconscionability in the execution of the contract in this case. The second element of unconscionability is substantive unconscionability. "Substantive unconscionability involves those factors which relate to the contract terms themselves and whether they are commercially reasonable." Collins, *736 86 Ohio App.3d at 834, 621 N.E.2d 1294. "Because the determination of commercial reasonableness varies with the content of the contract terms at issue in any given case, no generally accepted list of factors has been developed for this category of unconscionability." Id. For the reasons discussed above, the limitation of liability clause was commercially reasonable based on the small contract price and the extent and unpredictability of future liability. Thus, the limitation of liability clause is not substantively unconscionable. With regard to the disclaimer of warranties (and although Defendants provided no support why the disclaimer of warranties is commercially reasonable), because the Court does not find procedural unconscionability, it is unnecessary for the Court to address the issue of substantive unconscionability. Ball v. Ohio State Home Servs., Inc., 168 Ohio App.3d 622, 629, 861 N.E.2d 553 (2006). Accordingly, Plaintiffs Twelfth and Thirteenth causes of action fail to state a claim for unconscionability and must be dismissed. Lastly, Plaintiff's Eleventh cause of action alleges the Terms and Conditions provide no guarantee Defendants would or could perform their contractual promises, and therefore, the terms are unconscionable (Complaint ¶ 370). This claim is wholly without merit. It is axiomatic that a contract is "a promise or a set of promises for the breach of which the law gives a remedy." Rasnick v. Tubbs, 126 Ohio App.3d 431, 434, 710 N.E.2d 750 (Ohio Ct.App.1998) (emphasis added) (citation omitted). In order for a contract to be binding, there must be a "manifestation of mutual assent," which requires that each party "either make a promise or begin or render a performance" (citation omitted). Id.; Westfield Ins. Co. v. HULS Am., Inc., 128 Ohio App.3d 270, 291, 714 N.E.2d 934 (1998). Thus, a contract is nothing other than a party's promise to perform its agreed upon obligations, and nowhere does the law require a party to guarantee it will perform its contractual obligations. If the Court were to hold a contract unconscionable merely because one of the parties did not guarantee it would perform as promised, the Court would implicitly be adding an additional requirement to the formation of a contract; i.e., one which requires the parties to guarantee performance. The Court declines to change the time-tested rule that a contract is a promise, not a guarantee. Accordingly, Plaintiffs Eleventh cause of action fails to state a claim upon which relief may be granted, and therefore must be dismissed Failure to Warn Plaintiffs final cause of action alleges Defendants failed to warn Plaintiff that a minor may be a member of SexSearch (Complaint ¶ 393). A failure to warn claim consists of the following elements: (1) there was a duty to warn, (2) that duty was breached, and (3) injury proximately resulted from the breach. See Freas v. Prater Constr. Corp., 60 Ohio St.3d 6, 8-9, 573 N.E.2d 27 (1991). However, where the danger is open and obvious, there is no duty to warn of the danger. Livengood v. ABS Contrs. Supply, 126 Ohio App.3d 464, 466, 710 N.E.2d 770 (Ohio Ct.App.1998). "Where only one conclusion can be drawn from the established facts, the issue of whether a risk was open and obvious may be decided by the court as a matter of law." Klauss v. Glassman, No. 84799, 2005 WL 678984, at *3 (Ohio Ct.App. Mar. 24, 2005) (citations omitted). In the instant action, Defendants had no duty to warn Plaintiff because the danger here was open and obvious. It is common knowledge that "young children all over America use the Internet." U.S. v. Rice, 61 Fed.Appx. 14, 19 (4th Cir.2003). Moreover, *737 given the "anonymity of the Internet," the danger that a minor might enter an adult-only website was open and obvious, as persons wishing to gain access merely had to click a box stating they were above 18 years of age. See, e.g., U.S. v. Mitchell 353 F.3d 552, 553 (7th Cir.2003) ("[t]he Internet has opened the doors for many to transact business and personal affairs with almost complete anonymity"). Defendants had no duty to warn Plaintiff that an anonymous internet poster might post false content, as internet anonymity is an open and obvious danger. See, e.g., Gawloski v. Miller Brewing Co., 96 Ohio App.3d 160, 163, 644 N.E.2d 731 (1994) ("brewers and distributors of alcoholic beverages do not have a duty to warn consumers of the dangers inherent in the excessive or prolonged use of alcohol because those dangers are within the body of knowledge common to the community"). Further, even if Defendants were under a duty to warn, the Terms and Conditions contain the following warning: "We cannot guarantee, and assume no responsibility for verifying, the accuracy of the information provided by other users of the Service" (Def. Mot. to Dismiss, Ex. A, ¶ 17). Thus, even if Defendants had a duty to warn Plaintiff, they satisfied this duty by including a warning in the Terms and Conditions. Accordingly, Plaintiff's failure-to-warn claim fails as a matter of law. CONCLUSION Plaintiff employed a double-barreled shotgun approach in this case, but failed to hit a claim upon which relief may be granted. Accordingly, Defendants' Motion to Dismiss (Doc. No. 123) is granted, and Plaintiff's Motion to Strike (Doc. No. 149) is denied. IT IS SO ORDERED. NOTES [1] "Clickwrap" agreements are different than "browsewrap" agreements. A "browsewrap" agreement "allow[s] the user to view the terms of the agreement, but do[es] not require the user to take any affirmative action before the Web site performs its end of the contract." James J. Tracy, Case Note, Legal Up-date: Browsewrap Agreements: Register.com, Inc. v. Verio, Inc., 11 B.U.J. SCI. & TECH. L 164, 164-65 (2005). [2] As noted above, the Court takes judicial notice of the existence of numerous other adult-dating websites.

966 F.2d 1443 NOTICE: Fourth Circuit I.O.P. 36.6 states that citation of unpublished dispositions is disfavored except for establishing res judicata, estoppel, or the law of the case and requires service of copies of cited unpublished dispositions of the Fourth Circuit.Crit ROSE, Petitioner,v.DIRECTOR, OFFICE OF WORKERS' COMPENSATION PROGRAMS, UnitedStates Department of Labor; ContractingEnterprises, Respondents. No. 91-1870. United States Court of Appeals,Fourth Circuit. Submitted: February 26, 1992Decided: June 10, 1992 Crit Rose, Petitioner Pro Se. Michael John Denney, Jeffrey Steven Goldberg, Office of the Solicitor, United States Department of Labor, Washington, D.C.; Michael Francis Blair, Penn, Stuart, Eskridge & Jones, Abingdon, Virginia, for Respondents. Before HALL and LUTTIG, Circuit Judges, and CHAPMAN, Senior Circuit Judge. PER CURIAM: OPINION 1 Crit Rose seeks review of the Benefits Review Board's decision and order affirming the administrative law judge's denial of black lung benefits pursuant to 30 U.S.C.A. §§ 901-945 (West 1986 & Supp. 1991). Our review of the record and the Board's decision and order discloses that this appeal is without merit. Accordingly, we affirm on the reasoning of the Board. Rose v. Director, Office of Workers' Compensation Programs, No. 90-575-BLA (B.R.B. Oct. 29, 1991). We dispense with oral argument because the facts and legal contentions are adequately presented in the materials before the Court and argument would not aid the decisional process. AFFIRMED

260 Wis. 459 (1952) BAST, Respondent, vs. MARSDEN, Appellant.[*] Supreme Court of Wisconsin. December 6, 1951. January 8, 1952. *460 For the appellant there were briefs by Toebaas, Hart, Kraege & Jackman and Carl Flom, all of Madison, and oral argument by Mr. W. L. Jackman and Mr. Flom. For the respondent there was a brief by Curkeet & Curkeet of Madison, and oral argument by William R. Curkeet, Sr., and William R. Curkeet, Jr. FRITZ, C. J. In 1943 the defendant, Dr. Wendell H. Marsden, treated the plaintiff, Louis W. Bast, for an injury to his right arm, and on May 7, 1949, Bast consulted Marsden with a complaint that the arm was stiff and sore. An X ray taken showed an exostosis, which is a bony growth or spur that juts out from the normal contour of a bone and can occur anywhere in a bone where there is a bony irritation. It was the result of plaintiff's occupation and his using a hammer and saw, and it disturbed the normal function of plaintiff's arm. On May 20, 1949, Marsden operated on the arm to remove the exostosis. In the course of the operation, Marsden, after locating the position of the exostosis by use of the X ray, made an incision just through the skin with the sharp edge of the scalpel, and he found an exostosis of the right radius with several spurs about one inch below the head of the radius and elevated about one-fourth inch above the medial border of the radius and extending along the radius about *461 one inch. Marsden testified that without using the sharp edge of the scalpel he separated the muscles immediately beneath the skin without disturbing their structure at all; that the first muscle it was necessary to disturb structurally was the supinator, located directly over the exostosis, and this muscle was separated in the direction of its fibers, which was at right angles to the incision, to secure exposure of the exostosis; and that said fibers were not cut, but were separated with the blunt end of the scalpel, so as to avoid disturbing the function of the muscle as little as possible. Marsden testified he was aware of the usual position of the deep radial nerve as located in the muscle belly of the supinator muscle and thus planned the operation; that the radial nerve comes down the humerus and ends near the elbow by dividing into two branches; one, a sensory branch to the skin, and the other, a motor nerve or muscular branch known as the posterior interosseous; that just below the elbow the posterior interosseous branch goes through the supinator muscle and his intention was to avoid exposing the deep radial nerve if possible, and if it came in his view, to retract it and stay away from it; and that if it had been in the cleavage of the supinator muscle it would have been in Marsden's field of view and he would have seen it; but he did not see it. Marsden and several physicians testified that the radial nerve was about one-quarter inch in diameter and slightly flattened. Marsden testified the absence of the nerve from his view, although he was watching for it, as he dissected through the supinator muscle, indicated to him that the nerve was not in the path of the operation. During the operation Marsden did not know that the deep branch of the radial nerve had been injured and nothing that occurred during the operation led him to believe that it had been injured; and when he did not see the nerve in the course of the operation he assumed it was retracted with the portion *462 of the supinator muscle which was held aside by retractors; and that had it been in its normal position it was his opinion that it would have been retracted as he planned the operation. Dr. Grumke assisted Marsden by holding the retractors in the position Marsden placed them, but Grumke was not so situated that he could see in the wound or see the exostosis. The day after the operation there was swelling at the site of the operation which persisted for a week and there was weakness of plaintiff's hand which Marsden attributed to the swelling and trauma incident to the operation. When that weakness persisted Marsden did not conclude the nerve had been severed, but believed it was due to temporary swelling or trauma or bruising to the nerve. In July, 1949, plaintiff was examined by Doctor Erickson, a neurosurgeon, and three physicians. Erickson diagnosed plaintiff's trouble as an injury to the interosseous (deep) branch of the radial nerve, which supplies the muscles which extend the fingers and wrist; and he operated on plaintiff on February 23, 1950, for the purpose of exploring that nerve. He found the nerve was interrupted and sutured the ends. The previous scar was excised and the scar tissue was followed down between the muscles running down from the region of the elbow. This scar tissue was removed to expose the ends of the posterior interosseous nerve, down to the supinator brevis muscle. By further dissection the lower portion of the nerve was found but not in its usual position, and was found to be completely interrupted. There were two ends with scar tissue between them, and on the upper portion of the nerve there was a neuroma which may result from injury of various sorts. The neuroma was cut off by Erickson and the nerve ends were sutured, and an X ray shows the nerve is still together. At the conclusion of the trial the jury found: (1) That Marsden was causally negligent as to the lookout he kept for the radial nerve; but (2) that he was not negligent with *463 respect to the manner in which he used his instruments during the operation he performed. Upon the jury's finding that Marsden was causally negligent as to the lookout he kept for the radial nerve, the court entered judgment against the defendant for the plaintiff's recovery of the damages assessed by the jury. There were conflicts in the testimony of the physicians as to whether or not in their opinion Marsden used such care and skill as a competent physician and surgeon in Marsden's position would ordinarily use. In his argument to the jury, the defendant's attorney stated: "Dr. Erickson says, and I believe honestly, that the nerve was divided when he found it. Now, there is no question about it and we don't question it." On the trial there was ample evidence which the jury could consider credible and sufficient to warrant a finding that the radial nerve in question was severed by an incision made by the defendant, and that with the exercise of due care by him the particular cleavage plane he dissected through the nerve would be in his field of vision. There was credible evidence that when performing an operation in the vicinity of such larger nerves, a physician should be more careful in his dissection so that if such nerves appear in sight, he can see and recognize them, and stay away from them. Dr. Erickson testified that in the area in which he subsequently operated, the radial nerve was readily distinguishable from surrounding tissue and that a doctor should be able to recognize that nerve. And the defendant testified that the interosseous branch of the radial nerve should be readily visible if exposed; that it is a little clearer and shinier than other tissues; and that you would expect to be able to distinguish nerve tissue from other tissue surrounding it; that it is clear and shiny. Consequently, in view of Dr. Marsden's failure to see the radial nerve — which is the specific act of causal negligence found by the jury — although, as he testified, he knew that *464 it was in the area in which he was operating and that his vision was not obscured by blood and the nerve would be readily distinguishable from the surrounding tissues; and in view of the evidence that after Dr. Marsden had operated, Dr. Erickson found the nerve in the scar tissue of Dr. Marsden's operation, and in two pieces after the fact of its severance was proven, there was clearly warranted the jury's verdict and the judgment entered in this action. By the Court.—Judgment affirmed. NOTES [*] Motion for rehearing denied, with $25 costs, on March 4, 1952.

United States Court of Appeals For the First Circuit No. 08-1276 UNITED STATES OF AMERICA, Appellee, v. ALVIN F. AGUIRRE-GONZÁLEZ, Defendant, Appellee, RICHARD J. SCHMEELK; WILLIAM B. FINNERAN; and JIRA ASSOCIATES, LP, Movants, Appellants, WELLS CAPITAL MANAGEMENT, INC., Provisional Intervenor. ERRATA SHEET The opinion of this Court issued on March 2, 2010, is amended as follows: On page 7, line 1: Replace "January 17, 2003" with "January 17, 2008". 

908 So.2d 1231 (2005) Thomas Ray HUTSON, Plaintiff-Appellant v. Gladys May Dampier Claunch HUTSON, Defendant-Appellee. No. 39,901-CA. Court of Appeal of Louisiana, Second Circuit. August 9, 2005. *1232 Wright & Underwood by Patrick H. Wright, Jr., Bobby N. Underwood, Monroe, for Appellant. Robert Alan Breithaupt, for Appellee. Before BROWN, STEWART and CARAWAY, JJ. *1233 STEWART, J. Thomas Ray Hutson, seeks reversal of the of the trial court's judgment finding his former spouse, Gladys Hutson, free from fault in the dissolution of the marriage for the purposes of awarding final periodic spousal support. For the reasons set forth below, we affirm the judgment of the trial court. FACTS Thomas Ray Hutson ("Mr. Hutson"), and Gladys May Dampier Claunch Hutson ("Ms. Hutson"), were married on September 27, 1985, in Hamburg, Arkansas, and subsequently established a matrimonial domicile in Ouachita Parish. No children were born of the marriage. On August 28, 2003, Mr. Hutson filed for divorce, pursuant to La. C.C. art. 102, in the Fourth Judicial District Court for the Parish of Ouachita. On September 22, 2003, Ms. Hutson filed an answer and reconventional demand in which she alleged that she was free from fault in the break up of the marriage and was in need of final periodic support. Mr. Hutson filed an answer to the reconventional demand generally denying Ms. Hutson's assertion that she was free from fault in the break up of the marriage, but made no factual allegations as to any conduct on her part which would constitute fault. On March 11, 2004, Mr. Hutson filed a rule for a final judgment of divorce and a determination on the issue of fault in the break up of the marriage. At the hearing, the court heard from the parties and various friends and relatives as to the circumstances surrounding the break up of the marriage. Mr. Hutson testified that during the marriage, Ms. Hutson subjected him to criticism and nagging "almost daily." She criticized his children and his fishing, and she nagged him about doing yard work. Mr. Hutson indicated that his children quit coming to the house, but he did not explain how this was attributable to Ms. Hutson since he admitted she never criticized the children in their presence. He also indicated he quit fishing because she would tease him when he did not catch anything. Mr. Hutson also alleged that Ms. Hutson constantly accused him of having extramarital affairs. However, his testimony reflected that Ms. Hutson was more inquisitive than accusatory about his relationships with other women. He also testified that Ms. Hutson controlled the family finances, but gave no testimony that he was in disagreement with the arrangement. He testified that the parties did not have sexual relations or share a bedroom during the last two years of their marriage, but he admitted that it was because he did not want to have anything to do with "somebody that just, uh, is a bitch." He admitted that about a year before Ms. Hutson moved out of the matrimonial domicile, he told her he did not love her anymore. He testified that he was relieved when she moved out and admitted that he never asked her to return. Even though she moved out, Mr. Hutson stated he believed that Ms. Hutson did not want a divorce. The court also heard from Lisa Woods, a self-described estranged niece of Ms. Hutson's. After admitting that she had not been on speaking terms with her aunt for four years, she testified that her aunt was very controlling and insulting. Most of her testimony was based on hearsay as she was not a witness to the day-to-day events in the marriage. And while she undeniably had no kind words for her estranged aunt from a personal perspective, her testimony is less than instructive on the fault issue. Mr. Hutson also submitted the testimony of his son, Clint Hutson who testified *1234 that he had not been out to his father's home in six years. Therefore testimony could not corroborate any of his father's allegations as to Ms. Hutson being the source of any problems in the marriage or between Clint and his father. Lastly, Mr. Hutson submitted the testimony of Carolyn Morris, the woman who has been his barber for the past 15 years and with whom Ms. Hutson allegedly accused him of having an affair. Morris confirmed that Ms. Hutson, who was also a client, always made Mr. Hutson's haircut appointments. Morris testified that the Hutsons' hardly spoke about each other while getting their hair cut. However, Mr. Hutson would occasionally tell her of Ms. Hutson's jealous streak, and Ms. Hutson was sometimes critical of Mr. Hutson's inability to repair things around the house. After the parties separated and divorce proceedings were initiated, Mr. Hutson asked Morris to dinner. After the parties' outing, Ms. Hutson accused Morris of having an affair with Mr. Hutson, which Morris denied. On Ms. Hutson's behalf, the trial court heard from Candy Edwards, her granddaughter, who testified that she was a frequent guest in the Hutsons' home and even vacationed with the parties on occasion. Ms. Edwards stated that she never witnessed the parties argue or raise their voices at each other. She also noted that her grandmother performed the majority of the household chores including the cooking, cleaning and laundry. She also prepared breakfast for Mr. Hutson and packed him a lunch every day even after he told her that he did not love her anymore. She worked in her garden and even mowed occasionally. Ms. Edwards denied ever hearing her grandmother voice suspicions about her husband's fidelity prior to the parties' separation. Ms. Edwards' testimony was substantively corroborated by Judy Fondren, Ms. Hutson's sister who lived on the parties' property between 1987 and 1989. Ms. Fondren believed the parties had a good marriage and never witnessed any bickering, nagging or arguing between the parties. The trial court also heard from two of the parties' neighbors, Gay Montgomery and Beverly Powell. Both women testified that they spent a considerable amount of time in the presence of the parties. Both witnesses testified about their perception that the parties had a good marriage and that Ms. Hutson was an attentive spouse who regularly cooked and kept a clean house. Neither witness could recall hearing the parties argue, or hearing Ms. Hutson nagging or berating Mr. Hutson. They also denied ever hearing Ms. Hutson voice suspicions about whether her husband was having an extramarital affair prior to their separation. Lastly, the trial court heard from Ms. Hutson herself. Ms. Hutson testified that she and Mr. Hutson had a good relationship during their marriage until he told her he did not love her anymore and moved out of their bedroom. She cooked, cleaned and did the laundry. She worked in her garden and helped with the mowing. She also handled the family finances without objection from Mr. Hutson until the very end of their 18-year marriage. She also testified that while she had some persistent health problems, she never refused him sex unless she was acutely ill. Ms. Hutson testified that while she and Mr. Hutson's daughter had a somewhat strained relationship at the outset, she generally had a good relationship with his children. She denied that they fought or argued on a regular basis, or that she accused him of having affairs. She also affirmatively stated that she did nothing to *1235 break up the marriage and that it broke down when he told her that he did not love her and wanted a divorce. At the conclusion of the hearing, the trial court rendered a judgment of divorce. A final judgment of divorce was signed on May 14, 2004. The trial court ordered the parties to submit briefs on the issue of fault and took the matter under advisement. On June 3, 2004, the trial court issued reasons for judgment finding that there was insufficient evidence to support a finding that Ms. Hutson was at fault in the break up of the marriage. In its ruling, the trial court stated that Mr. Hutson failed to meet his burden that Ms. Hutson was at fault. A written judgment to this effect was signed on June 21, 2004, and certified as final by the trial court. Mr. Hutson took an appeal from that judgment. This court subsequently dismissed that appeal and remanded the matter to the trial court after concluding that the certification of the judgment as final was inappropriate. After remand, Ms. Hutson filed a rule to show cause why final periodic spousal support should not be awarded which was set for hearing on November 29, 2004, with a preliminary conference before a hearing officer to be heard on November 9, 2004. After the preliminary conference, the hearing officer issued a report recommending that Mr. Hutson be ordered to pay $900.00 per month in final periodic support. Mr. Hutson filed a timely objection to the hearing officer's recommendations, and the matter was taken up at the previously scheduled rule date of November 29, 2004. After the hearing, the trial court signed a judgment adopting the hearing officer's recommendations. Mr. Hutson appeals, arguing that the trial court erred in finding that Ms. Hutson was free from fault and in placing the burden of proof on him to prove her fault in the break up of the marriage. DISCUSSION Burden of Proof First, we address Mr. Hutson's assignment of error regarding the misapplication of the burden of proof by the trial court. The jurisprudence is unequivocal on the issue of who bears the initial burden on the fault question in final periodic support proceedings. The burden is squarely on the claimant spouse who must show that she is free from fault in the dissolution of the marriage. Jones v. Jones, 35,502 (La.App. 2d Cir.12/05/01), 804 So.2d 161; Lyons v. Lyons, 33,237 (La.App. 2d Cir.10/10/00), 768 So.2d 853, writ denied, XXXX-XXXX (La.1/5/01), 778 So.2d 1142. In brief, Ms. Hutson concedes that the trial court erred in placing the initial burden on Mr. Hutson to prove that she was at fault in the break up of the marriage. Where one or more trial court legal errors interdict the fact-finding process, and the record is otherwise complete, the reviewing court should make its own independent de novo review and assessment of the record. Campo v. Correa, 01-2707 (La.6/21/02), 828 So.2d 502. Because the trial court's misplacement of the initial burden in the present case prevented it from making a finding of fact on whether Ms. Hutson met the burden of proving her freedom from fault, we will conduct a de novo review of the record. The jurisprudence provides little guidance on how a claimant spouse is to perform the task of proving freedom from fault. While the case law indicates that the burden can be shifted to the non-claimant spouse when the divorce is obtained on the basis of adultery of the non-claimant spouse, see Lagars v. Lagars, 491 So.2d 5 (La.1986), there is no indication of *1236 how one shifts the burden when a divorce is obtained on the basis of living separate and apart for the requisite period of time. Ms. Hutson presented evidence in the form of her own testimony and that of her niece, sister and neighbors. She affirmatively stated that she did nothing to break up the marriage. Her niece, sister and neighbors, who had been exposed to the couple at various times throughout the marriage, testified that Ms. Hutson had been a good wife who performed her fair share of the household duties. They testified that the parties rarely argued, and they denied witnessing any of the nagging which Mr. Hutson alleges plagued their marriage. We find that this evidence is sufficient to establish freedom from fault in instances where the divorce is not obtained on the fault grounds delineated in La. C.C. art. 103. Ms. Hutson made a prima facie showing that she was not at fault in the break up of the marriage by presenting testimony to support her version of the events leading to the break up of the marriage. Such a prima facie showing was sufficient to meet her initial burden of proof. Once that burden was met, the burden shifted to Mr. Hutson to prove conduct on the part of the claimant spouse which rises to the level of fault. Fault Fault is a threshold issue in a claim for spousal support. Roan v. Roan, 38,383 (La.App. 2d Cir.4/14/04), 870 So.2d 626. In a proceeding for divorce or thereafter, the court may award final periodic support to a party free from fault prior to the filing of a proceeding to terminate the marriage, based on the needs of that party and the ability of the other party to pay. La. C.C. art. 111. Statutory law does not specify what constitutes fault so as to bar an award of final periodic support. However, the jurisprudence has characterized the necessary conduct as synonymous with the fault grounds which previously entitled a spouse to a separation under former La. C.C. art. 138 or the fault grounds which currently entitle a spouse to a divorce under La. C.C. art. 103. Prior to its repeal, Article 138 provided the grounds for separation which included adultery, habitual intemperance, excesses, cruel treatment or outrages, making living together insupportable, and abandonment. La. C.C. art. 103 currently entitles a spouse to seek a fault-based divorce on the basis of the other spouse's adultery or conviction of a felony sentence punishable by death or hard labor. A spouse who petitions for permanent support need not be totally blameless in the marital discord. Only misconduct of a serious nature, providing an independent contributory or proximate cause of the break up, equates to legal fault. Roan, supra; Lyons v. Lyons, supra. A party is not deprived of alimony due to a reasonably justifiable response to the other spouse's initial acts. A spouse who perceives infidelity may become quarrelsome or hostile. Such a reasonable reaction does not constitute legal fault. The commission of adultery causes the break up, not the reaction. A spouse who reacts should not be precluded from receiving alimony solely because of his or her own response. Lyons, supra. The only two grounds raised by Mr. Hutson in relation to potential fault on the part of Ms. Hutson were cruel treatment and abandonment. In order to prove abandonment, a party must show that the other party has withdrawn from the common dwelling without lawful cause or justification, and the party has constantly refused to return to live with the other. Roan, supra. Mr. Hutson did not satisfy these requirements because he admitted *1237 that he had told his wife he did not love her, was relieved when she moved out of the house and had never asked her to return. To prove cruel treatment, Mr. Hutson needed to show a continued pattern of mental harassment, nagging and griping by one spouse directed at the other so as to make the marriage insupportable as mere bickering and fussing do not constitute cruel treatment for purposes of denying alimony. Lyons, supra. We find that Mr. Hutson's allegations as to the amount of nagging he endured during the marriage, which were not corroborated by his own witnesses and were contradicted by ample testimony from Ms. Hutson's witnesses, do not rise to the level of cruel treatment. While many spouses may be tempted to characterize repeated requests to perform household chores such as mowing and yard work as cruel treatment, the level testified to by Mr. Hutson falls far short of that which would be required to make a marriage insupportable. Also, the record does not support Mr. Hutson's contentions that Ms. Hutson repeatedly accused him of infidelity. She denied having any such suspicions before the parties separated, and no one recalled Ms. Hutson ever confiding any such suspicions. Nor does the record support his contention that Ms. Hutson alienated him from his children. Even Mr. Hutson's own son would not corroborate the allegation. All in all, the evidence failed to establish a continued pattern of mental harassment. CONCLUSION For the foregoing reasons, the judgment of the trial court awarding final periodic support to Ms. Hutson in the amount of $900.00 per month is hereby affirmed. Costs of this appeal are to be borne by Mr. Hutson. AFFIRMED.

Bexar County, City of San Antonio and San Antonio Independent School Fourth Court of Appeals San Antonio, Texas October 23, 2014 No. 04-14-00630-CV Rowland J. MARTIN, Appellant v. BEXAR COUNTY, City of San Antonio and San Antonio Independent School District, Appellees From the 150th Judicial District Court, Bexar County, Texas Trial Court No. 2010-CI-19099 Honorable John D. Gabriel, Jr., Judge Presiding ORDER Sitting: Marialyn Barnard, Justice Rebeca C. Martinez, Justice Patricia O. Alvarez, Justice (not participating) The panel has considered the appellant's motion for rehearing, and the motion is DENIED. It is so ORDERED on October 23, 2014. PER CURIAM ATTESTED TO: ___________________________________ Keith E. Hottle Clerk of Court 

96 F.2d 317 (1938) CREED et al. v. POTTS, and three other cases. Patent Appeals Nos. 3955-3958. Court of Customs and Patent Appeals. April 25, 1938. *318 *319 Paul Kolisch and Edward D. Phinney, both of New York City, for appellants. E. W. Adams and J. W. Schmied, both of New York City (W. F. Simpson, of New York City, of counsel), for appellee. Before GARRETT, Presiding Judge, and BLAND, HATFIELD, LENROOT, and JACKSON, Associate Judges. LENROOT, Associate Judge. These appeals involve four interference proceedings in the United States Patent Office. Each of the interferences involves a reissue application of appellee, filed April 10, 1931, for the reissue of a patent, No. 1,708,954, issued to appellee on April 16, 1929, upon an application filed September 17, 1925. In appeal No. 3955 the interference arises between said reissue application and a patent, No. 1,827,460, issued to appellants Creed and Salmon on October 13, 1931, upon an application filed on December 22, 1928. The interference was declared as of June 12, 1934, and embraces five counts, the same corresponding to claims copied by appellee from appellants' said patent. In appeal No. 3956 the interference is between said reissue application and a patent, No. 1,895,107, issued to appellant Salmon on January 24, 1933, upon an application filed on September 24, 1930. The interference was declared as of September 19, 1934. One count is involved, the same corresponding to a claim in appellant's patent, copied by appellee. In appeal No. 3957, the interference arises between said reissue application and a patent, No. 1,931,099, issued to appellant Bancroft on October 17, 1933, upon an application filed on February 26, 1932. The interference was declared as of September 19, 1934. Two counts are involved; they correspond to claims of appellant's patent, copied by appellee. In appeal No. 3958 the interference is between said reissue application and a patent No. 1,924,357, issued to appellant Griffith on August 29, 1933, upon an application filed on April 30, 1932. The interference was declared as of September 19, 1934, and involves four counts, corresponding to claims of appellant's patent, copied by appellee. After the declarations of the interferences, the appellants Creed and Salmon in appeal No. 3955 filed a preliminary statement. The appellants in the other three cases filed no preliminary statements. Appellee filed preliminary statements in all of the cases. In appeal No. 3955, the preliminary statement of the appellants alleged conception of the involved invention subsequent to the filing date of the application upon which appellee's said patent was issued, and appellants in that case were, on August 7, 1934, required to show cause why judgment upon the record should not be entered against them. Like orders were subsequently made in the other three cases. Within the motion period, motions to dissolve were made by the several appellants in each of the interferences. The same general grounds for dissolution were set up in each of said motions, the same being that appellee had no right to make the counts, that the disclosure of appellee is inoperative, and that appellee is estopped from making the counts. Each of said motions to dissolve was denied by the Primary Examiner. After said decisions denying the motions were entered, the appellants in each of the four cases filed requests to take testimony with respect to the meaning of the terms used in the counts and in the patents where they originated, and for the purpose of establishing by expert testimony that the structure disclosed in appellee's patent is inoperative. The particular points of alleged inoperativeness were set out in two affidavits by Bancroft, the appellant in appeal No. 3957. The Examiner of Interferences denied the motions in so far as they related to the meaning of the terms used in the counts, but granted the motions to take testimony with respect to the inoperativeness of appellee's structure, but only in so far as specific features of such alleged inoperativeness were set out in said motions and in the affidavits of said Bancroft. The motions to take testimony, and the decisions thereon, in appeals Nos. 3956, 3957, and 3958, are not contained in the record, but are referred to in the decisions of the Patent Office tribunals. Subsequent to the granting of such motions, testimony was taken applicable to the four interferences in behalf of all the *320 appellants, and testimony was also taken in behalf of appellee. It appears from the record that, after such testimony was taken, appellee moved in each of the interferences to strike out certain portions thereof upon the ground that they related to matters outside the scope of the issues fixed by the Examiner of Interferences in his decision granting the motions to take testimony. All of the appellants are represented before us by the same counsel. The testimony taken applies to all of the appeals. By stipulation, the records in the four appeals were consolidated and, inasmuch as the issues before us are for the most part common to all of the appeals, we shall dispose of the four cases in a single opinion. For the sake of brevity, and to avoid repetition, we have stated the foregoing facts with reference to all of the appeals; from this point, however, we shall proceed to consider the appeals separately. Appeal No. 3955 — Interference No. 68,621. In this appeal count 1 is illustrative and reads as follows: "1. Telegraph reproducing apparatus comprising signal reproducing means adapted to remain in the position into which it was last moved, independent means positioned in accordance with received signals, and means subsequently acting once in each signal period to cause the said independent means to act on the signal reproducing means." The subject matter of the interference is stated by the Examiner of Interferences as follows: "The subject matter of the interference relates to telegraphic reproducing apparatus wherein mechanical means acted upon by the signal responsive means actuates the signal reproducing means. The mechanical means comprises a series of elements which are positioned in accordance with the pulses of a five unit code and during each signal period these elements act on a reproducer in accordance with their position." Upon final hearing, the Examiner of Interferences granted appellee's motion to strike out testimony in so far as the same related to features of alleged inoperativeness not set forth in the motion papers or supporting affidavits upon which leave to take testimony was granted. The Examiner of Interferences then proceeded to analyze the testimony with respect to the features of alleged inoperativeness which, he held, were within the issues upon which the taking of testimony was allowed. While he found that, as disclosed, certain features of appellee's structure were inoperative, he invoked the well-established rule that an invention disclosed will not be held to be inoperative if it may be rendered operative by a skilled mechanic, without the exercise of invention. Applying this rule, he held that appellants had failed to establish by a preponderance of evidence the inoperativeness of the device disclosed by appellee. In appellants' motion to dissolve, in addition to the allegation of inoperativeness, it was contended that appellee had no right to make the counts and that appellee was estopped from making the counts by reason of laches, and by reason of the alleged fact that the invention defined in appellee's reissue application is for a different invention than that claimed in appellee's original patent. The Primary Examiner held that the counts read upon appellee's application and patent, and therefore denied appellants' motion upon this ground. With respect to the ground of estoppel set up in appellants' motion, the Primary Examiner held that the invention claimed in the reissue application of appellee was the same invention disclosed in his patent, and that there was no laches in appellee's making the claims corresponding to the counts involved in this appeal. The Examiner of Interferences refused, under rule 130 of the United States Patent Office, to consider questions raised in the motion to dissolve other than the question of inoperativeness of the device disclosed by appellee. Having held that said device, as disclosed in appellee's patent, was operative, he therefore awarded priority of invention to appellee. Appellants appealed to the Board of Appeals. From the decision of the Board we gather that appellants in this appeal did not contend before the Board that appellee could not make the claims corresponding to the counts, but urged only the inoperativeness of appellee's device disclosed by him, and that appellee's reissue application is for a different invention than the one defined in appellee's patent. With respect to the last above stated contention of appellants, the Board refused to consider it, holding that this question was an ex parte matter and not ancillary to the question of priority. The Board affirmed the ruling of the Examiner of Interferences striking out certain *321 testimony and declining to consider certain other testimony with respect to inoperativeness of appellee's device in particulars not set forth in appellants' motion to take testimony and the affidavits in support thereof. The Board further held that appellee's device had not been shown to be inoperative, and affirmed the decision of the Examiner of Interferences awarding priority of invention to appellee with respect to all of the counts involved in this appeal. From such decision appellants took this appeal. Appellants contend that much of the testimony stricken out was given without objection; that some of it was elicited by counsel for appellee; and that therefore the Patent Office tribunals erred in refusing to consider such testimony with respect to grounds of inoperativeness not specifically set forth in the motion papers upon which leave to take testimony was given. We find no error in the exclusion of such testimony or refusal by the Patent Office tribunals to consider grounds of inoperativeness of appellee's device not embraced in the motion papers upon which leave to take the testimony was granted. Hopkins v. Peters, 44 App.D.C. 196. The device here involved is extremely complicated, and the technical questions involved relative to inoperativeness are many. It would be impossible in this opinion to state in detail the particulars in which inoperativeness is claimed, without the use of complicated drawings, and we shall not undertake to do so. The record comprises a volume of 726 pages; we have read it with care, together with the extensive briefs of the parties upon the questions involved. The rule is here particularly applicable, upon the question of operativeness of appellee's device, that concurring decisions of the Patent Office tribunals will not be disturbed by us unless they are manifestly wrong. That appellee's device, as disclosed, is inoperative in some respects, is conceded by appellee, and was so found by the Patent Office tribunals; but it is the contention of appellee, and the holding of the Board of Appeals, that such changes as would be necessary to make the device operative would be obvious to one skilled in the art. We are not convinced that the Board of Appeals erred in so holding. Much of the controversy revolves around the question of whether a certain second stop pin upon a cam of appellee's device, which second stop pin is not shown in appellee's patent drawings or specifically referred to in his specification, was so obviously necessary to make the device operative that one skilled in the art would, in the exercise of mechanical skill, supply it. The cam in question, numbered 524 in appellee's patent drawings, as there shown, carries only one stop pin. It is conceded that a second stop pin, diametrically positioned on said cam, opposite said first stop pin, is required to make appellee's device operative. The Board of Appeals, with reference to this matter, stated: "The first point of inoperativeness to be considered is the omission of a second stop pin 533 from Fig. 12 of the Potts' disclosure. "During the motion period, appellants moved to dissolve on the ground that Potts' disclosure was inoperative and urged the same point. The Primary Examiner, on pages 27 to 30 of his decision (paper No. 18), thoroughly analyzed the disclosure of Potts and came to the conclusion that it clearly indicates that a second stop pin was intended to be employed and that it would be added by any one skilled in the art without requiring invention in the making of the Potts structure. The various reasons are given so fully in the Primary Examiner's decision that it is not deemed necessary to repeat them here but we refer to that decision for our reasons. We fully concur with the position taken in that decision. The Examiner of Interferences has also set forth in the paragraph beginning with line 25, page 7 of his decision the principal teaching in the patent that would indicate to any one skilled in the art and reading the patent that a second stop pin is to be used. As pointed out in this paragraph there would be no joint control by the start-stop distributor and the multiplex distributor through levers 528, 534, 535 of the second five unit code signal stored as required by the application, page 24, lines 35-44, if the second stop pin is not present. It is also to be noted that in Potts, Fig. 12, the cam 524 is provided with a raised portion. This raised portion apparently would have no function if there is not a second stop pin present. Bancroft, the expert who testified for appellants, was unable to find any function for the raised portion on this cam if there was no second pin present (C. & S. record, p. 70, Q. 171). *322 "It may be noted further that there are two sets of lugs on the cams 536 and 537. One set would apparently have no function if there were no second stop pin present. Bancroft failed to discover any function for the second set if no second pin was present (C. & S. record, pp. 70, 71, 72)." It appears that during the prosecution of appellee's reissue application appellee made certain amendments thereof, among them one disclosing a second stop pin upon the disk or cam 524, above referred to, which amendment, appellants contend, constitutes new matter, and appellants contend further that this second stop pin was not omitted by inadvertence from appellee's original application upon which his patent was issued, but that such omission was deliberate and intentional. Much testimony was taken upon this point. Appellee attached a drawing to an affidavit which was filed in support of certain amendments, including the addition of a second stop pin. The affidavit states that said drawing was furnished to the general patent attorney of the Western Electric Company (assignee of appellee) on or about March 29, 1922. Said drawing was offered in evidence by appellants, marked Exhibit 3. This drawing discloses two stop pins on said cam or disk 524, whereas, as hereinbefore stated, appellee's patent drawings disclose only one stop pin on said cam 524. The drawing is marked 3/8/22, which, it is conceded, means March 8, 1922, as the date of the drawing. It is not signed or initialed by any one. Appellants introduced in evidence Exhibit 4, being a photostatic copy of an original drawing; they also introduced in evidence Exhibit 5, also a photostat, being an enlargement of Exhibit 4. In the lower right-hand corner there are certain notations, one of which reads "Approved L. M. P." In the upper right-hand corner there is the following: Issue 1 3-8-22 | App Spring removed | from No. 5 rod | Lug removed | from sending | start disc | Relay added | to start circuit | Issue 2 6-1-23 | LMP The drawing discloses but one stop pin. It is conceded that, in both instances where they appear on said exhibits, the letters "LMP" are the initials of appellee, placed by him upon the original drawing. It is not denied by appellee that the term "lug," used in the upper right-hand notation, means the same thing as "stop pin." This drawing corresponds very closely to Figure 12 of appellee's patent drawings, and it is observed that the date of Exhibit 4 is subsequent to the date of Exhibit 3, relied upon by appellee to establish that the second stop pin was omitted from appellee's patent drawings through inadvertence. From the foregoing, appellants argue that such omission was deliberate and that its omission from the patent drawings cannot be excused on the ground of accident or inadvertence. It is our view, however, that if the need of the second stop pin would be obvious to one skilled in the art, as was held by the Board of Appeals, the amendment supplying the second stop pin did not constitute new matter, and, so far as operativeness of appellee's device is concerned, it is immaterial whether the second stop pin be specifically disclosed in his application, or would necessarily be supplied in the building of the device by one skilled in the art, without the exercise of invention. In this view of the matter, we regard it as immaterial, so far as this interference proceeding is concerned, whether the omission of the second stop pin in appellee's patent drawings was inadvertent or not. Moreover, after reciting the above facts with respect to Exhibits 3, 4, and 5, the Board of Appeals in its decision stated: "To overcome the above evidence, Potts submitted testimony of witnesses. Whitfield, one of the attorneys working for the Western Electric Company in 1923 and who had some part in the preliminary work leading to the preparation of the Potts' application, was called as a witness by Potts. A memorandum dated August 31, 1923 bearing the typewritten name at the bottom H. B. Whitfield was also introduced by Potts as Exhibit 32. Whitfield testified he recalled making the memorandum and the discussions and conversations with Potts at that time. One part of this memorandum reads — "`The only change that has been made in this part of the mechanism is the removal of a spring from one of the selecting rods and the addition of a relay.' "Whitfield testifies that this memorandum was written after a thorough discussion *323 with Potts of the subject matter. He did not list the removal of the stop pin because he regarded that this change would render the device inoperative. He states that if Potts had not concurred in this change he would have listed this change (Potts' record, pp. 161-163). "Mr. McKenney was called as a witness by Potts. He prepared the original application which resulted in the Potts patent. A print was also submitted as Exhibit 24. This print shows the Potts Figs. 12-17. Notations also appear on the print designating certain changes to be made. One of the notations is `2 stop pins'. The pins are also indicated. McKenney testified that these notations were not placed on the print after the Potts' application was filed. He testified that it was his custom to submit the prints to inventors for their approval after the application was prepared in draft form. "From the above testimony there is considerable ground for believing that the second stop pin was intended to be present and its omission was due to the draftsman who prepared the drawing for the original application. Coupled with the fact that the entire structure shown and described in the Potts patent indicates that a second stop pin is to be used, the conclusion seems apparent that the second stop pin was inadvertently omitted by the draftsman. "Supplying the second stop pin in the Potts patent is believed to be obvious to any one reading the disclosure. The witnesses Bacon, Rasmussen, Dubuar and Przysiecke after reading the patent came to the conclusion that the second pin was a part of the device. Rasmussen made a notation on a copy of the patent in 1934 that a second pin should be shown in the drawing. This was at a time before Rasmussen had seen either the junior parties Exhibit 4 or Potts Exhibit 32. "It is our view that the addition of a second stop pin to Potts reissue drawing was not new matter but that there is sufficient teaching in the original patent application that such pin was used. It was apparently inadvertently omitted and supplying it was obvious to any one skilled in the art." In view of the record, we are not satisfied that the Board erred in holding that appellee's device should not be held to be inoperative by reason of the failure to specifically disclose in his application, upon which appellee's patent was issued, a second stop pin upon said disk or cam 524. Various other grounds of inoperability, alleged in appellants' motion and affidavits upon which leave to take testimony was granted, were fully considered by the Patent Office tribunals, and they concurred in finding that, either the device as disclosed was clearly operative, or that, where not clearly operative, one skilled in the art would, upon reading appellee's disclosure, make the device operative without the exercise of the inventive faculty. After a careful examination of the record and the briefs of the parties, we are not satisfied that the Board of Appeals erred in holding that appellants' contentions of inoperativeness of appellee's device had not been established, either with respect to the second stop pin hereinbefore discussed, or with respect to any of the other grounds of inoperativeness relied upon by appellants. Appellants further contend that appellee's reissue application is for a different invention than that disclosed in his patent, and for that reason the interference should have been dissolved. The Board of Appeals held that this is an ex parte matter and does not relate to the issue of priority. Appellants assign error with respect to this ruling. In so far as appellants' contention embraces a statutory bar to the granting of a patent upon appellee's reissue application, we agree with the Board that this is an ex parte question not ancillary to the issue of priority. Norling v. Hayes, 37 App.D.C. 169. However, in so far as such contention involves the question of whether appellee's patent and original application discloses the invention here involved, upon which patent appellee is entitled to rely for conception and reduction to practice of the invention, it is a matter directly involving the question of priority of invention. Kollsman v. Carbonara, 88 F.2d 966, 24 C.C.P.A., Patents, 1149. The Patent Office tribunals have found that the amendments made by appellee during the prosecution of his reissue application did not constitute new matter, with which holding we are in agreement. Inasmuch as it was stipulated in the record that appellee's reissue application, as originally filed, was identical with the specification and drawings of appellee's patent, it *324 necessarily follows that the invention here involved is the same invention as that disclosed by appellee's patent, unless it should be held that appellee's reissue application does not support the counts involved in this appeal. While appellants did so contend in their motion to dissolve, such question is not argued in appellants' brief, in so far as this appeal is concerned, and, as hereinbefore stated, this point was not specifically referred to by the Board of Appeals in its decision. We find no ground for holding that appellee's reissue application does not support the counts here involved. Appellants' reasons for appeal set out other grounds for reversal of the decision of the Board of Appeals; we have given them careful consideration and are of the opinion that they present no reasons for reversing the decision of the board. It is our opinion that the decision of the Board of Appeals should be affirmed. Appeal No. 3956 — Interference No. 69,363. In this appeal the issue is composed of a single count, which reads as follows: "1. In a telegraph system, a rotating shaft, a plurality of sleeves frictionally mounted on and driven by said shaft, electromagnetic means effective upon the reception of signals for releasing one of said sleeves for rotation, and means actuated after said first sleeve has completed a predetermined portion of a revolution for releasing another sleeve for rotation, and signal reproducing means actuated by said last-mentioned sleeve." The subject matter involved is stated by the Examiner of Interferences as follows: "The invention in issue relates to a translator for a multiplex telegraph system. The translator comprises a rotary shaft having a plurality of sleeves frictionally mounted on and driven by the shaft. On the reception of signals electromagnetic means releases one of the sleeves for rotation and after this sleeve has completed a predetermined portion of its rotation the other sleeve is released for rotation. The second sleeve actuates a signal reproducing means." Substantially the same record was made in this appeal as was made in appeal No. 3955, and the same issues are presented for decision, viz., that the device disclosed in appellee's application is inoperative, and that its defects could not be cured by one skilled in the art without the exercise of the inventive faculty; that the Board of Appeals erred in refusing to consider certain testimony and in affirming the decision of the Examiner of Interferences striking out certain testimony; and that appellee's reissue application is for a different invention than the one covered by his patent. Each of these issues was presented in appeal No. 3955, and the same testimony is relied upon by appellant here as was relied upon by the appellants there. The reasons given by us in appeal No. 3955 for affirming the decision of the Board of Appeals in that case are applicable here, and control our decision upon this appeal. Hence the decision of the Board of Appeals will be affirmed. Appeal No. 3957 — Interference No. 69,364. In this appeal the issue is composed of two counts, of which count 1 is illustrative and reads as follows: "1. In a regenerative repeater, the combination of a relay for receiving signals, a rotatable device provided with a plurality of slides adjustable to one of two operating positions, means for positioning said slides intermediate said operating positions, switching means associated with said receiving relay and placed immediately subsequent to said slide positioning means with respect to the rotation of said rotatable device to position said slides in one of said operating positions, a set of transmitting contacts, and means associated with said slides to operate said contacts immediately following the positioning of said slides." The Examiner of Interferences in his decision stated: "The issue relates to a regenerative repeater of the start stop type. Means is provided for receiving signals of two different characters and a rotatable member carrying movable slides is controlled by the signal receiving means which causes a single rotation of the rotatable member. A positioning member movable to one of two positions in accordance with the character of the received signal controls the positions of the slides during the rotation of the rotatable means. A set of contacts is operated by the slides to transmit signals similar in character to those received." In this appeal the same issues are presented as are involved in appeals Nos. 3955 and 3956, and the same testimonial record is relied upon by appellant here as was relied upon by the appellants in said appeals. However, in this appeal an additional question is argued in appellant's brief, viz., the *325 question of appellee's right to make the claims corresponding to the counts here involved. Except as to this question of whether the counts here involved read upon appellee's reissue application, all that has been said in appeals Nos. 3955 and 3956 with respect to the issues there involved is applicable here, and the reasons we there gave for our conclusions are controlling here. Upon the question of the right of appellee to make claims corresponding to the counts here involved, it is the contention of appellant that appellee's reissue application does not disclose "a regenerative repeater," as set out in count 1, or "a start-stop regenerative repeater," as set out in count 2; and also that appellee does not disclose "means for positioning said slides intermediate said operating positions," as set out in count 1. With respect to the right of appellee to make claims corresponding to the counts, the Board of Appeals in its decision stated: "The first point to be considered on this appeal is whether the counts are supported by the Potts' disclosure. Bancroft made a motion to dissolve on the ground that Potts cannot make the counts of the issue. The Examiner of Interferences held that he could make them. The examiner applied the counts to the form shown in Figs. 1821 of the Potts' patent. He regarded these figures as showing a regenerative repeater. The party Bancroft urges that Potts shows no regenerative repeater. The Primary Examiner pointed out in his decision on page 2 (paper No. 13) and Potts has also pointed out in his brief on page 18 that it is proper to designate his structure as a regenerative repeater. We are in accord with this holding for the reasons fully set out by the Primary Examiner and appellant [appellee]. It is pointed out that the term `regenerate' as applied to telegraph impulses means `reform'. In Potts' device, the impulses are reformed. The outgoing impulses at the contacts 562 and 563 are independent of the incoming impulses in shape and duration and hence they are reformed or regenerated. The brief of Potts on pages 19, 20 and 21 applies the elements of the counts to the Potts structure as shown in Figs. 18-21. It appears to us that they read directly on the Potts' structure in the same sense that they read on Bancroft. The party Bancroft in his brief does not discuss Figs. 18-21, but refers to Figs. 10-17. We need not consider these figures as long as the counts read on Figs. 18-21. Our view, therefore, is that Potts is clearly entitled to make the counts." The decision of the Primary Examiner referred to in the above quotation is not found in the record. Appellant's counsel in their brief have not discussed the finding of the Board that the counts read directly upon appellee's structure, as shown in his drawings, Figures 18-21. We are in agreement with the board in its application of the counts. Appellant's counsel further contend that the translators disclosed by appellee are not used for repeating signals from one start-stop line to another. We find nothing in the counts with respect to the use of translators, and we agree with appellee's counsel that said contention of appellant is immaterial to the question here involved. The decision of the Board of Appeals in this appeal will be affirmed. Appeal No. 3958 — Interference No. 69,365. This appeal embraces four counts. Count 1 is illustrative and reads as follows: "1. In a translating or selecting mechanism for start-stop apparatus, a continuously rotatable driving means, operating cam means, a clutch therefor, and separate cam means effecting the release of said clutch after a predetermined portion of a revolution." The issue is stated in the decision of the Examiner of Interferences as follows: "The issue relates to a start-stop signal transmitter. The transmitter comprises signal cam means having clutch driving means. A friction clutch controls the rotation of independent controlling cam means and means is operable during rotation of the controlling cam means for controlling the rotation of the signal cam means." While, as in the other appeals, appellant's motion to dissolve includes the ground that appellee's disclosure does not support the counts, and the failure of the Board so to hold is included in appellant's reasons for appeal, this question is not discussed in appellant's brief and was not referred to by the Board in its decision. We assume that this question was not urged before the Board. At any rate, we find nothing in the record to warrant a holding that appellee's disclosure does not support the counts. *326 In all respects the issues presented in this appeal are the same as those presented in appeal No. 3955, and our decision in that appeal controls our decision here. Therefore the decision of the Board of Appeals will be affirmed. For the reasons herein stated, the decision of the Board of Appeals in each of the appeals before us, numbered 3955, 3956, 3957, and 3958, is affirmed. Affirmed.

NOTE: This order is nonprecedential. Wniteb $)tate~ ~ourt of §ppeal~ for tbe jfeberal ~irmit KEHINDE TAIWO, Petitioner, v. OFFICE OF COMPLIANCE, Respondent. 2011-6002 On petition for review of a decision of the Board of Di- rectors of the Office of Compliance, case no. 1O-AC-25 ON MOTION Before LOURIE, PROST, and MOORE, Circuit Judges. MOORE, Circuit Judge. ORDER Kehinde Taiwo moves for reconsideration of this court's February 27, 2012 order granting the Office of Compliance's motion for summary affirmance. TAIWOv.OOC 2 Upon consideration thereof, IT Is ORDERED THAT: The motion for reconsideration is denied. FOR THE COURT AUG 032012 /s/ Jan Horbaly Date Jan Horbaly Clerk cc: Dalton J. Howard, Jr., Esq. Peter A. Eveleth, Esq. s25 .s. COUJt~~ FOR u THE fE~ERAl CIRCUIT AUG 03 ZUIZ JAN HOIIBAI.V a.BIK 

91 Cal.App.3d 132 (1979) 153 Cal. Rptr. 789 THE PEOPLE, Plaintiff and Respondent, v. HENRY SANCHEZ RAMIREZ, Defendant and Appellant. Docket No. 33307. Court of Appeals of California, Second District, Division Three. March 28, 1979. *134 COUNSEL Patrick M. Thompson, under appointment by the Court of Appeal, for Defendant and Appellant. Evelle J. Younger, Attorney General, Jack R. Winkler, Chief Assistant Attorney General, S. Clark Moore, Assistant Attorney General, Norman H. Sokolow and Howard J. Schwab, Deputy Attorneys General, for Plaintiff and Respondent. OPINION COBEY, Acting P.J. Defendant, Henry Sanchez Ramirez, appeals from the judgment imposed following his conviction of involuntary *135 manslaughter.[1] (Pen. Code, § 192, subd. 2.) The appeal lies. (Pen. Code, § 1237, subd. 1.) Defendant contends: (1) because the prosecution failed to establish the corpus delicti of involuntary manslaughter independently of his extrajudicial statements, the trial court erroneously denied his motion to set aside the information pursuant to Penal Code section 995 and also erroneously refused to order the entry of a judgment of acquittal after the prosecution's case in chief (see Pen. Code, § 1118); and (2) his conduct did not constitute the crime of involuntary manslaughter because he did not act with culpable, or criminal, negligence in handling the gun when it discharged and killed the victim. After examining the record and the applicable law we conclude that both contentions lack merit. We will, accordingly, affirm the judgment. FACTS[2] Defendant and Manuel Corella played football at John Glenn High School in the City of Norwalk on Sunday, October 9, 1977. Defendant and Corella played on the same team, a team composed of players from the Camarelos gang or neighborhood, against the team from the Cantaranos gang or neighborhood. After the football game Corella shot a shotgun "in the air," apparently as he walked toward the gate by the school gym, in the presence of defendant and several other persons.[3] *136 As Corella continued to walk with his companions, defendant asked Corella if he could shoot the gun. Shortly after Corella handed the gun back to defendant, it discharged and hit the back of Corella's head. According to the coroner's report, Corella died rapidly as a result of a gunshot wound located four inches behind and three inches above his right ear canal. The coroner opined that "[i]t is possible to self-inflict such a wound...." A "couple of days" after the shooting, Curt Gaxiola telephoned defendant "[t]o find out what was really going on."[4] Defendant told Curt that "he put a shell into the gun and he clicked it closed [and] it went off" and that the gun went off while he was holding it. One day after the shooting (Oct. 10th) defendant came to the Los Angeles County Sheriff's station in Norwalk with a man named Jess Lowera. Grant Moltmann, a deputy sheriff, attempted to interview defendant after he advised him of his constitutional rights.[5] Defendant then explained that he understood his rights, that he had already contacted an attorney, and that his attorney had advised him not to say anything. On October 15, 1977, an attorney named Kalin called Deputy Moltmann. At approximately 3 p.m. on October 15, defendant met Deputy Moltmann at the Hall of Justice in the Sheriff's Homicide Bureau. Defendant arrived in the company of "a young lady ... [that Moltmann thought defendant] said was his wife, and a man he introduced as attorney Kalin." Deputy Moltmann interviewed defendant in their presence; that interview was recorded and transcribed. During the interview defendant admitted that after the gun was handed to him, he broke it open, loaded it, and that it went off after he closed it.[6] Defendant testified at trial and explained that he had asked Corella if he could shoot the gun once in order to get the gun away from Corella "so that nobody would get hurt because [defendant's] wife [was] from that *137 gang [Cantaranos]" and "[s]omebody would get hurt and they would take it out on [defendant] when [he] went over there, ..." When he reached for the gun to get it from Corella, it went off, but he did not load the gun. DISCUSSION 1. The Prosecution Established the Corpus Delicti Independently of Defendant's Extrajudicial Statements Defendant argues that the prosecution failed, both during the preliminary hearing and at trial, to establish the corpus delicti of manslaughter independently of his extrajudicial statements. We disagree. (1) It is true that the corpus delicti, i.e., the body or elements of a crime, must be established independently of the extrajudicial statements of the accused. The elements of the corpus delicti — (1) the injury or loss or harm and (2) a criminal agency which causes such injury, loss or harm — need only be proven by a "reasonable probability" (People v. Cantrell (1973) 8 Cal.3d 672, 679 [105 Cal. Rptr. 792, 504 P.2d 1256])[7] or, as otherwise stated, by slight or prima facie proof. (People v. Mehaffey (1948) 32 Cal.2d 535, 545 [197 P.2d 12].) But the prosecution need not establish the accused as the perpetrator of the offense (People v. Wong (1973) 35 Cal. App.3d 812, 838-839 [111 Cal. Rptr. 314]), and it may rely upon testimony of the accused as well as circumstantial evidence in meeting its burden. (People v. Ditson (1962) 57 Cal.2d 415, 445-446 [20 Cal. Rptr. 165, 369 P.2d 714].) Furthermore, the order of proof is discretionary (People v. Amaya (1952) 40 Cal.2d 70, 76 [251 P.2d 324]; People v. Mehaffey, supra, 32 Cal.2d at pp. 547-548), and a plausible noncriminal explanation of the event does not compel a finding of lack of criminal agency. (People v. Jacobson (1965) 63 Cal.2d 319, 327 [46 Cal. Rptr. 515, 405 P.2d 555]; People v. Small (1970) 7 Cal. App.3d 347, 354 [86 Cal. Rptr. 478], see also People v. Wong, supra, 35 Cal. App.3d at pp. 838-839.) (2) Applying these rules to the case before us, the prosecution was required to show that the victim's death was caused by some criminal agency. The prosecution did so at the preliminary hearing by introducing the coroner's report and the spontaneous statements of persons present at *138 the shooting. (See Evid. Code, §§ 1240,[8] 402 and 405; People v. Worthington (1974) 38 Cal. App.3d 359, 366-367 [113 Cal. Rptr. 322]; see also People v. Washington (1969) 71 Cal.2d 1170, 1176-1177 [81 Cal. Rptr. 5, 459 P.2d 259, 39 A.L.R.3d 541].) Curt Gaxiola was at John Glenn High School when the shots that killed Corella discharged. He testified at the preliminary hearing that he heard the gunshot and "saw everybody running" and heard "[e]verybody screaming[,] saying that he shot him." At trial, Monica Mendibles testified that she saw Corella give the gun to defendant, that defendant took and held the gun, that Corella and defendant continued walking, and that the gun went off while defendant was holding it. The coroner's report was also admitted at trial. It contained the opinion that it was possible to self-inflict a wound such as that that caused Corella's death. But the trial court was free to accept the conflicting inference — inherent in Gaxiola's and Mendibles' testimony — that Corella had been shot by another. (See People v. Jacobson, supra, 63 Cal.2d at p. 327.) The corpus delicti was therefore established independently of defendant's extrajudicial statements.[9] As we will explain in the next section of this discussion, those statements and other evidence before the trial court established that defendant committed involuntary manslaughter by killing Corella during the commission of an unlawful act. (See Pen. Code, § 192, subd. 2.) Consequently we conclude that the trial court neither erred in denying the defense motion to set aside the information on the ground that "defendant had been committed without reasonable or probable cause" (Pen. Code, § 995), nor in denying the defense motion for an acquittal pursuant to Penal Code section 1118. 2. The Evidence Before the Trial Court Established That Defendant Acted With Criminal Negligence in Committing the Unlawful Act and Killing Corella (3a) Defendant also contends that his conviction should be reversed because the evidence did not establish that he acted with criminal negligence. He relies upon Penal Code section 20 which makes the union *139 of act and intent or criminal negligence an invariable element of every crime,[10] and upon Penal Code section 26's provision that certain persons are incapable of committing crimes, including those who commit an act by accident "when it appears that there was no evil design, intention or culpable negligence." (Pen. Code, § 26, subd. Six.) He contends that the trial court should have acquitted him because he only asked for Corella's gun "so that nobody would get hurt" and the gun discharged accidentally. We disagree. The trial court's comments indicate that it found that the defendant involuntarily killed Corella "in the commission of an unlawful act, ..." (See Pen. Code, § 192, subd. 2.)[11] Apparently it accepted the prosecutor's argument that defendant had committed a misdemeanor by carrying a loaded gun in a public place, and had therefore committed "an unlawful act, not amounting to felony, ..." within the meaning of the first category of involuntary manslaughter.[12] The gravamen of that category of involuntary manslaughter is the commission of an unlawful act with criminal intent or criminal negligence, and the act in question must be dangerous to human life or safety. (See People v. Stuart (1956) 47 Cal.2d 167, 173 [302 P.2d 5, 55 A.L.R.2d 705]; Pen. Code, §§ 192, 20.) (4) (See fn. 13.) (3b) Defendant's October 15, 1977, statement to Deputy Moltmann establishes rather strongly that his conduct was dangerous to human life — he admitted that "the home boy" (Corella) told him to shoot the gun, that defendant loaded it, and that it went off *140 while he had one hand on "the barrel and one on the stock."[13] As discussed above, this incident occurred while several people were within a close proximity. Such evidence establishes the requisite unity of criminal intent and conduct. (See Pen. Code, § 26; compare People v. Stuart, supra, 47 Cal.2d at p. 174 [pharmacist not criminally negligent where a baby's death followed the pharmacist's unknowing use of a chemical that was in a mislabeled bottle]; People v. Rodriguez (1960) 186 Cal. App.2d 433, 435, 440-441 [8 Cal. Rptr. 863] [no criminal liability imposed upon mother of a child who died during a fire in the home while the mother was apparently away from the home]; Somers v. Superior Court (1973) 32 Cal. App.3d 961, 967-970 [108 Cal. Rptr. 630] [appellate court found a total absence of evidence of defendant's disregard for human life, and no criminal negligence where the defendant — a law enforcement officer — justifiably killed an apparent armed robbery suspect].) DISPOSITION The judgment is affirmed. Allport, J., and Potter, J., concurred. NOTES [1] The trial court found defendant "guilty as charged to sect(s) 192 P.C...." Defendant had been charged with "the crime of MANSLAUGHTER, in violation of Section 192, ... [in that he] did willfully and unlawfully, and without malice, kill ... a human being." Penal Code section 192 prohibits and defines voluntary as well as involuntary manslaughter. The prosecutor's argument, the trial court's statement upon finding defendant guilty and the three-year sentence subsequently imposed clearly indicate that defendant was convicted of involuntary manslaughter. (See Pen. Code, §§ 192, subd. 2, and 193, subd. (b).) [2] We state the facts in the light most favorable to the People as the prevailing party below. (People v. Caudillo (1978) 21 Cal.3d 562, 570-571 [146 Cal. Rptr. 859, 580 P.2d 274].) [3] At trial, Monica Mendibles — Corella's girl friend — recalled that perhaps as many as five people were within four feet of Corella when he shot the gun, including defendant and Corella's brother, Rudy, and that twenty to thirty people were in the general area, some on the field, some near the gym, etc. A defense witness, Barney Ramirez, testified that he was on Corella's left-hand side as they walked out of the gates. [4] Curt Gaxiola testified only at the preliminary hearing. At the preliminary hearing, defendant objected that Gaxiola's testimony regarding defendant's extrajudicial statements was inadmissible because the prosecution had failed to establish the corpus delicti independently of such statements. [5] See Miranda v. Arizona (1966) 384 U.S. 436 [16 L.Ed.2d 694, 86 S.Ct. 1602, 10 A.L.R.3d 974]. [6] Defendant moved to exclude his statement on the ground that Deputy Moltmann had failed to elicit a waiver of defendant's constitutional rights on October 15, 1977, before their interview. We have augmented the record on appeal to include the tape and transcript of defendant's statement which were admitted as exhibits at trial. (Cal. Rules of Court, rule 12(a).) These establish the disputed waiver and the contents of the statement. [7] Our Supreme Court recently disapproved People v. Cantrell, supra, insofar as it "repeated the [People v. Wells (1949) 33 Cal.2d 330 (202 P.2d 53)] dictum barring evidence tending to prove insanity from admission at the guilt trial." (People v. Wetmore (1978) 22 Cal.3d 318, 322, 324, fn. 5 [149 Cal. Rptr. 265, 583 P.2d 1308].) [8] Evidence Code section 1240 provides: "Evidence of a statement is not made inadmissible by the hearsay rule if the statement: (a) Purports to narrate, describe, or explain an act, condition, or event perceived by the declarant; and (b) Was made spontaneously while the declarant was under the stress of excitement caused by such perception." [9] Because Gaxiola's and Mendibles' testimony establish by a reasonable probability that a criminal agency caused Corella's death, it is unnecessary to hold — as respondent urges we should — "that when an individual is shot to death by means of a sawed-off shotgun, that that alone is sufficient evidence for a corpus delicti, even where it is possible that the wound could have been self-inflicted." [10] Penal Code section 20 provides: "In every crime or public offense there must exist a union, or joint operation of act and intent, or criminal negligence." [11] Penal Code section 192 provides in part: "Manslaughter is the unlawful killing of a human being, without malice. It is of three kinds: ".... .... .... .... .... "2. Involuntary — in the commission of an unlawful act, not amounting to felony; or in the commission of a lawful act which might produce death, in an unlawful manner, or without due caution and circumspection; provided that this subdivision shall not apply to acts committed in the driving of a vehicle." [12] Before finding defendant guilty and stating that "[t]here [was] no question that what was involved was a negligent act [a]nd also ... not a lawful act," the trial court heard the prosecutor argue that defendant had committed two unlawful acts: He had possessed a sawed-off shotgun, thereby committing a felony (see Pen. Code, § 12020), and he had carried a loaded gun in a public place, thereby committing a misdemeanor. (See Pen. Code, § 12031.) Construing the trial court's finding in favor of the judgment, we conclude that it found defendant had committed "an unlawful act, not amounting to felony" (Pen. Code, § 192, subd. 2) by violating Penal Code section 12031. In any event, since our Supreme Court has indicated that the list of elements of manslaughter in Penal Code section 192 is not exclusive and since it is clear that the trial court did not find that defendant had acted with malice, we are not seriously troubled by the possibility that the trial court may have based its finding upon defendant's commission of an unlawful act that constituted both a felony (Pen. Code, § 12020) and a misdemeanor. (Pen. Code, § 12031; see People v. Morales (1975) 49 Cal. App.3d 134, 144-145, fn. 7 [122 Cal. Rptr. 157]; People v. Conley (1966) 64 Cal.2d 310, 317, 318 [49 Cal. Rptr. 815, 411 P.2d 911].) [13] As we indicated previously, defendant objected to the admissibility of his October 15, 1977, statement to Deputy Moltmann on the ground that Moltmann then failed to elicit a waiver of defendant's constitutional rights. Because the statement constituted a confession — it admitted all of the facts necessary to constitute the offense of involuntary manslaughter — we must decide whether the trial court correctly ruled that it was given voluntarily. (People v. Jimenez (1978) 21 Cal.3d 595, 601, fn. 2, 608, 609 [147 Cal. Rptr. 172, 580 P.2d 672].) In determining the voluntariness of a confession, a court must apply the beyond a reasonable doubt standard. Because the trial court admitted the statement without indicating what standard it applied, we must presume that it applied a lower standard of proof. (Ibid.) Although Moltmann never received an answer on October 15, 1977, when he asked defendant whether his attorney "[had] explained all of [his] rights to [him]." defendant had told Moltmann on October 10 — after Moltmann gave him a Miranda warning — that he understood his rights and did not wish to speak to Moltmann. Furthermore, defendant was neither in custody when he saw Moltmann on October 10, nor when he gave him a statement on October 15. Defendant was with his attorney when he went to the Hall of Justice and gave his statement. Based upon this record we conclude that there is no reasonable probability that a result more favorable to defendant would have been reached on the issue of the voluntary nature of defendant's statement if the court had applied the correct standard of proof. Consequently we must sustain the trial court's finding of voluntariness. (Id. at pp. 608-609; see also People v. Walker (1978) 83 Cal. App.3d 619, 621 [148 Cal. Rptr. 66]: compare In re Anthony J. (1978) 86 Cal. App.3d 164, 171-172 [150 Cal. Rptr. 183].)