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590 So.2d 982 (1991) Robert Lee JONES, Appellant, v. STATE of Florida, Appellee. No. 91-994. District Court of Appeal of Florida, First District. December 3, 1991. Nancy A. Daniels, Public Defender, and P. Douglas Brinkmeyer, Asst. Public Defender, Tallahassee, for appellant. Robert A. Butterworth, Atty. Gen., and Marilyn McFadden, Asst. Atty. Gen., Tallahassee, for appellee. JOANOS, Chief Judge. Robert Lee Jones has appealed from his conviction of tampering with evidence, contrary to section 918.13(1)(a), Florida Statutes (1989). We reverse. *983 A police officer, patrolling a motel known for drug transactions, observed Jones emerge from a motel room carrying a piece of brown paper on which appeared to be cocaine. The officer ordered Jones to hand the paper to him, and Jones stuffed his hand in his pocket. The officer grabbed his arm, and the two tumbled into some bushes. No brown paper or drugs were thereafter found, either on the ground or on Jones' person. Jones was subsequently charged with tampering with evidence, contrary to section 918.13(1)(a). The section provides that no person, knowing that a criminal trial or proceeding or an investigation is pending or is about to be instituted, shall alter, destroy, conceal, or remove any thing with the purpose to impair its availability in such proceeding or investigation. Jones was also charged with resisting an officer without violence, contrary to section 843.02. The foregoing facts were adduced at trial, where no motions for acquittal were made. The jury convicted Jones of both charges on February 1, 1991. Rule 3.380(c), Florida Rules of Criminal Procedure, permits the filing of a motion for judgment of acquittal after a jury verdict of guilty within 7 days, or "such further time as the court may allow." On February 7, 1991, Jones' counsel filed a motion for acquittal, alleging generally that "the evidence presented by the state is insufficient to warrant conviction." At the February 19, 1991 sentencing proceeding, the trial court permitted Jones to renew the motion based on Boice v. State, 560 So.2d 1383 (Fla. 2d DCA 1990). Boice held that the act of tossing away a small bag of cocaine in the presence of arresting officers did not "rise to the level of conduct which constitutes a concealment or removal of something for the purpose of impairing its availability for the criminal trial." Boice at 1384. The trial judge stated only that he did not agree with Boice, and denied the motion. He sentenced Jones to 5 years on the tampering charge, and 1 year on the charge of resisting arrest. Jones, who challenges only the tampering conviction, argues that, under Boice, his motion should have been granted. The state responds only that the sufficiency of the evidence to convict was not properly presented to the trial court, so that Jones' argument was not preserved for appeal. We disagree. Under Rule 3.380, the trial court could properly accept the motion for judgment of acquittal made at sentencing on February 19, 1991. Further, although the initial motion was couched in general terms, the specific ground that Jones' conduct did not legally constitute tampering was argued to the trial court at sentencing, and rejected. Therefore, the state's contention that Jones cannot properly make his argument on appeal is without merit. Turning to the issue before us, we agree that Jones' conviction of tampering must be reversed, and a judgment of acquittal entered. In Boice, the defendant tossed cocaine out of his car window when police moved in to arrest him; the cocaine was recovered. The court held that this act was not intended by the legislature to constitute tampering under section 918.13. It noted that otherwise, should a 19-year old toss a beer can from his car as he was being stopped by police, the individual could be charged, not only with the second-degree misdemeanor of possession of alcoholic beverages, but the third-degree felony of tampering. It held that "[w]e do not believe that the legislature intended an additional felony under such circumstances." Boice at 1385. Boice was clarified in Thomas v. State, 581 So.2d 993 (Fla. 2d DCA 1991). In Thomas, the defendant tossed away a bag of marijuana when police approached him, but unlike Boice, and as in the instant case, the discarded contraband was never recovered. The Thomas court nevertheless held Boice controlling, finding that it did not "pivot upon a defendant's successful removal or concealment of physical evidence, but on the type of conduct the legislature intended to criminalize under the tampering statute." Thomas at 994. The facts of this case are indistinguishable from those set forth in Thomas. An officer approached Jones to obtain what *984 appeared to be cocaine. Jones immediately put his hand in his pocket, but the act of keeping the drug on his person cannot be said to "impair its availability for trial." § 918.13, Fla. Stat. (1989). The two then fell to the ground, and no drugs could thereafter be found. Assuming that Jones tossed away cocaine during the fall, under Boice and Thomas, this conduct does not rise to the level contemplated by section 918.13. We therefore reverse Jones' conviction for tampering with evidence, with instructions that a judgment of acquittal be entered on that charge. Jones does not appeal his conviction and sentence for resisting arrest without violence, which conviction and sentence shall not be affected by this opinion. Reversed and remanded. SHIVERS and ZEHMER, JJ., concur.

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA MELVIN ANDERSON, Plaintiff, v. Civil Action No. 10-413 (JEB) FEDERAL BUREAU OF PRISONS, Defendant. MEMORANDUM OPINION Plaintiff Melvin Anderson is a federal prisoner incarcerated in El Paso, Texas. Following a transfer there from a Florida institution, Anderson submitted a Freedom of Information Act request to Defendant Federal Bureau of Prisons seeking all documents relating to his transfer. BOP conducted a search and released a total of six pages, five of which were redacted in some manner. BOP also withheld eight responsive pages under FOIA Exemptions 7(C) and 7(F). In response to these withholdings, Plaintiff brought this suit. The parties have now filed Cross-Motions for Summary Judgment. Because the Court finds that Defendant’s search was adequate and the withholdings proper, the Court will grant Defendant’s Motion. I. Background On December 28, 2009, Plaintiff sent BOP a FOIA request under 5 U.S.C. § 552 et seq., seeking all records relating to his transfer from a correctional complex in Florida to one in El Paso. Dft. Motion, Exh. A. (Plaintiff’s FOIA request). BOP’s Central Office received the request on January 4, 2010, and determined that any documents responsive to Plaintiff’s request would be located in his central file, which is “the primary system . . . for the maintenance of records pertaining to the care, classification/designation, subsistence, protections, discipline and 1 programs of federal inmates.” Dft. Motion, Declaration of Larry Collins, ¶¶ 5, 7, 11. Transfer records are specifically kept in the central files. Id., ¶ 11. The facility housing an inmate holds his central file, so Plaintiff’s file was transferred to El Paso when he was transferred there. Id. BOP, accordingly, forwarded Plaintiff’s FOIA request to El Paso. Id., ¶ 5. On April 1, 2010, staff at El Paso conducted a page-by-page search of Plaintiff’s central file for responsive records. Id., ¶ 7. The staff located 14 pages responsive to his request in the “FOI Exempt Section” of his central file. Id. This section contains documents with non- disclosable information related to inmates. Id. ¶ 7 n.3. The staff forwarded the responsive documents to BOP’s regional office in Dallas, Texas. Id. ¶ 7. On April 8, 2010, BOP notified Plaintiff that it had located 14 pages of responsive documents. Dft. Motion, Exh. B (April 8 Letter). It informed him, however, that only one page would be released in its entirety, five pages would be released with redactions, and the remaining eight pages would be withheld. Id. BOP claimed that the withholdings were justified under FOIA Exemptions 7(C) and 7(F). Id. Plaintiff then filed this suit challenging these withholdings. The parties have now filed competing Motions for Summary Judgment. 1 On August 8, 2011, the Court ordered Defendant to produce the disputed documents for in camera review. Defendant filed them with the Court on August 15, 2011, and the Court has now reviewed all pages. II. Legal Standard Summary judgment may be granted if “the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” FED. R. CIV. P. 56(a); see also Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247-48 (1986); Holcomb v. 1 The Court has reviewed Defendant’s Motion, Plaintiff’s Opposition, and Defendant’s Reply. On August 15, Plaintiff filed a separate Motion for Summary Judgment, which the Court has also reviewed. 2 Powell, 433 F.3d 889, 895 (D.C. Cir. 2006). “A party asserting that a fact cannot be or is genuinely disputed must support the assertion by citing to particular parts of materials in the record.” FED. R. CIV. P. 56(c)(1)(A). The moving party bears the burden of demonstrating the absence of a genuine issue of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986). “[A] material fact is ‘genuine’ . . . if the evidence is such that a reasonable jury could return a verdict for the nonmoving party” on an element of the claim. Liberty Lobby, Inc., 477 U.S. at 248. Factual assertions in the moving party’s affidavits or declarations may be accepted as true unless the opposing party submits his own affidavits, declarations, or documentary evidence to the contrary. Neal v. Kelly, 963 F.2d 453, 456 (D.C. Cir. 1992). FOIA cases typically and appropriately are decided on motions for summary judgment. Defenders of Wildlife v. U.S. Border Patrol, 623 F. Supp. 2d 83, 87 (D.D.C. 2009); Bigwood v. United States Agency for Int'l Dev., 484 F. Supp. 2d 68, 73 (D.D.C. 2007). In a FOIA case, the Court may grant summary judgment based solely on information provided in an agency’s affidavits or declarations if they are relatively detailed and when they describe “the documents and the justifications for nondisclosure with reasonably specific detail, demonstrate that the information withheld logically falls within the claimed exemption, and are not controverted by either contrary evidence in the record nor by evidence of agency bad faith.” Military Audit Project v. Casey, 656 F.2d 724, 738 (D.C. Cir. 1981). Such affidavits or declarations are accorded “a presumption of good faith, which cannot be rebutted by ‘purely speculative claims about the existence and discoverability of other documents.’” SafeCard Servs., Inc. v. Sec. & Exch. Comm’n, 926 F.2d 1197, 1200 (D.C. Cir. 1991) (quoting Ground Saucer Watch, Inc. v. Cent. Intelligence Agency, 692 F.2d 770, 771 (D.C. Cir. 1981)). 3 III. Analysis A. Vaughn Index Plaintiff initially argues that because Defendant failed to produce a Vaughn Index, it cannot justify its withholdings. See Vaughn v. Rosen, 484 F.2d 820, 827 (D.C. Cir. 1973) (requiring agency to produce an index when agency withholds information in its response to valid FOIA request). He is not correct. First, where a declaration explains in detail an agency’s justifications for withholding information, a Vaughn Index is not required. See King v. U.S. Dep’t of Justice, 2010 WL 935420 (D.D.C. 2010) (citing Voinche v. FBI, 412 F. Supp. 2d 60, 65 (D.D.C. 2006)). Here, the Collins Declaration lays out in sufficient detail the justifications for Defendant’s withholdings. In any event, the Court has reviewed the disputed documents in camera and thus knows precisely what was withheld. Finally, Defendant ultimately produced a Vaughn Index as part of its in camera submission to the Court on August 15, 2011. B. Adequacy of the Search There is little dispute here about the adequacy of Defendant’s search for documents. “An agency fulfills its obligations under FOIA if it can demonstrate beyond material doubt that its search was ‘reasonably calculated to uncover all relevant documents.’” Valencia-Lucena v. U.S. Coast Guard, 180 F.3d 321, 325 (D.C. Cir. 1999) (quoting Truitt v. Dep’t of State, 897 F.2d 540, 542 (D.C. Cir. 1990)); see also Steinberg v. U.S. Dep’t of Justice, 23 F.3d 548, 551 (D.C. Cir. 1994). The adequacy of an agency’s search for documents requested under FOIA is judged by a standard of reasonableness and depends upon the facts of each case. Weisberg v. U.S. Dep’t of Justice, 745 F.2d 1476, 1485 (D.C. Cir. 1984). There is no requirement that an agency search every record system in response to a FOIA request, but only those records that are likely to have responsive documents. Oglesby v. U.S. Dep’t of the Army, 920 F.2d 57, 68 (D.C. Cir. 4 1990). To meet its burden, the agency may submit affidavits or declarations that explain in reasonable detail the scope and method of the agency’s search. Perry v. Block, 684 F.2d 121, 126 (D.C. Cir. 1982). In the absence of contrary evidence, such affidavits or declarations are sufficient to demonstrate an agency’s compliance with FOIA. Id. at 127. On the other hand, if the record “leaves substantial doubt as to the sufficiency of the search, summary judgment for the agency is not proper.” Truitt, 897 F.2d at 542. Plaintiff here does not challenge the adequacy of Defendant’s search, and the Court independently finds that the search was adequate. To meet its burden, Defendant submitted the declaration of Larry Collins. Collins is the paralegal from BOP who oversaw the search. Collins Decl., ¶¶ 2-3. He determined that responsive records, if any, would be in Plaintiff’s central file. Id., ¶ 7. BOP then conducted a page-by-page search of that file and determined that 14 pages were responsive to Plaintiff’s request. Id. It then released the responsive pages that were not otherwise exempt. BOP’s search was thus adequate. C. Exemption 7 What Plaintiff does contest in this suit is Defendant’s withholding of certain information. More specifically, he argues that Defendant’s claimed exemptions -- i.e., 7(C) and 7(F) -- are invalid. As to Exemption 7 and its subsections generally, records and information withheld thereunder must be compiled “for a law enforcement purpose.” 5 U.S.C. § 552(b)(7). This protection extends to both investigatory and non-investigatory records. See Tax Analysts v. IRS, 294 F.3d 71, 79 (D.C. Cir. 2002) (explaining that 1986 FOIA amendments deleted “any requirement” that information be investigatory and emphasizing that “legislative history makes it clear that Congress intended the amended exemption to protect both investigatory and non- investigatory materials, including law enforcement manuals and the like”). Plaintiff here 5 challenges Defendant’s reliance on Exemption 7 because he claims that the documents were not compiled for law enforcements purposes. Pl. Motion at 4. In support of his assertion, Plaintiff attaches an affidavit swearing that he was not involved in any activity relating to crime or national security during the relevant period; as a result, no law enforcement purpose could possibly exist. Pl. Motion, Affidavit of Melvin Anderson at 3. Exemption 7, however, is not limited to investigations of criminal activity or national security, but also encompasses “‘whether the files sought relate to anything that can be fairly characterized as an enforcement proceeding.’” Jefferson v. Dept. of Justice, 284 F.3d 172, 177 (D.C. Cir. 2002) (quoting Aspin v. Dep’t of Defense, 491 F.2d 24, 27 (D.C. Cir. 1973)). As part of its statutory duty for the “management and regulation of federal correctional institutions and for housing in suitable quarters those persons charged with or convicted of federal offenses,” Ruston v. DOJ, 2007 WL 809698 (D.D.C. 2007), Defendant must sometimes -- as was the case with Plaintiff -- investigate whether it is necessary to transfer an inmate to another correctional facility. In this case, BOP’s investigation concerned “an incident which occurred on or about August 14, 2009, at the Federal Correctional Complex in Coleman, Florida.” Vaughn Index at 1. Investigations like this can be fairly characterized as enforcement proceedings, where, as here, BOP determines that it is necessary to transfer an inmate to prevent future violence. The Court is therefore satisfied that the records here were compiled for a law enforcement purpose. 1. Exemption 7(C) Exemption 7(C) allows for the withholding of records compiled for law enforcement purposes if disclosure “could reasonably be expected to constitute an unwarranted invasion of personal privacy.” § 552 (b)(7)(C). “To determine whether disclosure of certain information would constitute an unwarranted invasion of privacy, the Court must balance the public interest 6 in disclosure against the privacy interest of the individual mentioned in the record.” Blanton v. Dep’t of Justice, 63 F. Supp. 2d 35, 45 (D.D.C. 1999). BOP invokes this exemption to justify withholding personal and identifying information of “individuals other than [P]laintiff.” Vaughn Index at 2. Because there is a strong privacy interest in information contained in law enforcement records, this exemption allows categorical withholding of information regarding third parties. See Dep’t of Justice v. Reporters Committee for Freedom of the Press, 489 U.S. 749, 776-77 (1989); Blanton, 63 F. Supp. 2d at 45 (“The privacy interests of third parties mentioned in law enforcement files are ‘substantial,’” while “[t]he public interest in disclosure [of third-party identities] is not just less substantial, it is insubstantial.”) (quoting SafeCard, 926 F.2d at 1205). The Court has reviewed the seven pages that were withheld under this exemption, which all relate to third parties. Although, given the subject matter of the documents, the Court finds that the privacy interest here may be weak, there is no corresponding public interest whatsoever to overcome even a weak privacy interest. As a result, the Court finds that the balance favors non-disclosure, and BOP’s withholding under Exemption 7(C) was thus proper. 2. Exemption 7(F) Exemption 7(F) permits the withholding of records compiled for law enforcement purposes that “could reasonably be expected to endanger the life or physical safety of any individual.” This exemption was invoked to justify withholding information on six pages related to “an incident which occurred on or about August 14, 2009, at the Federal Correctional Complex in Coleman, Florida.” Vaughn Index at 1. Five of the pages were released in some form with redactions, and one page relating to the incident was withheld in full. Id. Exemption 7(F) has been used with regularity to withhold precisely this sort of information. See Lee v. 7 DOJ, 2007 WL 2852538, at *7 (W.D. Pa. Sept. 27, 2007) (finding agency properly withheld “names and personal information” about inmates involved in investigations of wrongdoing at correctional facilities because disclosure could subject them to “retaliatory physical harm”); Brady-Lunny v. Massey, 185 F. Supp. 2d 928, 932 (C.D. Ill. 2002) (finding that release of list of inmates’ names would endanger life and physical safety “given inmates’ gang ties, interest in escape, and motives for violence”); Anderson v. U.S. Marshals Serv., 943 F. Supp. 37, 40 (D.D.C. 1996) (protecting identity of inmate who required separation from incarcerated requester when disclosure could endanger his safety). While Plaintiff’s pleadings assert bad faith on the part of BOP, nowhere does he actually support such accusations or present any actual evidence that rebuts Defendant’s claimed exemptions. “When an affidavit or showing is reasonably specific and demonstrates, if accepted, that the documents are exempt, these exemptions are not to be undercut by mere assertion of claims of bad faith or misrepresentation.” Ray v. Turner, 587 F.2d 1187, 1195 (D.C. Cir. 1978). Defendant here asserts that disclosure of this information could lead to further violence. BOP specifically determined that release of this information “could jeopardize the safety of individual(s) as it would likely result in harassment and/or retaliation, to possibly include physical assaults, directed toward individual(s) identified in the investigation and resulting in a threat not only to the named individual but also the safe operation of the institution.” Collins Decl., ¶ 15. Having reviewed the withheld information in camera, the Court must agree with Defendant. While the Court finds the subject matter at issue rather trivial, it is not in a position to second-guess Defendant’s valid assertion that disclosure could reasonably be expected to endanger the life or physical safety of an individual. Defendant’s withholdings under Exemption 7(F) were thus proper. 8 IV. Conclusion As the Court finds that Defendant conducted an adequate search with respect to Plaintiff’s FOIA request and properly withheld certain pages, the Court will grant Defendant’s Motion for Summary Judgment and deny Plaintiff’s Motion. A separate Order consistent with this Opinion will issue today. SO ORDERED. /s/ James E. Boasberg JAMES E. BOASBERG United States District Judge Date: August 25, 2011 9 

597 So.2d 1148 (1992) Bret S. SCARDINA, Individually and as Administrator for Stephen Scardina v. STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY and Edwin E. Miller. No. 91 CA 0210. Court of Appeal of Louisiana, First Circuit. April 10, 1992. Rehearing Denied May 28, 1992. *1149 Dorsey C. Martin, III, Baton Rouge, for plaintiff-appellant Bret S. Scardina, Individually and as Admin'r for Minor Son, Stephen Scardina. John W. Perry, Jr., Baton Rouge, for defendant-appellee Edwin E. Miller. Before WATKINS, CARTER and FOIL, JJ. CARTER, Judge. This is an appeal from a trial court judgment in favor of the defendants, dismissing plaintiff's suit for damages arising out of an automobile-bicycle accident. FACTS On September 8, 1988, at approximately 6:00 p.m., Edwin E. Miller was travelling north on North Shamrock Drive in Baton Rouge at about 10 miles per hour. At about the same time, four-year-old Stephen Scardina was apparently attempting to cross from the east side to the west side of North Shamrock Drive on his two-wheel bicycle. Miller waved at several children who were on the west side of North Shamrock Drive playing in a yard near the roadway. Within a few moments, Miller felt something bump his vehicle. Miller immediately stopped his vehicle. Miller then looked into his rear-view mirror and saw a small bicycle lying near the curb on the east side of the street. When Miller exited, he observed Stephen Scardina, whom he had apparently struck with his vehicle, lying in the roadway. This was the first time that Miller had ever observed the Scardina child. As a result of this accident, Stephen sustained serious injuries to his legs. On June 12, 1989, Bret S. Scardina, individually and as administrator of the estate of his minor son Stephen Scardina, filed suit for damages against Miller and Miller's insurer, State Farm Mutual Automobile Insurance Company (State Farm).[1] After a trial, which was held on August 13 and 14, 1990, the jury determined that Miller was not at fault in causing the accident. As a result the trial judge rendered judgment in favor of defendants, Miller and State Farm, and against plaintiff, dismissing plaintiff's suit at his costs. From this adverse judgment, plaintiff appeals, raising the following issues: (1) Whether Edwin E. Miller was guilty of negligence in failing to maintain a proper lookout and observe the child Stephen Scardina near or in the street and anticipate his actions? (2) What amount of damages is to be awarded to plaintiff upon a finding of defendant's negligence? NEGLIGENCE OF MILLER Plaintiff contends that the facts established at trial support a finding that Miller violated his duty of care to the Scardina child. Plaintiff reasons that the jury erred in failing to find that Miller was negligent and therefore liable for the damages sustained by plaintiff. The following jury instruction, which was given by the trial court, accurately reflects some aspects of the duty of a *1150 driver who sees or should see children near the roadway: A motorist who sees or should see children near the roadside must exercise a high degree of care in view of the propensity of young children to dart or run into the street, heedless of their own safety. This rule implies that, when a motorist sees or should see a child near the roadway, he must anticipate that (sic) child might suddenly dart into the street. Consequently, the motorist must bring his vehicle under such control that he can avoid injuring the child notwithstanding his youthful indiscretion. The motorist has the duty to anticipate that the child, possessed of limited judgment, might be unable to appreciate impending danger, is likely to be inattentive and might suddenly place himself in a position of peril. See Dorsey v. Williams, 525 So.2d 542, 544 (La.App. 3rd Cir.1988). Although the duty of a driver charged with the knowledge of children near the roadway is heightened, the duty is not limitless. Upon seeing children near the roadside, a motorist is expected to react appropriately, but a driver does not necessarily have a duty to stop. Ordon v. Nash, 411 So.2d 1111, 1113 (La.App. 4th Cir.) writ denied, 415 So.2d 941 (La.1982). Motorists driving near children are charged with a high degree of care, but the driver is not an insurer of every child's safety. Dorsey v. Williams, 525 So.2d at 544. When a driver has employed all reasonable precautions to avoid an accident, and a sudden act of a child creates an emergency rendering it impossible for the motorist to avoid striking the child, the accident is considered unavoidable and the motorist is not liable. Keel v. Thompson, 392 So.2d 713, 717 (La.App. 3rd Cir.1980). In other words, if a motorist is proceeding at a lawful and reasonable rate of speed, maintaining a proper lookout, and otherwise obeying the rules of the road, he will not be held liable for injuries to a child who suddenly darts or dashes into the path of his vehicle from a concealed position in such a way that an accident cannot be avoided. Keel v. Thompson, 392 So.2d at 717. See also Dorsey v. Williams, 525 So.2d at 544-45. Each case must be considered in light of its particular set of circumstances. Dorsey v. Williams, 525 So.2d at 544. In Bruno v. Daniels, 328 So.2d 739 (La. App. 4th Cir.1976), our brethren of the Fourth Circuit determined that a driver who is aware of children on one side of the roadway is not necessarily held to have seen children on the other side of the roadway. The court stated: If the driver notices children playing near the street then he is under a duty of great care as to them. If, for example, he sees children playing on the left side of the street and a child darts into his path from the right, he owes that child only a duty to exercise ordinary, reasonable care, unless he should have expected the child to be in that position. The duty of great care arises only upon the driver becoming aware of the child or under circumstances where he should have been aware of the child. Bruno v. Daniels, 328 So.2d at 740-41. In the instant case, sufficient evidence was adduced at trial to allow the jury to conclude that Miller was exercising a heightened degree of care. The evidence showed that, as Miller came around the slight curve in the road, he observed the group of children playing ball, waved to them, and then looked ahead again. At the time of the accident, Miller was travelling at the reduced rate of speed of ten miles per hour (although the speed limit in that area was 20 miles per hour). Although Miller saw the children playing in a yard on the west side of the street immediately before the accident, he did not see Stephen Scardina who was somewhere on the east side of the street. There were no witnesses to the accident. No proof was adduced as to the location of the Scardina child prior to the accident. Stephen was too young at the time of trial to testify. Stephen's mother, Sonya Scardina, testified that, less than five minutes before the accident, she left her son playing inside a nearby neighbor's home and returned to her own home. During the moments after Sonya Scardina returned home, Stephen apparently returned home, *1151 picked up his bicycle, and was attempting to return to the neighbor's home when the accident occurred. Further, the evidence established that Miller did not strike the Scardina child, but that the bicycle struck the passenger side of the Miller truck. The police officer who investigated the accident testified that the bicycle hit the right front quarter panel of the vehicle. After carefully reviewing the entire record and the jurisprudence, we find that the evidence adduced at trial was sufficient for the jury to have concluded that Miller was exercising the appropriate heightened degree of care and that the accident, while tragic, was unavoidable. The jurisprudence is clear that an appellate court should not alter a jury's determination of a factual issue absent manifest error. Rosell v. ESCO, 549 So.2d 840 (La.1989); Arceneaux v. Domingue, 365 So.2d 1330 (La. 1978). See also Sutton v. Duplessis, 584 So.2d 362, 366 (La.App. 4th Cir.1991). We cannot find manifest error in the jury's determination that Miller was not at fault in causing the accident. Because of our finding on the issue of negligence, we find it unnecessary to address the issue of damages. CONCLUSION For the foregoing reasons, the judgment of the trial court is affirmed. Plaintiff is assessed with the costs of this appeal. AFFIRMED. NOTES [1] Various pleadings were filed by defendants, none of which are pertinent to the issues raised in the instant appeal.

19 F.3d 1446 Robertsv.Boca Raton Community NO. 93-4695 United States Court of Appeals,Eleventh Circuit. Mar 31, 1994 1 Appeal From: S.D.Fla. 2 AFFIRMED.

451 F.Supp.2d 1037 (2006) Becky KRAMBECK, Plaintiff, v. CHILDREN AND FAMILIES OF IOWA, INC., et al., Defendants. No. 4:04-CV-40011-JEG. United States District Court, S.D. Iowa, Central Division. September 5, 2006. *1038 Jeffrey M. Lipman, Lipman Law Firm, PC, Clive, IA, Steven L. Udelhofen, Udelhofen Law Office, Ankeny, IA, for Plaintiff. Helen C. Adams, Dickinson Mackaman Tyler & Hagen PC, Des Moines, IA, Stuart J. Cochrane, Johnson, Erb, Bice, Kramer, Good & Mulholland, PC, Fort Dodge, IA, for Defendants. ORDER GRITZNER, District Judge. This matter comes before the Court on the motion of Plaintiff Becky Krambeck (Krambeck) "to Dismiss All Federal Claims and Remove and Remand Case Back to Iowa District Court." Krambeck is represented by Jeff Lipman and Steven Udelhofen. Defendants Children and Families of Iowa, Inc. (CFI), Chris Carmon (Carmon), and Alicia Lewis (Lewis) are represented by Helen Adams. Carmon is also represented by Stuart Cochrane. The Defendants `requested oral argument, and a hearing was held on July 13, 2006. The matter is now fully submitted and ready for ruling. SUMMARY OF MATERIAL FACTS Krambeck was employed with CFI for approximately three years. During that time, Carmon and his supervisor, Lewis, were also in CFI's employ. Krambeck claims Carmon subjected her to sexually offensive comments and conduct, of which CFI and Lewis were aware. Lewis discharged Krambeck on September 26, 2003, for inappropriate workplace behavior. Krambeck filed a petition in the Iowa District Court for Polk County on December 26, 2003, alleging claims of sexual harassment discrimination and retaliation under the Iowa Civil Rights Act, Iowa Code ch. 216, and Title VII of the federal Civil Rights Act, 42 U.S.C. § 2000e et seq. On. January 7, 2004, Defendants CFI and Lewis removed the case to this court because the petition included claims based on Title VII, a federal statute.[1] 28 U.S.C. *1039 § 1441. Defendants therefore invoke the court's federal question jurisdiction to hear the Title VII claims, 28 U.S.C. § 1331, 1343, and its supplemental jurisdiction as to the related state claims, 28 U.S.C. § 1367. On April 10, 2006, Krambeck filed a motion to dismiss the federal claims and remand the remaining state claims to state court. Defendants resisted that motion on May 22, 2006. APPLICABLE LAW AND DISCUSSION I. MOTION TO DISMISS FEDERAL CLAIMS Defendants CFI and Lewis do not resist Krambeck's motion to dismiss her federal claims, provided the dismissal is with prejudice. In a separate resistance, Carmon purports to resist Krambeck's motion on the same grounds as Defendants CFI and Lewis, so it is assumed he does not resist the dismissal of the federal claims, although his request is postured as a general denial of the motion as a whole (including the motion to dismiss). Krambeck's motion does not specify whether she is requesting dismissal of the federal claims with or without prejudice. At oral argument, counsel for Krambeck represented that if the motion to remand is granted, she concedes to a dismissal with prejudice. While the Court appreciates Plaintiff's strategic desire to obtain the most favorable result whatever the Court's determination on the motion to remand, Plaintiff brought the federal claims, has extensively litigated them in this Court, and has exposed Defendants to defending the claims. Therefore, Krambeck's motion to dismiss is granted, and her federal claims will be dismissed with prejudice. II. MOTION TO REMAND REMAINING STATE LAW CLAIMS In the absence of federal claims, whether the Court should retain jurisdiction depends upon construction of its supplemental jurisdiction under 28 U.S.C. § 1367, which provides in relevant part: (a) Except as provided in subsections (b) and (c) or as expressly provided otherwise by Federal statute, in any civil action of which the district courts have original jurisdiction, the district courts shall have supplemental jurisdiction over all other claims that are so related to claims in the action within such original jurisdiction that they form part of the same case or controversy under Article III of the United States Constitution. . . . . . (c) The district courts may decline to exercise supplemental jurisdiction over a claim under subsection (a) if— (1) the claim raises a novel or complex issue of State law, (2) the claim substantially predominates over the claim or claims over which the district court has original jurisdiction, (3) the district court has dismissed all claims over which it has original jurisdiction, or (4) in exceptional circumstances, there are other compelling reasons for declining jurisdiction. Neither party questions that the state and federal employment discrimination claims are so related that they form part of the same case or controversy. Krambeck urges the Court to decline to exercise its supplemental jurisdiction and remand the case under § 1367(c)(1) and (3). She asserts her claims raise novel or complex issues of state law and notes that granting her motion to dismiss would re *1040 move all claims over which this Court has original jurisdiction. A. Novel or Complex Issues of State Law Krambeck claims her case presents three novel or complex issues of state law that should be heard in state court and urges this Court to remand accordingly. First, Krambeck claims resolution of her case will require a court to decide whether the Iowa Civil Rights Act requires a plaintiff to report discriminatory activity of an "individual" who is also a supervisor in the same manner as Burlington Industries., Inc. v. Ellerth, 524 U.S. 742, 118 S.Ct. 2257, 141 L.Ed.2d 633 (1998), and Faragher v. City of Boca Raton, 524 U.S. 775, 118 S.Ct. 2275, 141 L.Ed.2d 662 (1998). Second, Krambeck claims the court hearing her case must decide the issue of the definition of "supervisor" for purposes of imposing respondeat superior or strict liability on the company when the harassing "individual" under the ICRA is also part of the company's management. Finally, Krambeck claims the state court should be allowed to address "the affect a prior complaint under Iowa Chapter 216 has on reporting requirement to higher management of subsequent incidents of harassment." These vague statements illuminate little standing alone. Counsel further elaborated at oral argument, and it appears that central to this case is a dispute over whether Carmon is Krambeck's supervisor. Under federal law, if Carmon is a co-worker, then Krambeck must prove as an additional element of her prima facie case that Defendants "knew or should have known of the conduct and failed to take proper remedial action." Cheshewalla v. Rand & Son Constr. Co., 415 F.3d 847, 850 (8th Cir.2005). If Carmon is a supervisor, CFI is vicariously liable for his conduct unless it can establish the Faragher/Ellerth affirmative defense. Id. Faragher and Ellerth provide that an employer is subject to vicarious liability for the discriminatory actions of a supervisor; however, when no tangible employment action is taken, an employer may raise an affirmative defense composed of two elements: (1) "that the employer exercised reasonable care to prevent and correct promptly any sexually harassing behavior" and (2) "that the plaintiff employee unreasonably failed to take advantage of any preventive or corrective opportunities provided by the employer or to avoid harm otherwise." Faragher, 524 U.S. at 807, 118 S.Ct. 2275; Ellerth, 524 U.S. at 765, 118 S.Ct. 2257. Krambeck asserts that this dispute involves a novel question of state law because it is unclear whether the Iowa Supreme Court would adopt the definition of supervisor the Supreme Court used in Faragher and Ellerth, or use what Krambeck claims is a more restrictive definition applied by the Eighth Circuit Court of Appeals. "In Ellerth, and Faragher, the Supreme Court did not answer the question, `who is a supervisor?,' other than to state that an employer is vicariously liable `for, an actionable hostile environment created by a supervisor with immediate (or successively higher) authority over the [victimized] employee.'" Joens v. John Morrell & Co., 354 F.3d 938, 940 (8th Cir.2004) (quoting Ellerth, 524 U.S. at 765, 118 S.Ct. 2257). In Joens, the Eighth Circuit addressed that question. The court considered the interpretation of the Fourth and Seventh Circuits, which held that a supervisor must have the power to take tangible employment action against the plaintiff-employee, and the somewhat broader interpretation of the Second Circuit, which found supervisory status indicated by the ability to direct the daily work activities of the plaintiff-employee. Id. The Eighth Circuit opted for the narrower approach *1041 and "held that to be considered a supervisor, the alleged harasser must have had the power (not necessarily exercised) to take tangible employment action against the victim, such as the authority to hire, fire, promote, or reassign to significantly different duties.'" Cheshewalla, 415 F.3d at 850-51 (quoting Joens, 354 F.3d at 940). The Iowa Supreme Court has cited the Faragher/Ellerth affirmative defense, without comment, in Farmland Foods Inc. v. Dubuque Human Rights Commission, 672 N.W.2d 733, 744 & n. 2 (Iowa 2003). The court cited only federal case law, primarily from the Eighth Circuit, in discussing plaintiff's hostile work environment claims, even though none of the claims arose under Title VII. Id.; see also Lopez v. Aramark Uniform & Career Apparel, Inc., 426 F.Supp.2d 914, 949-50 (N.D.Iowa 2006) (finding that Farmland Foods demonstrates that the Iowa Supreme Court has adopted the Faragher/Ellerth affirmative defense for ICRA claims involving supervisor harassment); Boyle v. Alum-Line, Inc., 710 N.W.2d 741, 746 (Iowa 2006) (stating that the elements of an ICRA hostile work environment claim include the "knew or should have known" element when the harasser is a nonsupervisory employee). Though the Farmland Foods court did not have occasion to discuss the definition of supervisor in detail, the case shows a consistency with the continued preference of the Iowa courts in construing Title VII and the ICRA in harmony. Two of Krambeck's allegedly novel questions of state law refer to a "reporting requirement" imposed by Faragher and Ellerth. The argument offered is unclear, requiring the Court to assume this is a reference to the second prong of the affirmative defense: that the plaintiff employee unreasonably failed to take advantage of any preventive or corrective opportunities provided by the employer, Faragher, 524 U.S. at 807, 118 S.Ct. 2275, which implicitly requires some communication to the employer. The Supreme Court, however, grounded its decision allowing failure to utilize company procedures to form part of an affirmative defense in the general legal notion requiring plaintiffs to mitigate damages, and not in some exotic new area of employment law. Id. at 806, 118 S.Ct. 2275 (stating that the second prong of the affirmative defense "reflects an equally obvious policy imported from the general theory of damages."). Krambeck asserts that if this court were to retain jurisdiction and hear her state law claims, it might want to certify these allegedly novel questions of state law to the Iowa Supreme Court; therefore, it would be simpler to remand the case and allow the state court to decide these undeveloped areas of the ICRA. However, on the current record, it does not appear that this case implicates any novel issues of state law.[2] When illuminated by the facts of this case instead of abstractions, none of Krambeck's three allegedly novel state law issues are truly novel, surprising, or complex in light of the federal courts' extensive employment discrimination caseload and the general rule construing the ICRA in harmony with federal employment discrimination *1042 law. See, e.g., Madison v. IBP, Inc., 330 F.3d 1051, 1058 (8th Cir. 2003) (noting the general preference of Iowa courts to look to federal law when interpreting ICRA but discussing difference in Iowa and federal law regarding the recovery period for a continuing violation); Canterbury v. Federal-Mogul Ignition Co., 418 F.Supp.2d 1112, 1114 (S.D.Iowa 2006) ("Federal case law supplies the basic framework for deciding cases under the ICRA."); Soto v. John Morrell & Co., 285 F.Supp.2d 1146, 1177-78 (N.D.Iowa 2003) ("it is widely accepted in the Eighth Circuit that generally no distinction is made between claims based on federal law and comparable state law claims, under the ICRA."); Pecenka v. Fareway Stores, Inc., 672 N.W.2d 800, 803 (Iowa 2003) (Iowa courts traditionally look to federal courts when interpreting the ICRA but "are not bound by federal law, despite consistent utilization of the federal analytical framework."); Vivian, 601 N.W.2d at 873 (the Iowa Civil Rights Act is modeled after Title VII). When the law underlying a dispute is well-established and frequently before the court, the necessity of remand is far less compelling. Compare Conrad v. Iowa Cent. Cmty. College, 2006 WL 1523137, 2006 U.S. Dist. LEXIS 35533 (N.D. Iowa June 1, 2006) (where court's ruling on unresisted summary judgment motion eliminated federal claims, court declined to exercise supplemental jurisdiction where state law claim was premised on statute that had been interpreted in only one reported state appellate court decision), with Glandon v. Keokuk County Health Ctr., 408 F.Supp.2d 759 (S.D.Iowa 2005) (court retained jurisdiction over state law claim following ruling on summary judgment motion, where state claims were straightforward and the underlying law well-established). The federal courts' frequent application of employment discrimination case law and the propensity of such cases to include both state and federal claims mitigates against remand in this case. The Court is unable to find an issue that would require, it to deviate from the normal pattern of construing state and federal employment discrimination statutes harmoniously. Although the case may involve a new or interesting fact pattern, the Court finds that any novelty in this case would likely arise in the application of those facts to existing law and not in the creation or expansion of the law itself. Accordingly, the Court will not decline to exercise its supplemental jurisdiction because of Krambeck's allegedly novel questions of state law. B. Dismissal of All Federal Claims Even in the absence of novel or complex questions of state law, the Court may decline to exercise jurisdiction over state law claims upon dismissal of the claims over which the Court had original jurisdiction. "Under §§ 1367(c) and 1441(c), a court is not required to remand state law claims when the only federal claim has been dismissed. Instead, the district court maintains discretion to either remand the state law claims or keep them in federal court." Lindsey v. Dillard's, Inc., 306 F.3d 596, 599 (8th Cir.2002). Having granted Krambeck's motion to dismiss her federal claims, the Court now considers the balance of factors informing the exercise of its discretion to remand. The district court's discretion is substantial and is reviewed deferentially. See Deniz v. Municipality of Guaynabo, 285 F.3d 142, 150 (1st Cir.2002) (holding that federal district court retains substantial discretion when deciding whether to retain jurisdiction over pendent state claims after the "linchpin" federal claims are dismissed) (citing Serapion v. Martinez, 119 F.3d 982, 993 (1st Cir.1997)); Parker v. Rocco, 252 F.3d 663, 666 (2d *1043 Cir.2001) ("the district court may, at its discretion, exercise supplemental jurisdiction over state law claims even where it has dismissed all claims over which it had original jurisdiction"). The Supreme Court has found that relevant factors for a district court to consider when deciding whether to exercise supplemental jurisdiction include "judicial economy, convenience, fairness, and comity." Carnegie-Mellon Univ. v. Cohill, 484 U.S. 343, 350 n. 7, 108 S.Ct. 614, 98 L.E d.2d 720 (1988). Normally, when the federal claims are disposed of before trial, these factors will lead, a court to decline to exercise supplemental jurisdiction over the state law claims. Id. However, this is not a "mandatory rule to be applied inflexibly in all cases." Id. An exercise of the Court's discretion to remand in this case thus turns on the progress of the case and the involvement of the federal court. The Court's involvement thus far includes review and approval of the scheduling order and several modifications thereto; ruling on a motion to amend the complaint; approval of a protective order; denial of Krambeck's motion to extend expert designation deadlines; and granting stipulated dismissal with prejudice as to five plaintiffs and their respective claims. In addition, Defendants have filed a motion for summary judgment. The Court has granted Krambeck an extension of time to respond until thirty days from the date of this order. Trial is set for December 11, 2006. Krambeck claims that if the Court grants her motion to dismiss, then the remaining state law claims should be remanded under the general rule in favor of returning state claims to state court when all federal claims are dismissed before trial. Carnegie-Mellon Univ., 484 U.S. at 350, 108 S.Ct. 614. Defendants contend that this rule should be applied flexibly, id., and urge this Court to exercise supplemental jurisdiction given the length of the case and its progress in this court. Krambeck initially claimed the state court could provide a trial date consistent with the presently scheduled trial date. However, Defendants have represented that if the motion to remand is granted, they will file a motion for summary judgment in state court. They argue that the burden on the state court to get a summary judgment motion fully submitted and ruled upon before early December makes a comparable trial date unlikely. In response, Krambeck conceded that there may be some uncertainty now about retaining an early December trial date in state court. Krambeck also claims the federal court has not yet invested substantial resources in this case because there has been no occasion, such as a summary judgment motion, to consider the merits. At the time Krambeck filed the motion to dismiss and remand, there were no dispositive motions filed, although, as previously noted, a summary judgment motion was filed by Defendants on June 26, 2006. This is consistent with the dispositive motion deadline established in the scheduling order. Defendants note this case, including discovery, has proceeded under the Federal Rules of Civil Procedure and the local rules of this Court since January 2004, and therefore the case had been pending in federal court for over two years when Krambeck filed her motion to dismiss. CFI claims it has propounded and answered written discovery and either taken or defended the depositions of eleven witnesses, and that remand would be prejudicial given the effort it has expended in the discovery process and preparing dispositive motions. Krambeck's motion was filed only a few months before the dispositive motion deadline, and Defendants assert that she was *1044 aware Defendants were preparing a summary judgment motion because counsel discussed it on several prior occasions. Defendants are thus concerned that Krambeck is attempting to forum shop and have her claims heard in a state court, which she believes would be less likely to grant summary judgment. Additionally, CFI tendered an offer of judgment under Federal Rule of Civil Procedure 68 on March 10, 2006, which was rejected. If CFI prevails in this case, it argues it would be entitled to the benefits of Rule 68, which requires the offeree (Krambeck) to pay the costs incurred after the offer was made if the judgment obtained is not more favorable than the terms of the offer. Krambeck claims the delay in filing her motion was the result of attempting to coordinate a settlement among the many previous plaintiffs. She denies that the Defendants would suffer prejudice from remand, claiming that any discovery would be equally usable in state court and that the Rule 68 offer would still be binding upon remand. This Court previously considered the present legal issue in Thelen v. Wakonda Club, 2004 WL 1737382, No.04-cv-40035 (S.D.Iowa July 23, 2004). There, this Court remanded the remaining state law claims where there was no allegation of novel or complex issues of state law, and the federal claim giving the Court original jurisdiction had been dismissed. The plaintiffs motion to dismiss and remand was filed four months after removal, and although the parties were "moving forward" with discovery, it was in the early stages and the only significant court involvement consisted of approving a scheduling order—a routine procedure essentially performed by the parties. The advanced progress of discovery, the length of time since removal, and the more substantial involvement of the Court tip the balance of interests closer to retention of jurisdiction here than in Thelen. Similar to Thelen, however, is the fact that the state law claims here are departing on a motion to dismiss, not summary judgment. See id. at *2 (distinguishing voluntary dismissal of claims from a concession of the merits on summary judgment, finding voluntary dismissal weighed in favor of remand) (citing Hansen v. Sioux By-Products, 988 F.Supp. 1255, 1261 (N.D.Iowa 1997) (where plaintiff conceded summary judgment on the federal claim eleven months after removal, court found the resources invested in pre-trial administration justified retaining jurisdiction)); see also Grain Land Coop v. Kar Kim Farms, 199 F.3d 983, 993 (8th Cir.1999) (when the district court has invested substantial resources in ruling on summary judgment, it is not an abuse of discretion for the court to exercise supplemental jurisdiction, even when all federal claims are disposed of before trial) (citing Murray v. Wal-Mart, Inc., 874 F.2d 555, 558 (8th Cir.1989) (a substantial investment of judicial time and resources may justify a district court's exercise of jurisdiction over state law claims even when all federal claims are dismissed)); cf. Brandenburg v. Housing Auth. of Irvine, 253 F.3d 891, 900 (6th Cir.2001) ("the usual course is for the district court to dismiss the state-law claims without prejudice if all federal claims are disposed of on summary judgment."). In addition, while discovery has been completed in this court, the parties conceded that Defendants may use that discovery in state court with little prejudice. In spite of these concerns, the Court finds the balance of "judicial economy, convenience, fairness, and comity" factors in Carnegie-Mellon, 484 U.S. at 350, 108 S.Ct. 614, mitigate in favor of retaining jurisdiction in light of the progress in this Court, both substantively and temporally. While the balance in the Thelen case clearly *1045 tipped toward remand, a line must be drawn at some point; and the current case appears to rest just to the other side of the fulcrum. The Court appreciates the reported difficulty faced by Krambeck in coordinating the dismissal of the previous plaintiffs and the time such an endeavor represents, yet the fact remains that the case has progressed for two years in this Court. Contrary to Thelen, where the only significant Court involvement was approval of a scheduling order, in the present case the Court has ruled on a motion to amend the complaint, approved a protective order, denied a motion to extend expert designation deadlines, and granted dismissal with prejudice as to five plaintiffs and their respective claims. In addition, the trial date is now less than four months away and the parties agree that obtaining a comparable date in state court is uncertain. See Hansen v. Sioux By-Products, 988 F.Supp. at 1261 (retaining jurisdiction where trial was three months away and it was uncertain whether the state court could accommodate trial in the same time frame); Tinius v. Carroll County Sheriff Dep't 2004 WL 2943846, 2004 U.S. Dist. LEXIS 25461, No. CO3-3001 (N.D.Iowa Dec. 17, 2004) (finding uncertain availability of comparable trial date in state court a factor favoring exercise of jurisdiction). Defendants' concerns about forum shopping may be well founded. This Court has previously determined that the Eighth Circuit does not consider forum shopping concerns prohibitive of remand, Thelen, 2004 WL 1737382 at *3; see Lindsey, 306 F.3d at 596 (where, plaintiff voluntarily dismissed her federal claims and moved for remand immediately upon removal, the court supported district court's decision to remand under § 1367(c) despite evidence of forum manipulation); however, forum shopping remains a relevant, though not dispositive, consideration. See Carnegie-Mellon Univ., 484 U.S. at 357, 108 S.Ct. 614 ("A district court can consider whether the plaintiff has engaged in any manipulative tactics when it decides whether to remand a case."). Finally, although Krambeck asserts that the Rule 68 offer would be binding on remand, Defendants counter that a state court would not consider a federal procedural rule binding. Defendants claim that the corollary Offer to Confess in state court is different in that it does not permit the recovery of attorney fees, and they further express concern that certain additional costs may not be included in any similar procedural device employed by the state court. The Court shares Defendants' concerns about the applicability of a Federal Rule of Civil Procedure in a state tribunal and finds that the Defendants are entitled to the benefit of their Rule 68 offer, should the outcome on the merits so permit. CONCLUSION The Court finds it appropriate to dismiss Krambeck's federal claims and exercise supplemental jurisdiction over the remaining state law claims. Such a course of action "most sensibly accommodates a range of concerns and values" implicated in this case. Carnegie-Mellon Univ., 484 U.S. at 357, 108 S.Ct. 614. For the aforementioned reasons, Krambeck's Motion to Dismiss All Federal Claims and Remove and Remand Case Back to Iowa District Court (Clerk's No. 36) is granted in part and denied in part. Her federal claims are dismissed with prejudice, and her motion to remand the case to Iowa District Court for Polk County is denied. The Court will retain supplemental jurisdiction over the ICRA claims. Krambeck shall have thirty days from the date of this *1046 order to respond to the pending motion for summary judgment. IT IS SO ORDERED. NOTES [1] The petition included claims by other plaintiffs, which were subsequently settled. The claims brought by the other plaintiffs were dismissed with prejudice by this Court upon stipulation of the parties on February 23, 2006. Krambeck is the only remaining plaintiff. [2] If further progression of this case discloses a novel issue that was not satisfactorily demonstrated to the Court at this juncture, any such issue would likely be of a limited nature and could be certified to the Iowa Supreme Court. See Erickson-Puttmann v. Gill, 212 F.Supp.2d 960, 975-76 (N.D.Iowa 2002) (finding no individual liability for nonsupervisory employees under the ICRA without certifying question to Iowa Supreme Court); Vivian v. Madison, 601 N.W.2d 872 (Iowa 1999) (on certified question from the Southern District of Iowa, court held that a supervisory employee is subject to individual liability under the ICRA, unlike Title VII).

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8 Cal.App.3d 655 (1970) 87 Cal. Rptr. 792 DOHRMANN CO., Plaintiff and Appellant, v. SECURITY SAVINGS AND LOAN ASSOCIATION et al., Defendants and Respondents. Docket No. 27017. Court of Appeals of California, First District, Division Four. June 11, 1970. *658 COUNSEL Mantalica, Barclay & Teegarden, Frank Barclay and Fitzgerald, Abbott & Beardsley for Plaintiff and Appellant. Richard J. Moore, County Counsel, and Thomas J. Fennone, Deputy County Counsel, Burd, Hunt & Friedman and John J. Bartko for Defendants and Respondents. OPINION RATTIGAN, J. This appeal presents questions relating to (1) the validity of a tax sale of personal property as affected by the notice given thereof, and (2) the effect of an erstwhile junior encumbrancer's tax purchase of the property. Appellant Dohrmann Co. (hereinafter "plaintiff") brought the action, for declaratory relief, against Security Savings and Loan Association ("Security") and Edwin Meese, Jr., as tax collector of the County of Alameda. The complaint sought, among other things, a declaration that plaintiff held a valid security interest in certain personal property, as the unpaid conditional seller thereof and "prior in right to any and all claims of defendants." *659 The trial court entered judgment on the pleadings adverse to plaintiff, who appeals. The Complaint As will appear, the questions presented require close examination of the allegations in the complaint. We summarize them, and quote them in part, as follows: The personal property in dispute consists of certain items of hotel and restaurant equipment (occasionally identified in the complaint, and herein, as "Lot 15"). On September 29, 1961, under a written conditional sales contract, plaintiff sold them to one Stockman "to be used by Stockman in his business known as Edgewater Inn" and located at a specified address in Alameda County.[1] The contract provided that plaintiff retained title to Lot 15 until the purchase price ($221,547.53, payable by Stockman in installments) had been paid in full; and that Stockman "agreed to pay all taxes and assessments levied against" the property. The Edgewater Inn, a hotel, was constructed on land held by Stockman under lease; he owned "the leasehold and hotel buildings." In 1963, he executed and delivered to Security (1) his promissory note evidencing a loan from Security in an unspecified amount, (2) a deed of trust securing its payment and covering the leasehold and buildings at the Edgewater Inn, and (3) a chattel mortgage covering all personal property located on the premises, including the Lot 15 items sold by plaintiff under the 1961 conditional sale contract. Thereafter Stockman "failed to pay unsecured personal property taxes due to Alameda County for the fiscal year ending June 30, 1966." "... [P]rior to May 10, 1966, the County of Alameda, acting by and through the [defendant] tax collector, and pursuant to authority vested in it by Revenue and Taxation Code [section] 2914, took possession of the premises of Edgewater Inn for the purpose of seizure and sale, to satisfy the delinquent unsecured personal property taxes levied against the premises and the contents thereof." On May 10, 1966, defendant tax collector "posted a Notice of Tax Sale and mailed copies to secured creditors of Stockman," including plaintiff.[2] *660 On May 16, 1966, a petition in voluntary bankruptcy was filed against Stockman in the United States District Court for the Northern District of California. The tax sale scheduled for May 19 did not materialize because the bankruptcy court restrained it. Pursuant to subsequent orders in the bankruptcy proceeding, "Stockman remained as Debtor-in-Possession of the Edgewater Inn, and continued to operate the hotel under the jurisdiction of the Bankruptcy Court." This arrangement terminated when he was adjudicated a bankrupt on January 3, 1968, at which time "[T]he Trustee in Bankruptcy took possession of the assets of Stockman, including the leasehold, buildings and personal property located at the Edgewater Inn. Among the assets of Stockman of which the Trustee took possession was the personal property [Lot 15] sold by plaintiff to Stockman under the contract of sale dated September 29, 1961." On February 13, 1968, the trustee conducted a public bankruptcy sale of all of said assets. No bids having been accepted, and on the same day, the trustee sold them — including the Lot 15 items — to Security at a private sale which was subsequently confirmed by the bankruptcy court. The private February 13 sale was made and confirmed without notice to any of Stockman's creditors, including plaintiff. "Such sale was subject to any rights which any secured creditor [of Stockman] might have in the property and subject to any and all claims of the [defendant] Tax Collector for taxes then delinquent and unpaid, and Security had knowledge of that fact." When and before the bankruptcy sale occurred, Security also had "actual knowledge" that plaintiff claimed a security interest in the Lot 15 property under its 1961 conditional sale contract with Stockman. On February 20, 1968, "Security was in possession, as owner, of the leasehold and buildings of Edgewater Inn ... and of the personal property appurtenant thereto as purchaser from the Trustee in Bankruptcy." On the same date, defendant tax collector posted, in three public places, notices of tax sale setting a public sale, on February 28, 1968, "of the leasehold, buildings and all personal property in the premises as to which unsecured personal property taxes were delinquent and unpaid." No other notice of the scheduled sale was given, and plaintiff was not sent a copy of the notice as posted. Also on the same date (February 20, 1968), Security paid to defendant tax collector the amount of the delinquent property taxes on the leasehold and buildings, but not that portion of the delinquent taxes which was attributable to the personal property on the premises. *661 On February 28, 1968, defendant tax collector conducted the scheduled public sale of the personal property. Security bid the sum of $18,214.35, the full amount of taxes due (plus penalties and interest), and defendant tax collector executed and delivered to Security a bill of sale covering all the personal property (including the Lot 15 items). Plaintiff received no "direct notice" of this sale at any time beforehand, and had no "actual notice" thereof until afterward. Security was, on February 20, 1968, and still is, in possession of the leasehold, buildings and personal property at the Edgewater Inn, and has been operating the hotel business and receiving the income therefrom. On that date, the fair market value of the Lot 15 property in Security's possession was "not less than $100,000.00"; the unpaid amount of the purchase price "currently" due plaintiff, under its 1961 conditional sale contract with Stockman, is $154,544.73. "At all times since May, 1966, the defendants, and each of them, had actual knowledge: (a) that plaintiff claimed a security interest as unpaid conditional seller in the personal property ... herein referred to as `Lot 15'; (b) of the address of the principal office for the transaction of business of plaintiff; (c) that posting of Notice of Tax Sale in three public places was not such notice as would reasonably convey to plaintiff the information contained therein." The complaint also set forth the respective positions of the parties as follows: Plaintiff contends that the purported tax sale operated to deny it due process because of the insufficient notice thereof; that Security, paying the delinquent taxes, was "not a purchaser at a tax sale, but was an owner of property redeeming said property from the tax lien asserted by the [defendant] Tax Collector"; that plaintiff retained its prior security interest in the property; and that Security's assertion of exclusive title to, and its use of, the property constituted a conversion thereof. Defendants contend that the tax sale was valid as against plaintiff; that it vested exclusive title in Security, free and clear of plaintiff's claims; and that Security was a tax sale purchaser, "not an owner redeeming said property from the tax lien." The Judgment on the Pleadings (1) Both defendants filed general demurrers to the complaint; neither demurred specially. The treatment and disposition of the general demurrers is recited in the judgment, pertinent portions of which are set forth in the margin.[3] They asserted, on behalf of the demurring defendants respectively, *662 that the complaint stated no cause of action against either. The trial court upheld this position, but — following the parties' stipulation — did so by entering judgment on the pleadings, in defendants' favor, rather than by sustaining their demurrers without leave to amend and entering judgment of dismissal accordingly. The procedure thus followed is both proper and desirable in an action for declaratory relief. (Wilson v. Board of Retirement (1957) 156 Cal. App.2d 195, 200-203 [319 P.2d 426]. See Wilson v. Civil Service Com. (1964) 224 Cal. App.2d 340, 344 [36 Cal. Rptr. 559].) Since the declaratory judgment is on the pleadings, however, it must be reviewed "the same as would be a judgment of dismissal entered following the sustaining of a general demurrer, and the allegations in ... [the] ... complaint must be taken as true, and so taken the question is whether a cause of action has been stated. [Citations.]" (Gill v. Curtis Publishing Co. (1952) 38 Cal.2d 273, 275 [239 P.2d 630]. Accord: Beverage v. Canton Placer Min. Co. (1955) 43 Cal.2d 769, 772 [278 P.2d 694]; Amacorp Industrial Leasing Co. v. Robert C. Young Associates, Inc. (1965) 237 Cal. App.2d 724, 730 [47 Cal. Rptr. 294].) It first appears that plaintiff's interest in the Lot 15 items, as acquired under the 1961 conditional sales contract, was originally senior to the interest acquired by Security under Stockman's 1963 chattel mortgage; and that its seniority survived Security's purchase at the bankruptcy sale conducted on February 13, 1968, because that event — according to the complaint — was "subject to any rights which any secured creditor [of Stockman, the bankrupt] might have in the property," and because Security purchased with "actual knowledge" of plaintiff's claimed interest. The parties do not dispute these conclusions. Whether the complaint states a *663 cause of action therefore invokes both theories mentioned in it: (1) that the February 28, 1968, tax sale was invalid, as to plaintiff, because of the insufficient notice given, and (2) that Security was not in a position to preclude plaintiff's senior interest when it purchased tax title at the sale. We hold that the complaint states a cause of action upon both theories (which we view alternatively, not in combination); we reverse the judgment. The Quality of Security's Tax Title A necessarily preliminary question is whether Security can rely upon defendant tax collector's bill of sale to defend its claimed tax title against attack upon either ground mentioned. In this regard, Security cites Revenue and Taxation Code[4] section 3712, and several decisions, for the proposition that "a purchaser at a tax sale receives title free and clear of all encumbrances." Section 3712, however, relates to the quality of title acquired by a person who purchases, from the state, "tax-deeded property" (§ 127) which was previously "tax sold property" (§ 126), and which (1) originally appeared on the local taxing agency's "secured roll" because it was subject to a lien for taxes (§ 109); which subsequently vested in the state by reason of delinquent taxes and by operation of law (§ 3436); and which, by statutory definition, is real property only. (§ 126. See, generally, division 1, part 6, chapters 1 through 7, inclusive [commencing with § 3351]; Ehrman and Flavin, Taxing California Property (1967) §§ 241 [pp. 218-219], 532-548 [pp. 507-520]; 3 Witkin, Summary of Cal. Law (7th ed. 1960) Taxation, §§ 79-86, pp. 2195-2202.) As pertinent here, the relevant decisions cited by Security also deal with tax-sale title to real, not personal property. (California Loan etc. Co. v. Weis (1897) 118 Cal. 489, 492, 494 [50 P. 697]; Helvey v. Sax (1951) 38 Cal.2d 21, 24 [237 P.2d 269]; Smith v. Addiego (1942) 54 Cal. App.2d 230, 235 [129 P.2d 953]; Connors v. Jerome (1948) 83 Cal. App.2d 330, 331 [188 P.2d 770].) (2) In contrast (and according to the present complaint's allegations and the inferences reasonably to be drawn therefrom), the Lot 15 items were personal property which had appeared on Alameda County's "unsecured roll" (see § 109), and which had been seized and sold for delinquent taxes pursuant to section 2914. A tax collector, seizing and selling personal property for taxes, is acting under the statutory equivalent of a common law writ of distraint. (See In Re Timberline Lodge (D.Ore. 1955) 139 F. Supp. 13, 16.) He does not, however, pass title to personal property which has been perfected from his own lien upon it; unlike the situation with realty, the law gives him no tax lien on personal property. (Ehrman and Flavin [op. cit. supra] § 529, pp. 504-505. See Fresno County v. *664 Commodity Credit Corp. (6th Cir.1940) 112 F.2d 639, 640.) Section 3712, operating to deliver clear title to property sold for taxes, is part of a statutory scheme which is obviously designed to stabilize and guarantee tax title to realty. The Legislature has enacted no similar scheme as to personal property. (3) We therefore conclude that title to personal property, passed at a tax sale pursuant to section 2918[5] (under which Security claims clear title here), is not impervious to challenge for cause. In the present case, and as next discussed, such cause appears. The Due Process Question (4) When conducting a proceeding which may result in the termination of a citizen's title to property, government denies due process of law to a known, interested party if it fails to give him adequate notice of its action. (Mullane v. Central Hanover Bank & Trust Co. (1950) 339 U.S. 306, 318-320 [94 L.Ed. 865, 875-877, 70 S.Ct. 652]. Accord: Walker v. Hutchinson City (1956) 352 U.S. 112, 113-114, 116 [1 L.Ed.2d 178, 180-182, 77 S.Ct. 200]. See Estate of Reed (1968) 259 Cal. App.2d 14, 22 [66 Cal. Rptr. 193]; Wisconsin Electric Power Co. v. City of Milwaukee (1953) 263 Wis. 111 [56 N.W.2d 784]; id. (1956) 272 Wis. 575 [76 N.W.2d 341, 342]; id. (1956) 352 U.S. 948 [1 L.Ed.2d 241, 77 S.Ct. 324]; id. (1957) 275 Wis. 121 [81 N.W.2d 298, 299]; Meadowbrook Manor, Inc. v. City of St. Louis Park (1960) 258 Minn. 266 [104 N.W.2d 540, 543].) (5) Notice given according to statutory ritual will not necessarily meet due process standards: "[t]he means [of notice] employed must be such as one desirous of actually informing the absentee might reasonably adopt to accomplish it." (Mullane v. Central Hanover Bank & Trust Co., supra, at p. 315 [94 L.Ed. at pp. 873-874].) (6) As to known persons with known addresses, "[e]xceptions in the name of necessity do not sweep away the rule that within the limits of practicability notice must be such as is reasonably calculated to reach interested parties. Where the names and post-office addresses of those affected by a proceeding are at hand, the reasons disappear for resort to means less likely than the mails to apprise them of its pendency." (Id., p. 318 [94 L.Ed. at p. 875].) In most of the decisions just cited, the notice in question was given by newspaper publication. (Mullane v. Central Hanover Bank & Trust Co., supra, 339 U.S. 306 at pp. 309-310 [94 L.Ed. 865 at pp. 870-871, 70 S.Ct. 652]; Walker v. Hutchinson City, supra, 352 U.S. 112 at pp. 113-114 [1 L.Ed.2d 178 at pp. 180-181]; Wisconsin Electric Power Co. v. City of Milwaukee, supra, 81 N.W.2d 298 at p. 299; Meadowbrook Manor, Inc. v. City of St. Louis Park, supra, 104 N.W.2d at pp. 541, 542.) *665 (7) According to the present complaint, the only notice of February 28, 1968 tax sale was given by posting "in three public places" which are not described. While this action was obviously taken in compliance with section 2916,[6] the adequacy of the notice thereby given plaintiff is open to question. The complaint, questioning it, expressly alleges that the notice was inadequate and that defendant tax collector knew this. Challenging the validity of the tax sale thus noticed, the complaint states a cause of action under the Mullane rule. (Mullane v. Central Hanover Bank & Trust Co., supra, at p. 320 [94 L.Ed. at p. 876].) Security's Position at the Tax Sale (8) Plaintiff contends that the facts alleged in its complaint bring Security within the rule that one who is in default of payment of taxes on liened property, or someone claiming under him, is estopped from asserting a tax title against a prior lienor. (Weisberg v. Loughridge (1967) 253 Cal. App.2d 416, 420-421 [61 Cal. Rptr. 563]; Dinkelman v. Harrison (1943) 61 Cal. App.2d 258, 261 [142 P.2d 461].) At its inception, the rule was applied to estop "one who is under a moral or legal obligation to pay the taxes"; he was precluded from perfecting his title at a tax sale because "his purchase is deemed one mode of paying the taxes." (Christy v. Fisher (1881) 58 Cal. 256, 258.) Thus expressed, the rule has prompted the present parties to debate the question whether the complaint alleges that Security, having acquired Stockman's title to the Lot 15 property at the bankruptcy sale, was under a "moral or legal obligation" to pay the taxes levied against it. The complaint does not allege or imply any such obligation in Security. In our view, however, the rule was expressed more broadly — and better — by the Dinkelman court in this language: "[W]hile the estoppel against the mortgagor has been based in some decisions upon the narrower ground of a violation by the mortgagor of his personal obligation to pay the taxes, such estoppel against both the mortgagor and his successors may be and frequently has been based upon the broader ground that a disability should be imposed upon said parties by virtue of the mere relationship existing between them and the mortgagee." (Dinkelman v. Harrison, supra, 61 Cal. App.2d 258 at p. 262.) The present complaint alleges in effect that Security, having acquired Stockman's equity in the Lot 15 items by its bankruptcy purchase, became a competitive lienor thereof with plaintiff. It explicitly alleges that Security knew of plaintiff's claimed prior lien, *666 and that it (plaintiff) had not received adequate notice of the tax sale which purportedly divested it (plaintiff) of title to the property. These allegations spell out a sufficient "relationship," between Security and plaintiff, to support a finding that the former is estopped to assert its tax title against plaintiff. (Dinkelman v. Harrison, supra.) The complaint therefore states a cause of action upon this theory. Diligence on the Part of Plaintiff Arguing against the conclusions we have reached, defendants urge that relief must be denied because of plaintiff's lack of diligence in protecting its interest in the Lot 15 items. This is a matter of proof; under the facts alleged in the complaint, we cannot hold as a matter of law that plaintiff's conduct precludes its statement of a cause of action upon either theory mentioned herein.[7] The judgment on the pleadings is reversed, and the cause remanded to the trial court with directions to overrule the general demurrers to the complaint. Devine, P.J., and Christian, J., concurred. NOTES [1] The allegation concerning where the Lot 15 property was "to be used" appears in the complaint, but language to that effect is not necessarily in the contract; the latter was not pleaded in haec verba. [2] As set forth in the complaint, the "Notice of Tax Sale" posted and mailed on May 10, 1966, read in full as follows: "TAX SALE "On May 19, 1966 at the hour of 10:00 A.M., at his office, 1221 Oak Street, Oakland, the Tax Collector of Alameda County intends to sell at Public Auction, the buildings known as the Edgewater Inn, located at 455 Hegenberger Road in the City of Oakland as well as the taxpayer's right, title and interest in the ground lease upon which the buildings are situated. "The above described property is being sold to satisfy the payment of delinquent unsecured property taxes due the County of Alameda. "If further information is desired, please call J. Scully, 444-0844, Ext. 447." [3] "... It was stipulated by and between all counsel and the Court that defendants' demurrer [sic] should be considered as a motion [sic] for judgment on the pleadings, there being no disputed issues of facts for the purposes of this motion. After considering the argument of counsel, and the papers and records on file herein, it appears, and the Court finds, that as a matter of law, the plaintiff is not entitled to the declaration which it seeks and that a declaration should be entered settling this controversy in favor of the defendants on the basis of the undisputed facts alleged in the complaint. "ACCORDINGLY, IT IS ORDERED, ADJUDGED AND DECREED that the personal property claimed by the plaintiff was duly and lawfully sold by the Tax Collector of the County of Alameda at public auction to the defendant Security ... for the payment of delinquent taxes; and that the defendant Security ..., as a purchaser with no legal or moral obligation to pay the taxes on the aforesaid property, acquired full right, title and interest to the said property by reason of the bill of sale executed by the defendant Tax Collector ..., free and clear of any claim to said property asserted by the plaintiff; and that the property claimed by the plaintiff was at all times lawfully held by the defendants and that the defendants did not convert said property... "IT IS FURTHER ORDERED that the plaintiff take nothing, that judgment on the pleadings be entered in favor of the defendants and that the defendants recover their costs herein incurred ..." [4] All statutory references hereinafter are to the Revenue and Taxation Code. [5] "2918. On payment of the price bid for property sold, the delivery of the property with a bill of sale vests title in the purchaser." [6] As pertinent, section 2916 provides that "Notice of the time and place of sale shall be given a least one week before the sale by publication in a newspaper in the county, or by posting in three public places." We note that "posting" need not be near the property to be sold, nor even in the county or state where it is located. [7] Although plaintiff received notice of the tax sale originally scheduled for May 19, 1966, the notice referred only to the sale of the leasehold and buildings at the Edgewater Inn; it did not mention the Lot 15 items to which plaintiff held title under the 1961 conditional sale contract, nor any other personal property. (See fn. 2, ante.) So far as is alleged in the complaint, plaintiff had no knowledge that the Lot 15 items were located at the Edgewater Inn. (See fn. 1, ante.) While the evidence may show to the contrary, the complaint nonetheless states a cause of action.

782 F.2d 780 Wayne FARMER, Appellant,v.Lawrence L. COOK, Chief of Police, Independence, Mo. PoliceDept.; Joe Doe, # 1, Independence Police Officer; Joe Doe,# 2, Independence Police Officer; Joe Doe, # 3, Detective,Independence Police Officer, Sergeant Smith (First NameUnknown), Independence Police Officer, Joe Doe, # 4,Independence Police Officer; Jane Doe, # 5, IndependencePolice Officer and City of Independence, Missouri; MajorDonald Huntsinger, Independence Police Dept.; and RobertRinehart, Chief of Police, Independence Police Dept., Appellees. No. 85-1666. United States Court of Appeals,Eighth Circuit. Submitted Jan. 17, 1986.Decided Jan. 29, 1986. William T. Session, Kansas City, Mo., for appellant. Patrick Lysaught, Kansas City, Mo., for appellees. Before HEANEY, ARNOLD and WOLLMAN, Circuit Judges. PER CURIAM. 1 The question presented is whether the rule of Wilson v. Garcia, --- U.S. ----, 105 S.Ct. 1938, 85 L.Ed.2d 254 (1985), holding that the personal-injury-action statutes of limitations of the respective states will govern the period within which cases must be brought under 42 U.S.C. Sec. 1983, is retroactive. The District Court, acting before Wilson was decided by the Supreme Court, held the present Sec. 1983 action barred by a three-year Missouri statute of limitations. If Wilson is to be applied, the applicable statute is five years. 2 In Wycoff v. Menke, 773 F.2d 983 (8th Cir.1985), we applied Wilson retroactively to bar a Sec. 1983 action that, under the law existing when the complaint was filed, would have been timely. Our Wycoff opinion fully analyzes the factors relevant to the question of retroactivity. The most important of these factors is whether retroactivity will disappoint any reliance interest of the party against whom the new rule is being applied. Here, the effect of retroactivity is to revive an action that the defendants once reasonably believed was barred. In Wycoff, the effect of retroactivity was to defeat an action that a plaintiff had reasonably believed would not be barred. The reliance interest asserted by the defendants here is, in our judgment, weaker than that asserted by the plaintiff in Wycoff, and the reasoning of our Wycoff opinion therefore requires that Wilson be applied retroactively here, just as it was there. 3 The Court appreciates the services of appointed counsel for plaintiff. 4 The judgment is reversed, and the cause remanded for whatever further proceedings are appropriate. 5 It is so ordered.

667 F.2d 1034 215 U.S.App.D.C. 156, 12 Envtl. L. Rep. 20,105 KEENE CORPORATIONv.INSURANCE COMPANY OF NORTH AMERICA, et al. Aetna Casualtyand Surety Company, Appellant.KEENE CORPORATION, Appellant,v.INSURANCE COMPANY OF NORTH AMERICA, et al.KEENE CORPORATIONv.INSURANCE COMPANY OF NORTH AMERICA, Liberty Mutual InsuranceCompany,Appellant.KEENE CORPORATIONv.INSURANCE COMPANY OF NORTH AMERICA, Appellant, AetnaCasualty and SuretyCompany, et al. Nos. 81-1179 to 81-1182. United States Court of Appeals,District of Columbia Circuit. Argued June 16, 1981.Decided Oct. 1, 1981.As Amended Dec. 21, 1981. Gerald V. Weigle, Jr., Cincinnati, Ohio, with whom Frank W. Gaines, Jr., Robert L. Hoegle, Washington, D. C., and Christopher C. Mansfield, Boston, Mass., were on the brief for Liberty Mutual Insurance Company, appellee in Nos. 81-1179, 81-1180 and 81-1182 and cross/appellant in No. 81-1181. Robert O. Tyler, Washington, D. C., entered an appearance for Pennsylvania Manufacturers Association Insurance Company, appellee in Nos. 81-1179, 81-1180, 81-1181 and 81-1182. Richard A. Epstein, Chicago, Ill., and Leo A. Roth, Jr., Washington, D. C., were on the brief for Federal Insurance Company, et al., Amici Curiae urging reversal in Nos. 81-1179, 81-1180, 81-1181 and 81-1182. Thomas M. Susman was on the brief for Walbrook Insurance Company, Ltd., et al., Amici Curiae urging reversal in Nos. 81-1179, 81-1180, 81-1181 and 81-1182. David Booth Beers and William R. Galeota, Washington, D. C., were on the brief for Cassiar Resources Limited, Amicus Curiae urging affirmance in part and reversing in part in Nos. 81-1179, 81-1180, 81-1181 and 81-1182. Daniel J. Popeo, Paul D. Kamenar and Nicholas E. Calio, Washington, D. C., were on the brief for The Washington Legal Foundation, Amicus Curiae urging remand for full consideration in Nos. 81-1179, 81-1181 and 81-1182. Richard H. Gimer, M. Stuart Madden and Donald E. Santarelli, Washington, D. C., were on the brief for Commercial Union Insurance Companies, Amici Curiae urging remand for full consideration in Nos. 81-1179, 81-1180, 81-1181 and 81-1182. John Mahoney, Jr., Washington, D. C., for Aetna Casualty and Surety Company, appellant in No. 81-1179 and appellee in Nos. 81-1180, 81-1181 and 81-1182. Eugene R. Anderson, New York City, with whom Harold D. Murry, Jr., and Jerold Oshinsky, Washington, D. C., were on the brief for Keene Corporation, appellant in No. 81-1180 and cross/appellee in Nos. 81-1179, 81-1181 and 81-1182. Robert N. Sayler, Washington, D. C., with whom Wynne M. Teel, John E. Heintz, Scott D. Gilbert, Washington, D. C., and Frank H. Griffin, III, Philadelphia, Pa., were on the brief for Armstrong World Inc., et al., amici curiae urging reversal in Nos. 81-1179 thru 81-1182. John P. Arness, Washington, D. C., with whom David J. Hensler and Elliot M. Mincberg, Washington, D. C., were on the brief for Hartford Accident and Indemnity Company, appellee in Nos. 81-1179 thru 81-1182. Michael R. Gallagher, Cleveland, Ohio, with whom Thomas E. Betz, Alan M. Petrov, Cleveland, Ohio, Dennis M. Flannery and John Payton, Washington, D. C., were on the brief for Insurance Company of North America, appellee in Nos. 81-1179, 81-1180 and 81-1182 and cross/appellant in No. 81-1181. Appeals from the United States District Court for the District of Columbia (D.C. Civil Action No. 78-01011). Before BAZELON, Senior Circuit Judge, and WILKEY and WALD, Circuit Judges. Opinion for the Court filed by Senior Circuit Judge BAZELON. Opinion filed by Circuit Judge WALD concurring in part. BAZELON, Senior Circuit Judge: 1 This case arises out of the growing volume of litigation centering upon manufacturers' liability for disease caused by asbestos products. In this action, Keene Corporation (Keene) seeks a declaratory judgment of the rights and obligations of the parties under the comprehensive general liability policies that the defendants issued to Keene or its predecessors1 from 1961 to 1980. Specifically, Keene seeks a determination of the extent to which each policy covers its liability for asbestos-related diseases.2 2 Between the years 1948 and 1972, Keene manufactured thermal insulation products that contained asbestos. As a result, Keene has been named as a codefendant with several other companies in over 6000 lawsuits alleging injury caused by exposure to Keene's asbestos products. Those cases typically involve insulation installers or their survivors alleging personal injury, or wrongful death, as a result of inhaling asbestos fibers over the course of many years. The plaintiffs in the underlying suits allege that they contracted asbestosis, mesothelioma, and/or lung cancer as a result of such inhalation.3 3 From 1961 to the present, Insurance Company of North America (INA), Liberty Mutual Insurance Company (Liberty), Aetna Casualty and Surety Company (Aetna), and Hartford Accident and Indemnity Company (Hartford) issued comprehensive general liability (CGL) insurance policies to Keene. From December 31, 1961 through August 23, 1968, INA insured Keene; from August 23, 1967 through August 23, 1968, Liberty insured Keene;4 from August 23, 1968 through August 23, 1971, Aetna insured Keene; from August 23, 1971 through October 1, 1974, Hartford insured Keene; and from October 1, 1974 through October 1, 1980, Liberty insured Keene.5 The policies that these companies issued to Keene were identical in all relevant respects. The coverage language of the policy that Hartford issued to Keene from 1971 to 1974 is typical. It states that 4 (t)he company will pay on behalf of the insured all sums which the insured shall become legally obligated to pay as damages because of bodily injury ... to which this insurance applies, caused by an occurrence, and the company shall have the right and duty to defend any suit against the insured seeking damages on account of such bodily injury ... even if any of the allegations of the suit are groundless, false or fraudulent.... 5 E.g., J.A. II at 627. "Bodily injury" is defined as "bodily injury, sickness or disease sustained by any person," id. at 663; and "occurrence" is defined as "an accident, including injurious exposure to conditions, which results, during the policy period, in bodily injury ... neither expected nor intended from the standpoint of the insured. Id. at 664.6 6 Keene tendered the asbestos-related damage cases to its insurance companies for defense and indemnification. Each company, however, either denied all responsibility for the suits or accepted only partial responsibility. Memorandum op. at 2 (J.A. IX at 3532). 7 On June 6, 1978, Keene filed this suit for a declaratory judgment and damages in the United States District Court for the District of Columbia. Keene contended that any stage in the progression of an asbestos-related disease triggers coverage of Keene's entire liability under each of the policies. Aetna, INA, and Liberty argued that coverage is triggered only when bodily injury manifests itself during a policy period. Hartford took an intermediate position, arguing that coverage is triggered by the inhalation of asbestos fibers, but that each company's coverage is determined by the ratio of exposure years during its policy period to the entire period of inhalation. 8 Keene and Hartford filed motions for partial summary judgment based on their respective theories of coverage, and Aetna filed a motion for summary judgment asserting that no case or controversy had been presented. On January 30, 1981, the district court granted Hartford's motion; it granted in part and denied in part Keene's motion; and it denied Aetna's motion. 513 F.Supp. 47. The district court held that indemnification and defense costs should be prorated among the insurance companies according to the relative extent of exposure during their respective policy periods. The district court also held that Keene is liable for a pro-rata share of the costs when exposure occurred during a period in which Keene was uninsured. J.A. IX at 3537-38. 9 Pursuant to 28 U.S.C. § 1292(b) (1976), the district court, sua sponte, certified its order for interlocutory appeal. INA, Liberty, Aetna, and Keene filed Petitions for Leave To Appeal, and on February 20, 1981, this court granted those petitions and ordered that the appeals be consolidated and expedited. We reverse the district court's order and remand the case to trial on the issues of damages and on the issue of the applicability of Liberty's 1967 policy.7 I. JUSTICIABILITY 10 Aetna argues that Keene's declaratory judgment action does not present a case or controversy. Aetna asserts that Keene must raise insurance coverage issues in the context of a particular case in which an insurance company has refused to defend or indemnify Keene. We disagree. 11 The standard for finding a justiciable "case or controversy" in a declaratory judgment action is no less demanding than the standard in any other type of action. Alabama State Federation of Labor v. McAdory, 325 U.S. 450, 461, 65 S.Ct. 1384, 1389, 89 L.Ed. 1725 (1945); Aetna Life Ins. Co. v. Haworth, 300 U.S. 227, 240-41, 57 S.Ct. 461, 463-64, 81 L.Ed. 617 (1937). The dispute "must be a real and substantial controversy admitting of specific relief through a decree of a conclusive character, as distinguished from an opinion advising what the law would be upon a hypothetical state of facts." Aetna, supra, 300 U.S. at 241, 57 S.Ct. at 463. This standard was illuminated by Justice Murphy in Maryland Casualty Co. v. Pacific Co., 312 U.S. 270, 61 S.Ct. 510, 85 L.Ed. 826 (1941), where he stated that "the question (of justiciability) in each case is whether the facts alleged, under all the circumstances, show that there is a substantial controversy, between parties having adverse legal interests, of sufficient immediacy and reality to warrant the issuance of a declaratory judgment." Id. at 273, 61 S.Ct. at 512. See generally Wright & Miller, Federal Practice and Procedure (1973) § 2757. 12 This suit by Keene does not present a hypothetical set of facts. Keene has been, and will continue to be, sued for injuries that result from the use of its asbestos products. For each of these suits-past, present, and future-the rights and obligations of Keene and its insurers must be resolved. There can be no question that the interpretation of the contracts at issue in this case presents a "real and substantial controversy" that can be specifically resolved by a decision in this case. 13 Aetna implies that the rights and obligations created by the insurance policies cannot be determined without consideration of the facts of a particular tort suit. We have before us, however, the terms of the insurance policies and the facts of the particular types of diseases whose coverage is at issue. We are not aware or informed of any facts that would come to light in a particular tort suit that would be relevant to the determination of the policies' applicability to Keene's liability for asbestos-related injury. We hold, therefore, that the case is justiciable.8 II. COVERAGE OF THE INSURANCE POLICIES 14 The language of each policy at issue in this case clearly provides that an "injury," and not the "occurrence" that causes the injury, must fall within a policy period for it to be covered by the policy. Most suits brought under this type of policy involve an injury and an occurrence that transpired simultaneously, or, at least, in close temporal proximity to one another. In cases involving asbestos-related disease, however, inhalation-the "occurrence" that causes the injury-takes place substantially before the manifestation of the ultimate injury-asbestosis, mesothelioma, or lung cancer.9 Furthermore, although it is not known how little exposure is required to cause disease, inhalation may occur over a long period of time. As a result, inhalation may continue through numerous policy periods, the disease may develop during subsequent policy periods, and manifestation may occur in yet another policy period. For an insured such as Keene, different insurers are likely to be on the risk at different points in the development of each plaintiff's disease. Moreover, part of the development may occur at a time when no insurer was on the risk. Asbestos-related diseases, which are certainly covered by the policies, therefore differ from most injuries and hence present a difficult problem of contractual interpretation. 15 Neither the case law10 nor the terms of the policies lead us directly to a resolution of the coverage issues raised in this case. Unfortunately, the insurance companies failed to develop policy language that would directly address the full complexity entailed by asbestos-related diseases. We have sought, however, to interpret these contracts in a manner that is equitable and administratively feasible and that is consistent with insurance principles, insurance law, and the terms of the contracts themselves. 16 We conclude that each insurer on the risk between the initial exposure and the manifestation of disease is liable to Keene for indemnification and defense costs. If possible, the factual predicate for the allocation of costs among insurers should be based on the facts of the underlying tort suit. If, however, the tort doctrine governing the underlying suit does not require proof of facts that would form a sufficient basis upon which to allocate insurance liability, then the necessary facts may be determined independently of that suit.11 17 In construing the policies' coverage of liability for asbestos-related diseases, our objective must be to give effect to the policies' dominant purpose of indemnity. Couch on Insurance 2d, §§ 15:22, 15:41 (2d ed. Anderson 1959); 4 Williston on Contracts, § 900 (3d ed. Jaeger 1959). An insurance contract represents an exchange of an uncertain loss for a certain loss. In a comprehensive general liability insurance policy, the uncertain loss is the possibility of incurring legal liability, and the certain loss is the premium payment. By issuing the policy, the insurer agrees to assume the risk of the insured's liability in exchange for a fixed sum of money. At the heart of the transaction is the insured's purchase of certainty-a valuable commodity. See S. Huebner, K. Black, Jr., R. Cline, Property and Liability Insurance (2d ed. 1976) 5-7. This view of the insurance policies provides the starting point for analysis. 18 The next question must be "certainty with respect to what contingencies?" For an insured is only entitled to indemnity for losses that are covered by its policy. We are aided in our analysis of these policies' coverage by the well-accepted rule that ambiguity in an insurance contract must be construed in favor of the insured. See, e.g., Blue Anchor Overall Co. v. Pennsylvania Lumbermens Mut. Ins. Co., 385 Pa. 394, 123 A.2d 413 (1956); Couch on Insurance 2d, § 15:14 (2d ed. Anderson 1959); Williston on Contracts, § 621 (3d ed. Jaeger 1959). We believe, however, that although particular terms of the policies are ambiguous as applied to asbestos-related diseases, the principles embodied in the insurance policies provide a sufficient basis upon which to decide this case. In discerning those principles, our guide is-as it must be-the reasonable expectations of Keene when it purchased the policies. See, e.g., Steven v. Fidelity & Cas. Co., 58 Cal.2d 862, 869-70, 377 P.2d 284, 288-89, 27 Cal.Rptr. 172, 176-77 (1962); Allen v. Metropolitan Life Ins. Co., 44 N.J. 294, 305, 208 A.2d 638, 644 (1965); Collister v. Nationwide Life Ins. Co., 479 Pa. 579, 388 A.2d 1346 (1978); Couch on Insurance 2d, § 15:16 (2d ed. Anderson 1959).12 19 The analysis of the insurers' duty to indemnify Keene is divided into three logical steps: first, the trigger of coverage under the policies; second, the extent of coverage once a policy is triggered; and third, the allocation of liability among insurers if more than one policy is triggered. That analysis is followed by an examination of the insurers' duty to defend Keene and a discussion of the procedural mechanisms by which asbestos-injury suits can be adjudicated. A. Trigger of Coverage 20 The first step in the analysis of this problem is to determine what events, from the point of exposure to the point of manifestation, trigger coverage under these policies. In the language of the policies, the question is when did "injury" occur? Both Keene and Hartford advance slightly different versions of the "exposure theory" of coverage. Keene argues that successive coverage is triggered by both exposure to asbestos dust ("inhalation exposure")13 and the subsequent development of disease ("exposure in residence").14 Keene bases its argument on medical evidence that the body incurs microscopic injury as asbestos fibers become lodged in the lungs and as the surrounding tissue reacts to the fibers thereafter. Hartford also argues that successive coverage is triggered by continued exposure. Its argument is similarly based on the medical evidence of discrete tissue damage as each asbestos fiber reaches the lungs. For no apparent reason, however, Hartford asserts that the continued progression of disease following exposure does not trigger additional coverage.15 Basing its decision on Insurance Co. of N. America v. Forty-Eight Insulations, 633 F.2d 1212 (6th Cir. 1980), aff'd on rehearing, 657 F.2d 814 (6 Cir. 1981), the district court adopted Hartford's version of the exposure theory.16 21 INA, Liberty, and Aetna advance the "manifestation" theory of coverage. They argue that coverage is triggered only by the manifestation of either asbestosis, mesothelioma or lung cancer. They assert that their interpretation of the contracts is supported by the ordinary meaning of the terms "bodily injury, sickness or disease." They claim that "bodily injury" does not occur until cellular damage advances to the point of becoming a recognizable disease. INA and Liberty rely on cases in other areas of the law-workmen's compensation, health insurance coverage, and statutes of limitation-that support their interpretation of the term "injury." E.g., Travelers Insurance Co. v. Cardillo, 225 F.2d 137 (2d Cir.), cert. denied, 350 U.S. 913, 76 S.Ct. 196, 100 L.Ed. 800 (1955) (workmen's compensation), cited in Liberty's brief at 42-44 and INA's brief at 28; Reiser v. Metropolitan Life Insurance Co., 262 App.Div. 171, 28 N.Y.S.2d 283 (1941) aff'd, 289 N.Y. 561, 43 N.E.2d 534 (1942) (health insurance), cited in Liberty's brief at 45 and INA's brief at 26; Urie v. Thompson, 337 U.S. 163, 69 S.Ct. 1018, 93 L.Ed. 1282 (1949) (statute of limitations), cited in INA's brief at 27. 22 The policy language does not direct us unambiguously to either the "exposure" or "manifestation" interpretation. In the context of asbestos-related disease, the terms "bodily injury," "sickness" and "disease," standing alone, simply lack the precision necessary to identify a point in the development of a disease at which coverage is triggered. The fact that a doctor would characterize cellular damage as a discrete injury does not necessarily imply that the damage is an "injury" for the purpose of construing the policies. At the same time, the fact that an ordinary person would characterize a fully developed disease as an "injury" does not necessarily imply that the manifestation of the disease is the point of "injury" for purposes of construing the policies. In interpreting a contract, a term's ordinary definition should be given weight, but the definition is only useful when viewed in the context of the contract as a whole. 23 Moreover, the legal definition of "injury" in other contexts informs the term's definition in this case only if the term operates in a functionally similar manner in the other contexts. In the areas of workmen's compensation, health insurance, and statutes of limitations, the concept of "injury" performs a function that is different from its function in the context of comprehensive general liability policies.17 Therefore, the term's definition in those contexts is only minimally relevant to the question at hand. Instead, the purpose of the insurance policies must inform our construction of the term "injury". 24 If exposure to asbestos were deemed to constitute a discrete injury and thereby trigger coverage, as Hartford and Keene suggest, the subsequent development of a disease would be characterized best as a consequence of the injury. Future stages of development would not constitute new injuries18 and therefore would not trigger additional coverage.19 Under that interpretation, a manufacturer who bought a comprehensive general liability policy would not bear the risk of liability for diseases that occurred due to exposure during a covered period. It would, however, bear the risk of liability for diseases that manifest themselves during the covered period, but that occur because of exposure at a time when the manufacturer held no insurance. As a result, the manufacturer's purchase of insurance would not constitute a purchase of certainty with respect to liability for asbestos-related diseases. The insured would remain uncertain as to future liability for injuries whose development began prior to the purchase of insurance. There is no indication that such a de facto exclusion of coverage from the policies was in the contemplation of any party to the contracts in this case. At the least, such an exclusion is inconsistent with Keene's reasonable expectations when it purchased the policies. The policies state that the insured is covered for "injury" during the policy period. In purchasing such coverage, Keene could have reasonably expected that it was covered for all future liability, except liability for injuries of which Keene could have been aware prior to its purchase of insurance. A latent injury, unknown and unknowable to Keene at the time it purchased insurance, must, at least, be covered by an insurer on the risk at the time it manifests itself. Any other result would violate very reasonable expectations of Keene. Therefore we hold that manifestation of disease is one trigger of coverage under the policies.20 25 In American Motorists Ins. Co. v. Squibb, 95 Misc.2d 222, 406 N.Y.S.2d 658 (1978), the court faced an issue similar to the one in this case, under an insurance policy that was similar in all relevant respects to the policies we have before us. That case involved a drug manufacturer's liability for cancer that was caused by the ingestion of DES by the victims' mothers during pregnancy many years earlier. Squibb argued that the insurance company on the risk at the time of the disease's manifestation was obligated to pay the damages. The insurance company responded by arguing that the injury occurred when the victims' mothers ingested the drug and not when the disease manifested itself. The court held that "bodily injury" occurred when the cancer manifested itself. The court stated that "the policy language does not limit coverage to incidents of exposure during the policy period, but rather to conditions which result in bodily injury during the policy period." Id. 406 N.Y.S.2d at 659. That court did not have to determine the liability of an insurer that was on the risk prior to the diseases' manifestation. 26 Thus, if the purpose of the policies is not to be undercut, the manifestation of disease must constitute an "injury". Any characterization of exposure as a discrete injury, therefore, must be rejected. This is the same result that courts have reached in determining when an injury or disease begins for purposes of health and accident insurance policies. In those cases, courts have held that a manifestation rule is necessary to protect the reasonable expectations of the insured. E.g., Silverstein v. Metropolitan Life Ins. Co., 254 N.Y. 81, 171 N.E. 914 (1930); Cohen v. North American Life & Casualty Co., 150 Minn. 507, 185 N.W. 939 (1921). In health and accident insurance policies, as in liability insurance policies, the purpose of the contracts would be defeated if the insured had to bear the risk of disease that is latent at the time a policy is purchased. See Comment, Liability Insurance for Insidious Disease: Who Picks Up the Tab? 48 Fordham L.Rev. 657, 671 (1980) (this rule is necessary to provide security policyholder seeks). 27 None of this implies, however, that insurance policies may not also be triggered prior to manifestation. In fact, we conclude that coverage is also triggered by both inhalation exposure and exposure in residence. 28 To demonstrate why the policies require that both exposure and manifestation trigger coverage, we begin by positing a rule in which manifestation is the sole trigger of coverage. If that interpretation were adopted, as INA, Liberty, and Aetna propose, Keene would not be covered for diseases manifesting themselves after 1976.21 By that time, it was widely known that prolonged inhalation of asbestos has a high probability of causing disease.22 From about then on, insurance companies ceased issuing policies that adequately cover asbestos-related disease. Yet we can still expect thousands of cases of those diseases to manifest themselves throughout the rest of the century. If we were to hold that only the manifestation of disease can trigger coverage, the insurance companies would have to bear only a fraction of Keene's total liability for asbestos-related diseases. 29 The possibility of that result would undermine the function of the insurance policies. When Keene purchased the policies, it could have reasonably expected that it was free of the risk of becoming liable for injuries of which it could not have been aware prior to its purchase of insurance.23 There is no doubt that these losses would be covered if the diseases at issue developed spontaneously upon inhalation. Inhalation of asbestos is an "occurrence" that causes injury for which Keene may be held liable. The possibility that the insurers may not be liable arises solely because there is a period of time between the point at which the injurious process began and the point at which injury manifests itself. In this case, during that interim period, the existence of latent injury among people who had worked with asbestos became predictable with a substantial degree of certainty. The injury and attendant liability became predictable precisely because it was discovered that past occurrences were likely to have set in motion injurious processes for which Keene could be held liable. To accept the argument that only manifestation triggers coverage-and allow insurers to terminate coverage prior to the manifestation of many cases of disease-would deprive Keene of the protection it purchased when it entered into the insurance contracts. We, therefore, reject the manifestation theory as presented by INA, Aetna, and Liberty,24 because it does not allow exposure, as well as manifestation to trigger insurance coverage. 30 Thus, in order for Keene's rights under the policies to be secure, both inhalation exposure and exposure in residence must also trigger coverage. Regardless of whether exposure to asbestos causes an immediate and discrete injury, the fact that it is part of an injurious process is enough for it to constitute "injury" under the policies. 31 This conclusion is consistent with the law involving insurance coverage of losses that begin during a period of coverage but continue to develop after a policy's expiration. For example, Snapp v. State Farm Fire & Cas. Co., 206 Cal.App.2d 827, 24 Cal.Rptr. 44 (1962) involved a fire insurance policy that included coverage of most types of physical damage to property. The policy was issued on the plaintiff's house, which had been damaged due to movement of the land under the house. While the land was still unstable, the policy expired, and the insurer sought to limit its liability to the amount of damage that had occurred prior to the policy's termination date. The court held that the insurer's liability was not so limited, and that it had to indemnify the policyholder for all damage caused until the land movement ceased. The court stated that "(t)o permit the insurer to terminate its liability while the fortuitous peril which materialized during the term of the policy was still active would not be in accord either with applicable precedents or with the common understanding of the nature and purpose of insurance." See also Harman v. American Cas. Co., 155 F.Supp. 612 (S.D.Cal.1957) (insurer cannot terminate property loss or fire protection while land remains unstable). 32 These cases illustrate the principle that when it becomes known that an occurrence has set in motion a process that has a significant probability of resulting in a covered loss, the insurer on the risk at that time is liable for the full loss. It does not matter whether the insurer learns of a progressing loss through direct observation, as in Snapp, or through statistical inference, as in asbestos-injury cases. It is the use of that knowledge to shift a covered risk back to the insured that is not permitted.25 33 In sum, the allocation of rights and obligations established by the insurance policies, would be undermined if either the exposure to asbestos or the manifestation of asbestos-related disease were the sole trigger of coverage. We conclude, therefore, that inhalation exposure, exposure in residence, and manifestation all trigger coverage under the policies. We interpret "bodily injury" to mean any part of the single injurious process that asbestos-related diseases entail. We now proceed to consider the extent to which an insurer is liable to its policyholder once coverage under its policy is triggered. B. The Extent of Coverage 34 The policies at issue in this case provide that the insurance company will pay on behalf of Keene "all sums" that Keene becomes legally obligated to pay as damages because of bodily injury during the policy period. We have defined "bodily injury" to mean any part of the injurious process that begins with an initial exposure and ends with manifestation of disease. As a result, when Keene is held liable for an asbestos-related disease, only part of the disease will have developed during any single policy period. The rest of the development may have occurred during another policy period or during a period in which Keene had no insurance. The issue that arises is whether an insurer is liable in full, or in part, for Keene's liability once coverage is triggered. We conclude that the insurer is liable in full, subject to the "other insurance" provisions discussed in section C below. 35 Hartford argues that each insurer is required to pay only a pro-rata share of Keene's liability. Once an insurer's coverage is triggered, its share would be determined by the duration of a plaintiff's exposure to Keene's products during its policy periods in relation to the entire duration of the plaintiff's exposure to Keene's products. Under Hartford's scheme, if there is a period of exposure during which Keene is uninsured, then Keene would bear a pro-rata share of the liability.26 36 Hartford's argument is based on its characterization of asbestos-related diseases as consisting of a multitude of discrete injuries to the lung tissue. We have declined, however, to rely on that factual characterization in determining the trigger of insurance coverage,27 and we decline to rely on it in determining the extent of coverage. Instead, we continue to rely on the terms of the contracts and the principles they embody. 37 Our starting point is the interpretation of the policies as the insurers' promises of certainty to Keene. The policies that were issued to Keene relieved Keene of the risk of liability for latent injury of which Keene could not be aware when it purchased insurance. Keene did not expect, nor should it have expected, that its security was undermined by the existence of prior periods in which it was uninsured, and in which no known or knowable injury occurred.28 If, however, an insurer were obligated to pay only a pro-rata share of Keene's liability, as the district court held, those reasonable expectations would be violated. Keene's security would be contingent on the existence and validity of all the other applicable policies. Each policy, therefore, would fail to serve its function of relieving Keene of all risk of liability. The logical consequence of this is that the policies must require that once an insurer's coverage is triggered, the insurer is liable to Keene to the full extent of Keene's liability up to its policy's limits, but subject to "other insurance" clauses, discussed in section C, below. 38 Judge Wald suggests that the rationale of our decision is consistent with prorating insurance obligations to Keene for the years in which it was not insured. Judge Wald believes such a pro-rata allocation is fair, and we do not think her view is unreasonable. As we have just shown, however, such an allocation is inconsistent with the terms and underlying principles of the insurance policies at issue in this case. 39 We read Judge Wald's reasoning as follows: 1) As the court interprets the term, an asbestos-related "injury" occurs over a long period of time; 2) if Keene was uninsured during part of that time, then Keene is not covered for the full injury; 3) therefore, Keene should pay a pro-rata share of its own liability. 40 If we read Judge Wald correctly, her position is problematic. Although we have defined the term "injury," we have done so only as an incidental aspect of a logically prior determination of Keene's rights under the policies viewed in their entirety. The insurance policies provide Keene with the right to be free of all liability for asbestos-related disease, unless such a disease was known or knowable by Keene at the time it purchased an insurance policy.29 For that right to be preserved, each policy that Keene purchased between an initial exposure and the ultimate manifestation of a disease must be triggered. In a sense, that means that "injury" occurred during each of the policy periods. It does not mean, however, that there was some "injury" that did not occur during a policy period. That conclusion and the implication that the insurers are not obligated to indemnify Keene in full contradicts the first and foremost aspect of our decision-our holding that each policy provides Keene with the right to be free of liability for asbestos-related disease. 41 As stated above, each policy has a built-in trigger of coverage. Once triggered, each policy covers Keene's liability. There is nothing in the policies that provides for a reduction of the insurer's liability if an injury occurs only in part during a policy period. As we interpret the policies, they cover Keene's entire liability once they are triggered. That interpretation is based on the terms of the policies themselves. We have no authority upon which to pretend that Keene also has a "self-insurance" policy that is triggered for periods in which no other policy was purchased. Even if we had the authority, what would we pretend that the policy provides? What would its limits be? There are no self-insurance policies, and we respectfully submit that the contracts before us do not support judicial creation of such additional insurance policies. 42 Hartford argues that this allocation of liability allows Keene to "enjoy the benefits of insurance coverage which it has never paid for." Hartford's brief at 31.30 The contrary point, however, is more accurate: For an insurer to be only partially liable for an injury that occurred, in part, during its policy period would deprive Keene of insurance coverage for which it paid. With each policy, Keene paid for insurance against all liability for bodily injury. The policies do not distinguish between injury that is caused by occurrences that continue to transpire over a long period of time and more common types of injury.31 Nor do the policies provide that "injury" must occur entirely during the policy period for full indemnity to be provided. 43 In support of its argument for pro-rata apportionment of liability, Hartford asserts that the liability scheme we now adopt would leave an insured equally off with one year of insurance coverage as it would be with several years of coverage. Id. That assertion is inapposite for two reasons. First, as a matter of probability, the more years of coverage that an insured has purchased, the smaller will be the number of injuries for which it will be liable. An insured will not be covered for an injury if it has insurance neither when a plaintiff's disease was developing nor when the disease manifested itself.32 Second, and perhaps more important, because we hold below that only one policy's limits of liability may apply to one injury,33 an insured who has purchased several policies that cover an injury will only be able to collect under one of those policies, even though he paid for several. Therefore, it is the insurer-not the insured-who reaps the most benefit from the similarity of treatment between an insured with one year of coverage and an insured with several years of coverage.34 44 Not surprisingly, the policies do not explicitly provide a means of applying the limits of liability to injuries that are covered by multiple policies. Keene claims that it is entitled to full indemnity for each injury up to the sum of the limits provided by the applicable policies. We do not agree. The principle of indemnity implicit in the policies requires that successive policies cover single asbestos-related injuries. That principle, however, does not require that Keene be entitled to "stack" applicable policies' limits of liability. To the extent possible, we have tried to construe the policies in such a way that the insurers' contractual obligations for asbestos-related diseases are the same as their obligations for other injuries. Keene is entitled to nothing more. Therefore, we hold that only one policy's limits can apply to each injury. Keene may select the policy under which it is to be indemnified. Cf. Forty-Eight, supra, 633 F.2d at 1226 n.28. C. Allocation of Liability 45 In any suit against Keene for an asbestos-related disease, it is likely that the coverage of more than one insurer will be triggered. Because each insurer is fully liable, and because Keene cannot collect more than it owes in damages, the issue of dividing insurance obligations arises. The only logical resolution of this issue is for Keene to be able to collect from any insurer whose coverage is triggered, the full amount of indemnity that it is due, subject only to the provisions in the policies that govern the allocation of liability when more than one policy covers an injury. That is the only way that Keene can be assured the security that it purchased with each policy. Our holding each insurer fully liable to Keene is also consistent with other courts' allocation of liability when more than one insurer covers an indivisible loss. E.g., Gruol Construction Co. v. Insurance Company of North America, 11 Wash.App. 632, 524 P.2d 427 (1974) (continuous damage to property insurance policy). 46 This does not mean that a single insurer will be saddled with full liability for any injury. When more than one policy applies to a loss, the "other insurance" provisions of each policy provide a scheme by which the insurers' liability is to be apportioned. For instance, INA's policy states: 47 When both this insurance and other insurance apply to the loss on the same basis, whether primary, excessive or contingent, INA shall not be liable under this policy for a greater proportion of the loss than stated in the applicable contribution provision below. 48 J.A. II at 551. The contribution provision referred to contains formulae for "contribution by equal shares" and for "contribution by limits," depending upon the provisions of other applicable policies.35 These provisions of the policies must govern the allocation of liability among the insurers in any particular case of asbestos-related disease. However, the primary duty of the insurers whose coverage is triggered by exposure or manifestation is to ensure that Keene is indemnified in full.36 D. Costs of Defending Suits Against Keene 49 The policies provide that the insurer shall defend any suit against Keene for damages due to bodily injury, even if the suit is groundless, false or fraudulent. The insurers' duty to defend Keene and to pay Keene for its defense costs are more broad than their duty to indemnify Keene. As long as a complaint indicates that Keene may be liable for an injury, an insurer must defend Keene if the facts alleged in the complaint indicate that its policy covers the alleged injury. Because we hold that each insurer is fully liable to Keene for indemnification, it follows that each is fully liable for defense costs.37 50 Of course, only the insurer that Keene selects will defend Keene. The duty of that insurer is simply to defend Keene, not to minimize its own liability. As we state below, the factual basis of the insurers' contract obligations may be developed independently of the factual basis of the tort suit. If it is possible to resolve both the tort dispute and the insurance contract dispute together, without disrupting the tort victim's suit and without imposing undue inconvenience on the victim, a trial court may do so. Otherwise the two disputes should be resolved separately. This should eliminate the possibility that the insurer that represents Keene at trial will attempt to skew the factual record to the disadvantages of other insurers.38 E. Resolution of Factual Issues 51 In a typical suit for products liability, the same set of facts would prove both the manufacturer's tort liability and the insurer's contractual liability. That is not true of suits that arise out of an asbestos-related disease. The leading case concerning manufacturers' liability for asbestos damage claims is Borel v. Fibreboard Paper Products Corp., 493 F.2d 1076 (5th Cir. 1973), cert. denied, 419 U.S. 869, 95 S.Ct. 127, 42 L.Ed.2d 107 (1974). The court in Borel held that each manufacturer who contributed in any way, and at any time, to a claimant's bodily injury is fully liable for all of the resulting damages. If a victim was exposed to the products of more than one manufacturer, each manufacturer is jointly and severally liable to the victim. See also Karjala v. Johns Manville Products Corp., 523 F.2d 155 (8th Cir. 1975). As a result, a plaintiff in a suit against Keene need not prove the full extent of his or her exposure to asbestos. Yet that set of facts is essential to determining which policies cover Keene's liability. 52 The doctrine of joint and several tort liability in this context is an accepted means of vindicating the rights of the tort victims. Nothing that we decide concerning the contractual liability of the insurers to Keene should impair the tort plaintiff's prosecution of his or her suit.39 53 Thus initially, the full insurance obligation to Keene must be divided among the insurers whose policies are triggered based on the facts brought out in the tort suit against Keene. The possibility of additional coverage can be determined consensually among insurers, or it can be adjudicated among insurers in a subsequent lawsuit. At that point the insurance obligations can be reallocated among all the insurers whose policies are found to cover a particular injury.40 Any facts concerning the period of exposure or the point of manifestation that are proved in an underlying tort suit need not be legally dispositive of a dispute among insurers concerning allocation of their liability. Perhaps if the underlying tort suit would not be disputed and the plaintiff would not be put to undue inconvenience, the factual record needed to allocate insurance responsibility may be developed during the course of the underlying tort suit.41 54 If a victim sues more than one asbestos-product manufacturer, it may be impossible to prove which company's products were used at which time. If so, it will be impossible to prove that exposure to Keene's products-as opposed to those of another manufacturer-occurred during a particular time period. In such a case, there should be a presumption that throughout the victim's period of exposure to asbestos he or she was exposed to Keene's and the other manufacturers' products. The insurer defending Keene in the underlying tort suits may then try to show that Keene's products could not have been involved for certain years.42 Similarly, if a suit arises to resolve the allocation of insurance liability, any insurance company can try to prove that there was no inhalation of Keene's asbestos during or before its policy period. If an insurance company does so, then that company will be free of liability. III. LIBERTY'S 1967-68 POLICY 55 The district court included Liberty's 1967-68 policy among the policies that potentially cover Keene's liability for asbestos-related injury.43 Liberty argues that the policy does not cover Keene's liability for injuries caused by the products of its former subsidiary Baldwin-Ehret-Hill. In opposition to Keene's motion for summary judgment, Liberty submitted affidavits to support its position. Liberty also argues that if the policies did cover Baldwin-Ehret-Hill, that facet of their coverage was conveyed to Gale Corporation when Keene sold Baldwin-Ehret-Hill to Gale.44 Keene responds by arguing that Endorsement No. 1 of the policy provides for coverage of any subsidiary in which Keene owned more than a fifty-percent interest.45 In February 1968, Keene acquired more than fifty percent of Baldwin-Ehret-Hill's stock. Therefore, Keene argues, Baldwin-Ehret-Hill was covered by Liberty's policy. 56 We hold that there was before the district court a genuine issue of material fact on this point. Therefore, the district court erred in including the issue in its summary judgment order. CONCLUSION 57 In view of the above, we reverse the district court's order of summary judgment. The district court should enter a judgment and institute further proceedings consistent with this opinion. 58 So ordered. 59 Appendix A: Variations in Policy Language * 60 Indemnification Defense Insurer Policy Period Provision Provision ----------------------------------------------------------------------------- INA 12/31/61- To pay on behalf of (T)he company shall... 12/31/64 ** the insured...damages defend any suit against because of bodily the insured alleging such injury...arising injury...even if such out of...all... suit is groundless, operations (other false or fraudulent than automobile) of the insured 1/1/65-1/1/68 Same Same 1/1/68-8/23/68 INA will pay on INA shall have the right behalf of the and duty to defend any Insured...damages suit against the Insured because of personal seeking damages on account injury...to of such personal injury... which this even if any of the insurance applies, allegations of the suit caused by an are groundless, false or occurrence fraudulent Hartford 8/23/71-8/23/72 The company will pay (T)he company shall on behalf of the have the right and insured...damages duty to defend any because of...bodily suit against the injury...to which insured seeking this insurance damages on account applies, caused by of such bodily an occurrence injury...even if any of the allegations of the suit are groundless, false or fraudulent 8/23/72-8/23/73 Same Same 8/23/73-10/1/74 Same Same Liberty 8/23/67-8/23/68* The company will pay (T)he company shall Mutual on behalf of the have the right and insured...damages duty to defend any because of...bodily suit against the injury...to which insured seeking this policy applies, damages on account caused by an of such bodily occurrence injury...even if any of the allegations of the suit are groundless, false or fraudulent Aetna 8/23/68-8/23/71 The company will (T)he company shall pay on behalf of have the right and the insured... duty to defend any damages because suit against the of bodily injury... insured seeking to which damages on account this insurance of such bodily applies, caused injury...even if by an occurrence any of the allegations of the suit are groundless, false or fraudulent Liberty 10/1/74-10/1/75 The company will pay (T)he company shall Mutual on behalf of the have the right and insured...damages duty to defend any because of...bodily suit against the injury...to which insured seeking this policy applies, damages on account caused by an of such bodily occurrence injury...even if any of the allegations of the suit are groundless, false or fraudulent 10/1/75-10/1/76 Same Same 10/1/76-10/1/77 The company will pay (T)he company shall on behalf of the have the right and insured...damages duty to defend any because of...personal suit against the injury*... to which insured seeking this policy applies, damages on account caused by an of such personal occurrence injury...even if any of the allegations of the suit are groundless, false or fraudulent Liberty 10/1/77-10/1/78 Same Same Mutual 10/1/78-10/1/79 Same Same 10/1/79-10/1/80 Same Same 61 Policy Period/ Definitions Territory ------------------------------------------------------------------------------- The words "bodily This policy applies injury"... only to occurences bodily injury, or accidents which sickness, disease take place during the policy period Same Same (P)ersonal injury This insurance means...bodily applies only to injury, disability personal injury... which occurs "(B)odily injury" during the policy means bodily period injury, sickness or disease sustained by any person (Definition of "occurrence" applies only to property damage) "(B)odily injury" This insurance means bodily applies only to injury, sickness bodily injury... or disease which occurs during the "(O)ccurrence" policy period means an event including injurious exposure to conditions which result, during the policy period in bodily injury Same Same "(B)odily Same injury" means bodily injury, sickness or disease... which occurs during the policy period "(O)ccurrence" means an event including injurious exposure to conditions which result, during the policy period in bodily injury "(B)odily injury" Not relevant means bodily injury, sickness or disease...which occurs during the policy period "(O)ccurrence" means an accident including continuous or repeated exposure to conditions which results in bodily injury "(B)odily injury" This insurance means bodily injury, applies only to sickness or disease bodily injury ...which occurs "(O)ccurrence" means during the policy an accident, including period injurious exposure to conditions, which results, during the policy period, in bodily injury "(B)odily injury" Not relevant means bodily injury, sickness, or disease... which occurs during the policy period "(O)ccurrence" means an accident, including continuous or repeated exposure to conditions which results in bodily injury Same Same "Personal injury" Not relevant means...bodily injury "(B)odily injury" means bodily injury, sickness or disease...which occurs during the policy period "(O)ccurrence" (as amended) means...exposure to conditions which results in "bodily injury"... neither expected nor intended from standpoint of the "insured" Same Same Same Same Same Same 62 * Source: J.A. III at 1031-35. 63 ** All policy provisions are taken from the 1/1/65-1/1/68 policy. 64 * All policy provisions are taken from the 10/1/74-10/1/75 policy. 65 * The term "personal injury" was substituted, by endorsement, for bodily injury WALD, Circuit Judge, concurring in part: 66 This is a case of first impression and, irrespective of how it is resolved, requires a "leap of logic," maj. op. n. 34, from existing precedent, for it concerns diseases about which there is no medical certainty as to precisely how or when they "occur." We do know the prerequisite-exposure to asbestos fibers-and the symptoms that manifest themselves, generally too late for effective treatment. What happens in between is still something of a mystery; why does one exposed person fall victim to the diseases while another does not? This suit is one of several filed in different courts to ascertain the liability of insurers of manufacturing companies when those companies are sued by asbestosis, mesothelioma and lung cancer victims who have been exposed to the companies' products. Two circuits, the Fifth1 and Sixth,2 have determined that exposure alone should trigger the insurer's liability.3 The Sixth Circuit has also determined that the judgment awarded to the victim should be allocated among insurance companies pro rata according to their share of the total risk period during which the manufacturer was insured. If the risk period includes years when the manufacturer was uninsured (or self-insured), the manufacturer must bear a proportional share of the judgment.4 67 The approach taken in the panel opinion here is different from the approaches of other courts in two significant respects. First, it defines the "injury" that triggers insurance coverage not merely as exposure to asbestos fibers or manifestation of the symptoms of asbestosis, mesothelioma or lung cancer, but also-at least in the case of asbestosis-as the process by which the victim's body resists, adapts, and tries to accommodate itself to a foreign matter-a process, which we understand from the medical testimony elicited at trial, is a major, if not primary, factor in the development of asbestosis. In short, the "injury" is taking place every year that the asbestos fiber remains in situs until tissue damage in the lungs is significant enough to be detected by X-rays or to produce symptomatic effects of asbestosis, mesothelioma or lung cancer. See maj. op. at n.3. I agree with this more comprehensive definition of "injury," encompassing the period from initial exposure to manifestation, because it comports with what we know and do not know about the etiology and progress of the diseases. This process-oriented definition not only provides a flexible formula for adjudicating the legal issues associated with asbestos-related diseases, but also sets a useful precedent for other product-exposure injuries, as of yet unknown in origin. Further, the more comprehensive definition will give much needed certainty to the insurance industry, currently rent asunder by advocates of exposure and manifestation, whose fluctuating positions often depend upon their economic interests in a particular case, and by differing judicial rulings which seem to depend at least partially upon the equities of each case. 68 Second, the majority opinion exempts asbestos manufacturers from all financial responsibility arising from a suit if the manufacturer had purchased insurance which covered any part of the injury period.5 I am not able to agree with this aspect of the majority opinion, as it applies to the period prior to the time when such coverage could no longer be obtained.6 I just do not understand why an asbestos manufacturer, which has consciously decided not to insure itself during particular years of the exposure-manifestation period, should have a reasonable expectation that it would be exempt from any liability for injuries that were occurring during the uninsured period. It seems to me logical and fair7-as it seemed to the Sixth Circuit and to the trial court here-to distribute the ultimate financial responsibility on a pro rata basis among the various insurance companies on line during the risk period, and to include Keene as a self-insurer for the years when it failed to take out any insurance. This position, advocated by the Hartford Accident and Indemnity Company, is not, as the panel opinion says, maj. op. at 1047, based upon a conceptualization of asbestos-related diseases as a multitude of discreet injuries to the victim. Rather, it is based upon the very notion of "injury" adopted by the panel. If asbestos-related diseases are understood as progressive or cumulative, then all those who voluntarily assumed risk during the period when the diseases progressed must share the responsibility for the judgment and this includes self-insurers. If the risk is to be shared only by the insurance companies, a manufacturing company that purchased insurance intermittently during the risk period would be as secure as those prudent companies that continually purchased insurance. 69 Subject to this concern, I concur with the majority opinion. 1 Keene Corporation was formed in 1967 and subsequently purchased most of the stock of Baldwin-Ehret-Hill, Inc. In 1968, Baldwin-Ehret-Hill became a subsidiary of Keene, and in 1970 it was merged into Keene Building Products Corporation, another Keene subsidiary. All corporations sold thermal insulation products that contained asbestos. Keene's brief at 5-6. All corporations will be referred to as "Keene" for simplicity 2 Under Borel v. Fibreboard Paper Prods., 493 F.2d 1076 (5th Cir. 1973), cert. denied, 419 U.S. 869, 95 S.Ct. 127, 42 L.Ed.2d 107 (1974), an asbestos manufacturer such as Keene can be held jointly and severally liable for asbestos-related diseases that were caused, in part, by its products 3 Asbestosis is a fibrous condition of the lungs, which is caused by asbestos fibers reaching the alveoli. Once begun, the condition progresses without additional inhalation of asbestos, but it becomes even more serious if inhalation continues. The seriousness of the disease in individual cases depends on the duration and intensity of inhalation and on individual idiosyncrosy. See Selikoff, Bader, Bader, Churg, and Hammond, Asbestosis and Neoplasia, 42 Am.J.Med. 487 (1967); Selikoff, Churg, and Hammond, The Occurrence of Asbestosis Among Insulation Workers, 132 Ann.New York Acad.Sci. 139 (1965). For a brief discussion of asbestosis, see Borel v. Fibreboard Paper Products Corp., supra note 2 Mesothelioma is a malignant tumor of the lining of the lungs or the lining of the peritoneum, which surrounds the organs of the gastrointestinal tract. It is well-established that prolonged inhalation of asbestos fibers causes mesothelioma. The disease can develop many years after inhalation ceases, and can manifest itself several months after it begins to develop. Lung cancer, or bronchogenic carcinoma, is also generally thought to be caused by prolonged inhalation of asbestos. It too can develop and manifest itself long after inhalation ceases. The details of the development of these diseases are not relevant to the issues decided below. The only relevant facts are that the diseases develop long after exposure to Keene's products, and that Keene can be held liable for their occurrence. 4 From August 8, 1967 through August 23, 1968, both INA and Liberty insured Keene. Liberty argues that its 1967-68 policy does not cover Keene's liability for asbestos-related disease. That issue, which the district court decided against Liberty, is addressed in Part III below 5 J.A. at 1028-29. From November 1, 1948 through November 1, 1959, Pennsylvania Manufacturers' Association Insurance Co. insured Keene. Whether its policies covered products liability is in dispute in another case. See Keene Corp. v. Pennsylvania Manufacturers' Association Insurance Co., 513 F.Supp. 47 (D.D.C.1981), remanded, No. 81-1248 (D.C.Cir. Oct. 1, 1981) 6 For a summary of the differences in coverage language amount of the policies, see Appendix A (reproduced from J.A. III at 1031-35). All of the policies are reproduced at J.A. I at 17-245, J.A. II at 537-832, J.A. III at 1036-1202, J.A. IV at 1203-1509). We hold that none of the differences in the policies' language warrants different interpretations in this case 7 See note 4 supra 8 Insurance coverage issues are commonly resolved in declaratory judgment actions. See Wright & Miller, supra, at 2760 9 The district court found that 15 or 20 years can pass following an initial inhalation before asbestosis manifests itself. Longer periods of time can pass before mesothelioma or lung cancer manifest themselves. Keene Corp. v. Insurance Co. of N. America, 513 F.Supp. 47 (D.D.C.1981) memorandum op. at 3 (J.A. IX at 3533) (hereinafter cited as memorandum op.). Accord, Selikoff, Churg, & Hammond, supra note 3 10 Jurisdiction in this case exists under 28 U.S.C. § 1332 (1976) by virtue of the diversity of citizenship between the plaintiffs and each of the defendants. We find it unnecessary, however, to reach the issue of the applicable state law. The district court did not address the issue, nor did any of the parties raise the issue. This omission is apparently due to the fact that the potentially applicable state laws do not differ from one another Keene is incorporated in Delaware, has its principal place of business in New York, and is licensed to do business in the District of Columbia. INA is incorporated in Pennsylvania and has its principal place of business in Pennsylvania. Aetna is incorporated in Connecticut and has its principal place of business in Pennsylvania. Hartford is also incorporated in Connecticut and has its principal place of business in Connecticut. And Liberty is incorporated in Massachusetts and has its principal place of business in Massachusetts. None of the laws of these states gives us specific guidance in resolving this case, and the basic principles governing the interpretation of insurance policies are the same in each state. There is thus no conflict of laws. (There is what some have termed-somewhat confusingly-a "false conflict." See, e.g., R. Leflar, American Conflicts of Law 188 (3d ed. 1977); Comment, False Conflicts, 55 Calif.L.Rev. 74, 113 (1967).) Therefore, we need not engage in the exercise of identifying which jurisdiction's law governs. See Waters v. American Automobile Ins. Co., 363 F.2d 684, 687 (D.C.Cir.1966); Williams v. Rawlings Truck Line, Inc., 357 F.2d 581, 585 (D.C.Cir.1965). 11 See pp. 1051-1052 infra 12 Professor (now Judge) Keeton has suggested that the legal doctrines governing the construction of insurance contracts fit together under a more general, frequently unstated, principle that can be summarized as follows: The objectively reasonable expectations of applicants and intended beneficiaries regarding the terms of insurance contracts will be honored even though painstaking study of the policy provisions would have negated those expectations. Keeton, Insurance Law Rights at Variance with Policy Provisions, 83 Harv.L.Rev. 961, 967 (1970). Professor Keeton argues that the principle is appropriate in view of the fact that an insurance policy is a contract of adhesion. Id. As applied to this case, we agree with Judge Keeton and explicitly base our interpretation of these policies on the expectations that Keene could have reasonably formed, as an objective matter, on the basis of the policies' language. 13 Keene's brief at 18 14 Id 15 Hartford also argues that the extent of an insurer's liability is limited by the proportion of exposure that occurred in its policy period, whereas Keene argues that, once an insurer's policy is triggered, the insurer is liable for the full loss. See pp. 1047-1049 infra. See also p. 1046 n.24 16 The Fifth Circuit also followed that case in Porter v. American Optical Corp., 641 F.2d 1128 (5th Cir. 1981). In Insurance Co. of N. America v. Forty-Eight Insulations, 633 F.2d 1212 (6th Cir. 1980), aff'd on rehearing, 657 F.2d 814 (6 Cir. 1981), the issue of allocating indemnification expenses was not before the court. The district court in that case held that both defense and indemnification costs should be apportioned among the insurers and the insured on a pro-rata basis. Insurance Co. of N. America v. Forty-Eight Insulations, 451 F.Supp. 1230 (E.D.Mich.1978). The insured, however, only appealed the issue of apportioning defense costs to itself. The Sixth Circuit held that the defense costs should be apportioned on the same basis that the district court used to apportion indemnification costs. In Porter, it is unclear whether that court held that the insured must bear a pro-rata share of indemnification and defense costs For reasons discussed throughout this opinion, however, we decline to adopt the approach taken in those cases. 17 Workmen's compensation cases are only minimally instructive in construing comprehensive general liability policies. Those cases, only some of which adopt the manifestation approach, rely largely on the legislative intent behind workmen's compensation statutes. See General Dynamics Corp. v. Benefits Review Board, 565 F.2d 208, 212 (2d Cir. 1977); Travelers Insurance Co. v. Cardillo, 225 F.2d 137, 145 (2d Cir.), cert. denied, 350 U.S. 913, 76 S.Ct. 196, 100 L.Ed. 800 (1955). The cases that adopt the manifestation approach are based on "the overriding importance of efficient administration" in the workmen's compensation system. Cardillo, supra, 225 F.2d at 145. Although administrative feasibility must be one of our concerns in this case, it is not so "overriding" that we would be willing to accept the consequences that it would imply for the contracts before us Statute of limitations cases are not at all relevant. The date that a disease is deemed to occur for purposes of statutes of limitations is generally the date of manifestation. E.g., United States v. Kubrick, 444 U.S. 111, 100 S.Ct. 352, 62 L.Ed.2d 259 (1979). If the date of a disease's origin were to begin statute of limitations periods, meritorious claims would be barred. As a matter of policy, courts have held that the purpose of the statutes of limitations-to protect defendants against stale claims-does not warrant barring such claims. See, e.g., id. at 117, 100 S.Ct. at 357; Urie v. Thompson, 337 U.S. 163, 169-71, 69 S.Ct. 1018, 1024-25, 93 L.Ed. 1282 (1949). The considerations involved in those cases have no bearing on the considerations relevant to this case. The health insurance cases are more relevant to this case. The only problem in those cases, however, is to determine when a disease begins in order to decide whether it began during a policy period. The cases hold that if a disease manifests itself during a policy period, then that policy covers the disease even if the origin of the disease can be traced back to a point in time prior to the policy period. See, e.g., Wilkins v. Grays Harbor Community Hospital, 71 Wash.2d 178, 427 P.2d 716 (1967); Reiser v. Metropolitan Life Insurance Co., 262 App.Div. 171, 28 N.Y.S.2d 283 (1941) aff'd, 289 N.Y. 561, 43 N.E.2d 534 (1942). In those cases, the security that the policies provided would be undermined if a disease were not covered by the insurer on the risk at the time the disease manifests itself. The court in Forty-Eight, supra note 16, expressed a similar opinion concerning the relevance of cases in these areas of the law. 633 F.2d at 1220-22. 18 This seems to be Hartford's theory. Hartford does not suggest that exposure in residence should trigger coverage 19 This would not be true of Keene's characterization of asbestos-related diseases as a series of discrete injuries beginning with inhalation exposure and continuing throughout the development of the disease. That characterization would imply the same conclusion that we reach, although perhaps not when Keene is held jointly and severally liable with other manufacturers. See note 20 infra. Such a characterization is, however, unnecessarily fact-bound. If a disease could be predicted to develop many years after inhalation of asbestos, yet no cellular changes were known to occur during that period, we would still hold that all policies are triggered from the point of exposure through the point of manifestation. In addition, by beginning with that characterization of the disease, Keene fails to develop the proper rationale for the result it seeks 20 The characterization of each exposure as a discrete injury must be rejected for yet another reason. In Borel v. Fibreboard Paper Prods., supra note 2., the court held that an asbestos-product manufacturer can be held jointly and severally liable for asbestos-related disease as long as its products had some causal relationship to the development of the disease. That means that a person who used Keene's products for one year, for instance, and then used other manufacturers' asbestos-containing products for several years, could recover damages from Keene for his total loss. If each exposure is considered a separate "injury," under the terms of the policies, one might be able to argue that each insurer is responsible only for the "injuries" that occurred during its policy periods, even though Keene, in effect, would be liable for "injuries" that occurred outside those policy periods, as a result of exposure to other manufacturers' products. It is unclear whether that is the holding in Forty-Eight, supra note 16, 633 F.2d at 1225, or whether that is Hartford's argument. It is clear, however, that such a result would be contrary to the terms of the insurance policies, which explicitly state that the insurer will pay "all sums which the insured shall become legally obligated to pay as damages because of bodily injury (during the policy period)." As long as there was either inhalation exposure or exposure in residence during a policy period, and as long as Keene must pay damages as a result, the insurer must indemnify Keene for whatever damages it must pay. That must be true even if Keene is obligated to pay for injury that may have occurred, in part, as a result of exposure to other manufacturers' products. To that extent, the terms of the policies incorporate evolving tort doctrines. The allocation of liability among Keene's insurers is addressed in section II-C, below Thus, rather than engaging in further heuristic constructs to avoid this inappropriate result, we have approached this problem in a straightforward manner that avoids the problem from the outset. We treat the diseases at issue in this case as single injuries that occur over extended periods of time. 21 Beginning in 1976, Liberty began using large deductibles and administrative fees for handling asbestos-damage claims. Memorandum op. p.2 n.2, p.6 (J.A. IX at 3532, 3536) 22 Although asbestosis has been known to man since the early 1900s, see note 25 infra, the general danger of prolonged exposure to asbestos fibers was not fully recognized until the late 1960s or early 1970s. See Insurance Co. of N. America v. Forty-Eight Insulations, supra note 16, at 1215. Keene stopped using asbestos in its products at about that time. Memorandum op. p. 1 (J.A. IX at 3531) 23 See p. 1044 supra 24 The other circuits that have considered this manifestation theory in the context of asbestos-related disease have also rejected the theory. See Porter v. American Optical Corp., supra note 16; Insurance Co. of No. America v. Forty-Eight Insulations, Inc., supra note 16. One district court, however, has adopted the manifestation theory. See Eagle-Picher Industries v. Liberty Mut. Ins. Co., 523 F.Supp. 110 (D.Mass.1981) 25 Theoretically, it would be possible to preserve Keene's rights under the policies if coverage were triggered at the point at which the dangers of asbestos inhalation were discovered. Such an interpretation, however, is not compelled by the terms of the policies and would be impossible to implement Keene did not raise the exposure-in-residence aspect of its argument below. Because we do not rely, however, on any legal or factual aspect of Keene's argument, see note 19 infra, we are not precluded from deciding that exposure in residence triggers coverage. 26 Apparently, the formula Hartford would propose is the following: number of years of exposure to Keene's products during Insurance company X's policy period Keene's company X's = --------------------------- X total pro-rata share Total number of years of liability exposure to Keene's products But see note 20 supra. Hartford argues that only inhalation exposure should be taken into account in prorating liability. 27 See pp. 1044 & n.20 supra 28 See pp. 1044 and 1046 supra The possibility of injury as a result of prolonged exposure to a substance was not unknown at the time these policies were issued. Cases of asbestosis were reported among asbestos textile workers early in the twentieth century, and by the 1930s it was well recognized that prolonged exposure to asbestos causes the disease. See Borel v. Fibreboard Paper Products Corp., supra note 2. See generally Selikoff, Churg, and Hammond, supra note 3 (discussion of asbestosis). Moreover, most of the policies explicitly recognize continuous exposure to certain conditions as an occurrence that can result in injury. They provide that such exposure within a single policy period is considered a single occurrence for purposes of the limit of liability provisions. Yet none of the policies provided that the insurer's liability would be limited in any way when exposure extends over several policy periods. The absence of such a provision supports our view that Keene could have reasonably expected complete security from each policy it purchased. 29 See pp. 1044, 1046 supra As Judge Wald points out, concurring op. at p. 1058 n.7, this interpretation of the policies provides the basis of our entire decision. She is correct in pointing out that it is an "indispensable initial premise of the liability theory (that we espouse)." Id. We rest our interpretation on the terms and principles of the insurance policies in issue. See pp. 1044, 1046 supra. Judge Wald's reliance on fairness in support of an alternative-but unstated-basic premise is appealing. Id. However, the contracts at issue in this case do not warrant such an independent appeal to fairness as a basis for deciding to allocate liability among all of the parties. At the same time, we see nothing unfair in holding that Keene is fully covered by each of the policies that it purchased. 30 The Sixth Circuit made the same point in Insurance Co. of N. America v. Forty-Eight Insulations, supra note 16, at 1225 31 This omission is particularly significant in the policies that explicitly recognize the possibility that injury can be caused by prolonged exposure to certain conditions. See note 28 supra 32 We recognize, however, that there is not a linear relationship between the number of years of coverage and the number of injuries that can be expected to be covered 33 See p. 1049 infra 34 We are further supported in our conclusion by the fact that Keene could be held fully liable for an asbestos-related injury even if a plaintiff's exposure to Keene's products was minimal compared to his or her exposure to other manufacturer's products. See Borel, supra note 2. If Keene were held fully liable under such circumstances, there would be no question but that whatever insurer was on the risk at that time could be held fully liable to Keene. Given that, it does not require too great a leap of logic to hold fully liable any insurer whose policy covers a particular injury. We need not confront the issue of an insurer's obligation if an injury for which the insured can be held liable is not indivisible as the diseases at issue in this case are 35 E.g., (a) Contribution by Equal Shares. If all of such other valid and collectible insurance provides for contribution by equal shares, INA shall not be liable for a greater proportion of such loss than would be payable if each insurer contributes an equal share until the share of each insurer equals the lowest applicable limit of liability under any one policy or the full amount of the loss is paid, and with respect to any amount of loss not so paid the remaining insurers then continue to contribute equal shares of the remaining amount of the loss until each insurer has paid its limit in full or the full amount of the loss is paid. (b) Contribution by Limits. If any of such other insurance does not provide for contribution by equal shares, INA shall not be liable for a greater proportion of such loss than the applicable limit of liability under this policy for such loss bears to the total applicable limit of liability of all valid and collectible insurance against such loss. J.A. II at 551. In addition, nothing we hold today bars insurers from collecting from one another under the doctrine of contribution. 36 The procedure by which this duty can be enforced is discussed in section E, below 37 Nothing we now hold should be read to prevent an insurer from sharing the costs of defense with other insurers under the "other insurance" clauses or under the doctrine of contribution 38 The construction that we adopt today should lead to far less complex tort suits than the district court's construction would have provoked. If each insurer and Keene had to bear pro-rata shares of total damage awards, all of them would have to join the other defendants (and their insurers) in each tort suit. Each suit would thus become an unwieldy spectacle. Within the plaintiff's suit for damages, groups of defendants would pursue disputes with each other. That result, which is not required by the contracts, would impose unnecessarily high costs on all parties-particularly the victim, who should not have to bear any of the cost of a dispute among Keene's insurers or between Keene and its insurers. We expect that these suits will be litigated more efficiently under the liability scheme we set forth today It should also be noted that we are not requiring that the company that defends Keene must also be the company whose policy limits determine the extent to which Keene may be indemnified. See p. 1049 supra. 39 This would also be true of other underlying tort doctrines such as enterprise liability, e.g., Hall v. E. I. Du Pont De Nemours, 345 F.Supp. 353 (E.D.N.Y.1972), or market share liability, e.g., Sindell v. Abbott Laboratories, 26 Cal.3d 588, 607 P.2d 924, 163 Cal.Rptr. 132, cert. denied, 449 U.S. 912, 101 S.Ct. 286, 66 L.Ed.2d 140 (1980). See generally, Comment, 57 N.D.L.Rev. 81 (1981) 40 See Comment, Liability Insurance for Insidious Disease: Who Picks Up the Tab?, 48 Fordham L.Rev. 657, 691-92 (1980) 41 Preferably this would be done by affidavit or deposition 42 We recognize that the insured generally bears the burden of proving coverage. The injuries at issue in these cases, however, are unique and traditional procedural rules cannot be allowed to defeat Keene's or its insurers' substantive rights under the policies. We recognize that burdens of proof are matters of state law. Dick v. New York Life Ins. Co., 359 U.S. 437, 446, 79 S.Ct. 921, 927, 3 L.Ed.2d 935 (1959). We believe, however, that this case is so different from the cases in which the insured's burden of proof developed, that those cases provide no authority for this case. Reversal of the ordinary burden of proof will be more equitable for all parties and will prevent unnecessary litigation. The Sixth Circuit, in Insurance Co. of N. America v. Forty-Eight Insulation, supra note 16, also set out this procedure for litigating multiple-defendant suits for asbestos-related disease 43 Memorandum op. at 3 (J.A. IX at 3532) 44 Liberty's brief at 63-65 45 Keene's reply brief at 27-28. Endorsement No. 1 reads as follows: (t)he term named insured includes in addition to the person or corporation named in Item 1 of the declarations any business entity ... while the person or organization named in Item 1 of the declarations ... owns, during the policy period, an interest in such entity of more than fifty-percent (50%). J.A. III at 1047. 1 Porter v. American Optical Corp., 641 F.2d 1128 (5th Cir. 1981) (hereinafter Porter ) 2 Insurance Co. of North America v. Forty-Eight Insulations, Inc., 633 F.2d 1212 (6th Cir. 1980), 657 F.2d 814, aff'd on rehearing (6th Cir. 1981) 3 The United States District Court for the District of Massachusetts, however, determined that manifestation triggered coverage. Eagle Picher Industries, Inc. v. Liberty Mutual Insurance Company, et al., 523 F.Supp. 110 (D.Mass.1981) 4 The Fifth Circuit was not forced to resolve the question of whether the insured ought to be included within the pro rata distribution of liability. Porter, 641 F.2d at 1145 5 However, if liability exceeds the liability limit of the policy, then the majority would hold the manufacturer liable for the amount exceeding the limit 6 I agree, however, that the manufacturer may target one insurance company to defend the suit and that if judgment is awarded for the victim, the targeted insurance company must pay the victim to the extent of coverage and then seek contribution from other on-line insurers. I disagree only to the extent that self-insurers are excluded from contributing 7 The majority finds my position "problematic," but that is only because I have not made as long a "leap of logic" as it. Thus, I do not think that "Keene's rights (to be free of all liability) under the policies viewed in their entirety," are so much the product of a "logically prior determination," maj. op. at 1048, as they are the indispensable initial premises of the liability theory espoused in the opinion. Since I can find no first premises in the terms of the policies and canons of interpreting insurance policies, I must seek my own first premises in notions of fairness rather than in principles of logic. I cannot agree that it is fair to exempt self-insurers under these circumstances. I recognize the problems of working out the terms of a "self-insurance policy," but we should expect difficulties when we forge new ground. Certainly the majority's position entails its own share of implementation problems

599 F.2d 46 UNITED STATES of America, Plaintiff-Appellee,v.James K. DEUTSCH, Defendant-Appellant. No. 79-1326. United States Court of Appeals,Fifth Circuit. July 2, 1979. Joel Kaplan, Asst. Fed. Public Defender, Miami, Fla., for defendant-appellant. Hugh F. Culverhouse, Jr., Asst. U. S. Atty., Miami, Fla., for plaintiff-appellee. Appeal from the United States District Court for the Southern District of Florida. Before THORNBERRY, GOLDBERG and GEE, Circuit Judges. THORNBERRY, Circuit Judge: In 1978 James K. Deutsch was indicted on forty-three counts alleging violations of various securities and income tax laws.1 Pursuant to Deutsch's request, the U.S. Magistrate appointed the Federal Public Defender under the Criminal Justice Act, 18 U.S.C. § 3006A.2 Upon motion of the United States, however, the district court struck this appointment. Deutsch appeals; we affirm. 1 As an initial matter, we are faced, Sua sponte, with a question of our appellate jurisdiction. Although aware that finality for purposes of appeal is more strictly construed in criminal cases, we believe that this denial of appointed counsel is final and appealable under 28 U.S.C. § 1291, pursuant to the principles of Cohen v. Beneficial Loan Corp., 337 U.S. 541, 69 S.Ct. 1221, 93 L.Ed. 1528 (1949). Like the issue in Cohen, the striking of counsel falls within 2 that small class (of decisions) which finally determine claims of right separable from, and collateral to, rights asserted in the action, too important to be denied review and too independent of the cause itself to require that appellate consideration be deferred until the whole case is adjudicated. 3 69 S.Ct. at 1225-26. We are buttressed in this conclusion by Caston v. Sears, Roebuck & Co., 556 F.2d 1305 (5 Cir. 1977), in which the court concluded that denial of appointed counsel in a civil case was an appealable order. The reasoning of Caston is even more compelling in the present case, since the striking of appointed counsel not only may effectively deny the constitutional guarantee of counsel encompassed by the sixth amendment, but, for want of a nail, also may result in the denial of the full panoply of rights extended a criminal defendant. Undoubtedly, an eligible defendant may struggle through to present his complaint on appeal upon completion of the trial. However, to construe this possibility as obviating the finality of the decision in this case would not only result in a waste of judicial resources, since a retrial might be required, but would run the substantial possibility that some defendants, cast adrift without counsel, would plead guilty or fail to appeal.3 4 Turning to the primary issue of this appeal, we cannot say that the district court erred in striking appointed counsel. At the hearing before the magistrate, Deutsch not only testified under oath that he was unable to pay, but on cross-examination of an IRS agent the Federal Public Defender elicited testimony that the agent could not locate any assets belonging to Deutsch. On rebuttal before the district court,4 however, the government presented a number of witnesses concerning Deutsch's financial status and the district court determined that Deutsch had sufficient assets to retain counsel. Deutsch primarily complains that the United States did not prove that he had assets at the time of the hearing, but only showed that he had sufficient wealth within the past three years. We believe, however, that the district court could properly infer that Deutsch was presently able to retain counsel. We do not think that the United States necessarily must prove the net worth of a defendant at the time of trial, but may depend upon circumstantial evidence to show financial ability. 5 In the present case, the court based its conclusion upon several findings of fact. First, that on June 1, 1976, Deutsch and his wife filed a financial statement pursuant to a bank loan listing a net worth of $981,089. Second, that Deutsch subsequently had engaged in a practice of transferring assets to his wife in order to avoid liability. Third, that Deutsch, as president of Huntington Farms, Inc., had access to funds, principally a Swiss bank account. These findings are supported by substantial evidence and are not clearly erroneous.5 6 Although we can discern no error in the decision of the district court, we wish to remind the judge that at any time during the prosecution, he may properly consider appointing counsel if he becomes concerned about the financial burden upon Deutsch of paying an attorney. The United States may always seek reimbursement for any funds expended. See 18 U.S.C. § 3006A(c). 7 AFFIRMED. 1 15 U.S.C. §§ 77e(a)(2), 77g; 26 U.S.C. §§ 7201, 7206(1), 7206(2) 2 18 U.S.C. § 3006A(b) provides in pertinent part: Unless the defendant waives representation by counsel, the United States magistrate or the court, if satisfied after appropriate inquiry that the defendant is financially unable to obtain counsel, shall appoint counsel to represent him. 3 Although under § 3006A(c), the district court can subsequently appoint counsel, we do not believe that this power makes the present decision striking counsel "inherently tentative." See Coopers & Lybrand v. Livesay, 437 U.S. 463, 98 S.Ct. 2454, 2458 n.11, 57 L.Ed.2d 351 (1978). The fact that the district court could, under evolving circumstances, change the result does not vitiate the present finality of the striking of counsel since this action, if upheld, will unquestionably deny Deutsch the assistance of counsel during some part of this criminal prosecution 4 Deutsch argued, and the United States apparently concedes, that the burden of proof rested upon the United States as the moving party before the district court. However, in light of the perfunctory inquiry conducted by the magistrate, we will consider the hearings before the magistrate and the district court as one extended proceeding. Moreover, even under the litigants' view, we believe the United States discharged its burden 5 Although a district court is accorded considerable discretion in appointing counsel under the Act, See Wood v. United States, 373 F.2d 894 (5 Cir.), Rev'd on other grounds, 389 U.S. 20, 88 S.Ct. 3, 19 L.Ed.2d 20 (1967), specific findings of fact are properly reviewable under the clearly erroneous standard. Cf. Wilson v. Thompson, 593 F.2d 1375 (5 Cir. 1979) The district court failed to file findings of fact and conclusions of law. However, we were able to discern from the transcription of his oral decision the bases for the result. We suggest that in the future the district court should file formal findings. See Wood v. United States, 387 F.2d 353 (5 Cir. 1967).

ARMED SERVICES BOARD OF CONTRACT APPEALS Appeal of-- ) ) _ ) ASBCAN<».MS ) _ ) Under Contract No. W9 lJA4-12-C-7 l 31 APPEARANCE FOR THE APPELLANT: Managing Director APPEARANCES FOR THE GOVERNMENT: Raymond M. Saunders, Esq. Army Chief Trial Attomey CPT Harry M. Parent lII, JA Trial Attomey OPINION BY ADMINISTRATIVE JUDGE OSTERHOUT ON THE GOVERNMENT’S MOTION FOR SUMMARY JUDGMENT This is an appeal of` a contracting officer’s denial of a claim by (_ or appellant), alleging that it is owed $l42,000.00 for extra work performed on construction Contract No. W9lJA4-12-C-7l3l in Kabul, Af`ghanistan. In its complaint, appellant states that it presented a quote for $l42,000.0010 the contracting officer’s representative, received verbal direction from the contracting officer’s representative to perform the work and a promise that the contracting officer would issue a modification for $l44,000.00 but appellant never received the modification or funds. The government moves for summary judgment because appellant signed a final release and received final payment after executing a final release. We grant the govemment’s motion and deny the appeal. STATEMENT OF FACTS (SOF) FOR PURPOSES OF Tl-IE MOTION l. On 5 July 2012, the Phoenix Regional Contracting Center, Camp Phoenix, Afghanistan (the govemment) executed Contract No. W9lJA4-12-C~7l3l, to construct and provide building upgrades for the Af`ghan National Police and Central Unit Headquan¢rs, for $1,897,160.17 to _ (R4, cabs 1-4). 2. Federal Acquisition Regulation (FAR) 52.232-5, PAYMENTS UNDER leED -PRlCl-: CONSTRUCT|ON CONTRACTS (SEPT 2002), was incorporated by reference in the contract (R4, tab l at 23). Regarding final payments, FAR 52.232-5 states: (h) Final payment. The Govemment shall pay the amount due the Contractor under this contract after_ (l) Completion and acceptance of all work; (2) Presentation of a properly executed voucher; and (3) Presentation of release of all claims against the Govemment arising by virtue of this contract, other than claims, in stated amounts, that the Contractor has specifically excepted from the operation of the release. 3. On 14 July 2012, the government issued the notice to proceed to commence work within 10 days and complete the project within 210 calendar days (R4, tab 13). 4. Over the next several months, the government administered the contract. The parties executed modifications to extend the contract or to add additional work. billed for partial payments and the government paid appellant for work performed. (R4, tabs 15-72) 5. On 4 November 2013, the government signed a material inspection and receiving report, documenting that Contract No. W9lJA4-12-C-713l was complete and accepted, and that_ was owed the amount of AFN 25,831,477.58 (R4, tab 75). 6. Also on 4 November 2013, _ completed a new Electronic Funds Transfer form to update banking and payment information (R4, tab 76). 7. Also on 4 November 2013, _ submitted Invoice No. WSCC0003 for Contract No. W91JA4-12-C-7131. This invoice was marked as a final payment and contained release of claims language: Release of Claims: Know all men by these presents, in consideration of the premise and sum of AFN 94,966,372.58 of which AFN 69,134,895.00 has been paid, and a balance due of AFN 25,831,477.58 is to be paid by the United States Govemment under the above noted contract, the undersigned contractor does release and discharge the Govemment, its officers, agents and employees, of and from all liabilities, obligations and claims whatsoever in law and equity arising out of or by virtue of said contract, except specified claims in stated amounts, or in estimated amounts when the amounts are not susceptible of exact statement by the contractor, as follows. (R4, tab 77) The outstanding claims section was left blank and the box beside “None” was checked. _ signed the final release as CEO and President. (Ia’.) 8. On 14 November 2013, the government issued Modification No. P00007 to decrease the DBA insurance to match the actual amount (R4, tab 80). 9. On 12 December 2013, after two rounds of modifications of the final invoice due to rejections from the Defense Finance and Accounting Service (DFAS) to correct minor clerical errors, _ submitted the amended final invoice. This invoice again contained the release language and no exceptions (R4, tab 110) 10. On 30 December 2013, DFAS Rome made final payment to _ - in the amount of AFN 25,831,477.58 (R4, cab 86). 11. On 7 January 2014, the government executed a DD Forrn 1594, Contract Completion Statement reflecting that final payment had been made on 30 December 2013 (R4, tab 87). 12, On 24 June 2016, _ filed an appeal to the Board for $l42,000.00 for extra work on Contract No. W91JA4-12-C-7l31, which was docketed as ASBCA No. 60644 (R4, tab 88). 13. On 8 August 2016, the government filed a motion to dismiss ASBCA No. 60644 because _ had not submitted a claim to the contracting officer. 14. On 6 October 2016, _ submitted a certified claim to the contracting officer in the amount of $144,000.00. _ claimed that the contracting officer’s representative directed and approved work f`or the subject matter of a $142,000 quote. _ stated it was informed that the contracting officer would issue a modification for $144,000. (R4, tab 94) 15. On 8 November 2016, the Board dismissed ASBCA No. 60644 for lack of jurisdiction because did not submit a claim to the contracting officer prior to filing the appeal. , ASBCA No. 60644, l6-l BCA 11 36,556. 16. on 18 November 2016, _ Objected to the ASBCA No. 60644 decision and ex lained, “We did forget to check our record for this contract.” ialso stated that it signed the final release in error. (R4, tab 96 at 4) 17. On 25 January 2017, the contracting officer issued a final decision, denying the 6 October 2016 claim (R4, tab 97). 18. On 20 February 2017, _ filed a timely notice of appeal with the Board from the 25 January 2017 final decision, which was docketed as ASBCA No. 61065. 19. On 12 Ma 2017, the government filed a motion for summary judgment contending that h filed the claim after it executed a final release and received final payment 20. The Board provided _ several opportunities to respond to the govemment’s motion for summary judgment but only received electronic mail re uesting that the parties conduct a joint site inspection in Afghanistan. The Board sent h correspondence, allowing it additional time to respond to the govemment’s motion. On 29 August 2017, the Board informed _ that it would not be conducting a site visit but that _ could submit photographs or any other documents to explain what it would like the Board to see during a site visit and further instructions for responding. The Board allowed _ until 19 September 2017 to respond. _ did not respond. (Bd. corr. file) DECISION It is well settled that summary judgment is appropriate where the moving party establishes that there are no disputed material facts, and the moving party is entitled to judgment as a matter of law. Riley & Ephriam Constr. Co. v. United States, 408 F.3d 1369, 1371-72 (Fed. Cir. 2005); Mingus Constructors, Inc. v. United States, 812 F.2d 1387, 1390 (Fed. Cir. 1987). When considering summary judgment motions, “the evidence of the non-moving party is to be believed, and all justifiable inferences are to be drawn in his favor.” Tri-County Contractors, Inc., ASBCA No. 58167, 13 BCA 11 35,310 at 173,346 (citing FED. R. ClV. P. 56(a); Anderson v. Liberty Lobby, lnc., 477 U.S. 242, 247 (1986)). There is no genuine dispute as to any of the material facts set forth in our SOF. The govemment’s motion for summary judgment is based on _ executing a final release and receiving final payment. “A final release followed by a final payment to a contractor generally bars recovery of the contractor’s claims under the contract except for those excepted on the release.” Tri-County Contractors, 13 BCA 11 35,310 at 173,346 (citing Mingus Constructors, 812 F.2d at 1394). “It is well settled, however, that there are special and limited situations in which a claim may be prosecuted despite the execution of` a general release.” Bender Shipbuilding and Repaz'r Co.. ASBCA No. 41459, 91-3 BCA ‘ll 24,230 at 121,186. These special and limited situations include mutual mistake, continued consideration of a claim after the execution of the release, fraud, or duress. [d. (citing J.G. Watts Construction Co. v. United States, 161 Ct. Cl. 801, 806-07 (1963)). None of the exceptions apply in this case so the general rule govems. Here, the parties clearly closed out the contract, _ executed a final release, and the government made final payment. Several documents recorded completion of the contract, including the final release and multiple submissions for final payment. (SOF 1111 5-10) _ submitted a final invoice with a signed final release which did not expressly except any claims and affirmativer checked the “None” box indicating that it had no excepted claims (SOF 11 7). _ had several opportunities to notify the government of additional work that had not been included in the contract prior to the final release and final payment (see SOF 1111 5-10). However, _ failed to raise the issue until June 2016 when it submitted its claim directly to the Board. Had _ responded in this appeal, it might have asserted that it was entitled to recovery because of a mistake in signing the final release, much like it did when it objected to our decision in ASBCA No. 60644 (SOF 11 16). Unfortunately for _ in order to benefit from the special and limited situation of mistake, the mistake must be mutual. See, e.g., J.G. Watts Construction, 161 Ct. Cl. at 806-07 (1isting several examples of mutual mistakes). Here, the mistake, if valid, is solely on the part of _ and was not discovered until years after the final release and final payment were complete. Therefore, _ cannot benefit from one of the special and limited exceptions to the general rule that a final release generally bars recovery of claims made after the release has been executed. Finally, in its complaint, _ stated that the government was aware of the additional work and, thus, might have argued that the claim was excepted due to the govemment’s knowledge We have previously held that “final payment does not bar a claim where the contracting officer knows that the contractor is asserting a right to additional compensation, even though a formal claim has not been filed.” Matcon Diamond, lnc., ASBCA No. 59637, 15-1 BCA 11 36,144 at 176,408. However, did not provide any evidence to support its assertion that the government had knowledge of the claim and the record in this appeal does not reflect that the government was aware of the claim for $142,000.00 of additional work. Thus, was required to list the claim as an exception in the final release in order to maintain its rights to the claim afier final release, which it did not. CONCLUSION The govemment’s motion for summary judgment is granted. The appeal is denied. Dated: 14 November 2017 l concur glickth HEIDI L.\GSTERHOUT Administrative Judge Armed Services Board of Contract Appeals 1 concur CQC\ RJ‘CHXRD stiAcKLEFoRD Administrative Judge Acting Chairrnan Armed Services Board of Contract Appeals OWEN C. WILSON Administrative Judge Vice Chairrnan Armed Services Board of Contract Appeals 1 certify that the foregoing is a true copy of the Opinion and Decision of the Armed Services Board of Contract Appeals in ASBCA No. 61065, Appeal of _ _, rendered in conformance with the Board’s Charter. Dated: JEFFREY D. GARDIN Recorder, Armed Services Board of Contract Appeals

14 F.3d 53 Danielv.Bowles* NO. 93-01294 United States Court of Appeals,Fifth Circuit. Jan 03, 1994 1 Appeal From: N.D.Tex. 2 AFFIRMED. * Fed.R.App.P. 34(a); 5th Cir.R. 34.2

Filed 2/28/13 Alliance for Protection of Auburn Com Environment v. County of Placer CA3 NOT TO BE PUBLISHED California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA THIRD APPELLATE DISTRICT (Placer) ---- ALLIANCE FOR THE PROTECTION OF THE C067961 AUBURN COMMUNITY ENVIRONMENT et al., (Super. Ct. No. SCV0028200) Plaintiffs and Appellants, v. COUNTY OF PLACER, Defendant and Respondent; BOHEMIA PROPERTIES, LLC, Real Party in Interest and Respondent. Defendant County of Placer (County) certified an environmental impact report (EIR) prepared by real party in interest Bohemia Properties, LLC (Bohemia) for the development of a 155,000-square-foot building (the project). Plaintiffs Alliance for the Protection of the Auburn Community Environment, Joseph H. Marman, and Lari L. Knedel (Alliance) filed a petition for a writ of mandate under the California 1 Environmental Quality Act (CEQA; Pub. Resources Code, § 21000 et seq.) challenging the project’s approval and alleging CEQA violations. Bohemia filed a demurrer, which the County joined, arguing the petition was barred by the applicable statute of limitations. The court sustained the demurrer without leave to amend and denied Alliance’s motion seeking relief on the grounds of mistake or excusable neglect. Alliance appeals, contending it is entitled to relief under Code of Civil Procedure section 473.1 We shall affirm the judgment. FACTUAL AND PROCEDURAL BACKGROUND In 2008 Bohemia submitted an application for the proposed development of the project. The County concluded the project required an EIR. A draft EIR was circulated, followed by a public comment period and eventually a final EIR. The final EIR was circulated on June 16, 2010, and the County certified it on July 8, 2010. Alliance filed a written appeal of the certification on July 16, 2010. On September 28, 2010, the County held a public hearing on Alliance’s appeal and again certified the final EIR. The notice of determination (NOD) was filed on September 29, 2010. Based on the September 29, 2010, filing of the NOD, Alliance’s petition challenging the EIR was due by October 29, 2010. However, Alliance filed its petition on November 1, 2010. In its petition, Alliance argued the EIR did not comply with CEQA’s requirements and the County based its approval on inadequate findings in violation of CEQA. According to Alliance, the EIR failed to analyze significant impacts posed by the project on air quality, traffic and circulation, and urban decay; failed to analyze cumulative impacts or mitigate impacts; and failed to consider a reasonable range of alternatives. 1 All further statutory references are to the Code of Civil Procedure unless otherwise designated. 2 Alliance contended the County violated CEQA by adopting findings not supported by substantial evidence. Alliance submitted an ex parte application for relief on the grounds of mistake or excusable neglect, which was denied without prejudice on November 10, 2010. The court found the request premature since Bohemia had not yet challenged the filing of the petition as untimely. In January 2011 Bohemia filed a demurrer to Alliance’s petition, alleging it was not filed within the limitations period. Alliance filed a motion for relief under section 473 on January 19, 2011, and filed an opposition to the demurrer two weeks later. The trial court concluded that Alliance’s petition was barred by the mandatory provisions of Public Resources Code section 21167. Under section 21167, the 30-day statute of limitations within which to bring a challenge to the County’s approval of Bohemia’s EIR expired on October 29, 2010. As the court noted, Alliance conceded it filed its petition three days after the statute had run. The trial court entered an order sustaining Bohemia’s demurrer without leave to amend and denying Alliance’s motion seeking relief on the grounds of mistake or excusable neglect. Following entry of judgment, Alliance filed a timely notice of appeal. DISCUSSION I. The function of a demurrer is to test the sufficiency of the complaint by raising questions of law. We give the complaint a reasonable interpretation and read it as a whole with its parts considered in their context. A general demurrer admits the truth of all material factual allegations. We are not concerned with the plaintiff’s ability to prove the allegations or with any possible difficulties in making such proof. We are not bound by the construction placed by the trial court on the pleadings; instead, we make our own independent judgment. (Herman v. Los Angeles County Metropolitan Transportation Authority (1999) 71 Cal.App.4th 819, 824.) 3  When the trial court sustains the demurrer without leave to amend, we must decide whether there is a reasonable possibility the plaintiff could cure the defect with an amendment. If we find that an amendment could cure the defect, we must find the court abused its discretion and reverse. If not, the court has not abused its discretion. The plaintiff bears the burden of proving an amendment would cure the defect. (Gomes v. Countrywide Home Loans, Inc. (2011) 192 Cal.App.4th 1149, 1153.) II. Alliance argues the court erred in sustaining Bohemia’s demurrer, since section 473 provides relief from its excusable mistake that resulted in the late filing of the CEQA petition. Section 473, subdivision (b) provides that a “court may, upon any terms as may be just, relieve a party or his or her legal representative from a judgment, dismissal, order, or other proceeding taken against him or her through his or her mistake, inadvertence, surprise, or excusable neglect” provided that relief is sought within a reasonable time, not exceeding six months after the judgment, dismissal, order, or proceeding was taken. The provisions of section 473 are to be liberally construed, and policy considerations favor the determination of actions on their merits. (Zamora v. Clayborn Contracting Group, Inc. (2002) 28 Cal.4th 249, 256.) Because the law strongly favors trial on the merits, we resolve any doubts as to the applicability of section 473 in favor of the party seeking relief. (Elston v. City of Turlock (1985) 38 Cal.3d 227, 233.) On appeal, Alliance asserts the late filing resulted from a “miscommunication from its attorney service as to the deadline for receipt of the Writ” at the superior court. Alliance’s counsel submitted the filing to the attorney service prior to the service’s deadline to ensure timely filing. However, the attorney service informed counsel it would not file until the following business day. Although Alliance’s counsel requested the petition be filed that day, the attorney service arrived too late to file on October 29, 4 2010. Therefore, Alliance argues, section 473 applies and the court should have overruled Bohemia’s demurrer and granted relief under section 473. However, in order to succeed with this argument, Alliance must come to terms with the Supreme Court decision in Maynard v. Brandon (2005) 36 Cal.4th 364 (Maynard). In Maynard, the Supreme Court stated: “Nor does section 473, subdivision (b) generally apply to dismissals attributable to a party’s failure to comply with the applicable limitations period in which to institute an action, whether by complaint [citations] or by writ petition [citation].” (Maynard, at p. 372.) Alliance characterizes the Supreme Court’s opinion in Maynard as “dicta” and “based on a faulty premise, that statutes of limitation are jurisdictional.” Alliance also seeks to distinguish the authority upon which Maynard relies. In Maynard, the Supreme Court held that section 473 relief was not available for a party who failed to meet the 30-day deadline for seeking a trial de novo following an arbitration under the Mandatory Fee Arbitration Act (MFAA; Bus. & Prof. Code, § 6200 et seq.). (Maynard, supra, 36 Cal.4th at p. 369.) Maynard noted section 473 provides relief from the consequences of many procedural errors committed during the course of a proceeding. Among those procedures are “the issuance of untimely demands for expert witness disclosures [citation], erroneous offers to compromise [citation], inadvertent dismissals [citation], failures to timely respond to requests for admissions . . . and the untimely filing of cost bills [citation], just to name a few.” (Maynard, at p. 372.) In contrast, Maynard noted: “Notwithstanding the broad construction afforded section 473, subdivision (b), the statute does not offer relief from mandatory deadlines deemed jurisdictional in nature. [Citations.] Thus section 473, subdivision (b) cannot extend the time in which a party must move for a new trial, since this time limit is considered jurisdictional. [Citations.] Nor does section 473, subdivision (b) generally apply to dismissals attributable to a party’s failure to comply with the applicable limitations period in which to institute an action, whether by complaint [citations] or by 5 writ petition [citation]. [¶] Furthermore, except as authorized by statute, section 473, subdivision (b) may not excuse the untimely filing of a notice of appeal. [Citation.] ‘The requirement as to the time for taking an appeal is mandatory, and the court is without jurisdiction to consider one which has been taken subsequent to the expiration of the statutory period. In the absence of statutory authorization, neither the trial nor appellate courts may extend or shorten the time for appeal, even to relieve against mistake, inadvertence, accident, or misfortune.’ [Citation.]” (Maynard, supra, 36 Cal.4th at pp. 372-373.) Maynard considered the provisions of the MFAA and determined that the terms, goals, and legislative history of the act led to the conclusion that section 473 could not relieve a party from the consequences of running afoul of the 30-day deadline for seeking a trial following an arbitration. (Maynard, supra, 36 Cal.4th at p. 369.) According to the court, “The conclusion that section 473, subdivision (b) relief is unavailable under these circumstances may impose a hardship on clients who do not timely seek a trial following fee arbitration. We do believe, however, that the Legislature has determined that, in the long run, clients benefit from an arbitration system that produces a binding result if the parties do not invoke the judicial process within a fixed period of time following issuance of an award.” (Maynard, at p. 382.) Alliance argues strenuously that Maynard found section 473 relief unattainable for missed statutes of limitation solely because such deadlines are jurisdictional and contends Maynard conflicts with prior precedent, which held statutes of limitation are not jurisdictional. However, in Maynard, the court found relief unavailable based on the mandatory nature of the statute of limitations, not simply because statutes of limitation are jurisdictional in nature. (Maynard, supra, 36 Cal.4th at pp. 372-373.) In reaching this conclusion, Maynard relied on Kupka v. Board of Administration (1981) 122 Cal.App.3d 791 (Kupka). In Kupka, the court considered Government Code section 11523, which requires the filing of a petition for writ of mandate to review an 6 administrative decision within 30 days of the last day on which reconsideration can be ordered. The court noted the statute did not provide for an extension of the filing period on a showing of good cause and denied relief under section 473. The Kupka court determined that providing relief under section 473 “would work a profound change in our system of procedure.” (Kupka, at p. 794.) Kupka reasoned that statutes of limitation are, of necessity, adamant rather than flexible in nature. If the Legislature desires to allow some flexibility in a statute of limitations, it expressly provides for an extension of the limitations period on a showing of good cause. Such a showing of good cause is the equivalent to a showing under section 473. If the Legislature is silent about such a good cause extension, the court infers that the Legislature did not intend such an extension on the grounds of good cause or under section 473. (Kupka, supra, 122 Cal.App.3d at pp. 794-795.) The court noted section 473 applies to an amendment of pleadings, but only if the recovery sought in both pleadings is on the same set of facts. A complaint may be amended after the statute has run to correct the misdescription of a party, but not to add a new party. In addition, a defendant cannot invoke the bar of limitation if the defendant’s conduct caused the plaintiff to delay filing the action, but a plaintiff’s innocent mistake, not caused by the defendant, will not excuse a late filing. (Kupka, supra, 122 Cal.App.3d at pp. 795-796.) The Kupka court concluded: “These limitations on the power of the court to permit amendment of a complaint after the statute of limitations has run, even on a showing of good cause, indicate that a showing of mistake or excusable neglect is not by itself sufficient to overcome the bar of limitations.” (Id. at p. 795.) III. Public Resources Code section 21167 sets forth the limitations periods for all actions alleging CEQA violations. However, section 21167 makes no provision for extending the limitations period on a showing of good cause. 7  While CEQA should be broadly interpreted to protect the environment, CEQA also aims to ensure extremely prompt resolution of lawsuits claiming noncompliance with the act. (Friends of Mammoth v. Board of Supervisors (1972) 8 Cal.3d 247, 259; Stockton Citizens for Sensible Planning v. City of Stockton (2010) 48 Cal.4th 481, 500.) “[W]hile these precepts [requiring a broad interpretation of CEQA] are validly applied to the substantive merits of challenges brought under CEQA, in which it is asserted that certain projects will or may have a significant effect on the environment, that does not mean that the same standard of liberality should necessarily be applied in interpreting the procedural requirements of the Act. The Act contains a number of provisions evidencing the clear ‘legislative determination that the public interest is not served unless challenges under CEQA are filed promptly’ [citation], and the same policy must certainly be said for similar provisions which require that a CEQA action, once filed, be diligently prosecuted and heard as soon as reasonably possible.” (Board of Supervisors v. Superior Court (1994) 23 Cal.App.4th 830, 836.) However, Alliance argues courts have provided relief from CEQA’s short limitation periods. We find these cases distinguishable. In Citizens of Lake Murray Area Association v. City Council (1982) 129 Cal.App.3d 436, a dispute arose as to when the statute of limitations began to run. The court found the statute ran from the date the county clerk posts the NOD, not from the agency’s earlier submission of the NOD to the clerk. In construing Public Resources Code section 21152, the court noted the statute states the clerk “shall” post NODs for public display. The court reasoned that “shall” is statutorily defined as mandatory in its construction unless the context requires otherwise. (Citizens of Lake Murray, at pp. 440- 441.) Here, in contrast, there is no dispute as to when the statute of limitations began to run. The plaintiff in Garrison v. Board of Directors (1995) 36 Cal.App.4th 1670 requested leave to amend his petition after the statute of limitations period had run to add 8 an individual plaintiff, a member of the originally named unincorporated association that lacked the capacity to sue. The court found the relation-back doctrine applied, since the proposed change was of form and not substance. (Id. at p. 1678.) The relation-back doctrine does not apply in this case. Finally, in McCormick v. Board of Supervisors (1988) 198 Cal.App.3d 352, the court considered what constituted a request for hearing under Public Resources Code section 21167.4. The court noted no appellate case had addressed the question of what constituted a “request for hearing” as required by section 21167.4. (McCormick, at pp. 357-358.) The law surrounding section 21167.4 was unsettled and local rules created an ambiguity about requesting a hearing. (McCormick, at pp. 360-361.) The court determined that the plaintiff’s counsel had made an honest mistake of law in failing to satisfy section 21167.4. (McCormick, at p. 362.) Here, Alliance does not argue counsel made a mistake in interpreting an unclear statute, but instead argues the late filing was excusable. In contrast, the court in Nacimiento Regional Water Management Advisory Committee v. Monterey County Water Resources Agency (2004) 122 Cal.App.4th 961, 968 found Code of Civil Procedure section 473 inapplicable. In Nacimiento the plaintiff failed to file a request for a hearing within 90 days of filing an action under Public Resources Code section 21167.4, subdivision (a). (Nacimiento, at pp. 964-965.) In finding section 473 inapplicable, the court noted CEQA’s objective of prompt resolution of litigation. (Nacimiento, at pp. 965-966, 968-969.) The court acknowledged McCormick, noting discretionary relief under section 473, subdivision (b) for a section 21167.4, subdivision (a) dismissal caused by an excusable mistake was unquestionably available. However, the issue in Nacimiento was whether mandatory relief under section 473 caused by an inexcusable mistake was required. (Nacimiento, at p. 966.) 9  Nacimiento concluded: “Nearly every section 21167.4 dismissal for failing to request a hearing on alleged CEQA violations is caused by the mistake, inadvertence, or neglect of the plaintiff’s attorney, and thus few dismissals would be final if mandatory relief under section 473 were applied to such dismissals. The CEQA dismissal statute would effectively be nullified, and the legislative intent that CEQA challenges be promptly resolved and diligently prosecuted would be defeated. [Citation.]” (Nacimiento, supra, 122 Cal.App.4th at p. 968.) Although Alliance strenuously argues Nacimiento is “clearly erroneous,” we find no fault with the decision. Alliance fails to cite any authority for the proposition that Code of Civil Procedure section 473 provides relief from a litigant’s failure to file its petition within the 30-day limitations period under Public Resources Code section 21167. Our reading of the statute and relevant authority does not support Alliance’s contention that such relief is available. Accordingly, the trial court did not err in sustaining Bohemia’s demurrer without leave to amend. DISPOSITION The judgment is affirmed. Bohemia and County shall recover costs on appeal. RAYE , P. J. We concur: ROBIE , J. MAURO , J. 10 

705 N.W.2d 353 (2005) 474 Mich. 911-15 GRAND TRUNK WESTERN R.R., INC. v. AUTO WAREHOUSING CO. No. 126609. Supreme Court of Michigan. November 3, 2005. Application for leave to appeal. SC: 126609, COA: 244246. On October 18, 2005, the Court heard oral argument on the application for leave to appeal the June 10, 2004 judgment of the Court of Appeals. On order of the Court, the application for leave to appeal is again considered, and it is DENIED, because we are not persuaded that the question presented should be reviewed by this Court. CORRIGAN and MARKMAN, JJ., would reverse in part the judgment of the Court of Appeals and remand this case to the Wayne Circuit Court for further proceedings consistent with *354 Court of Appeals Judge Wilder's dissent.

NOT PRECEDENTIAL UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT ___________ No. 15-1566 ___________ TERRANCE ROSS WILLAMAN, Appellant v. ERIE BUREAU OF ALCOHOL TOBACCO FIREARMS AND EXPLOSIVES ____________________________________ On Appeal from the United States District Court for the Western District of Pennsylvania (D.C. Civil Action No. 1-13-cv-00229) District Judge: Honorable Maurice B. Cohill, Jr. ____________________________________ Submitted Pursuant to Third Circuit LAR 34.1(a) July 24, 2015 Before: GREENAWAY, JR., SCIRICA and RENDELL, Circuit Judges (Opinion filed: August 25, 2015) ___________ OPINION* ___________ PER CURIAM * This disposition is not an opinion of the full Court and pursuant to I.O.P. 5.7 does not constitute binding precedent.  Terrance Ross Willaman appeals pro se from an order of the United States District Court for the Western District of Pennsylvania dismissing as moot an action in which he sought to compel the Bureau of Alcohol, Tobacco, Firearms and Explosives (ATF) to answer questions pertaining to the processing of applications for relief from firearms disabilities. We will affirm. In 2005, Willaman was convicted of unlawfully possessing a machine gun. See 18 U.S.C. § 922(o)(i). He was sentenced to 27 months of imprisonment. We affirmed. United States v. Willaman, 437 F.3d 354 (3d Cir. 2006). He was released from prison in February 2008. As a result of his conviction, Willaman is prohibited from possessing firearms of any kind. 18 U.S.C. § 922(g)(1). But the Gun Control Act of 1968 provides that individuals prohibited from possessing firearms may “appl[y] . . . for relief from the disabilities imposed by Federal laws.” 18 U.S.C. § 925(c). In response to Willaman’s inquiries about applying for such relief, the ATF informed him that its “annual appropriation has prohibited the expenditure of any funds to investigate or act upon applications for relief from Federal Firearms disabilities submitted by individuals.” In a letter dated May 20, 2013, Willaman, citing the Freedom of Information Act (FOIA), asked the ATF whether, because it could not expend funds for processing applications under § 925(c), the cost of processing the application could be borne by an individual applicant. When he did not receive a response to his inquiry by July 2013, Willaman filed an action in the District Court. The filing was titled “Petition for Writ of Mandamus,” but also cited the FOIA, the Declaratory Judgment Act, and the 2 Administrative Procedures Act. Willaman stated that he was “only asking [the] court to order the [ATF] to answer the questions it received.” While that action was pending, the ATF responded to Willaman’s inquiry by letter dated January 6, 2014.1 Consequently, a Magistrate Judge recommended that the action be dismissed as moot because Willaman had received the relief that he originally sought. Over Willaman’s objections, the District Court adopted the Magistrate Judge’s Report and Recommendation, stated that it was unable to grant a writ of mandamus, and dismissed the action.2 Willaman appealed.3 To the extent that Willaman sought relief under the FOIA, the ATF properly concluded that his request did not “reasonably describe[]” the records sought. 5 U.S.C. § 552(a)(3)(A). Instead, Willaman requested that the ATF explain why an individual could not pay for the processing of an application under § 925(c). It is clear, however, “that nothing in the [FOIA] requires ‘answers to interrogatories’ but rather and only 1 In its response, the ATF explained that Willaman’s letter was “not a proper FOIA request” because that statute does not require that agencies answer questions. Therefore, the ATF administratively closed the FOIA request. Nevertheless, the ATF answered Willaman’s questions, explaining that allowing an individual to pay for the processing of an application under § 925(c) would “circumvent Congressional intent,” would violate 13 U.S.C. § 1341 (prohibiting government officials and employees from making expenditures in excess of available appropriations), and would result in funds being “deposited into the Government’s general fund, which is separate and distinct from ATF’s budgetary funds.” 2 The District Court also dismissed as moot Willaman’s motion for summary judgment and to take judicial notice, and his motion to rule on those motions. 3 We have jurisdiction under 28 U.S.C. § 1291. 3 disclosure of documentary matters which are not exempt.” DiViaio v. Kelley, 571 F.2d 538, 542-43 (10th Cir. 1978). In addition, Willaman is not entitled to a writ of mandamus compelling the ATF to answer his questions. A writ of mandamus is a drastic remedy that is available in extraordinary circumstances only. See In re Diet Drugs Prods. Liab. Litig., 418 F.3d 372, 378 (3d Cir. 2005). To obtain the writ, a petitioner must establish that “(1) no other adequate means [exist] to attain the relief he desires, (2) the party’s right to issuance of the writ is clear and indisputable, and (3) the writ is appropriate under the circumstances.” Hollingsworth v. Perry, 558 U.S. 183, 190 (2010) (per curiam) (alteration in original) (internal quotation marks omitted). After Willaman filed the action in the District Court, the ATF explained why it cannot act on applications for relief under § 925(c), even if an individual were to pay the cost of processing such an application. Therefore, his request for mandamus relief is moot.4 Blanciak v. Allegheny Ludlum Corp., 77 F.3d 690, 698-99 (3d Cir. 1996) (“If developments occur during the course of adjudication that . . . prevent a court from being able to grant the requested relief, the case must be dismissed as moot.”). For the foregoing reasons, we will affirm the judgment of the District Court.5 4 Although Willaman suggests in his brief that the ATF should provide copies of the authorities cited in its response of January 6, 2014, he has failed to establish that he has no other means of obtaining that material. 5 Willaman’s motion to file a reply brief out of time is granted, and we have considered the arguments raised in the reply brief. 4 

J-A32006-14 NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37 COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF PENNSYLVANIA Appellee v. ROD MATTHEWS Appellant No. 415 EDA 2013 Appeal from the Judgment of Sentence September 21, 2012 In the Court of Common Pleas of Philadelphia County Criminal Division at No(s): CP-51-CR-0009582-2010 BEFORE: PANELLA, J., OLSON, J., and FITZGERALD, J.* MEMORANDUM BY PANELLA, J. FILED MAY 26, 2015 Appellant, Rod Matthews, appeals from the judgment of sentence entered September 21, 2012, in the Court of Common Pleas of Philadelphia County. We vacate the judgment of sentence and remand for further proceedings. We take the pertinent facts of this case from the trial court’s opinion. Philadelphia Police Detective John Palmiero testified that on May 12, 2010, he had been a police officer for approximately seven years and had been involved in hundreds of narcotics arrests. (N.T., 6/12/12, pgs. 40, 57) On this date Detective Palmiero[ ] was on routine patrol in full uniform as a passenger in a marked police vehicle with his [p]artner, Police Officer Confesor Nieves, in the vicinity of the Lindbergh Avenue and 62nd Street in the City of Philadelphia, which he described as a “high crime area.” (N.T., 6/12/12, pgs. 40-42, 60) At approximately ____________________________________________ * Former Justice specially assigned to the Superior Court. J-A32006-14 11:30 p.m., he observed [Matthews] yelling “call up the block” and making hand gestures towards a female across the street from him. (N.T., 6/12/12, pgs. 42-43, 45) As she turned to approach, [Matthews] gestured again to her and began to cross the street in her direction. (N.T., 6/12/12, pg. 44) After engaging in a brief conversation, they started walking away from Detective Palmiero’s patrol car. Believing “there was a possible drug sale in progress,” he and his partner made a U-turn to investigate further. (N.T., 6/12/12, pgs. 46, 50) As they approached, he “observed [Matthews] reaching into his right front pants pocket [as the female was reaching into her purse with her right hand. At that time] both of them looked in our direction and began to walk off in separate directions at a very fast pace.” (N.T., 6/12/12, pgs. 46, 50) As Detective Palmiero exited his patrol car, he called to [Matthews], “Where are you going? At that time he puts his hand in a fast manner into his right front pants pocket and kind of crouches down in a fast manner behind an SUV that is right there, which happens to be out of my line of sight.” (N.T., 6/12/12, pg. 51) Fearing [Matthews] may have had a handgun, Detective Palmiero ordered him to take his hand out of his pocket. In response, [Matthews] quickly removed it and then jammed it back in. On forcibly removing his hand from his pocket, Detective Palmiero discovered [Matthews] was holding an orange prescription bottle containing multiple packets containing a chunky substance which he recognized as crack cocaine. (N.T., 6/12/12, pgs. 51, 52, 61) [Matthews] was then taken into custody by the officers, at which time they also recovered $29 in cash and two cell phones from his pockets. (N.T., 6/12/12, pgs. 54, 55) Detective Palmiero also testified that he did not recover any drug paraphernalia used in the consumption of drugs. (N.T., 6/12/12, pgs. 57, 62) Detective Palmiero testified that the orange bottle contained “38 small blue-tinted heat-sealed baggies, and three clear in color heat-sealed baggies,” for a total of 41 baggies. It was stipulated by and between counsel that a chemical analysis of four of the 38 blue tinted packets recovered, performed by a chemist with the police chemistry laboratory, tested positive for cocaine base…. It was further stipulated that a chemical analysis of one of the three clear packets of white powder tested positive for cocaine. It was also stipulated that the narcotics recovered weighed a total of 2.085 grams. (N.T., 6/12/12, pg. 94) -2- J-A32006-14 Trial Court Opinion, 11/22/13, at 4-6. Matthews was charged with, inter alia, Possession with Intent to Deliver a Controlled Substance1 (“PWID”) and Possession of a Controlled Substance.2 Matthews filed a suppression motion, which the trial court denied following a hearing. A jury convicted Matthews of the simple possession charge, but was unable to reach a verdict on the PWID charge. The trial court subsequently declared a mistrial. Following a second jury trial, a jury convicted Matthews of PWID. Matthews filed a Post-Verdict Motion for Extraordinary Relief, arguing that the Commonwealth had allegedly withheld evidence favorable to the defense in violation of the United States Supreme Court’s decision in Brady v. Maryland, 373 U.S. 83 (1963). Specifically, Matthews claimed that the Commonwealth withheld statements made by Officers Palmiero and Nieves during the course of an Internal Affairs investigation, that Matthews was extremely intoxicated when he was arrested. Matthews argued that such evidence would have corroborated his claim that he possessed the drugs for personal use, impeached the officers’ claims that Matthews did not look like a drug user at the time of his arrest, and provided a basis for cross- examination of the Commonwealth’s narcotics expert witness. ____________________________________________ 1 35 P.S. § 780-113(a)(30). 2 35 P.S. § 780-113(a)(16). -3- J-A32006-14 At sentencing, Matthews sought to introduce evidence in support of his motion for extraordinary relief. The trial court accepted into evidence the full report of the Internal Affairs investigation containing Officers Palmiero and Nieves’ statements under the stipulation Matthews had not been provided with the investigation until two weeks after trial. See N.T., 9/21/12 at 8-10, 12. Matthews also attempted to call Philadelphia Police Officer James Johnson, the Commonwealth’s narcotics expert from Matthews’s first trial, to testify that “had he seen those documents and those statements, he would not have testified [at trial] that the drugs were possessed with the intent to deliver.” Id. at 14. The trial court refused to permit Officer Johnson to testify, denied the motion and sentenced him to three years’ probation. Matthews filed a timely Post-Sentence Motion for New Trial and New Motion to Suppress Evidence, which was later denied by operation of law. This timely appeal followed. Matthews raises the following issues for our review. 1. Did the trial court err in refusing to grant a new trial inasmuch as the Commonwealth violated its duty pursuant to Brady v. Maryland by failing to disclose exculpatory evidence until after trial, specifically, written statements given by testifying police officers during an Internal Affairs investigation, where this withheld evidence substantially undermined confidence in the jury’s verdict, where the failure to disclose this evidence violated appellant’s rights to due process, and where the interests of justice required a new trial, and did not the trial court err in refusing to allow appellant to call a witness in support of his motion for a new trial? -4- J-A32006-14 2. Did the Commonwealth violate its duty under Brady by failing to provide, prior to the litigation of a motion to suppress physical evidence, the identity of an eyewitness to appellant’s arrest, Helena Mooney, who would have contradicted the testimony of the Commonwealth’s witness and who was, in fact, called by the defense at trial once her identity was revealed, and did not the trial court err in refusing to order that the motion accordingly be granted or to grant a new suppression hearing and new trial based on this evidence? 3. Did the trial court err in denying appellant’s challenge, pursuant to Batson v. Kentucky, to the Commonwealth’s racially discriminatory use of peremptory strikes, and in refusing to grant a new trial on the same grounds? 4. Did the Commonwealth improperly claim, in its closing argument to the jury, that the defense’s failure to impeach Commonwealth witnesses indicated that any prior statements of those witnesses must have been consistent with their trial testimony as it constituted impermissible bolstering and burden-shifting, and did the trial court err in rejecting appellant’s request for a curative instruction? 5. Was it improper for the trial court to instruct the jury that, if the Commonwealth had met its burden of proving the defendant guilty beyond a reasonable doubt, the jury “must” find him guilty, thereby violating appellant’s right to due process of law pursuant to the United States and Pennsylvania Constitutions? 6. Did the trial court err in refusing to grant appellant’s motion for a new trial, where the verdict was against the weight of the evidence and a new trial was necessary in the interests of justice? Appellant’s Brief at 4-5. Under Brady, “a prosecutor has an obligation to disclose all exculpatory information material to the guilt or punishment of an accused, including evidence of an impeachment nature.” Commonwealth v. Spotz, 18 A.3d 244, 275-276 (Pa. 2011) (citation omitted). To prove a Brady -5- J-A32006-14 violation, the defendant bears the burden of demonstrating that: “(1) the prosecutor has suppressed evidence; (2) the evidence, whether exculpatory or impeaching, is helpful to the defendant, and (3) the suppression prejudiced the defendant.” Commonwealth v. Koehler, 36 A.3d 121, 133 (Pa. 2012) (citation omitted). To establish prejudice, the defendant must prove that “there is a reasonable probability that, had the evidence been disclosed to the defense, the result of the proceeding would have been different.” Commonwealth v. Appel, 547 Pa. 171, 689 A.2d 891 (1997) (citation omitted); see also, Commonwealth v. Bomar, 104 A.3d 1179, 1189 (Pa. 2014) (“Stated differently, the undisclosed evidence must be ‘material to guilt or punishment.’”) (citation omitted). “A reasonable probability is a probability sufficient to undermine confidence in the outcome.” Commonwealth v. Chmiel, 30 A.3d 1111, 1130 (Pa. 2011) (citation omitted). We further note: In determining whether a reasonable probability of a different outcome has been demonstrated, the question is not whether the defendant would more likely than not have received a different verdict with the evidence, but whether in its absence he received a fair trial, understood as a trial resulting in a verdict worthy of confidence. A “reasonable probability” of a different result is shown when the government's suppression of evidence undermines confidence in the outcome of the trial. The United States Supreme Court has made clear that [the] materiality standard is not a sufficiency of the evidence test. A Brady violation is established by showing that the favorable evidence could reasonably be taken to put the whole case in such a different light as to undermine confidence in the verdict. Importantly, the mere possibility that an item of undisclosed -6- J-A32006-14 information might have helped the defense, or might have affected the outcome of the trial, does not establish materiality in the constitutional sense. In order to be entitled to a new trial for failure to disclose evidence affecting a witness's credibility, the defendant must demonstrate that the reliability of the witness may well be determinative of his guilt or innocence. Id. (citation omitted). Instantly, it is undisputed that the statements made by Officers Palmieri and Nieves during the Internal Affairs Investigation were in the Commonwealth’s continuous possession and were not provided to Matthews until after he was convicted. Matthews argues that the statements in question were material and exculpatory in that they would have been admissible to not only impeach the officers’ testimony and that of the Commonwealth’s narcotics expert, but also as substantive evidence of his drug use. In support of his argument that the statements were “material” for Brady purposes, Matthews directs our attention to the United States Supreme Court’s decision in Cone v. Bell, 556 U.S. 449 (2009). In Cone, the appellant argued that the State of Tennessee violated his due process rights when it suppressed witness statements and police reports that would have corroborated his insanity defense at trial and bolstered his case in mitigation of the death penalty. Specifically, Cone asserted at trial that he killed two people while suffering from chronic amphetamine psychosis, a disorder caused by drug addiction. In rebutting Cone’s evidence of addiction, the Commonwealth portrayed Cone not as a drug user, but as a -7- J-A32006-14 drug dealer.3 The jury rejected the insanity defense, convicted Cone of first- degree murder and related counts, and sentenced him to death. Ten years after his conviction, Cone discovered that the State had suppressed evidence supporting his claim of drug addiction in violation of Brady. The evidence included witness statements describing Cone’s behavior before and after the killings as “real weird” and his appearance as “wild eyed,” as if he were “high or on drugs.” 556 U.S. at 459 (citations omitted). A police report prepared contemporaneous to Cone’s arrest also contained statements in which a police officer described Cone as looking around “in a frenzied manner,” and “walking in [an] agitated manner” prior to his apprehension. Id. On federal habeas review, the United States Supreme Court determined that the undisclosed evidence undoubtedly strengthened the inference that Cone was impaired by the use of drugs around the time the murders were committed, and could have been used to impeach the testimony at trial that cast doubt on Cone’s drug addiction. See id. at 470- 471. The Court ultimately held that, given the high standard Cone was required to satisfy to establish an insanity defense, the evidence would not likely have altered the jury’s verdict on the issue of insanity. See id. at 474. ____________________________________________ 3 The prosecutor argued, “I'm not trying to be absurd, but he says he's a drug addict. I say baloney. He's a drug seller. Doesn't the proof show that?” Cone, 556 U.S. at 455-456. -8- J-A32006-14 Notably, however, the Court concluded that for sentencing purposes, the suppressed evidence “may have persuaded the jury that Cone had a far more serious drug problem than the prosecution was prepared to acknowledge, and that Cone's drug use played a mitigating, though not exculpating, role in the crimes he committed.” Id. at 475. Finding that neither the District Court nor the Court of Appeals fully assessed the cumulative effect of the suppressed evidence with respect to Cone’s capital sentence, the Court remanded the case to the District Court to consider whether the evidence was material to the jury’s assessment of the proper punishment in that case. We agree with Matthews that the case presented in Cone is substantially similar to this case. At trial, Matthews argued in his defense that he had a serious substance abuse problem and that he possessed the cocaine for personal use. The Commonwealth rebutted this defense with the arresting officers’ testimony that Matthews did not look like a typical drug user when he was arrested because he appeared to be stocky and healthy, and the Commonwealth continued this argument in closing. See N.T., Jury Trial, 6/12/12 at 80-81; N.T., Jury Trial, 6/13/12 at 127-131. The withheld evidence disclosed after Matthews’s conviction consisted of statements made by Officer Palmiero that “Mr. Matthews was so intoxicated on the night of this incident, that he doesn’t recall what transpired, or who he actually interacted with,” and Officer Nieves’ statement that “it seemed like -9- J-A32006-14 [Matthews] may have been under the influence of something” at the time of his arrest. See Defense Post-Verdict Motion for Extraordinary Relief, 9/11/12, Exhibits A and B. In light of this undisclosed evidence, we agree that there is a possibility that the evidence of Matthews’s severe intoxication at the time of his arrest could have caused the jury to conclude that the possession of the crack cocaine was for his personal use, rather than with the intent to sell. This evidence may have impeached both the arresting officers’ testimony that Matthews did not appear to be a crack addict and the testimony of the Commonwealth’s narcotics expert that he possessed the drugs with the intent to deliver. It also strengthened his claims of drug abuse. In light of the trial court’s refusal to hear Officer Johnson’s4 testimony as to whether the withheld evidence actually caused him to change his opinion regarding Matthews’s intent to deliver the drugs, we conclude that a full review of the cumulative effect of this evidence and its materiality with respect to Matthews’s PWID conviction is warranted. Accordingly, we vacate the judgment of sentence and remand this case for full consideration of the ____________________________________________ 4 Officer Johnson did not testify at the second trial, at which Matthews was convicted of the PWID charge, and the trial court refused to hear his testimony on that basis. See N.T., Sentencing, 9/21/12 at 13-14. However, as Officer Johnson did testify as the Commonwealth’s narcotics expert at Matthews’s first trial, prior to the time the Commonwealth disclosed the officers’ statements, his testimony as to whether this withheld evidence actually altered his opinion of Matthews’s intent to deliver the cocaine is still undoubtedly relevant to the materiality of the evidence for Brady purposes. - 10 - J-A32006-14 merits of Matthews’s Brady claim and of the undisclosed evidence. If the trial court determines that Matthews has established a Brady violation, it is to order a retrial. If the trial court determines that Matthews has failed to establish a Brady violation, it shall reinstate the judgment of sentence. As the resolution of this issue on remand may potentially necessitate a new trial in this matter, thus rendering the remaining claims moot, we defer an examination of those issues at this time, without prejudice to Matthews’s right to re-raise these claims on direct appeal in the future. Judgment of sentence vacated. Case remanded for further proceedings consistent with this memorandum. Jurisdiction relinquished. Judge Olson joins in the memorandum. Justice Fitzgerald files a dissenting statement. Judgment Entered. Joseph D. Seletyn, Esq. Prothonotary Date: 5/26/2015 - 11 - 

104 F.Supp.2d 740 (2000) GENCORP, INC., Plaintiff, v. AIU INSURANCE COMPANY, et al., Defendants. No. 5:95CV2464. United States District Court, N.D. Ohio, Eastern Division. June 2, 2000. *741 Thomas W. Ladd, Dennis P. Monaghan, McCarter & English, Newark, NJ, for GenCorp Inc., plaintiff. Margaret J. Orbon, Ann F. Frolik, Gordon K. Walton, Clausen Miller, Chicago, IL, Steven G. Janik, Janik & Dorman, Cleveland, OH, for American International Underwriters, defendant. Clifford C. Masch, Brian D. Sullivan, Reminger & Reminger, Cleveland, OH, Thomas P. Mannion, Reminger & Reminger, Port Clinton, OH, for Allianz Versicherungs —A.G., defendant. David L. Lester, Ulmer & Berne, Cleveland, OH, for American Re-Insurance Company, defendant. Chris T. Nolan, Peter D. Janos, Perantinides & Nolan, Akron, OH, David C. Linder, Daniel L. Scott, King & Counsel, St. Paul, MN, for Employers Insurance of Warsau, defendant. Stephen M. Kelley, Timothy J. Clarke, Kelley, Casey & Clarke, Detroit, MI, Bradford S. Moyer, Kelley, Casey & Clarke, Kalamazoo, MI, for Employers Reinsurance Corporation, defendant. Daniel F. Gourash, Margaret M. Koesel, Robert D. Anderle, Porter, Wright, Morris & Arthur, Cleveland, OH, for Federal Insurance Company, defendant. Louis G. Adolfsen, Karen L. Campbell, Alla E. Huppert, Amy C. Clauss, Joanne M. Neilson, Melito & Adolfsen, New York City, Thomas W. Hardin, Hardin & Schaffner, New Philadelphia, OH, for First State Insurance Company, defendant. James W. Barnhouse, Buckley, King & Bluso, Cleveland, OH, Karen Mendalka Hoerrner, Paul D. Drobbin, Gregory S. Thomas, Robinson, St. John & Wayne, Newark, NJ, for Westchester Fire Insurance Company aka International Insurance Company, defendant. James W. Barnhouse, Karen Mendalka Hoerrner, Paul D. Drobbin, Gregory S. Thomas, Richard K. Traub, Robert P. Siegel, Traub, Eglin, Lieberman & Straus, Hawthorne, NY, for International Surplus Lines Insurance Company, defendant. Gerald V. Weigle, Jr., Anne Erskine Black, Michael J. Suffern, Dinsmore & Shohl, Cincinnati, OH, Joel S. Taylor, Dinsmore & Shohl, Columbus, for Liberty Mutual Insurance Company, defendant. Michael P. Comiskey, John B. Haarlow, Daniel I. Schlessinger, Michael Yetnikoff, Jennifer A. O'Malley, Lord, Bissell & Brook, Chicago, IL, Dennis J. Bartek, Akron, OH, for Certain Underwriters at Lloyd's, London, defendant. Peter E. Romo, Jr., Francis J. Torrence, Seyfarth, Shaw, Fairweather & Geraldson, San Francisco, CA, Ross D. Roloff, Michael R. Gregg, Sarah M. DiLorenzo, Merlo, Kanofsky & Brinkmeier, Chicago, IL, for Everest Reinsurance Company, defendant. Louis G. Adolfsen, Karen L. Campbell, Alla E. Huppert, Amy C. Clauss, Joanne M. Neilson, Thomas W. Hardin, for Twin City Fire Insurance Company, defendant. Ronald A. Rispo, Weston, Hurd, Fallon, Paisley & Howley, Cleveland, OH, Don Benson, Canton, OH, Joseph F. Scott, Canton, OH, for United Insurance Company, defendant. Brett L. Warning, David E. Trainor, Darlene M. Oliver, Tressler, Soderstrom, Maloney & Priess, Chicago, IL, Mark S. Hura, Cleveland, OH, for Lumbermens Mutual Casualty, defendant. Ken P. Coleman, Cadwalader, Wickersham & Taft, New York City, for North Atlantic Insurance Company, Ltd., defendant. John C. Weisensell, Amer, Cunningham, Brennan, Akron, OH, Joseph B. Royster, Bollinger, Ruberry & Garvey, Chicago, IL, Jerome J. Duchowicz, Teresa R. Williams, Michelle B. Sage, Daniel P. Caswell, G. Bora, Haskell & Perrin, Chicago, IL, for Continental Casualty Co., third-party plaintiff. Ronald A. Rispo, Weston, Hurd, Fallon, Paisley & Howley, Cleveland, OH, for Genco *742 Insurance Limited, third-party defendant. Daniel F. Gourash, Robert D. Anderle, Porter, Wright, Morris & Arthur, Cleveland, OH, for Republic Insurance Company, cross-claimant. Ronald A. Rispo, Weston, Hurd, Fallon, Paisley & Howley, Cleveland, OH, for Genco Insurance Limited, cross-defendant. Louis G. Adolfsen, Karen L. Campbell, Alla E. Huppert, Amy C. Clauss, Joanne M. Neilson, Melito & Adolfsen, New York City, Thomas W. Hardin, Hardin & Schaffner, New Philadelphia, OH, for First State Insurance Company, cross-claimant. Ronald A. Rispo, Weston, Hurd, Fallon, Paisley & Howley, Cleveland, OH, for Genco Insurance Limited, cross-defendant. David L. Lester, Ulmer & Berne, Cleveland, OH, for United National Insurance Company, cross-claimant. M. Paul Gorfinkel, Rivkin, Radler & Kremer, Uniondale, NY, William F. Scully, Jr., Williams, Sennett & Scully, Twinsburg, OH, for Dairyland Insurance Company, cross-claimant. David J. Fagnilli, Davis & Young, Cleveland, OH, Michael J. Baughman, Cohn & Baughman, Chicago, IL, for Century Indemnity Company aka Insurance Company of North America, cross-claimant. MEMORANDUM OPINION & ORDER (Resolving Doc. No. 798, 802, 803, 812 & 816) DOWD, District Judge. This matter is before the Court on briefing by the parties on the issues of trigger and allocation of insurance coverage. Lumberman's Mutual Casualty Co. ("LMC") and Liberty Mutual Ins. Co. have filed Preliminary Arguments on Proposed Jury Instructions on the Issue of Trigger (Doc. No. 802), and American Reinsurance Co. ("American Re") has filed a Brief Regarding Allocation (Doc. No. 803). Everest Reinsurance Company ("Everest") and Gibraltar Casualty Company ("Gibralter") have joined American Re's brief on allocation. (Doc. Nos.812, 816). GenCorp has filed oppositions to the insurers' trigger and allocation briefs. (Doc. No. 813). LMC and Liberty Mutual have replied. (Doc. No. 819). In addition, GenCorp has moved for a single trial on the issues of coverage and damages. (Doc. Nos. 798 & 799). The insurers have responded (Doc. No. 809) and GenCorp has replied. (Doc. No. 815). For the reasons set forth below, coverage will be triggered by a continuous trigger theory employing injury-in-fact as the initial trigger event, if GenCorp can show that the nature of property damage in this case was continuous. Otherwise, injury-in-fact will trigger coverage. The Court further determines that allocation should be made on a pro-rata basis per Lincoln Electric Co. v. St. Paul Fire & Marine Ins. Co., 210 F.3d 672 (6th Cir.2000). Finally, GenCorp's Motion for a Single Trial is DENIED. I. Introduction This is a declaratory judgment action with respect to insurance coverage for underlying claims against plaintiff GenCorp, Inc. ("GenCorp"), all of which arise out of GenCorp's alleged contamination of the environment by its long term disposal of industrial wastes at several sites located in the northeast United States. GenCorp is seeking coverage from the defendant insurers under policies issued to GenCorp's predecessor, General Tire & Rubber Co. The alleged contamination is the subject of the separate litigation of Olin v. GenCorp, Case No. 5:93CV2269 (N.D.Ohio). Trial in the present case is set to begin August 14, 2000. The Court has determined to limit trial to issues concerning the "Big D Campground" in Ashtabula County, Ohio, which is the largest of the allegedly contaminated sites at issue in Olin. On October 20, 1999, the Court ruled on the many summary judgment motions pertaining to all sites at issue in Olin. (Doc. *743 No. 736). At that time, the Court declined to rule on GenCorp motion for partial summary judgment on the issues of trigger and allocation because judgment on these issues would have been premature. GenCorp had argued that the undisputed facts mandate that the Court apply a "continuous trigger" rule to determine which policies are liable for clean-up costs at the respective sites. (Doc. No. 571). Certain defendants opposed GenCorp's motion on trigger and allocation on the grounds that the factual record did not allow the Court to properly select a trigger and/or allocation theory to apply to the policies at issue. (Doc. No. 624). In particular, the insurers took issue with GenCorp's reliance on a single expert, hydrologist Dr. Charles Andrews, to establish that "continuous property damage" took place during the entire period beginning with exposure to the completion of remediation. Dr. Andrews had opined that industrial wastes were disposed of at the Big D site between 1964 and 1976; that the soil became contaminated immediately following rupture or failure of certain drums containing hazardous materials; and that groundwater became contaminated soon after placement of bulk waste materials in excavated areas. Dr. Andrews further opined that the contamination process continued at least until the site was remediated in 1994. The insurers pointed out that Dr. Andrews admitted in deposition that he reached these opinions without conducting soil or groundwater testing at Big D, or performing any geologic modeling of the site. Insurers also pointed out several other alleged inadequacies in Dr. Andrews' deposition testimony. The Court agreed with the insurers that the factual predicate for deciding upon a theory of trigger and allocation had not been established sufficiently enough to allow it to properly select a theory. Therefore, because a decision on GenCorp's motion could not lead to a judgment, the Court denied GenCorp's motions for partial summary judgment. See Memorandum Opinion pp. 53-54 (October 20, 1999). In discussions with the Court subsequent to the Court's ruling on the summary judgment motions, the parties expressed the desire to have some guidance regarding trigger and allocation, which are critical issues. In particular, the parties stated that a decision on this issue will allow them to better prepare their case for trial and will possibly facilitate settlement talks. Consequently, the Court allowed briefing on the issues of trigger and allocation, to be styled as preliminary arguments regarding jury instructions. The Court is of the opinion that it would be unfair to allow the parties to prepare for trial without knowing what laws will govern the facts they must show. In addition, deciding this difficult issue now will conserve precious judicial resources during trial and help the Court is jury instructions that are better considered than otherwise would be the case. The Court still believes that the facts are not developed sufficiently to allow it to definitively select a single trigger rule. However, in reviewing the parties' briefs on this issue, it is clear that the Court can easily narrow down the trigger rules in a way that will be useful to the parties in preparing for trial. To that end, and accounting for future factual development, the Court has determined to issue this Opinion regarding preliminary arguments on jury instructions with respect to trigger and allocation.[1] II. Interpretation of State Law The parties agree that Ohio law applies to both the trigger and allocation issues. *744 In considering questions of state law, this Court is bound by the decisions of the highest court of the state, in this case the Ohio Supreme Court. Ruth v. Bituminous Casualty Corp., 427 F.2d 290, 292 (6th Cir.1970). If the Ohio Supreme Court has not spoken, this Court is obligated to follow published intermediate Ohio appellate court decisions. Id. Absent any controlling state cases, the Court must express its best judgment, based on available information, as to how the Ohio Supreme Court would rule if faced with the issue presented in the case. Tennessee River Pulp v. Eichleay Corp., 708 F.2d 1055, 1057 (6th Cir.1983). "To the extent that the state supreme court has not yet addressed the issue presented, it is [the federal court's] duty to anticipate how that court would rule." Bailey Farms, Inc. v. NOR-AM Chem. Co., 27 F.3d 188, 191 (6th Cir.1994). Under Ohio law, a court interpreting insurance policies must look first and primarily to the express terms and conditions found in the policies. See Affiliated FM Ins. Co. v. Owens-Corning Fiberglas Corp., 16 F.3d 684 (6th Cir.1994); Universal Underwriters Ins. Co. v. Shuff, 67 Ohio St.2d 172, 423 N.E.2d 417 (1981). Language that is reasonably susceptible of more than one meaning is construed liberally in favor of the insured. See U.S. Fidelity & Guar. Co. v. Lightning Rod Mut. Ins. Co., 80 Ohio St.3d 584, 586, 687 N.E.2d 717 (1997). But if a policy term has a plain meaning, "it is neither necessary nor permissible to resort to [rules of] construction unless the plain meaning would lead to an absurd result." Olmstead v. Lumbermens Mut. Ins. Co., 22 Ohio St.2d 212, 216, 259 N.E.2d 123 (1970); Karabin v. State Auto. Mut. Ins. Co., 10 Ohio St.3d 163, 462 N.E.2d 403 (1984). III. Trigger A. The Policies The policies at issue in this case are general liability "occurrence" policies. The operative language in these policies derives from standard language that is virtually identical to that which was before the courts in the cases cited herein. The LMC policy, whose period of coverage extends from December 1, 1973 to January 1, 1976, agrees to "indemnify the insured for such loss as would have been payable under all the terms of the underlying policy(ies) described in Declaration 5 (herein called underlying insurance)...." The policy underlying the LMC policy periods is Continental Casualty Company policy number RD8934719, which promised to indemnify the Insured for all sums which the Insured shall be obligated to pay by reason of the liability, (a) imposed upon the Insured by law, or (b) assumed by the Insured under contract or agreement but only in respect of operations by or on behalf of the Named Insured, for damages, direct or consequential, and expenses, all as defined by the term `ultimate net loss,' on account of ... Property Damage ... caused by or arising out of each occurrence. An "occurrence" is then defined as an event or continuous or repeated exposure to conditions, which unexpectedly causes Personal Injury and/or Property Damage and/or Advertising Liability during the policy period. All such exposure to substantially the same general conditions existing at or emanating from each premises location shall be deemed an occurrence. The Liberty Mutual policy covers the period from December 1, 1966 to January 1, 1970 and contains language similar to the LMC policy. It agrees that "The company will pay on behalf of the insured all sums which the insured shall become legally obligated to pay as damages because of ... property damage to which this insurance applies, caused by an occurrence. ..." The Liberty Mutual policy defines "occurrence" as *745 an accident, including injurious exposure to conditions, which results, during the policy period, in bodily injury or property damage neither expected nor intended from the standpoint of the insured.... B. The Law & Ruling As the Sixth Circuit pointed out in The Lincoln Electric Co. v. St. Paul Fire & Marine Ins., Co., 210 F.3d 672 (6th Cir. 2000), the construction of policy terms in the context of long-term exposure, delayed manifestation cases is somewhat of a fiction: This dispute between the parties did not arise because there was objective latent uncertainty at the time of contract formation with respect to the inherent meaning of words used to express agreement. Rather, this dispute centers upon how the law should apply to a contract with clear meaning that has proven inadequate in the context of environmental change. See Insurance Co. of N. Am. v. Forty-Eight Insulations, Inc., 633 F.2d 1212, 1217 (6th Cir.1980). The policies were internally unambiguous when viewed through the lens of original expectations and the scheme the parties believed they were creating. In hindsight, however, the policies now reveal the fact that, at the time of the early policy agreements, neither party contemplated their future encounter with long-term exposure and delayed manifestation injury claims. Id. at 685, n. 13. Nevertheless, courts have struggled to stay close to the policy language and to employ common sense without arriving at a result that is absurd or that renders coverage under the policies "illusory." See Insurance Co. of North America v. Forty-Eight Insulations Co., 633 F.2d 1212, 1217 (6th Cir.1980); see also Keene Corp. v. Insurance Co. of North America, 667 F.2d 1034, 1044-48 (D.C.C.1981). Perhaps because occurrence policies have proven "inadequate" in the context of environmental damages, four general theories have arisen as to how occurrence policies are triggered: manifestation, injury-in-fact, exposure, and continuous. Dow Chemical Co. v. Associated Indemnity Corp., 724 F.Supp. 474, 478 (E.D.Mich. 1989). If coverage is triggered when the property damage or personal injury becomes known to the property owner or victim, the trigger is identified as the manifestation trigger. Id. If coverage is triggered when the personal injury or property damage first occurs, the trigger is known as the injury-in-fact trigger. Id. If coverage is triggered when the first injury-causing conditions occur, the approach is known as the exposure trigger. Id. If coverage is triggered such that insurance policies in effect during different time periods all have an indemnification duty, the trigger is termed continuous. Id. These policies sometimes overlap. The Ohio Supreme Court has no opinions on the issue of trigger, and this Court has been unable to find any Ohio appellate decisions dealing with the issue of trigger in the context of environmental contamination. As advocates should, each party's counsel argues that Ohio law favors the theory most advantageous to its client. The insurers promote the manifestation trigger. Since the environmental damage in this case seems to have manifested, at the earliest, in 1981-82, application of the manifestation trigger seemingly would deprive GenCorp of coverage altogether. GenCorp, on the other hand, champions the continuous trigger. GenCorp probably prefers this trigger because it would allow GenCorp to trigger every policy that covered periods between exposure and manifestation. That is, GenCorp would be able to trigger coverage for the entire period between the beginning of operations in 1964 and the point of manifestation, which occurred at the earliest in 1981-82. The continuous trigger theory is favored by insureds because it tends to maximize coverage; but it has the added advantage (to insureds) of relieving the insured of the *746 burden to prove when damage actually occurred or began to occur. The Court cannot unequivocally endorse either of the parties' positions. Rather, the Court is of the opinion that, with one possible caveat, the appropriate trigger theory for this case is a continuous trigger rule that employs injury-in-fact as the initial triggering event. This is a version of the continuous trigger that differs from GenCorp's version, which would employ exposure to injurious conditions as the initial triggering event. The caveat to the Court's choice of trigger is that in order to justify application of the continuous trigger rule, GenCorp has to show that the damage was continuing in nature, as opposed to one-shot or episodic. Otherwise, the policies will be triggered by injury-in-fact. The reasoning for these conclusions is set forth below. In Inland Waters Pollution Control, Inc. v. National Union Fire Ins. Co., 997 F.2d 172 (6th Cir.1993), drums of waste paint material were crushed on a certain property during January and early February of 1981. Id. at 179-80. During the crushing process, some liquids escaped into the soil. The crushed drums were subsequently taken to a landfill, which rejected them. The drums were then dumped on the same property where the crushing had occurred. On February 10, 1981, the crushed drums were removed and taken to a landfill that would accept them. Six years later, a hydrogeological survey revealed a significant amount of contamination in the soil and groundwater on the property. Id. The company responsible for crushing the drums sued its insurer based on an occurrence policy containing language substantially similar to those at issue in the present litigation. Applying Michigan law, the Inland Waters court found that the "policy language indicates that coverage is triggered by property damage which occurs during the policy period." Id. at 186. Therefore, ruled the court, the proper trigger theory to apply was that of injury-in-fact. Id. In so ruling, the court followed the "general rule applied by most courts ... that the time of an occurrence is not the time the accident occurred or the wrongful act was committed, but rather the time the injury actually resulted." See John P. Arness and Randall D. Eliason, "Insurance Coverage for `Property Damage' in Asbestos and Other Toxic Tort Cases," 72 Va.L.Rev. 943, 970 (1986); see also Dow Chemical v. Associated Indemnity Corp., 724 F.Supp. at 481 (E.D.Mich.1989); Detrex Chemical Indus. Inc. v. Employers Ins. of Wausau, 746 F.Supp. 1310, 1322 (N.D.Ohio 1990); Triangle Publications, Inc. v. Liberty Mutual, 703 F.Supp. 367, 371 (E.D.Pa.1989) (under Pennsylvania law, "[t]he plain language [of the policy] supports only one construction: the injury-in-fact analysis."); Gelman Sciences, Inc. v. Fidelity and Casualty Co. of New York, 456 Mich. 305, 319-20, 572 N.W.2d 617 (1998) (injury-in-fact analysis preferred under Michigan law); Insurer's Reply Brief at 3 ("The LMC and Liberty policies issued to GenCorp are triggered when property damage results during the policy period."). The Inland Waters court based its ruling on a careful analysis of four district court cases, two of which applied injury-in-fact trigger and two of which applied continuous trigger. In Dow Chemical Co. v. Associated Indem. Corp., 724 F.Supp. 474 (E.D.Mich.1989), a mortar additive had caused corrosion which manifested itself years after construction had been completed. The court rejected manifestation and exposure theories and found that injury-in-fact analysis was the most consistent with the policy language. In Detrex Chemical Indus., Inc. v. Employers Ins. of Wausau, 746 F.Supp. 1310 (N.D.Ohio 1990), the court denied a motion asking it to rule that continuous trigger applies as a matter of law, and instead read the occurrence policy language to mandate the use of injury-in-fact trigger. Id. at 1325. Importantly, the Detrex court rejected the continuous trigger because "Detrex has not placed any facts on the record [to show] a `continuous *747 injury' or continuous `property damage' during any of the several ... policy periods." Id. at 1322. The other two cases discussed in Inland Waters are United States Fidelity and Guaranty Co. v. Thomas Solvent, 683 F.Supp. 1139 (W.D.Mich.1988) and New Castle Cty. v. Continental Casualty Co., 725 F.Supp. 800 (D.Del.1989). In Thomas Solvent, an insured was the defendant in a litigation alleging that groundwater had been contaminated over a number of years by a leak in one of the insured's underground storage tanks for industrial solvents. Id. at 1161. The court applied the continuous trigger because the complaints alleged continuing releases and continuing injuries and damages. Id. Like the Thomas Solvent court, the court in New Castle also applied the continuous trigger theory. The New Castle case involved contamination of wells allegedly caused by pollution leaching from a county landfill that had begun operations in 1969. The New Castle court analogized to asbestosis cases, in which courts have applied the continuous trigger because of the progressive nature of the bodily injury from asbestosis. Id. at 809. In finding that injury-in-fact rather than continuous trigger was the proper analysis, the Inland Waters court distinguished Thomas Solvent and New Castle on the grounds that "both cases involved continuing contamination caused by leaking and leaching from sources of pollution in active use during the policy periods" whereas the Inland Waters case involved "contamination allegedly caused by a single exposure to a pollutant prior to the policy period." 997 F.2d at 186. Inland Waters also distinguished Thomas Solvent and New Castle on the grounds that in those cases, "the date upon which the continuous damage first occurred could not be determined" whereas "in the present case the date upon which damage first occurred is ascertainable." Id. Another Sixth Circuit case to consider is Lincoln Electric. There, the insured was subject to suits for lung disease, cancer and/or neurological problems arising from exposure to manganese and asbestos in welding fumes. The exposures dated as far back as the 1930s. Id. at 678. Noting that Ohio law was "very sketchy" as regards trigger and that the policies at issue did not address cases of "long-term exposure and delayed manifestation injury," the court adopted a "flexible continuous trigger" which created a rebuttable presumption that "all exposure prior to diagnosis contributed equally to an injury-in-fact. ..." Id. at 688-89. The Lincoln Electric court noted that the suits in this type of case "allege both harmful exposure for decades and delayed manifestation of injury, but do not allege any precise moment of transformation from wellness to injury." Id. at 676. There appear to be several rules arising out of these cases. First, property damage (or bodily injury) triggers policy coverage; so the preferred trigger analysis is that of injury-in-fact. Second, where damage or injury is the result of a continuing process rather than a single or episodic exposure, continuous trigger should apply. Third, where the starting point of damage in a continuing process is ascertainable, coverage will be triggered initially by injury-in-fact; but where the starting point of injury is difficult to determine, coverage may be triggered initially by exposure to the injurious condition. None of the above cases has put these rules together. However, in Armstrong World Indus. v. Aetna Casualty Co., 45 Cal.App.4th 1, 52 Cal.Rptr.2d 690 (1996), the court found that coverage is triggered when the injury actually occurred; but it also considered whether the continuous trigger rule should apply because the property damage was continuous and progressive. Id. at 96, 52 Cal.Rptr.2d 690. The court determined that "whether the underlying damage or injury is in fact continuous is a matter for determination by the trier of fact." Id. at 96, 52 Cal. *748 Rptr.2d 690. Under the particular facts in Armstrong, the court found that property damage was episodic rather than continuous; Id.; so it altered the trigger rule accordingly. But the point is that the trigger analysis it applied depended on a factual showing of the nature of the damage that occurred. On the strength of Inland Waters, Lincoln Electric and Armstrong World Industries, the Court finds that a continuous trigger employing injury-in-fact as the initial triggering event is the applicable theory in this case if GenCorp can substantiate its claim that the injuries to Big D were continuing in nature. In the absence of such a showing, injury-in-fact will be the governing trigger. In addition, since there is no indication that the initial point of injury in this case is difficult to ascertain — GenCorp's expert has even opined on the matter — it appears that injury-in-fact rather than exposure should be the event that is deemed to trigger continuous coverage. That is, depending on the evidence presented at trial, coverage will be triggered for the periods between the first point of injury-in-fact and manifestation. The applicability of the continuous trigger rule in the context of hazardous waste cases, as well as its compatibility with injury-in-fact analysis, is evident in considering the genesis of the continuous trigger rule. The continuous trigger rule originated in asbestosis cases in which bodily injury progresses and becomes more serious over time. See John P. Arness and Randall D. Eliason, "Insurance Coverage for `Property Damage' in Asbestos and Other Toxic Tort Cases," 72 Va.L.Rev. 943, 970 (1986); see also Stonewall Ins. Co. v. Asbestos Claims Mgmt. Corp., 73 F.3d 1178, 1196 (2d Cir.1995) (noting that California and New Jersey apply continuous trigger where there are successive injuries, and that Texas is likely to do so). The controversy in asbestosis cases is, when does the injury occur? See e.g. Keene v. Insurance Corp. of North America, 667 F.2d at 1042. Some courts have held that injury occurs only when diagnosable symptoms manifest themselves; and other courts have held that injury occurs upon exposure to asbestos. But the main question in these cases never really diverges from the issue of injury. See e.g. Owens-Corning Fiberglas Corp. v. American Centennial Ins. Co., 74 Ohio Misc.2d 183, 188, 660 N.E.2d 770 (Ct. of Com.Pl. Feb. 22, 1995) (applying continuous trigger rule to an asbestosis case because "in every instance of asbestos exposure there is immediate injury which continues ... throughout a person's life."); Gelman Sciences, 456 Mich. at 323-24, 572 N.W.2d 617 quoting Comment, "Nailing Jello to the Wall," 83 Cal.L.Rev. 1243, 1290-91 (1995) (suggesting that the trigger theories are methods to simplify the fact-finding process by taking certain shortcuts in determining when injury occurred). It is clear from the asbestosis cases that the continuing trigger closely tracks the injury-in-fact trigger. See Gelman Sciences, 456 Mich. at 314 & n. 8, 572 N.W.2d 617 (noting that the injury-in-fact approach often looks identical to the continuous trigger theory). Property damage cases, of course, are distinct from asbestosis/bodily injury cases. In the great majority of property damage cases, the damage does not get worse over time and the continuous trigger rule will not be appropriate. Id. But it is recognized that for some property damage cases, the analogy to asbestosis is apt: In a certain class of property damage cases factually more analogous to the progressive bodily injury situation ... the continuous trigger may be appropriate. When chemicals from an improperly constructed toxic waste landfill leach slowly into adjacent property, for instance, new property may be affected with each passing day, while the damage to already affected property, and the associated costs of remedy, may increase steadily as well. But the law developed in the context of insidious diseases should be transported to the property *749 damage context only when the facts support the analogy — when the new injury is in fact continuously occurring. Id. at 973. If GenCorp is able to show that the damage to Big D occurred on a continuing basis, the present case is in the category of cases for which the analogy to asbestosis may be proper, and a continuous trigger is applicable. C. GenCorp's Version of Continuous Trigger Does Not Apply Admittedly, the application of the continuous trigger rule usually entails triggering every policy period between exposure to the injury-causing condition and manifestation of the injury; and this is the version of the continuous trigger rule that GenCorp urges. But the Court has concluded that in this particular factual circumstance, it is inappropriate to allow coverage to be initially triggered by mere exposure as opposed to injury-in-fact, since it does not appear that GenCorp is faced with an unreasonable task in proving the point of initial injury. The main difficulty with GenCorp's version of continuous trigger is that allowing coverage to be triggered when exposure does not result in damage would be contrary to the plain language of the policies. In Eagle-Picher Indus., Inc. v. Liberty Mutual Ins. Co., 682 F.2d 12 (1st Cir. 1982), the First Circuit applied Ohio law and rejected the exposure theory on the grounds that "the policies clearly distinguish between the event which causes injury —the accident or exposure — and the resulting injury...." Id. at 19. If exposure theory is invalid on this grounds, a theory which relies on exposure to trigger continuous coverage must also be invalid on this grounds. As the Eagle-Picher court recognized, it is the resulting injury, not the exposure, which is required to take place "during the policy period" in order to trigger coverage. Id. The continuous trigger theory that GenCorp espouses has been rejected by other courts on just this basis: "[a]ny argument that mere exposure — without injury — triggers liability is simply unsound linguistically." Detrex Chemical Indus. Inc. v. Employers Ins. of Wausau, 746 F.Supp. at 1324 (applying Michigan law) quoting Abex Corp. v. Maryland Casualty Co., 790 F.2d 119, 127 (D.C.Cir. 1986); See also Dow Chemical Co., 724 F.Supp. at 481 ("[a]bsolutely nothing in the policy language suggests that an event can trigger coverage prior to the time that the event results in property damage. By the same token, nothing suggests that exposure to conditions triggers coverage prior to the time that property damage results from such exposure."); Sandoz, Inc. v. Employer's Liability Assurance Corp., 554 F.Supp. 257, 265-66 (D.N.J.1983) (rejecting exposure theory because the trigger of liability in an occurrence policy is an injury during the policy period rather than a negligent act).[2] The exception to the rule that trigger cannot be premised upon exposure is that in the "injurious process" cases, courts have permitted exposure to act as an initial trigger where "the date upon which the continuous damage first occurred could not be determined." See Inland Waters Pollution Control v. National Union Fire Ins. Co., 997 F.2d at 186 citing as examples New Castle County v. Continental Casualty Co., 725 F.Supp. 800 (D.Del.1989) and United States Fidelity and Guaranty Co. v. Thomas Solvent, 683 F.Supp. 1139 (W.D.Mich.1988). Courts prefer injury-in-fact as the initial trigger point where the "date upon which damage first occurred is ascertainable;" Id.; however, they will allow exposure to trigger coverage where the injury-in-fact analysis would "impose *750 on either party the burden of proving the impossible." Detrex Chemical Indus. Inc. v. Employers Ins. of Wausau, 746 F.Supp. at 1322 quoting New Castle County v. Continental Casualty Co., 725 F.Supp. 800 (D.Del.1989); See also Gelman Sciences, 456 Mich. at 323-24 & n. 12, 572 N.W.2d 617 (noting that where a plaintiff may not be able to pinpoint when damage actually occurred, courts can employ rules "designed to assist a plaintiff in the face of an insurmountable burden of proof.") Of course, in Lincoln Electric the court applied the continuous trigger rule in the form that GenCorp advocates; that is, it allowed continuous trigger of coverage to be prompted by exposure to injurious conditions. But this Court believes that the language of Lincoln Electric supports the view that exposure should only act as a trigger where the first date of injury-in-fact is unreasonably difficult to determine. The Lincoln Electric court's rebuttable presumption that "all exposure prior to diagnosis contributed equally to an injury-in-fact ...," Id. at 688-89, is clearly premised on the idea that injury-in-fact, not exposure, is the optimum triggering event. Further, it appears that the Lincoln Electric court permitted exposure to act as a triggering event only because of lack of evidence: the "precise moment of transformation from wellness to injury" was not alleged in the complaints for that case. Id. at 676. The facts of this case show that Lincoln Electric's exception allowing coverage to be triggered by exposure to injurious conditions should not apply in the present case. GenCorp's expert has already stated opinions as to when injury occurred. In addition, the Inland Waters rejected exposure theory and applied injury-in-fact analysis to very similar property damage, stating that the "date upon which damage first occurred is ascertainable." 997 F.2d at 186. Because showing injury-in-fact does not seem to present GenCorp with the task of proving the impossible, GenCorp cannot premise trigger of coverage upon exposure to injurious conditions. D. Manifestation Theory Does Not Apply The insurers' manifestation theory must be rejected because it is simply unsupported by the policy language. "The policy language does not even hint that property damage must be known to anyone in order to trigger coverage. Likewise, nothing in the policy language indicates that property damage does not exist unless someone knows about it." Dow Chemical v. Associated Indemnity Corp., 724 F.Supp. at 481; See also Gelman Sciences, 456 Mich. at 307, 572 N.W.2d 617 (finding "no support for the manifestation trigger in the relevant policy language"). The insurers, however, insist that Ohio law clearly requires application of the manifestation trigger. They rely primarily Cleveland Board of Educ. v. R.J. Stickle Int'l, 76 Ohio App.3d 432, 602 N.E.2d 353 (8th Dist.1991), in which the property damage at issue was a school roof that leaked continuously between 1975 and 1988. The R.J. Stickle court held that "in situations where the resulting damage does not manifest itself immediately until a period of time has passed and a new carrier is on the risk, the insurer on the risk when the first visible or discoverable manifestations of damage occur must pay the entire claim."[3]Id. at 688. The insurers further cite Reynolds v. Celina Mutual Ins., 2000 WL 202107 (Ohio App. 9 Dist.) as stating that "the date for determining whether property damage falls within the coverage period of an occurrence policy is when the first visible or discoverable manifestations of damage occur." Id. at *3. The insurers argue that this Court is required to follow R.J. Stickle and Reynolds under the rule articulated in Garry v. TRW, Inc., 603 F.Supp. 157 (N.D.Ohio 1985) (Aldrich, J.). Garry stands for the proposition that in the absence of state *751 supreme court guidance, a federal court is obligated to follow the opinions of state appellate courts. Id. at 160. The point of that rule, however, is that the Court is to use its best judgment, based on available information, as to how the Ohio Supreme Court would rule if faced with the issue presented in the case. Tennessee River Pulp v. Eichleay Corp., 708 F.2d at 1057. In a closely analogous situation, the Sixth Circuit in Inland Waters found that Michigan law did not provide a proper trigger rule for environmental contamination cases. The Sixth Circuit discussed a Michigan appellate case that found manifestation theory applicable where gases released in homes and business had caused personal injury and property damage. 997 F.2d at 182-83 discussing Transamerica Ins. Co. v. Safeco Ins. Co., 189 Mich.App. 55, 472 N.W.2d 5 (1991). However, the Sixth Circuit nonetheless noted that "no Michigan court has decided which trigger of coverage theory is applicable in a case involving environmental discharge of pollutants." Id. at 183. Finding the Michigan appellate decision distinguishable, the Sixth Circuit based its ruling on decisions from other jurisdictions and held that in the context of environmental contamination the Michigan Supreme Court would opt for injury-in-fact theory rather than manifestation. Id. at 183-88.[4] Similarly, in Lac D'Amiante Du Quebec, Ltee v. American Home Assurance Co., 613 F.Supp. 1549 (D.N.J.1985), the court noted that under New Jersey law, which parallels Ohio law, "manifestation theory would be applied in the usual property damage case." Id. at 1560. But in deciding a property damage asbestos claim, the court applied the continuous trigger rule because the particular property damage at issue was of an ongoing and progressive nature. Id. at 1560-61.[5] Further, in NCR Corp. v. Lumberman's Mutual Casualty Co., 1992 U.S.Dist. LEXIS 21047 (D.Del. 1992), the court held that the general language in R.J. Stickle arguably embracing the manifestation theory was not applicable in the context of the slow release of toxic substances. Id. at *19. Cf. Lincoln Electric (applying Ohio law and adopting continuous trigger in "injurious process" asbestosis case). These cases indicate that Ohio law does not mandate the application of the manifestation theory in the present case. In further support of the manifestation theory, however, the insurers rely on Eagle-Picher Indus. v. Liberty Mutual Ins. Co., 523 F.Supp. 110 (D.Mass.) and 682 F.2d 12 (1st Cir.1982), in which a district court and the First Circuit applied Ohio law in the context of a bodily injury claim to find that coverage was triggered upon manifestation of the disease asbestosis. But the discussion in these cases actually supports the idea that injury-in-fact is the preferred analysis. Both the district and appellate courts rejected the exposure theory because of expert testimony that "subclinical injuries to the lung produced early in the destructive process do not occur simultaneously with exposure." 523 F.Supp. at 115, 682 F.2d at 18-19 & n. 3. The courts opted for manifestation theory only because they accepted that the evidence showed that "exposure to asbestos results in `personal injury' when it produces clinically evident diagnosable disease." 523 F.Supp. at 116, 682 F.2d at 24. In other words, manifestation theory was adopted because damage was thought synonymous with manifestation. Here, however, there is no question that Big D was damaged prior to manifestation, so there is no basis for instructing the jury on the manifestation trigger. *752 As this Court has already noted, courts dealing with environmental property damage generally have adopted injury-in-fact analysis or a continuous trigger theory if the facts justified it. This Court, using its "best judgment," sees no reason why the Ohio Supreme Court would view things any differently. V. Conclusion For the reasons set forth above, a continuous trigger theory employing injury-in-fact as the initial triggering event is the appropriate theory for this case if GenCorp can show that the nature of property damage in this case was continuous. Otherwise, injury-in-fact will trigger coverage. The Court further determines that allocation should be made on a pro-rata basis per Lincoln Electric. Finally, GenCorp's Motion for a Single Trial is DENIED. IT IS SO ORDERED. NOTES [1] The Court is satisfied that it is not rendering an advisory opinion. The Court's opinion does not offer advice to a co-equal branch of government nor does it offer advice on the legality of any contemplated action by either private litigants or a legislative body. Though the issue may be seen as unripe, the Court deems its resolution to be a matter of judicial discretion and case management. See Evan Tsen Lee, "Deconstitutionalizing Justiciability, The Example of Mootness," 105 Harv. L.Rev. 603, 644-45 (1992). [2] GenCorp relies on Keene, which held that "regardless of whether exposure to asbestos causes an ... injury, the fact that it is part of an injurious process is enough for it to constitute `injury' under the policies." 667 F.2d at 1046. This Court finds Keene unpersuasive because its holding runs contrary to the plain policy language requiring damage during the policy period. [3] This was an alternative holding. [4] As noted, the Inland Waters court also acknowledged that a continuous trigger theory may be appropriate where damage is continuous. 997 F.2d at 186. [5] The Lac D'Amiante court did not, however, adopt the theory in the form GenCorp urges. Like other courts adopting the continuous trigger rule, it equated the first instance of exposure with the first instance of damage. 613 F.Supp. at 1551, 1560.

09-0935-cv Monroe v. Hyundai of Manhattan & Westchester UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT SUMMARY ORDER RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT . CITATION TO A SUMMARY ORDER FILED ON OR AFTER JANUARY 1, 2007, IS PERMITTED AND IS GOVERNED BY FEDERAL RULE OFAPPELLATE PROCEDURE 32.1 AND THIS COURT ’S LOCAL RULE 32.1.1. WHEN CITING A SUMMARY ORDER IN A DOCUMENT FILED WITH THIS COURT , A PARTY MUST CITE EITHER THE FEDERAL APPENDIX OR AN ELECTRONIC DATABASE (WITH THE NOTATION “SUMMARY ORDER ”). A PARTY CITING A SUMMARY ORDER MUST SERVE A COPY OF IT ON ANY PARTY NOT REPRESENTED BY COUNSEL . At a stated term of the United States Court of Appeals for the Second Circuit, held at the Daniel Patrick Moynihan Courthouse, 500 Pearl Street, in the City of New York, on the 19th day of April, two thousand ten. PRESENT: DENNIS JACOBS, Chief Judge, AMALYA L. KEARSE, GUIDO CALABRESI, Circuit Judges. _______________________________________________ Mary Monroe, Plaintiff-Appellant, v. No. 09-0935-cv Hyundai of Manhattan & Westchester, Toyota & Lexus Financial Service, Defendants-Appellees. ______________________________________________ For Appellant: Mary M. Monroe, pro se, New York, N.Y. For Appellees: Adam M. Levy (Jason W. Creech, on the brief),  Simmons Jannace, LLP, Syosset, N.Y., for Defendant-Appellee Toyota Motor Credit Corporation s/h/a Toyota & Lexus Financial Service. Sandra D. Lovell, Brian J. Carey McElroy, Deutsch, Mulvaney & Carpenter, LLP, New York, N.Y., for Defendants-Appellees Hyundai of Manhattan, Inc. s/h/a Hyundai of Manhattan, and Hyundai of Westchester, Inc. s/h/a Hyundai of Westchester. UPON DUE CONSIDERATION, it is hereby ORDERED, ADJUDGED AND DECREED that the judgment of the district court is AFFIRMED. Plaintiff-Appellant Mary Monroe appeals pro se from a judgment of the United States District Court for the Southern District of New York (Daniels, J.), entered on November 13, 2008, adopting the Report and Recommendation (“R & R”) of the Magistrate Judge (Pitman, M.J.), and granting Defendants-Appellees’ motions to dismiss based on, inter alia, a failure to state a claim under the Racketeer Influenced and Corrupt Organizations Act (“RICO”), 18 U.S.C. § 1961 et seq. We assume the parties’ familiarity with the 2 facts, procedural history, and issues on appeal. Monroe’s appeal was waived when she failed to timely object to the R & R of the Magistrate Judge. “In general, failure to object timely to a magistrate’s report operates as a waiver of any further judicial review of the magistrate’s decision,” Caidor v. Onondaga County, 517 F.3d 601, 604 (2d Cir. 2008) (internal quotation marks omitted), provided that “the party had received clear notice of the consequences of the failure to object,” Frank v. Johnson, 968 F.2d 298, 300 (2d Cir.) (internal quotation marks omitted). Monroe received such clear notice in the R & R itself, which contained explicit instructions on where and by what date to file objections, as well as a warning that Monroe’s failure to do so would waive any such objections. Monroe failed to file any objections to the R & R. Although we may excuse this waiver “in the interests of justice,” Roldan v. Racette, 984 F.2d 85, 89 (2d Cir. 1993), Monroe has not provided any argument that justice requires us to overlook her waiver of these issues below. Moreover, even were judicial review available, our 3 review of the record confirms that the district court properly granted Defendants’ motions to dismiss for failure to state a claim, and we affirm for substantially the same reasons set out in the magistrate judge’s thorough and well- reasoned report and recommendation. We have reviewed Monroe’s arguments and find them to be without merit. For the reasons stated above, the judgment of the district court is AFFIRMED. FOR THE COURT: Catherine O’Hagan Wolfe, Clerk 4 

Case: 12-14832 Date Filed: 06/13/2013 Page: 1 of 3 [DO NOT PUBLISH] IN THE UNITED STATES COURT OF APPEALS FOR THE ELEVENTH CIRCUIT ________________________ No. 12-14832 Non-Argument Calendar _______________________ D. C. Docket No. 3:06-cv-00247-MCR-EMT STEPHEN LILLO, as personal representative of the Estate of John R. Lillo, Jr. Plaintiff-Appellant, versus DARRELL A. BRUHN, MATTHEW M. HOLT, et al., Defendants-Appellees. ________________________ Appeal from the United States District Court for the Northern District of Florida _________________________ (June 13, 2013) Before TJOFLAT, PRYOR and BLACK, Circuit Judges. PER CURIAM:  Case: 12-14832 Date Filed: 06/13/2013 Page: 2 of 3 Stephen Lillo, in his capacity as personal representative of the estate of John R. Lillo Jr., appeals the district court’s denial of his Federal Rule of Civil Procedure Rule 60(b) motion for relief from summary final judgment. After review of the record and the parties’ briefs, we conclude the district court did not abuse its discretion in denying the motion. See Cavaliere v. Allstate Ins. Co., 996 F.2d 1111, 1115 (11th Cir. 1993) (reviewing the denial of a Rule 60(b) motion for abuse of discretion). As the district court reasoned in its Order dated August 16, 2012, while Lillo’s motion requests relief under Rule 60(b)(6), a catchall provision providing for relief from a final judgment for “any other reason that justifies relief,” his claim actually falls under Rule 60(b)(2), which provides for relief from a final judgment based on “newly discovered evidence . . . .” “[A] party may not avail himself of the broad ‘any other reason’ clause of 60(b) if his motion is based on grounds specified in” clauses 60(b)(1) through (5). Liljeberg v. Health Servs. Acquisition Corp., 486 U.S. 847, 863 n.11 (1988) (some internal quotations omitted). This prevents clause (6) from being used to circumvent the 1-year limitations period that applies to clauses (1) through (3). See id. Because Lillo’s motion falls within Rule 60(b)(2), it cannot be brought under Rule 60(b)(6)’s catchall provision. Lillo did not file his motion within the time allowed under Rule 60(b)(2), and instead, filed it more than two years after 2  Case: 12-14832 Date Filed: 06/13/2013 Page: 3 of 3 the court entered its orders granting summary judgment to the Defendants, making Lillo’s motion untimely. Accordingly, we affirm the district court’s denial of Lillo’s motion for relief from summary final judgment. AFFIRMED. 3 

Nebraska Supreme Court Online Library www.nebraska.gov/apps-courts-epub/ 03/20/2020 12:09 AM CDT - 759 - Nebraska Supreme Court Advance Sheets 304 Nebraska Reports STATE v. IDDINGS Cite as 304 Neb. 759 State of Nebraska, appellee, v. Matthew P. Iddings, appellant. ___ N.W.2d ___ Filed January 3, 2020. No. S-19-304. 1. Judgments: Appeal and Error. When issues on appeal present ques- tions of law, an appellate court has an obligation to reach an independent conclusion irrespective of the decision of the court below. 2. Constitutional Law: Waiver: Appeal and Error. In determining whether a defendant’s waiver of a statutory or constitutional right was voluntary, knowing, and intelligent, an appellate court applies a clearly erroneous standard of review. 3. Sentences: Appeal and Error. An appellate court will not disturb a sen- tence imposed within the statutory limits absent an abuse of discretion by the trial court. 4. Plea Bargains: Waiver: Appeal and Error. Where no objection was made to the sentencing judge for a plea bargain violation, the defendant has waived the error and it has not been preserved for appellate review. 5. Effectiveness of Counsel: Proof. To prevail on a claim of ineffective assistance of counsel under Strickland v. Washington, 466 U.S. 668, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984), the defendant must show that his or her counsel’s performance was deficient and that this deficient per­ formance actually prejudiced the defendant’s defense. 6. Courts: Plea Bargains. Courts enforce only those terms and conditions actually agreed upon by the parties to a plea agreement. 7. Plea Bargains. A party breaches a plea agreement either by (1) violat- ing an express term of the agreement or (2) acting in a manner not spe- cifically prohibited by the agreement but still incompatible with explicit promises made therein. 8. Plea Bargains: Sentences. A sentencing recommendation need not be enthusiastic in order to fulfill a promise made in a plea agreement. 9. Appeal and Error. It is a fundamental rule of appellate practice that an alleged error must be both specifically assigned and specifically argued  - 760 - Nebraska Supreme Court Advance Sheets 304 Nebraska Reports STATE v. IDDINGS Cite as 304 Neb. 759 in the brief of the party asserting the error to be considered by an appel- late court. 10. ____. A generalized and vague assignment of error that does not advise an appellate court of the issue submitted for decision will not be considered. 11. Presentence Reports: Waiver. The statutory right to have a presentence investigation completed prior to being sentenced may be waived so long as that waiver was knowingly and intelligently made. 12. Waiver. No formalistic litany of warnings is required to show that a waiver was knowingly and intelligently made. 13. Presentence Reports: Waiver: Appeal and Error. The appropriate standard to apply in the case of a waiver of the right to a presentence investigation under Neb. Rev. Stat. § 29-2261 (Cum. Supp. 2014) is whether it is apparent from the totality of the circumstances reflected in the record that the defendant, when waiving the right, was sufficiently aware of his or her right to a presentence investigation and the possible consequences of his or her decision to forgo that right. 14. Criminal Law: Waiver. A knowing and intelligent waiver may be dem- onstrated by or inferred from the defendant’s conduct. 15. Courts: Presentence Reports: Waiver. It is the better practice for a sentencing court to issue a more direct advisement of the statutory right to a presentence investigation, conduct an explicit inquiry into the vol- untariness of a defendant’s waiver of that right, and make explicit find- ings with respect to a waiver. 16. Sentences: Appeal and Error. Absent an abuse of discretion by the trial court, an appellate court will not disturb a sentence imposed within the statutory limits. 17. Judgments: Words and Phrases. An abuse of discretion occurs when a trial court’s decision is based upon reasons that are untenable or unrea- sonable or if its action is clearly against justice or conscience, reason, and evidence. 18. Sentences. The appropriateness of a sentence is necessarily a subjec- tive judgment and includes the sentencing judge’s observation of the defendant’s demeanor and attitude and all the facts and circumstances surrounding the defendant’s life. 19. Plea Bargains: Judges: Sentences. A judge is in no manner bound to give a defendant the sentence recommended by the prosecutor under a plea agreement. 20. Effectiveness of Counsel: Constitutional Law: Statutes: Records: Appeal and Error. Whether a claim of ineffective assistance of trial counsel can be determined on direct appeal presents a question of law, which turns upon the sufficiency of the record to address the claim  - 761 - Nebraska Supreme Court Advance Sheets 304 Nebraska Reports STATE v. IDDINGS Cite as 304 Neb. 759 without an evidentiary hearing or whether the claim rests solely on the interpretation of a statute or constitutional requirement. 21. Effectiveness of Counsel: Records: Appeal and Error. When review- ing claims of ineffective assistance of counsel on direct appeal, an appellate court decides only whether the undisputed facts contained within the record are sufficient to conclusively determine whether counsel did or did not provide effective assistance, and whether the defendant was or was not prejudiced by counsel’s alleged deficient performance. Appeal from the District Court for Hall County: John H. Marsh, Judge. Affirmed. Jonathan M. Hendricks, of Dowding, Dowding, Dowding & Urbom Law Offices, for appellant. Douglas J. Peterson, Attorney General, and Erin E. Tangeman for appellee. Heavican, C.J., Cassel, Stacy, Funke, Papik, and Freudenberg, JJ. Freudenberg, J. NATURE OF CASE This case presents an appeal from a sentence imposed after the defendant pled guilty pursuant to a plea agreement. The State and the defendant had jointly agreed to recommend an 18-month period of incarceration. The district court ulti- mately sentenced the defendant to an indeterminate term of 18 months’ to 5 years’ incarceration, and the defendant appeals. The defend­ant asserts that the State breached its agreement to recommend a sentence of 18 months’ incarceration by remark- ing that it “struggled” concerning the sentencing recommen- dation. Further, the defendant argues that the court erred by failing to order a presentence investigation when, although defense counsel below stated that the defendant was waiving the presentence investigation, the court only articulated that it had found such an investigation to be impractical. The defend­ ant argues that the court abused its discretion in finding a  - 762 - Nebraska Supreme Court Advance Sheets 304 Nebraska Reports STATE v. IDDINGS Cite as 304 Neb. 759 presentence investigation impractical. The defendant generally asserts that the sentence was excessive and was a result of the court’s abuse of discretion in failing to consider all of the sen- tencing factors, such as mentality, education and experience, or social and cultural background, in part as a result of failing to conduct a presentence investigation. Finally, the defendant argues that defense counsel below was ineffective for failing to request the proper amount of jail time credit pertaining to alleged time spent in jail in another county under arrest war- rants for both the present case and the charges filed in that other county. BACKGROUND In relation to a traffic stop that occurred in July 2015, the defendant, Matthew P. Iddings, was originally charged under “60-6,196.15” with driving under the influence (DUI), fourth offense aggravated, a Class III felony. Defense counsel and the State reached a plea agreement pursuant to which the State filed an amended information charging Iddings with a nonag- gravated DUI, fourth offense, under Neb. Rev. Stat. § 60-6,196 (Reissue 2010), a Class IIIA felony. The amended information described that on July 2, 2015, Iddings operated a motor vehicle and had a concentration of .08 of 1 gram or more by weight of alcohol per 100 milliliters of his blood or .08 of 1 gram or more by weight of alcohol per 210 liters of his breath. The amended complaint further alleged that this was the fourth DUI offense committed by Iddings, who had been previously convicted of DUI in Nebraska on or about May 26, 2005, and March 15 and December 12, 2007. At the plea and sentencing hearing held on March 6, 2019, defense counsel and the State explained to the court that they had reached a plea agreement under which the State amended the information from aggravated DUI, fourth offense, to non- aggravated DUI, fourth offense, and agreed to recommend jointly with defense counsel that Iddings be sentenced to 18 months’ incarceration.  - 763 - Nebraska Supreme Court Advance Sheets 304 Nebraska Reports STATE v. IDDINGS Cite as 304 Neb. 759 As the factual basis for the crime, the State recited that on July 2, 2015, the “Nebraska State Patrol Help Line” received multiple telephone calls about a potential drunk driver on Interstate 80. An officer was able to locate the vehicle and observed both passenger-side tires drive off the shoulder of the roadway two different times. The officer conducted a traffic stop and, upon contact with the driver, Iddings, noticed a smell of alcoholic beverage. A blood draw was eventually conducted on Iddings, which demonstrated .307 grams of alcohol per 100 milliliters of blood. Defense counsel agreed with the factual basis. Defense counsel also stated the defense was willing to stipulate to the prior DUI offenses alleged in the information and that Iddings had been represented by an attorney in each of the three prior offenses. The court found the factual basis adequate to support the plea. After a standard plea colloquy, the court accepted Iddings’ no contest plea. The court found that the plea was not a result of any promise or threat; that the plea was entered knowingly, voluntarily, and intelligently; and that Iddings knowingly, vol- untarily, and intelligently waived his constitutional rights. Defense counsel advised the court that Iddings’ preference was to proceed immediately to sentencing, noting that he had calculated the jail time credit. The court did so. When the court asked about a presentence investigation, defense counsel stated, “Your honor, . . . Iddings will waive his right to a presentence investigation.” When asked by the court for its comments, the State expressed that it had no objection to Iddings’ waiver of the presentence investigation. However, Iddings was not personally addressed by the court regarding such waiver. The State noted with regard to Iddings’ criminal history that other than the three prior convictions listed on the information, Iddings also had a prior DUI in 1997. Further, he had commit- ted a more recent DUI in Sarpy County around the same time as the charge he had just pled to and for which in October 2018  - 764 - Nebraska Supreme Court Advance Sheets 304 Nebraska Reports STATE v. IDDINGS Cite as 304 Neb. 759 he had been sentenced to 18 months’ incarceration. Lastly, Iddings had a pending DUI charge in Grant County. Defense counsel did not contest this history other than clarifying that Iddings had just finished serving his sentence on the Sarpy County conviction in October 2018, as opposed to being sentenced in October 2018. Further, defense counsel described that Iddings had already pled guilty to the charge of nonaggravated DUI, fourth offense, in Grant County and was awaiting sentencing. After being so informed of the pending charges in Grant County, the district court for Hall County confirmed that Iddings was “likely to be transported to another county when [Hall County authorities were] done with him.” The court found “under those circumstances that a presentence investi- gation is impractical.” Defense counsel did not object to this conclusion. The court did not make an express finding that the presentence investigation had been waived. Defense counsel asked the court to adopt the plea agreement and sentence Iddings to 18 months’ incarceration with 136 days’ credit. Defense counsel informed the court that Iddings had been in jail from October 23, 2017, to the date of the hear- ing, March 6, 2019, and that he had been in jail for 2 additional days in 2015. Defense counsel asked the court to consider in sentencing that Iddings had not been out of jail since 2017 and had thus experienced a long period of sobriety. According to defense counsel, Iddings fully intended to “walk out of the Department of Corrections a better man than when he went in, and he does believe that he can maintain long-term sobriety.” When asked by the court for its thoughts on sentencing, the State said: [W]hen negotiating this case with [defense counsel], I really struggled on what to agree to. We came down to the 18 months because that is what he got on a similar charge in another county. If he was serving any other sentence, I — I don’t know if I would have agreed; but since this  - 765 - Nebraska Supreme Court Advance Sheets 304 Nebraska Reports STATE v. IDDINGS Cite as 304 Neb. 759 will be consecutive to anything else that he was serving previously, I agreed to recommend the 18 months. I will note in addition to the DUIs that I’ve already mentioned, he did fail to appear in this case on June 8th, 2016, and was not arrested until, I believe, a year later; and then he was transported here, I believe, on October 24th of last year. The record reflects that a bench warrant had been issued by the district court for Hall County on June 8, 2016, for Iddings’ failure to appear at a scheduled hearing. The appellate record does not reflect an arrest in Sarpy County in 2017. Instead, a document filed on October 24, 2018, reflects that Iddings was arrested in Hall County on October 23, 2018, on the June 8, 2016, warrant. Having been present for the foregoing, Iddings was asked by the court whether he had any legal reason why the court should not pronounce its sentence and whether he had anything else to bring to the court’s attention before the court sentenced him. Iddings responded that he did not have any reason why the court should not proceed to sentencing. Iddings apologized for not appearing in court on June 8, 2016, explaining, “It was a health issue, I was in the hospital.” The court sentenced Iddings to a term of incarceration of 18 months to 5 years, with “credit for 136 days.” Iddings’ driver’s license was revoked for 15 years. Defense counsel raised no objection to the sentence. In its final order, the court noted that the parties had agreed to 18 months’ incarceration and informed Iddings that it was not bound by the plea nego- tiations. The court reiterated its conclusion that a presentence investigation would be impractical and did not articulate any- thing pertaining to a waiver of the same. Iddings appeals his sentence. He has obtained new counsel to represent him on appeal. ASSIGNMENTS OF ERROR Iddings assigns that (1) the district court abused its discre- tion by sentencing him to a term of incarceration of 18 months  - 766 - Nebraska Supreme Court Advance Sheets 304 Nebraska Reports STATE v. IDDINGS Cite as 304 Neb. 759 to 5 years without due consideration of established sentencing factors, (2) the State violated the plea agreement, (3) he was entitled to additional credit for time served, (4) trial counsel was ineffective for failing to object to the State’s violation of the plea agreement, and (5) trial counsel was ineffective for failing to request at the sentencing hearing additional credit for time served. STANDARD OF REVIEW [1] When issues on appeal present questions of law, an appellate court has an obligation to reach an independent con- clusion irrespective of the decision of the court below.1 [2] In determining whether a defendant’s waiver of a statu- tory or constitutional right was voluntary, knowing, and intel- ligent, an appellate court applies a clearly erroneous standard of review.2 [3] An appellate court will not disturb a sentence imposed within the statutory limits absent an abuse of discretion by the trial court.3 ANALYSIS Iddings’ fundamental complaint on appeal is that he was sentenced to an indeterminate period of incarceration of 18 months to 5 years rather than 18 months to 18 months. He seeks the option of withdrawing his plea or seeking resentencing before a different judge on the ground that the State allegedly breached its plea agreement by undermining its recommenda- tion of an 18-month sentence of incarceration. Alternatively, Iddings seeks resentencing under the assertions that the court imposed an excessive sentence and that the court’s decision to forgo a presentence investigation was plain error. Finally, Iddings argues that defense counsel below was ineffective for 1 State v. Landera, 285 Neb. 243, 826 N.W.2d 570 (2013). 2 State v. Qualls, 284 Neb. 929, 824 N.W.2d 362 (2012). 3 State v. Montoya, ante p. 96, 933 N.W.2d 558 (2019).  - 767 - Nebraska Supreme Court Advance Sheets 304 Nebraska Reports STATE v. IDDINGS Cite as 304 Neb. 759 failing to request credit for an additional 58 days’ jail time for which he was ineffectively given credit against the sentence imposed in Sarpy County. We find that Iddings’ claim regard- ing credit for time served cannot be determined on direct appeal, and we disagree with Iddings’ remaining assignments of error. We affirm the judgment below. Plea Agreement [4] Iddings asserts that the State breached its plea agree- ment to recommend 18 months of incarceration by effec- tively undermining that sentence in its comments to the court at the sentencing hearing. Trial counsel did not object to the State’s comments. Where no objection was made to the sentencing judge for a plea bargain violation, the defenda­nt has waived the error and it has not been preserved for appel- late review.4 Iddings argues, however, that trial counsel was ineffective by failing to object to the alleged breach and either ask the court to allow Iddings to withdraw the plea or demand specific performance of the plea agreement before a different judge.5 [5] We agree with Iddings and the State that this ineffec- tive assistance of counsel claim can be resolved on direct appeal, because the record is sufficient to adequately review the question.6 To prevail on a claim of ineffective assistance of counsel under Strickland v. Washington,7 the defendant must show that his or her counsel’s performance was deficient and that this deficient performance actually prejudiced the defend­ ant’s defense.8 4 See State v. Sidzyik, 281 Neb. 305, 795 N.W.2d 281 (2011). 5 See id. 6 See State v. Stelly, ante p. 33, 932 N.W.2d 857 (2019). 7 Strickland v. Washington, 466 U.S. 668, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984). 8 State v. Oliveira-Coutinho, ante p. 147, 933 N.W.2d 825 (2019).  - 768 - Nebraska Supreme Court Advance Sheets 304 Nebraska Reports STATE v. IDDINGS Cite as 304 Neb. 759 [6,7] We enforce only those terms and conditions actu- ally agreed upon by the parties to a plea agreement.9 A party breaches a plea agreement either by (1) violating an express term of the agreement or (2) acting in a manner not specifically prohibited by the agreement but still incompatible with explicit promises made therein.10 On this latter means of breaching an express provision of a plea agreement, we have explained that the State must not “effectively undermine the promised recommendation.”11 Thus, in State v. Landera,12 we held that the State had breached a plea agreement to recommend probation when it stated at sentencing that it could not recommend probation and believed the court should impose incarceration instead, elaborating upon the danger that the defendant would pose to the public if placed immediately on probation. The State had also made a “perfunctory recommendation of probation,” but we concluded that “the tenor of [the State’s] entire argument undermined its purported recommendation, thereby breaching the express term of the agreement.”13 [8] Landera is distinguishable from the present case. At Iddings’ sentencing hearing, the State merely expressed that it had “struggled” with what to agree to. Nevertheless, the State reinforced its agreed-upon sentencing recommen- dation by stating that after this “struggle[],” it ultimately found 18 months’ incarceration to be reasonable given that the sentence would be consecutive to Iddings’ sentence on a similar charge in another county. While the State also pointed out Iddings’ prior failure to appear, the State did not assert or even imply that this fact, or any other, meant that 9 See State v. Landera, supra note 1. 10 See id. 11 Id. at 257, 826 N.W.2d at 579. 12 State v. Landera, supra note 1. 13 Id. at 256, 826 N.W.2d at 578-79.  - 769 - Nebraska Supreme Court Advance Sheets 304 Nebraska Reports STATE v. IDDINGS Cite as 304 Neb. 759 Iddings should be incarcerated more than 18 months. As we stated in Landera, “a sentencing recommendation need not be enthusiastic in order to fulfill a promise made in a plea agreement.”14 The State did not effectively undermine its promised recommendation. Defense counsel below was not deficient for failing to object to the State’s alleged breach of the plea agreement, because the State did not commit such a breach. Lack of Presentence Investigation [9,10] Next, Iddings argues that the district court committed plain error by failing to procure a presentence investigation before sentencing. The State asserts that this argument was not assigned as error. It is a fundamental rule of appellate practice that an alleged error must be both specifically assigned and spe- cifically argued in the brief of the party asserting the error to be considered by an appellate court.15 A generalized and vague assignment of error that does not advise an appellate court of the issue submitted for decision will not be considered.16 While we agree with the State that Iddings’ assignment of error could have been better crafted, we will consider the fail- ure to procure the presentence investigation as encompassed by Iddings’ assignment of error that “[t]he district court abused its discretion by sentencing [Iddings] to a sentence of eighteen months to five years without due consideration of established sentencing factors.” Iddings argues that the absence of the presentence investigation contributed to the court’s ultimate failure to consider all the relevant sentencing factors, which constituted the alleged abuse of discretion in reaching the inde- terminate 18-month-to-5-year sentence that Iddings asks this court to reverse as excessive. 14 Id. at 257, 826 N.W.2d at 579. 15 State v. Sundquist, 301 Neb. 1006, 921 N.W.2d 131 (2019). 16 Id.  - 770 - Nebraska Supreme Court Advance Sheets 304 Nebraska Reports STATE v. IDDINGS Cite as 304 Neb. 759 Neb. Rev. Stat. § 29-2261(1) (Cum. Supp. 2014) provides that “[u]nless it is impractical to do so, when an offender has been convicted of a felony other than murder in the first degree, the court shall not impose sentence without first order- ing a presentence investigation of the offender and according due consideration to a written report of such investigation.” Section 29-2261(3) explains that, among other things, [t]he presentence investigation and report shall include, when available, an analysis of the circumstances attend- ing the commission of the crime, the offender’s history of delinquency or criminality, physical and mental condition, family situation and background, economic status, educa- tion, occupation, and personal habits, and any other mat- ters that the probation officer deems relevant or the court directs to be included. We have construed the plain language of § 29-2261 as a mandate upon the sentencing court to obtain and consider a presentence investigation with every felony conviction unless applicable exceptions render such an investigation unneces- sary.17 The presentence investigation serves several functions, including providing information to the court to assist in the imposition of an appropriate individualized sentence based on knowledge of the convicted person’s background and character which may not otherwise be available to the sentencing court, especially in a plea-based conviction.18 [11] The statutory right to have a presentence investiga- tion completed prior to being sentenced may, however, be waived so long as that waiver was knowingly and intelli- gently made.19 We find that Iddings expressly and effectively waived his right to a presentence investigation and that thus, 17 State v. Tolbert, 223 Neb. 794, 394 N.W.2d 288 (1986). See, also, e.g., State v. Qualls, supra note 2; State v. Thomas, 268 Neb. 570, 685 N.W.2d 69 (2004); State v. Jackson, 192 Neb. 39, 218 N.W.2d 430 (1974). 18 State v. Albers, 276 Neb. 942, 758 N.W.2d 411 (2008). 19 State v. Qualls, supra note 2; State v. Tolbert, supra note 17.  - 771 - Nebraska Supreme Court Advance Sheets 304 Nebraska Reports STATE v. IDDINGS Cite as 304 Neb. 759 he cannot assert on appeal that the trial court erred by failing to order that a presentence investigation be conducted prior to sentencing. [12,13] No formalistic litany of warnings is required to show that a waiver was knowingly and intelligently made.20 Instead, the appropriate standard to apply in the case of a waiver of the right to a presentence investigation under § 29-2261 is whether it is apparent from the totality of the circumstances reflected in the record that the defendant, when waiving the right, was suf- ficiently aware of his or her right to a presentence investigation and the possible consequences of his or her decision to forgo that right.21 But, as a general matter, being informed of a right to a presentence investigation demonstrates that the defendant was sufficiently aware of both the right and the possible con- sequences of his or her decision to forgo that right,22 because the consequences of the failure to procure a presentence inves- tigation for the court’s consideration at sentencing are largely self-evident.23 Iddings was present and remained silent when his counsel expressly waived what counsel expressly described as Iddings’ “right” to a presentence investigation. Later, when the court asked Iddings if there was any legal reason why the court should not proceed to sentencing or anything Iddings would like to add, Iddings failed to raise the lack of a presentence investigation. Iddings, through his silent acquiescence to his counsel’s statement of waiver and failure to object or otherwise raise the issue to the court, waived his right to a presentence investigation. We have held in various circumstances that a defendant may waive a right by silently acquiescing to the 20 See State v. Qualls, supra note 2. See, also, State v. Jenkins, 303 Neb. 676, 931 N.W.2d 851 (2019). 21 State v. Qualls, supra note 2; State v. Tolbert, supra note 17. 22 See, State v. Qualls, supra note 2; State v. Robeson, 25 Neb. App. 138, 903 N.W.2d 677 (2017). 23 See State v. Qualls, supra note 2.  - 772 - Nebraska Supreme Court Advance Sheets 304 Nebraska Reports STATE v. IDDINGS Cite as 304 Neb. 759 waiver given by his counsel and by failing to object and raise the issue to a trial court.24 We find no merit to any contention that the record fails to demonstrate that this waiver was effective because the district court did not specifically inquire of Iddings whether he under- stood the right and whether anyone had threatened or promised him anything to waive the right and did not inform Iddings of what a waiver would entail. The facts of this case are similar to those presented in State v. Robeson,25 wherein the Court of Appeals found that it was apparent from the totality of the circumstances reflected in the record that the defendant had knowingly, intelligently, and voluntarily waived the right to a presentence investigation, despite the lack of any colloquy between the court and the defendant. In Robeson, sentencing had been expedited and there was a jointly recommended sentence pursuant to a plea agree- ment. The district court had confirmed with defense counsel in the defendant’s presence that the defendant was waiving his “right” to a presentence investigation. The defendant did not engage in any further discussion or objection with regard to his counsel’s statement that he was waiving his right to a presen- tence investigation. The defendant and his counsel were given the opportunity at the sentencing hearing to present any miti- gating factors they wished the court to consider, and defense counsel affirmed that there was no other legal reason why the court should not impose a sentence at that time.26 [14] A knowing and intelligent waiver may be demon- strated by or inferred from the defendant’s conduct.27 Iddings’ 24 See, State v. Sayers, 211 Neb. 555, 319 N.W.2d 438 (1982); Sedlacek v. State, 147 Neb. 834, 25 N.W.2d 533 (1946); State v. Robeson, supra note 22. 25 State v. Robeson, supra note 22. 26 See, State v. Sayers, supra note 24; Sedlacek v. State, supra note 24; State v. Robeson, supra note 22. 27 See State v. Qualls, supra note 2.  - 773 - Nebraska Supreme Court Advance Sheets 304 Nebraska Reports STATE v. IDDINGS Cite as 304 Neb. 759 defense counsel below, in Iddings’ presence, indicated that Iddings wished to proceed immediately to sentencing and waive his “right” to a presentence investigation in order to do so. Immediately prior to this exchange in which defense coun- sel stated that Iddings was waiving his right to a presentence investigation, Iddings’ ability to waive his right to trial had been evaluated under a standard plea colloquy, the court hav- ing found no impediment to his capacity in that regard. And Iddings confirmed that he was aware of no legal reason why the court should not pronounce its sentence. Both Iddings and his defense counsel below were given the opportunity to pre­ sent any mitigating circumstances or other matters. They both highlighted what facts and circumstances they wished the court to consider in sentencing—which would have been reflected in the presentence investigation, had Iddings not waived it. While appellate counsel points out that the district court did not actually articulate as a finding that Iddings had waived his right to a presentence investigation, that is not dispositive. There is no indication that the court found that Iddings had failed to effectively waive his right to a presentence investiga- tion; the court merely focused on its conclusion that a presen- tence investigation “is found to be impractical.” A silent record is insufficient for a court on appeal to conclude a knowing, intelligent, and voluntary waiver of a constitutional or statu- tory right,28 but the record here is not silent. The record need not affirmatively contain the lower court’s express finding of a knowing, intelligent, and voluntary waiver in order for this court to observe that the record affirmatively demonstrates that a knowing, intelligent, and voluntary waiver has been made. Again, the appropriate standard to apply in the case of a waiver of a right to a presentence investigation under § 29-2261 is whether it is apparent from the record that the defendant’s 28 See, State v. Porchia, 221 Neb. 327, 376 N.W.2d 800 (1985); State v. Morford, 192 Neb. 412, 222 N.W.2d 117 (1974); State v. Balvin, 18 Neb. App. 690, 791 N.W.2d 352 (2010).  - 774 - Nebraska Supreme Court Advance Sheets 304 Nebraska Reports STATE v. IDDINGS Cite as 304 Neb. 759 relinquishment of the right was knowingly and intelligently made.29 The record in this case affirmatively demonstrates that Iddings knowingly, intelligently, and voluntarily waived his statutory right to a presentence investigation. [15] We agree with the Court of Appeals’ statement in Robeson that it is “the better practice” for a sentencing court to issue a more direct advisement of the statutory right to a presentence investigation, conduct an explicit inquiry into the voluntariness of a defendant’s waiver of that right, and make explicit findings with respect to a waiver.30 We encourage courts to adopt this better practice. Conducting a colloquy for a waiver of a presentence investigation ensures that the record will affirmatively demonstrate that the defendant has know- ingly, intelligently, and voluntarily waived that right. While the record in this case is adequate without such a colloquy, it may not be in another case. Having concluded that the court did not err in failing to order a presentence investigation, because Iddings expressly waived that statutory right, we need not consider whether the court abused its discretion in determining that a presentence investigation was impractical because Iddings was likely to be transported to another county immediately after sentencing. Excessive Sentence [16,17] Next, we address Iddings’ excessive sentence argu- ment. Absent an abuse of discretion by the trial court, an appellate court will not disturb a sentence imposed within the statutory limits.31 An abuse of discretion occurs when a trial court’s decision is based upon reasons that are untenable or unreasonable or if its action is clearly against justice or con- science, reason, and evidence.32 29 State v. Qualls, supra note 2. 30 State v. Robeson, supra note 22, 25 Neb. App. at 148, 903 N.W.2d at 686. 31 State v. Montoya, supra note 3. 32 Id.  - 775 - Nebraska Supreme Court Advance Sheets 304 Nebraska Reports STATE v. IDDINGS Cite as 304 Neb. 759 A Class IIIA felony under Neb. Rev. Stat. § 28-105 (Cum. Supp. 2014), in effect at the time the offense was committed, was punishable with a maximum of 5 years’ imprisonment, a $10,000 fine, or both. There was no minimum. Where, as here, a sentence imposed within the statutory limits is alleged on appeal to be excessive, the appellate court must determine whether a sentencing court abused its discretion in considering and applying the relevant factors as well as any applicable legal principles in determining the sentence to be imposed.33 [18] In determining a sentence to be imposed, relevant fac- tors customarily considered and applied are the defendant’s (1) age, (2) mentality, (3) education and experience, (4) social and cultural background, (5) past criminal record or record of law- abiding conduct, and (6) motivation for the offense, as well as (7) the nature of the offense and (8) the amount of violence involved in the commission of the crime. The appropriateness of a sentence is necessarily a subjective judgment and includes the sentencing judge’s observation of the defendant’s demeanor and attitude and all the facts and circumstances surrounding the defendant’s life.34 Appellate counsel asserts that the district court abused its discretion by rendering its sentence without any “real consid- eration” of the above sentencing factors other than Iddings’ criminal history and the factual basis for the crime.35 But, as already noted, the court gave defense counsel and Iddings the opportunity to present anything they wished the court to con- sider before reaching its sentencing decision. Defense counsel responded to this opportunity by asserting that Iddings had been sober since 2017 and planned to remain so. Iddings, for his part, explained that he had failed to appear at a prior hearing because he had been in the hospital. To the extent that the district court did not consider more information 33 Id. See, also, State v. Blaha, 303 Neb. 415, 929 N.W.2d 494 (2019). 34 Id. 35 Brief for appellant at 12.  - 776 - Nebraska Supreme Court Advance Sheets 304 Nebraska Reports STATE v. IDDINGS Cite as 304 Neb. 759 pertaining to Iddings’ mentality, education and experience, or social and cultural background, this was due to Iddings’ waiver of the presentence investigation and his deliberate deci- sion not to otherwise present at the hearing facts pertaining to these factors. Under such circumstances, we find no abuse of discretion.36 We also agree with the State that it is difficult to find an abuse of discretion in an excessive sentence analysis when the minimum imposed was the term the defendant agreed to in a plea bargain agreement. It is the minimum portion of an inde- terminate sentence which measures its severity.37 [19] We find no merit to Iddings’ assertion that the district court “abused its discretion by disregarding the joint plea recommendation.”38 Assuming without deciding that the joint plea recommendation was, as Iddings asserts, for an indetermi- nate term of incarceration of 18 months to 18 months, a judge is in no manner bound to give a defendant the sentence recom- mended by the prosecutor under a plea agreement.39 Given the number of DUI convictions and charges that were undisputed below, it was reasonable for the court to conclude that it was necessary for Iddings’ safety and the safety of the public to impose a higher maximum term in order to ensure proper postrelease supervision. Credit for Time Served Lastly, appellate counsel argues in this direct appeal that defense counsel below was ineffective for failing to request 58 additional days of jail time credit under Neb. Rev. Stat. § 83-1,106(1) (Reissue 2014), for time spent in jail in Sarpy County. He asserts that according to § 83-1,106(1), 336 days 36 See State v. Qualls, supra note 2. 37 See, e.g., State v. McCaslin, 240 Neb. 482, 482 N.W.2d 558 (1992); State v. Haynie, 239 Neb. 478, 476 N.W.2d 905 (1991). 38 Brief for appellant at 11. 39 See State v. Leahy, 301 Neb. 228, 917 N.W.2d 895 (2018).  - 777 - Nebraska Supreme Court Advance Sheets 304 Nebraska Reports STATE v. IDDINGS Cite as 304 Neb. 759 were simultaneously “as a result of the criminal charge for which a prison sentence [was] imposed” below and as a result of the charge in Sarpy County. According to appellate counsel, although the district court for Sarpy County purported to apply all 336 days against the sentence there imposed, 58 days of that jail time were not truly applied because they were in excess of the 278 days he was sentenced to serve, when calculated with mandatory good time. [20] According to appellate counsel, defense counsel below should have been aware that the 58 days’ jail time credit was the “result of” the underlying charge in this case and that it had not been truly applied in the Sarpy County case. Thus, appel- late counsel concludes that defense counsel was ineffective in failing to request the proper amount of jail time credit—when defense counsel had waived the presentence investigation and represented that he was able to accurately inform the court of the applicable jail time. Whether a claim of ineffective assist­ ance of trial counsel can be determined on direct appeal pre­ sents a question of law, which turns upon the sufficiency of the record to address the claim without an evidentiary hearing or whether the claim rests solely on the interpretation of a statute or constitutional requirement.40 [21] The determining factor is whether the record is suf- ficient to adequately review the question.41 We have said the record is sufficient if it establishes either that trial counsel’s performance was not deficient, that the appellant will not be able to establish prejudice, or that trial counsel’s actions could not be justified as a part of any plausible trial strategy.42 We have also said that when reviewing claims of ineffec- tive assistance of counsel on direct appeal, an appellate court decides only whether the undisputed facts contained within the record are sufficient to conclusively determine whether counsel 40 State v. Stelly, supra note 6. 41 Id. 42 Id.  - 778 - Nebraska Supreme Court Advance Sheets 304 Nebraska Reports STATE v. IDDINGS Cite as 304 Neb. 759 did or did not provide effective assistance, and whether the defendant was or was not prejudiced by counsel’s alleged defi- cient performance.43 Appellate counsel and the State both suggest that we can- not resolve this claim of ineffective assistance of counsel on direct appeal, since it depends upon facts outside the appellate record. We agree. The exact credit for time served to which a defendant is entitled is objective and not discretionary, and a question of law,44 but the necessary facts to conduct such an analysis in this case are not contained within the record on direct appeal. CONCLUSION For the foregoing reasons, we affirm the judgment below. Affirmed. Miller-Lerman, J., participating on briefs. 43 Id. 44 See id. 

[DO NOT PUBLISH] IN THE UNITED STATES COURT OF APPEALS FOR THE ELEVENTH CIRCUIT FILED ________________________ U.S. COURT OF APPEALS ELEVENTH CIRCUIT July 16, 2008 No. 08-10193 THOMAS K. KAHN Non-Argument Calendar CLERK ________________________ D. C. Docket No. 07-80556-CV-DMM KELVIN RANCE, Plaintiff-Appellant, versus ROCKSOLID GRANIT USA, INC., other, as owner of the fictitious name Granite Transformations, Defendant-Appellee. ________________________ Appeal from the United States District Court for the Southern District of Florida _________________________ (July 16, 2008) Before TJOFLAT, BLACK and BARKETT, Circuit Judges. PER CURIAM:  Kelvin Rance, proceeding pro se, appeals the district court’s dismissal of his two-count complaint against Rocksolid Granit USA, Inc., based upon negligence and a violation of the Fair Labor Standards Act (FLSA). On appeal, Rance argues that the district court erred in dismissing his complaint without prejudice for failure to state a claim, and that the district erred in granting Rocksolid’s motion to dismiss prior to sua sponte providing Rance an opportunity to amend his complaint. We affirm the ruling of the district court. We review the district court’s ruling on a Rule 12(b)(6) motion de novo. Hill v. White, 321 F.3d 1334, 1335 (11th Cir.2003). When ruling on a motion to dismiss, a court must view the complaint in the light most favorable to the plaintiff and accept all of the plaintiff’s well-pleaded facts as true. St. Joseph's Hosp., Inc. v. Hosp. Corp. of Am., 795 F.2d 948, 954 (11th Cir.1986). Moreover, “[p]ro se pleadings are held to a less stringent standard than pleadings drafted by attorneys and will, therefore, be liberally construed.” Tannenbaum v. United States, 148 F.3d 1262, 1263 (11th Cir. 1998). When considering a motion to dismiss, the court may consider the complaint and all exhibits attached thereto. Thaeter v. Palm Beach County Sheriff’s Office, 449 F3d 1342, 1352 (11th Cir. 2006). We begin by considering Rance’s FLSA claim. Rance’s complaint alleges that he did not receive wages due to him for a portion of one day’s work that he 2 performed for Granite Transformations, an allegedly fictitious corporation owned by Rocksolid. He argues that this violates FLSA’s minimum wage requirements under 29 U.S.C.A. § 206. To establish a prima facie case of an FLSA violation, Rance must show “as a matter of just and reasonable inference” the amount and extent of his work in order to demonstrate that he was inadequately compensated under FLSA. See Caro- Galvan v. Curtis Richardson, 993 F.2d 1500, 1513 (11th Cir. 1993) (citing Donovan v. New Floridian Hotel, Inc., 676 F.2d 468, 475 n.12 (11th Cir. 1982); Anderson v. Mt. Clemens Pottery Co., 328 U.S. 680. 686–87 (1946). Rance has failed to do so because his complaint and attached documentation provide no evidence of the amount and extent of his work. Moreover, attached to his complaint is an email that Rance sent to his supervisor, Frank Baran of Granite Transformations, in which Rance inquired, “When will I get paid for the work done at the Miami location on or about March 28, 2007?” Baran responded, via email, “How many hours did you end up working that day? Let me know and I will get a check out.” Rance does not claim that he ever responded to Baran’s email message. In light of this email correspondence with Baran, Rance has failed to demonstrate that any inadequate compensation was a result of Rocksolid’s actions, rather than his own. Thus, the 3 district court did not err in dismissing Rance’s FLSA claim. Rance’s complaint also alleges that he was injured while working for Granite Transformations that day. Rance’s allegation that Rocksolid is liable for negligence due to his injuries can be construed in two ways. First, Rance’s complaint can be read to allege a Workman’s Compensation claim on the grounds that “Defendant breached its duty of keeping its workplace safe.” (D. Ct. Order at 4 n.3) The district court found, however, that Rance’s “appropriate avenue for this claim” would be to pursue a remedy under Florida’s Worker’s Compensation laws. Id. It is fully within the district court’s discretion to exercise supplemental jurisdiction over state law claims, and given our finding that the district court did not err in dismissing Rance’s FLSA claim, we find no error in the district court’s implicit decision not to do so.1 Raney v. Allstate Ins. Co., 370 F.3d 1086, 1088-89 (11th Cir. 2004). Second, Rance’s complaint can be read to allege that Rocksolid’s negligence is due to its failure to provide Rance with worker’s compensation insurance information, and its refusal to pay for medical bills or any other damages sustained 1 Rance argues for the first time on appeal that neither Granite Transformations nor Rocksolid Granite had worker’s compensation insurance at the time of his injury, entitling him to bring a civil lawsuit under Florida law. Because he did not raise this argument before the district court, we will not consider it on appeal. See Access Now, Inc. v. Southwest Airlines Co., 385 F.3d 1324, 1331 (11th Cir. 2004). 4 as a result of Rance’s on-the-job injury. However, Rance’s exhibits again directly undermine his claim. Attached to the complaint is an email Rance wrote to his supervisor, Frank Baran of Granite Transformations, in which he informed Baran, “I was injured on your job yesterday in Miami.” Baran responded, “Kelvin, I was not aware please send me the details of what happened.” Rance did not respond to Baran and accordingly, he cannot not now claim that Rocksolid failed to comply with requests which Rance has failed to demonstrate that he ever made. We find no error in the district court’s dismissal of Rance’s negligence claim. Finally, Rance argues that the district court erred by granting Rocksolid’s motion to dismiss without sua sponte providing Rance with an opportunity to amend his complaint. Rance has not indicated, however, how he would have amended the complaint to overcome its deficiencies had he been given the opportunity. We therefore conclude that sua sponte granting Rance an opportunity to amend his complaint would have been futile. See Hall v. United Ins. Co. of Am., 367 F.3d 1255, 1262 (11th Cir. 2004); Hardy v. Broward Co. Sheriff’s Office, 238 Fed. App’x 435, 443 (11th Cir. 2007). Thus, the district court did not abuse its discretion in dismissing this case without prejudice. AFFIRMED. 5 

536 F.2d 624 NORTEK, INC., Plaintiff-Appellant,v.ALEXANDER GRANT & COMPANY et al., Defendants-Third PartyPlaintiffs-Appellees-Appellants,v.SANI DISTRIBUTORS, INC., et al., Third Party Defendants-Appellees. No. 75-1030. United States Court of Appeals,Fifth Circuit. Aug. 5, 1976. Bernard R. Pollock, John F. Bomster, Providence, R. I., Paul, Landy & Beiley, Lawrence R. Heller, Miami, Fla., George L. Chimento, Providence, R. I., for plaintiff-appellant. Robert Orseck, Robert L. Parks, Miami, Fla., Howard L. Kastel, Chicago, Ill., for Alexander Grant & Co. Morton P. Brown, North Miami, Fla., for Sani Dist. Inc., and others. Appeals from the United States District Court for the Southern District of Florida.ON PETITION FOR REHEARING (Opinion June 4, 1976, 5 Cir. 1976, 532 F.2d 1013) Before BROWN, Chief Judge, TUTTLE and GEE, Circuit Judges. PER CURIAM: 1 Appellant correctly asserts that the Florida blue-sky law's two-year statute of limitation does not bar its cause of action for gross negligence. This is governed by the Florida fraud statute of limitation, and appellant alleges that its complaint falls within this three-year period. However, the trial court found conclusively that defendant's action did not constitute fraud or gross negligence, a finding with which we agree. We, therefore, put aside all problems of date of discovery and decline to consider further whether the negligence here was so gross as to constitute constructive fraud. See State Street Trust Co. v. Ernst, 278 N.Y. 104, 15 N.E.2d 416 (1938). The petition for rehearing is DENIED.

67 F.3d 294 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.Allan J. CULVER, Jr., Appellant,andSanford R. Shapiro, a/k/a Sandy Shapiro, Plaintiff-Appellant,v.Nicholas MOLINARIO; Michael Riger, Defendants-Appellees,andGeorge W. Liebmann, Trustee-Appellee. No. 94-1974. United States Court of Appeals, Fourth Circuit. Submitted June 27, 1995.Decided Sept. 28, 1995. Allan James Culver, Jr., Bel Air, Maryland, for Appellant. George W. Liebmann, GEORGE W. LIEBMANN, P.A., Baltimore, Maryland; Ralph L. Arnsdorf, Zvi Guttman, SMITH, SOMERVILLE & CASE, Baltimore, Maryland, for Appellees. Before MURNAGHAN, LUTTIG, and MICHAEL, Circuit Judges. OPINION PER CURIAM: 1 Sanford Shapiro and his counsel, Allan Culver, appeal the district court's orders that it lacked jurisdiction to hear an interlocutory appeal from the bankruptcy court, and imposing sanctions against Culver pursuant to FED. R. CIV. P. 11. We dismiss the appeal for lack of jurisdiction because the orders are not appealable. This court may exercise jurisdiction only over final orders, 28 U.S.C. Sec. 1291 (1988), and certain interlocutory and collateral orders, 28 U.S.C. Sec. 1292 (1988); FED. R. CIV. P. 54(b); Cohen v. Beneficial Industrial Loan Corp., 337 U.S. 541 (1949). The orders here appealed are neither final orders nor appealable interlocutory or collateral orders. 2 Shapiro moved to voluntarily dismiss his Chapter 7 case from bankruptcy. The motion was opposed by the bankruptcy trustee and creditors. After a hearing, the bankruptcy court denied the motion to dismiss without prejudice to renewal after the Bankruptcy Rule 2004 examination, a deposition, and meeting with creditors as previously ordered. Shapiro appealed to the district court. 3 As a general rule, a final judgment under 28 U.S.C. Sec. 1291 (1988) is "one which ends the litigation ... and leaves nothing for the court to do but execute the judgment." Catlin v. United States, 324 U.S. 229, 233 (1945). The bankruptcy court's order denying the motion to dismiss is not a final order because it does not resolve the litigation, decide the merits, settle liability, establish damages, or even determine the rights of any party to Shapiro's bankruptcy case. Coopers & Lybrand v. Livesay, 437 U.S. 463 (1978). 4 In contrast, an interlocutory order is one which does not finally determine a cause of action but only decides some intervening matter pertaining to the cause, and which requires further steps to be taken to enable the court to adjudicate the cause on the merits. In re Abingdon Realty Corp., 634 F.2d 133 (4th Cir.1980) (per curiam). Notwithstanding the liberal interpretation of finality often applied to bankruptcy appeals, see A.H. Robins Co. v. Piccinin, 788 F.2d 994, 1009 (4th Cir.), cert. denied, 479 U.S. 876 (1986), the order appealed by Shapiro is clearly interlocutory in nature. Further, because the bankruptcy court's order does not involve a controlling issue of law, the district court's determination that it did not have jurisdiction to hear the appeal under 28 U.S.C. Sec. 158(a) (1988) was proper. In re Hebb, 53 B.R. 1003 (D.Md.1985). Finally, jurisdiction does not exist under the collateral order doctrine, Cohen v. Beneficial Industrial Loan Corp., 337 U.S. 541 (1949), as the bankruptcy judge made clear in his order that Shapiro retained the option to again move for dismissal after the Bankruptcy Rule 2004 examination. 5 Because Shapiro's appeal to the district court was interlocutory, the district court's decision is not a reviewable final order; therefore, Shapiro's appeal of the district court's order to this court is dismissed as interlocutory. In re Looney, 823 F.2d 788, 791 n. 3 (4th Cir.), cert. denied, 484 U.S. 977 (1987). 6 Shapiro's counsel's appeal from the order imposing sanctions is also dismissed. An order imposing sanctions during the pendency of litigation is not a final order for purposes of appeal. See In re Underwriters at Lloyd's, 666 F.2d 55, 58 (4th Cir.1981) (per curiam). See also Robinson v. Tanner, 798 F.2d 1378 (11th Cir.1986) (per curiam) (sanction for discovery abuses not appealable until after final judgment where appellant was party to action and did not claim irreparable injury or loss), cert. denied, 481 U.S. 1039 (1987); Eastern Maico Distributors v. Maico-Fahrzeugfabrik, G.M.B.H., 658 F.2d 944, 947 n. 2 (3rd Cir.1981) (court of appeals lacks jurisdiction over appeal from monetary sanction regarding discovery obligations; sanction was neither a final decision nor collateral order). Shapiro has not alleged that payment of the sanction will cause irreparable harm or loss, nor that review will not be possible after a final judgment. Because there has been no final order in this case, we lack jurisdiction to hear the appeal from the imposition of sanctions. 7 Accordingly, we dismiss the appeal. We grant the unopposed motion to submit the case on the briefs and dispense with oral argument because the facts and legal contentions are adequately presented in the materials before the court and argument would not aid the decisional process. 8 DISMISSED.

856 F.2d 194 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.George GREGERSON, Plaintiff-Appellant,v.Otis R. BOWEN, M.D., Secretary of Health and Human Services,Defendant- Appellee. No. 87-1752. United States Court of Appeals, Sixth Circuit. Aug. 23, 1988. Before KENNEDY and WELLFORD, Circuit Judges, and HERMAN J. WEBER, District Judge.* PER CURIAM. 1 George Gregerson appeals from the judgment of the District Court affirming the Secretary of Health and Human Services denial of his claim for disability benefits. 2 Upon consideration of the entire record and the briefs filed herein, we affirm the judgment of the District Court for the reasons stated by Judge Enslen in his Opinion filed June 2, 1987. 3 WELLFORD, Circuit Judge, concurring. 4 I agree with the affirmance of the judgment of the district court in this case. I doubt, however, that plaintiff has clearly established from the medical proof that he has arthritis. The doctors who have examined him found that he walked normally, that there was essentially little restriction of movement in the joints, no "joint swelling or deformities, and no restricted range of motion." At best, there was one prognosis of "probable osteoarthritis of the left knee." In any event, there is substantial evidence to support the finding of the Secretary. * The Honorable Herman J. Weber, U.S. District Judge for the Southern District of Ohio, sitting by designation

287 S.W.2d 525 (1956) Carl BRYANT, Appellant, v. Sanford HANCOCK, Appellee. No. 3338. Court of Civil Appeals of Texas, Waco. February 2, 1956. Rehearing Denied February 23, 1956. *526 Thos. B. Bartlett, Jr., Marlin, for appellant. Dodson & Reagan, Marlin, for appellee. McDONALD, Chief Justice. In February 1955 Hancock, who is in the automobile sales business, "sold" Bryant a used 1948 truck for $995. Bryant paid Hancock $300 as a down payment; $12 additional so that Hancock could transfer the certificate of title to the truck properly; and executed notes secured by mortgage for the deferred balance of $695. Hancock had a title certificate which showed ownership in another person than himself, but which was assigned to him on the back. This title certificate, however, was to a 1942 model truck, rather than to a 1948 truck. Hancock kept the keys to the truck; the truck was never delivered to Bryant, and the title certificate was never corrected to show a 1948 truck, nor transferred by Hancock to Bryant. In July 1955 Bryant as plaintiff sued Hancock as defendant to recover the $312 paid to Hancock, and to cancel the notes and mortgage given. Hancock answered by general denial and filed a cross-action seeking to recover on the notes and for foreclosure of the mortgage. The Trial Court, without a jury, denied plaintiff Bryant any recovery and granted Hancock judgment on his cross-action for the amounts due under the notes given by Bryant and for foreclosure of same on the truck. Bryant appeals, contending that where the seller did not give the buyer a certificate of title as provided for in Article 1436-1 of the Vernon's Ann. Penal Code, that 1) title to the truck did not pass and the buyer has a right to rescind the contract; 2) that there was no consideration for the notes and mortgage given by buyer in part payment nor for the $312 cash payment. It is undisputed that in February 1955, at the time of the attempted "sale" of the 1948 truck by Hancock to Bryant, that Hancock had a certificate of title in his possession to a 1942 truck issued in the name of another, but endorsed to Hancock. Hancock himself testified that the truck "sold" Bryant was a 1948 model; that the certificate in his possession was to a 1942 model; that he had never had the certificate corrected; that he tendered the truck into court to Bryant, but that he did not tender him a correct certificate of title because he did not have one; that Bryant had paid him $12 to secure a certificate of title to the truck but that he had not done so. The only question in the case is whether Hancock actually sold Bryant the 1948 truck. If Hancock sold Bryant the truck the case must be affirmed. If there was no sale to Bryant, then Bryant is entitled to rescind the contract and recover his $312 and have the notes and mortgage given Hancock cancelled. Article 1436-1 Penal Code provides: * * * Section 33. "No motor vehicle may be disposed of at subsequent sale unless the owner designated in the *527 certificate of title shall transfer the certificate of title on form to be prescribed by the Department before a Notary Public, * * * and no title to any motor vehicle shall pass or vest until such transfer be so executed." Section 53. "All sales made in violation of this act shall be void and no title shall pass until the provisions of this act have been complied with." In the case at bar Hancock in his cross-action (and in his brief) declares upon a completed sale. The evidence is undisputed and Hancock himself testifies that he did not comply with the provisions of Article 1436-1; that he gave no title to Bryant as required by such article (even though he accepted $12 specifically for so doing); and that he in fact had then and has now no title to a 1948 truck. Article 1436-1 supra is explicit that unless the seller of a used car comply with its provisions that no title shall pass and the sale is void. Here the seller admits no compliance with such article. If the title to the car never passed from Hancock to Bryant, the consideration for the $312 cash payment and the notes and mortgage paid and given Hancock by Bryant has failed, and Bryant is entitled to recover the $312 and to have the notes and mortgage cancelled. The following cases are directly in point and support the conclusions herein reached: Giles v. Lehman, Tex.Civ.App., 163 S.W.2d 720; Elder Chevrolet Co. v. Bailey County Motor Co., Tex.Civ.App., 151 S.W.2d 938; Associates Inv. Co. v. National City Bank of Waco, Tex.Civ.App., 231 S.W.2d 661; Guinn v. Lokey, 151 Tex. 260, 249 S.W.2d 185. From the foregoing it follows that the judgment of the Trial Court is Reversed, and judgment is here Rendered that plaintiff Bryant have judgment for the $312 sued for and that defendant and cross-plaintiff Hancock take nothing on his cross-action. Reversed and rendered.

Opinions of the United 2006 Decisions States Court of Appeals for the Third Circuit 6-19-2006 Nedab v. Litten Precedential or Non-Precedential: Non-Precedential Docket No. 05-5058 Follow this and additional works at: http://digitalcommons.law.villanova.edu/thirdcircuit_2006 Recommended Citation "Nedab v. Litten" (2006). 2006 Decisions. Paper 880. http://digitalcommons.law.villanova.edu/thirdcircuit_2006/880 This decision is brought to you for free and open access by the Opinions of the United States Court of Appeals for the Third Circuit at Villanova University School of Law Digital Repository. It has been accepted for inclusion in 2006 Decisions by an authorized administrator of Villanova University School of Law Digital Repository. For more information, please contact Benjamin.Carlson@law.villanova.edu. DPS-163 NOT PRECEDENTIAL UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT NO. 05-5058 ABDUL NEDAB, Appellant v. BARBARA LITTEN _______________ On Appeal From the United States District Court For the Western District of Pennsylvania (D.C. Civ. No. 05-cv-00221E) District Judge: Honorable Sean J. McLaughlin _______________________________________ Submitted Under Third Circuit L.A.R. 27.4 and I.O.P. 10.6 March 23, 2006 Before: FUENTES, VANANTWERPEN and ROTH * , Circuit Judges (Filed June 19, 2006) _______________________ OPINION _______________________ PER CURIAM Appellant Abdul Nedab appeals from a District Court order dismissing his case as “legally frivolous in accordance with 28 U.S.C. § 1915(d).” ** The Appellee has filed a * Judge Roth assumed senior status on May 31, 2006. ** We assume that the District Court intended to cite 28 U.S.C. § 1915(e). motion for summary action. Because no substantial question is presented, we will grant the Appellee’s motion and summarily affirm. L.A.R. 27.4. In his complaint, Nedab alleges that several guards at SCI-Forest, along with a local officer, beat him on March 3, 2005, injuring him severely.*** He claims that the incident was recorded on the prison’s video system. He seeks monetary, declaratory, and injunctive relief against the Tionesta District Attorney, Barbara Litten, on the grounds that she failed to investigate his private criminal complaint against the guards, and that she failed to bring criminal charges against them. Adopting a Magistrate Judge’s report and recommendation, the District Court dismissed the complaint holding that Litten’s activities are intimately associated with the judicial phase of the criminal process and, thus, receive absolute immunity. This appeal followed.**** We agree with the District Court that Litten is entitled to absolute immunity for all claims related to her decision not to prosecute. Imbler v. Pachtman, 424 U.S. 409, 420 (1976). To the extent that Nedab’s complaint can be read to allege violations connected to investigatory or administrative functions, he cannot maintain a section 1983 suit because the facts of his complaint do not demonstrate that any constitutional right has *** In the past year, Nedab has filed several lawsuits in the District Court for the Western District of Pennsylvania, all relating in part to the alleged beating. See Nedab v. Neal, Civ. No. 06-cv-00007 (W.D. Pa); Nedab v. Lencer, Civ. No. 06-cv-00054 (W.D. Pa.); Nedab v. Beard, Civ. No. 05-cv-00405 (W.D. Pa.); and Nedab v. Beard, Civ. No. 06-cv-00035 (W.D. Pa.) (naming well over 100 defendants). **** We have jurisdiction under 28 U.S.C. § 1291, and exercise plenary review. See Tourscher v. McCullough, 184 F.3d 236, 240 (3d Cir. 1999). 2 been violated. See Saucier v. Katz, 533 U.S. 194, 201 (2001); Wright v. City of Phila., 409 F.3d 595, 599-600 (3d Cir. 2005).” 3 

Case: 13-20411 Document: 00512686309 Page: 1 Date Filed: 07/03/2014 IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT United States Court of Appeals Fifth Circuit FILED No. 13-20411 July 3, 2014 Summary Calendar Lyle W. Cayce Clerk RAWAN RIAD ALASWAD; MOHAMMED BENNANI, Plaintiffs – Appellants v. JEH CHARLES JOHNSON, SECRETARY, DEPARTMENT OF HOMELAND SECURITY; ERIC H. HOLDER, JR., U. S. ATTORNEY GENERAL; FIELD OFFICE DIRECTOR, Dallas Office, U.S. Citizenship and Immigration Services, Defendants – Appellees Appeal from the United States District Court for the Southern District of Texas USDC No. 4:12-CV-636 Before DAVIS, SOUTHWICK, and HIGGINSON, Circuit Judges. PER CURIAM:* Mohammed Bennani and Rawan Riad Alaswad challenged the Board of Immigration Appeal’s (“BIA”) denial of their petitions to adjust Bennani’s status in the United States District Court for the Southern District of Texas. * Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR. R. 47.5.4.  Case: 13-20411 Document: 00512686309 Page: 2 Date Filed: 07/03/2014 No. 13-20411 The district court granted summary judgment against them, and they now appeal. Because substantial evidence supports the BIA’s decision, we AFFIRM. FACTUAL BACKGROUND Mohammed Bennani is a Moroccan citizen and national. On February 23, 2005, the United States admitted Bennani as a nonimmigrant student to attend Troy University in Alabama. On February 8, 2007, Bennani married Valarie Ford. Bennani and Ford concurrently filed an application to adjust Bennani’s status. The United States Citizenship and Immigration Services (“USCIS”) interviewed Ford and Bennani as part of their investigation. During the interview, Ford withdrew the petition, stating that the marriage was fraudulent as they had never resided together and never consummated the marriage. An Immigration Service Officer, Crystal Ahumada, explained that Ford submitted an affidavit stating that she (Ford) entered a fraudulent marriage. Ahumada further represented that “[d]uring the interview . . . Valarie Ford stated she was paid by the Plaintiff, Mohammed Bennani, to enter into the fraudulent marriage.” During the interview, Ford also stated that she “maintained a relationship with another man who is the father of her twins who were born during the marriage to the plaintiff.” Ford withdrew the petition, and on February 27, 2009, Bennani and Ford divorced. About two months later, on April 29, 2009, Bennani married Rawan Riad Alaswad. 1 On January 18, 2010, Bennani and Alaswad filed Forms I-130 and I-485 for adjustment of status. USCIS subsequently issued a Notice of Intent to Deny based on Ford’s admission that her previous marriage to Bennani was fraudulent. The Notice explained: “It is concluded, after an extensive investigation by the Service and interviews with Mr. Bennani’s former wife 1The district court noted that the parties disputed whether the marriage took place in March or April of 2009. Appellees however assert that the marriage took place on April 29, 2009 on appeal. 2  Case: 13-20411 Document: 00512686309 Page: 3 Date Filed: 07/03/2014 No. 13-20411 that [Bennani] . . . entered into a marriage of convenience with [Ford] for the sole purpose of evading immigration laws.” Section 204(c) of the Immigration and Nationality Act, 2 in turn, precluded issuing a permit when an applicant had previously attempted to evade immigration laws by entering into a marriage. Bennani and Alaswad responded by providing new evidence, which included an affidavit from Ford. In her new affidavit, Ford 3 explains that her marriage with Bennani “was never based on financial benefits,” that they lived together for one year, and that she gave her previous statements to the Immigration Service Officer because she “was overwhelmed with questions” and “became scared.” USCIS considered this new evidence but nonetheless denied Bennani’s and Alaswad’s petitions. The decision concluded: “[I]t is apparent that Mr. Bennani’s marriage to [Ford] was a marriage of convenience entered into for the sole purpose of evading immigration law.” Bennani and Alaswad appealed to the Board of Immigration Appeals (“BIA”). The BIA dismissed the appeal because “petitioner has not adequately rebutted the evidence showing that the beneficiary’s previous marriage was not bona fide, she has not met her burden of proving that the beneficiary is eligible for the benefit sought.” Bennani and Alaswad then filed suit in district court. The parties filed cross motions for summary judgment, 4 and the district court granted summary judgment for Appellees. The district court held that the “BIA’s decision was not arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with the law and was otherwise supported by substantial record evidence.” This appeal followed. 28 U.S.C. § 1154(c). 3Ford has since changed her name to Valarie Jordan. 4 Appellees also moved to dismiss for lack of jurisdiction. The district court denied this motion. 3  Case: 13-20411 Document: 00512686309 Page: 4 Date Filed: 07/03/2014 No. 13-20411 STANDARD OF REVIEW We review a grant of summary judgment de novo, applying the same standard as the district court. Chaney v. Dreyfus Serv. Corp., 595 F.3d 219, 229 (5th Cir. 2010). “The court shall grant summary judgment if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(a). In reviewing the BIA’s decision, we apply the same high deference that the district court applied. Pen. Ben. Guar. Corp. v. Wilson N. Jones Mem’l Hosp., 374 F.3d 362, 366 (5th Cir. 2004). “Under the Administrative Procedure Act, agency action is reviewed solely to determine whether it is arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law.” Defensor v. Meissner, 201 F.3d 384, 386 (5th Cir. 2000) (citing 5 U.S.C. § 706). “The APA also mandates that we ‘set aside agency action, findings, and conclusions found to be . . . unsupported by substantial evidence.’” Brown v. Napolitano, 391 F. App’x 346, 349–50 (5th Cir. 2010) (quoting 5 U.S.C. § 706(2)(E)). The substantial evidence standard requires this Court to ensure only that the BIA’s decision is supported by record evidence and is substantially reasonable. Omagah v. Ashcroft, 288 F.3d 254, 258 (5th Cir. 2002). DISCUSSION The BIA held that Appellants’ visa petition was barred by 8 U.S.C. § 1154(c), which provides: Notwithstanding the provisions of subsection (b) of this section no petition shall be approved if (1) the alien has previously been accorded, or has sought to be accorded, an immediate relative or preference status as the spouse of a citizen of the United States or the spouse of an alien lawfully admitted for permanent residence, by reason of a marriage determined by the Attorney General to have been entered into for the purpose of evading the immigration 4  Case: 13-20411 Document: 00512686309 Page: 5 Date Filed: 07/03/2014 No. 13-20411 laws, or (2) the Attorney General has determined that the alien has attempted or conspired to enter into a marriage for the purpose of evading the immigration laws. The BIA held that Appellants had “not adequately rebutted the evidence showing that the beneficiary’s previous marriage was not bona fide,” they were not entitled to relief. The BIA relied on Ford’s previous sworn statement that the marriage was a fraud and the fact that Bennani acknowledged that he was not the father of Ford’s twins born during their marriage. In light of this evidence, the BIA’s determination was neither arbitrary nor unsupported by substantial evidence. See, e.g., Brown, 391 F. App’x at 351 (“Courts have held that a marriage is a sham if the bride and groom did not intend to establish a life together at the time they were married.” (internal quotation marks omitted)). “‘Evidence to establish intent could take many forms, including, but not limited to, proof that the beneficiary has been listed as the petitioner’s spouse on insurance policies, property leases, income tax forms, or bank accounts; and testimony or other evidence regarding courtship, wedding ceremony, shared residence, and experiences.’” Id. (quoting Matter of Laurenano, 19 I & N Dec. 1, 2 (BIA 1983). Therefore, the BIA properly relied on Ford’s previous representations as well as the fact that Bennani was not the father of Ford’s children born during their marriage when it made its determination. Appellants contend, however, that the BIA’s decision runs counter to the evidence in the record, namely, Ford’s later retractions and other financial statements. As the district court found, “[t]he record, considered as a whole, contains very little evidence of commingled finances.” Moreover, Appellants concede that during their marriage there was an “undissolved marriage between Valarie and Rodney Ford” and that Ford gave birth to twins fathered by another man during the marriage. Appellants’ arguments in essence ask 5  Case: 13-20411 Document: 00512686309 Page: 6 Date Filed: 07/03/2014 No. 13-20411 this Court to reweigh the evidence considered by the BIA. We refuse to do so in light of the substantial evidence in the record supporting the BIA’s decision. Accordingly, the BIA’s decision was not arbitrary, capricious, or otherwise not in accordance with the law and was supported by substantial evidence. CONCLUSION For the above stated reasons, we AFFIRM. 6 

888 F.2d 1396 Central FL Clinicv.Citrus County** NO. 89-3131 United States Court of Appeals,Eleventh Circuit. SEP 27, 1989 1 Appeal From: M.D.Fla. 2 AFFIRMED. ** Local Rule 36 case

51 F.Supp.2d 773 (1999) MAXXIM MEDICAL, INC., Plaintiff, v. Mark MICHELSON, Defendant. No. Civ.A. H-99-0460. United States District Court, S.D. Texas, Houston Division. March 25, 1999. *774 *775 *776 *777 David Van Susteren, Houston, TX, for Maxxim Medical Inc., plaintiff. Julian Clark Martin, Vinson and Elkins, Houston, TX, for Mark Michelson, defendant. AMENDED MEMORANDUM OPINION AND ORDER HARMON, District Judge. The Court's order entered on March 12, 1999 (Instrument #32), is hereby VACATED, and the following order is replaced in its stead. Pending before the Court in the above referenced action is Plaintiff Maxim Medical Inc.'s ("Maxim") application for temporary injunction. After reviewing the record, Defendant Mark Michelson's opposition, the arguments of counsel, and the applicable law, the Court concludes that the application should be GRANTED. I. Background This case involves the scope of a covenant not to compete agreement, confidentiality agreement, and non-solicitation agreement entered into by Maxim and its prior employee, Michelson. It also involves whether Michelson is liable for conversion, breach of fiduciary duty, and misappropriation of trade secrets. Maxim is a Texas corporation with, until 1997, its corporate headquarters located in Sugarland, Texas.[1] Maxim, among other things, provides doctors sterile prepackaged trays of medical utensils. Michelson was employed by Maxim and its predecessors in interest for several years as a salesman and a supervisor. Michelson lives in California, but in his most recent capacity for Maxim, he supervised ten salesmen that served clients not only in California, but also Nevada, and for a time, Arizona, and El Paso, Texas. During his employment at Maxim, Michelson signed at least two stock option agreements. In consideration for receiving stock options, Michelson agreed not to compete with Maxim for a one year period and to keep Maxim's confidential information secret. In January 1999, Michelson began to negotiate employment with another company, PHS. The day before Michelson resigned from Maxim, he exercised some of his stock options. He also requested a large batch of client information printed. The individual who received this request forwarded it to another office employee. *778 Michelson contacted this office employee later and requested additional information. Because the request was so large, she started the printing job, but it would not be completed until later that evening. She left the list of requested information on her desk with a stapler on top of it. Before leaving, she noticed that Michelson was the last front office employee remaining. The next day, the list was gone. After informing Michelson of such, Michelson told her that he had taken it. He also lied to her and told her that the client information she had printed was useless because the printing was off line. That same day, Michelson resigned from Maxim and started employment at PHS. After Maxim employees checked Michelson's laptop, they discovered that he had deleted a great deal of confidential company information from his hard drive. II. Discussion A preliminary injunction is an extraordinary and drastic remedy, one that should not be granted unless the movant, by a clear showing, carries the burden of persuasion. Mazurek v. Armstrong, 520 U.S. 968, 117 S.Ct. 1865, 1867, 138 L.Ed.2d 162 (1997) (citing 11A CHARLES A. WRIGHT, ARTHUR R. MILLER, & MARY KAY KANE, FEDERAL PRACTICE AND PROCEDURE § 2948, pp. 129-130 (2d ed.1995)); Hoover v. Morales, 164 F.3d 221, 224 (5th Cir.1998). In meeting this burden, the plaintiff must demonstrate: (1) a substantial likelihood of success on the merits; (2) a substantial threat that the movant will suffer irreparable injury if the injunction is denied; (3) that the threatened injury outweighs any damage that the injunction might cause the defendant; and (4) that the injunction will not disserve the public interest. Morales, 164 F.3d at 224. "The decision to grant or deny a preliminary injunction lies within the discretion of the district court and will be reversed on appeal only upon a showing of abuse of discretion." House the Homeless, Inc. v. Widnall, 94 F.3d 176, 180 (5th Cir.1996), cert. denied, 520 U.S. 1169, 117 S.Ct. 1434, 137 L.Ed.2d 541 (1997). A. Success on the merits 1. Maxim's contract claims To determine the likelihood of success on the merits, this Court must look to the standards provided by the substantive law. Valley v. Rapides Parish Sch. Bd., 118 F.3d 1047, 1051 (5th Cir.1997). The first issue this Court must address is which state's substantive law should be applied. Maxim contends that Texas law should apply because the parties agreed to such via a choice of law provision in the stock option agreement. Michelson contends that California law should apply because the choice of law provision is unenforceable and California has the "most significant relationship" to this dispute. A federal court customarily applies the choice of law rules of the forum in which it is located. Klaxon v. Stentor Elec. Mfg. Co., 313 U.S. 487, 496, 61 S.Ct. 1020, 1021, 85 L.Ed. 1477 (1941); King v. Douglass, 973 F.Supp. 707, 723 (S.D.Tex. 1996) (citing Klaxon). With regard to breach of contract actions, Texas follows the RESTATEMENT (SECOND) OF CONFLICT OF LAWS § 187 (1971). DeSantis v. Wackenhut Corp., 793 S.W.2d 670, 677 (Tex.1990). Section 187 states: Law of the State Chosen by the Parties (1) The law of the state chosen by the parties to govern their contractual rights and duties will be applied if the particular issue is one which the parties could have resolved by an explicit provision in their agreement directed to that issue. (2) The law of the state chosen by the parties to govern their contractual rights and duties will be applied, even if the particular issue is one which the parties could not have resolved by an explicit provision in their agreement directed to that issue, unless either *779 (a) the chosen state has no substantial relationship to the parties or the transaction and there is no other reasonable basis for the parties' choice, or (b) application of the law of the chosen state would be contrary to a fundamental policy of a state which has a materially greater interest than the chosen state in the determination of the particular issue and which, under the rule of § 188, would be the state of the applicable law in the absence of an effective choice of law by the parties. (3) In the absence of a contrary indication of intention, the reference is to the local law of the state of the chosen law. RESTATEMENT (SECOND) OF CONFLICT OF LAWS § 187. This issue of whether a covenant not to compete agreement is enforceable is not "one which the parties could have resolved by an explicit provision in their agreement". DeSantis, 793 S.W.2d at 678 (citing RESTATEMENT (SECOND) OF CONFLICT OF LAWS § 187 cmt. d (1971)). Thus, section 187(1) is inapplicable, and the Court must look to section 187(2). Id. Generally, the Court should apply the law chosen by the parties under section 187(2), unless section 187(2)(b) applies,[2] which depends upon three determinations: first, whether there is a state the law of which would apply under section 188 of the RESTATEMENT absent an effective choice of law by the parties, or in other words, whether a state has a more significant relationship with the parties and their transaction than the state they chose; second, whether that state has a materially greater interest than the chosen state in deciding whether this noncompetition agreement should be enforced; and third, whether that state's fundamental policy would be contravened by the application of the law of the chosen state in this case. Id. Thus, the Court must determine whether: (1) California law would apply under section 188's significant relationship test;[3] and (2) California has a materially *780 greater interest than Texas in deciding whether the covenant not to compete between Maxim and Michelson should be enforced; and (3) California's public policy would be contravened by applying Texas law. See id. In this case, the place of contracting occurred in both California and Texas; but, Michelson executed the noncompetition agreement in California. The negotiation of the contract occurred in both California and Texas. The place of performance of the contract was in California, Nevada, Arizona, and Texas. The location of the subject matter of the contract was in California. The domicile, residence, nationality, place of incorporation and place of business are also split between California and Texas. The factor that tips the balance to California is that the gist of the agreement was the performance of personal services, for the most part, in California. See id. This factor alone is generally conclusive in determining what state's law will apply.[4] Although Michelson performed some services for Texas, it is undisputed that the major portion of his services were rendered in California. Thus, under the significant relationship test, California law would apply. The next question is whether California has a materially greater interest than Texas in deciding whether the covenant not to compete between Maxim and Michelson should be enforced. Like the Texas Supreme Court in DeSantis,[5] California courts similarly hold that where a California employee is involved, California has a materially greater interest in the application of its law because of that state's strong public policy against noncompetition *781 covenants. Nedlloyd Lines B.V. v. Superior Court, 3 Cal.4th 459, 465-66, 834 P.2d 1148, 1151-52, 11 Cal.Rptr.2d 330, 333-34 (Cal.1992); Application Group, Inc. v. Hunter Group, Inc., 61 Cal.App.4th 881, 900, 72 Cal.Rptr.2d 73, 85 (1st Dist. 1998, review denied); Scott v. Snelling and Snelling, Inc., 732 F.Supp. 1034, 1041 (N.D.Cal.1990). In this case, it is true that Michelson performed some services for a brief time in Texas; however, the vast majority of services were performed in California. There is nothing in the record that would lead this Court to believe that Texas has a materially greater interest in this matter than California. See Nedlloyd, 3 Cal.4th at 466 n. 6, 834 P.2d at 1152 n. 6, 11 Cal.Rptr.2d at 334 n. 6 ("There may also be instances when the chosen state has a materially greater interest in the matter than does California, but enforcement of the law of the chosen state would lead to a result contrary to a fundamental policy of California. In some such cases, enforcement of the law of the chosen state may be appropriate despite California's policy to the contrary. Careful consideration, however, of California's policy and the other state's interest would be required.") (citation omitted). The final question to be addressed is whether California's public policy would be contravened if this Court were to apply Texas law. California has promulgated Section 16600 of the California Business & Professions Code which states, "Except as provided in this chapter, every contract by which anyone is restrained from engaging in a lawful profession, trade, or business of any kind is to that extent void." One of the few exceptions to Section 16600 is where the covenant is necessary to protect trade secrets of the employer. See Muggill v. Reuben H. Donnelley Corp., 62 Cal.2d 239, 242, 398 P.2d 147, 149, 42 Cal.Rptr. 107, 109 (Cal.1965); Metro Traffic Control, Inc. v. Shadow Traffic Network, 22 Cal.App.4th 853, 860-61, 27 Cal. Rptr.2d 573, 577-78 (2d Dist.1994); John F. Matull & Assocs., Inc. v. Cloutier, 194 Cal.App.3d 1049, 1054, 240 Cal.Rptr. 211, 214 (2d Dist.1987); Loral Corp. v. Moyes, 174 Cal.App.3d 268, 276, 219 Cal.Rptr. 836, 841 (6th Dist.1985). Texas law permits noncompetition covenants to the extent that they are reasonable and ancillary to an otherwise enforceable agreement. See DeSantis, 793 S.W.2d at 681-82. Thus, to the extent that it is reasonable, the agreement in this case would be completely enforceable in Texas. As mentioned supra, however, it would only be enforceable in California to the extent necessary to protect Maxim's trade secrets. Thus, if this Court were to apply Texas law, California's public policy in preventing broad noncompetition covenants would be contravened. Cf. Team Envtl. Servs., Inc. v. Addison, 2 F.3d 124, 126 n. 1 (5th Cir.1993) (notwithstanding Texas choice of law provision, Louisiana had greater interest because of strong public policy against covenants not to compete) Because California law would apply under section 188's significant relationship test, California has a materially greater interest than Texas, and California's public policy would be contravened by applying Texas law, this Court will apply California law to determine the enforceability of the covenant not to compete between Michelson and Maxim. Because the broad noncompetition agreement would be unenforceable in California absent reformation, the Court must determine whether reformation is appropriate. The noncompetition agreement in this case contains the following passage: The parties understand and agree that if any of the restrictions placed upon the Optionee herein relating to time, geographical area or scope of activity are deemed more extensive than is necessary to protect the good will or other business interests of the Company under the laws of the State of Texas (or any other jurisdiction in which the employee may be actually employed and by reason of which the law of such other jurisdiction properly applies with respect to interpretation *782 of Sections 6 or 7 hereof), then the parties hereto agree to amend the terms hereof to such time, geographical area and scope of activity and alter the degree and extent of such provisions by the minimal amount of amendment or alteration necessary to bring such provisions within the ambit of enforceability with the State of Texas. Plaintiff's Ex. 1, p. 3 (emphasis added). A recent California decision is dispositive of the reformation issue. In Kolani v. Gluska, 64 Cal.App.4th 402, 407-08, 75 Cal.Rptr.2d 257, 259-60 (2d Dist.1998), the court struck down a similarly broad noncompetition agreement because it could not be reformed. First, the court noted that agreements are only generally reformed if the parties made a mistake. Id., 64 Cal.App.4th at 408, 75 Cal.Rptr.2d at 260. The parties in Kolani, however, merely entered into an illegal contract; there was no allegation or evidence of mistake. Id. Second, the court noted that the parties only agreed that the noncompetition agreement could be reformed if it were found "unfair" or "commercially unreasonable," not if it were merely illegal. Id. Third, the court held that any reformation would undermine the important public policy that is protected by section 16600: Employers could insert broad, facially illegal covenants not to compete in their employment contracts. Many, perhaps most employees, would honor these clauses without consulting counsel or challenging the clause in court, thus directly undermining the statutory policy favoring competition. Employers would have no disincentive to use the broad, illegal clauses if permitted to retreat to a narrow, lawful construction in the event of litigation. Id. The Kolani court pointed out that no California case had permitted the reformation of an illegal noncompetition agreement. Id. Like Kolani, there is no allegation of mistake in the drafting of the noncompetition agreement. Furthermore, the reformation provision at issue would only permit this Court to reform the broad agreement where Maxim's goodwill or other business interest did not require it to be as lengthy, as geographically expansive, or as restrictive in its terms. Although the agreement is too restrictive, it is not necessarily more restrictive "than is necessary to protect Maxim's goodwill or other business interest." Maxim may well need this expansive agreement to protect its goodwill and business interests. The problem is, as discussed supra, the California legislature has determined that such an agreement is void. Finally, as in Kolani, this noncompetition agreement is very broad. Any reformation of the illegal noncompetition agreement would undermine the public policy of section 16600. Maxim would have no disincentive to use this broad, illegal clause in the future if this Court permitted it to retreat to a narrow, lawful construction in this litigation. Id. Thus, the noncompetition agreement cannot be reformed into a narrower agreement strictly limited to trade secrets. California's section 16600, however, does not apply to the confidentiality and nonsolicitation agreements. Cloutier, 194 Cal.App.3d at 1054, 240 Cal.Rptr. at 214; Moyes, 174 Cal.App.3d at 276, 219 Cal.Rptr. at 841; In re Ingle Co., Inc., 116 F.3d 1485, 1997 WL 8495, at *3-5 (9th Cir.1997). Thus, unlike the noncompetition agreement, there is no public policy that would be contravened by the application of Texas law as the parties contractually agreed. With regard to the nonsolicitation agreement,[6] Maxim did not provide any evidence *783 that Michelson had solicited any employees from Maxim.[7] Thus, this agreement is not at issue. Maxim alleges that Michelson breached the confidentiality agreement[8] when he turned over the stock option agreement before he was hired by PHS out of concern over the noncompetition agreement. At the preliminary injunction hearing, both Michelson and the vice-president of PHS testified that Michelson had divulged the contents of his stock option agreement when discussing potential employment with PHS. Salary and benefit information not available to the public is confidential. See, e.g., Totino v. Alexander & Assocs., Inc., No. 01-97-01204-CV, 1998 WL 552818, at *6 (Tex.App. — Houston [1st Dist.] 1998, no pet.) (slip opinion) ("Finally, Totino admitted he had access to financial information and had knowledge of A & A personnel, including their salaries and benefits, by virtue of his position with A & A. Therefore, the trial court would not have abused its discretion in concluding that at least some of the information on which the confidentiality agreements were based was confidential and nonpublic."). Although the Court understands Michelson's concern over the noncompetition agreement, the proper course of conduct would have been to have had his own attorney examine the document, as opposed to divulging the contents of Maxim's stock option agreement to Maxim's direct competitor. Thus, there is a substantial likelihood that Maxim will prevail on its claim premised on the breach of the confidentiality agreement. 2. Maxim's tort claims Maxim also alleges several tort claims. As in the breach of contract claims, this Court must determine which state's substantive law should apply. Texas has adopted the "most significant relationship" test, as enunciated in Sections 6[9] and 145[10] of the RESTATEMENT (SECOND) OF *784 CONFLICTS OF LAWS, to resolve all conflict of law cases sounding in tort. Gutierrez v. Collins, 583 S.W.2d 312, 318 (Tex.1979); Danner v. Staggs, 680 F.2d 427, 429 (5th Cir.1982) (citing Gutierrez). The test provides that "`law of the state with the most significant relationship to the particular substantive issue will be applied to resolve that issue.'" Caton v. Leach Corp., 896 F.2d 939, 943 (5th Cir.1990) (quoting Duncan v. Cessna Aircraft Co., 665 S.W.2d 414, 421 (Tex.1984)). The application of the "`most significant relationship' test does not `turn on the number of contacts,' but more importantly on the qualitative nature of those contacts as affected by the policy factors enumerated in Section 6." De Aguilar v. Boeing Co., 47 F.3d 1404, 1413 (5th Cir.1995) (quoting Gutierrez, 583 S.W.2d at 318). Furthermore, the RESTATEMENT reveals an emphasis on the situs of the injury, at least with respect to the application of Section 145. RESTATEMENT (SECOND) OF CONFLICTS OF LAWS § 156.[11] Since the "locus of the conduct" is in California, the Court believes that California has a "greater interest in seeing that its standard of care is applied" because of the affect it will have on the way parties tailor their conduct within the state. De Aguilar, 47 F.3d at 1414. "[S]ubject only to rare exceptions, the local law of the state where the conduct and injury occurred will be applied to determine whether the actor satisfied minimum standards of acceptable conduct and whether the interest affected by the actor's conduct was entitled to legal protection." Id. at 1414 n. 11. Thus, this Court will apply California law to Maxim's tort claims. a. Misappropriation of trade secrets California has adopted the Uniform Trade Secret Act ("UTSA"). Under the UTSA, a court may enjoin actual or threatened misappropriation. CAL.CIVIL CODE § 3426.2. In the landmark case of PepsiCo, Inc. v. Redmond, 54 F.3d 1262 (7th Cir.1995), the court applied this provision of the UTSA to create what is now considered the "inevitable disclosure" doctrine.[12] Defendant William Redmond was a ten-year veteran sales employee of Pepsi. Id. at 1264. By 1994, he had become General Manager of Pepsi's California Business Unit, having revenues of more than $500 million and representing 20% of Pepsi's North American profits. Id. Because Redmond's position was relatively high up in Pepsi's hierarchy, Redmond had access to significant inside information and Pepsi trade secrets, including sales and marketing plans and "pricing architecture." Id. In the spring of 1994, a former Pepsi executive who had become the head of Quaker's Gatorade division began to solicit Redmond. Id. Quaker eventually offered Redmond the position of "Vice President — On Premises Sales." Id. For some time, Redmond negotiated with Quaker over the salary of the position. Id. Eventually, Quaker offered Redmond the position of "Vice President — Field Operations." Throughout this time, Redmond kept his Quaker negotiations secret from Pepsi. Id. On November 10, 1994, Redmond finally announced to his superiors that he was leaving Pepsi to go to its fierce competitor, *785 Quaker.[13] Although Redmond had really only been offered the Gatorade "Vice President — Field Operations" position, Redmond told a number of Pepsi personnel that he was offered the chief operating officer position of the combined Quaker-Snapple company. Id. Apparently, Redmond hoped to further negotiate with Pepsi on salary. Id. On November 16, 1994, Pepsi sought an injunction preventing Redmond from working for Quaker. The district court issued an injunction barring Redmond from assuming his new job through May of 1995 and permanently barred his use of Pepsi trade secrets. Redmond appealed the injunction, and the Seventh Circuit affirmed the district court. In its decision, the court held that a plaintiff may prove a claim of trade secret misappropriation by demonstrating that defendant's new employment will inevitably lead him to rely on the plaintiff's trade secrets. Id. at 1269. A number of factors in that case convinced the court that Redmond would inevitably rely on Pepsi's trade secrets. First, Pepsi had established beyond question that Redmond possessed extensive Pepsi trade secrets. Redmond had more than just general skills and knowledge. Instead, he had "particularized plans or processes developed by [Pepsi] and disclosed to him while the employer-employee relationship existed, which are unknown to others in the industry and which give the employer an advantage over his competitors" Id. These included Pepsi's annual Strategic Plan containing its competitive plans, financial goals, and three-year manufacturing, production, marketing, packaging and distribution strategies; its Annual Operating Plan, including its so-called "pricing architecture" for the coming year; its "attack plans" for specific markets; and its innovations in selling and delivery systems. Id. at 1265. Moreover, Redmond had signed a confidentiality agreement with Pepsi agreeing not to disclose confidential information relating to Pepsi's business not generally known or available to the public or recognized as standard practice. Id. at 1266. Second, Redmond's responsibilities in his new position with Quaker were parallel to his old job so that he would have to refer to and use Pepsi's secrets. "[U]nless Redmond possessed an uncanny ability to compartmentalize information, he would necessarily be making decisions about Gatorade and Snapple by relying on his knowledge of [Pepsi's] trade secrets."[14] The court rejected defendants' arguments that Redmond's new agreement with Quaker required him to refrain from using Pepsi's trade secrets, and their claims that Pepsi's secrets would be completely useless to Redmond in any event as he executed his responsibilities to integrate the Gatorade and Snapple business lines. Id. at 1270. In this fiercely competitive field, "PepsiCo finds itself in the position of a coach, one of whose players has left, playbook in hand, to join the opposing team before the big game." Id. Third, Redmond's deceit played a part in the court's decision that he would inevitably disclose Pepsi's trade secrets. In this regard, the court relied on the district court's findings: Redmond's lack of forthrightness on some occasions, and out and out lies on others, in the period between the time he accepted the position with defendant Quaker and when he informed plaintiff *786 that he had accepted that position leads the court to conclude that defendant Redmond could not be trusted to act with the necessary sensitivity and good faith under the circumstances in which the only practical verification that he was not using plaintiff's secrets would be defendant Redmond's word to that effect. Id. In other words, having shown himself to be untrustworthy in one context, the court doubted he would honor the nondisclosure obligation were he allowed to assume his new position. For these reasons, the district court's limited injunction, preventing Redmond from assuming his new position for six months, i.e., until the Pepsi trade secrets he possessed were stale, was affirmed. Redmond has been widely followed.[15] The only reported case that did not follow Redmond did so on a factual basis. Bridgestone/Firestone, Inc. v. Lockhart, 5 F.Supp.2d 667, 682 (S.D.Ind. 1998) ("Because misappropriation does not appear to be inevitable, or even seriously threatened, this case is different from PepsiCo v. Redmond."). Although only a California Superior Court has had the opportunity to determine whether to follow Redmond,[16] this Court believes that the California Supreme Court would follow the overwhelming majority of other jurisdictions to do so. See also Johanna L. Edelstein, Note, Intellectual Slavery?: The Doctrine of Inevitable Disclosure of Trade Secrets, 26 GOLDEN GATE U.L.REV. 717, 719 (Spring 1996) ("Because California has adopted the U.T.S.A. and because PepsiCo was a fact intensive analysis, this decision will affect California law."). One commentator has delineated the factors that courts have relied upon in determining whether disclosure is inevitable. D. Peter Harvey, "Inevitable" Trade Secret Misappropriation after PepsiCo, Inc. v. Redmond, 537 PLI/PAT 199, 226 (1998). These factors include: (1) Is the new employer a competitor? (2) What is the scope of the defendant's new job? (3) Has the employee been less than candid about his new position? (4) Has plaintiff clearly identified the trade secrets which are at risk? (5) Has actual trade secret misappropriation already occurred? (6) Did the employee sign a non-disclosure and/or non-competition agreement? (7) Does the new employer have a policy against use of others' trade secrets? (8) Is it possible to "sanitize" the employee's new position? Id. at 226-27. In the case sub judice, all of the factors espoused in Redmond and above weigh heavily in favor of a finding of inevitable disclosure. It is undisputed that Michelson was in possession of a great deal of Maxim's proprietary information and trade secrets. As in Redmond, Michelson *787 was a relatively high level manager who had a great deal of Maxim's confidential information and trade secrets in his possession. Michelson was directly involved in Maxim's pricing scheme and in its marketing strategy. Over a period of time, Michelson developed significant relationships with many of Maxim's clients. Michelson also signed a confidentiality agreement in which he agreed not to disclose confidential information relating to Maxim's business not generally known or available to the public. Like Redmond, Michelson left Maxim to go to his company's direct competitor. Michelson's position at PHS is also sufficiently parallel to the position he held at Maxim. Although the vice-president of PHS tried to distinguish Michelson's position at PHS, there is no dispute that Michelson will inevitably be in direct competition with Maxim armed with Maxim's trade secrets. "[U]nless [Michelson] possessed an uncanny ability to compartmentalize information, he would necessarily be making decisions about [PHS] by relying on his knowledge of [Maxim's] trade secrets." Redmond, 54 F.3d at 1270. It is difficult not to conclude that PHS, entering the sterile tray assembly business, hired Michelson at a substantial raise in salary in order to utilize Maxim's trade secrets. The Court also notes that PHS does not even have an agreement with PHS that would require him to refrain from using Maxim's trade secrets. Furthermore, Michelson's and PHS's vice-president's contentions that Maxim's secrets would be completely useless to Michelson as he executed his responsibilities were directly rejected by the Redmond court. Id. In this fiercely competitive field, the point is that Maxim "finds itself in the position of a coach, one of whose players has left, playbook in hand, to join the opposing team before the big game." Id. Michelson was also not candid regarding his new position, like Redmond, he negotiated for some time with PHS without telling Maxim. During these negotiations, Michelson divulged Maxim's confidential stock option agreement to PHS. Michelson also destroyed confidential information on his laptop hard drive and ordered a large batch of confidential client information printed the day before his departure. Michelson then lied to the staff member who printed the information by stating that the print out was off-line, thereby rendering it useless. Michelson, in an attempt to explain his suspicious actions, testified that these actions were a huge mistake and that he "will regret them for the rest of his life." The explanation was less than credible. Furthermore, his open hostility to Maxim and dissatisfaction with the company was palpable. There was also some evidence that Michelson might have backed up the deleted confidential information from his laptop hard drive. Michelson asserts that he did not do so, and that he threw away the printouts of the client information. In any event, his "lack of forthrightness on some occasions, and out and out lies on others, in the period between the time he accepted the position with [PHS] and when he informed plaintiff that he had accepted that position leads the court to conclude that defendant [Michelson] could not be trusted to act with the necessary sensitivity and good faith under the circumstances in which the only practical verification that he was not using plaintiff's secrets would be defendant [Michelson's] word to that effect." Id. As a result, the Court concludes that, if Michelson has not already, he will inevitably disclose Maxim's trade secrets to PHS. Therefore, Maxim has a substantial likelihood of prevailing on the merits of its trade secret misappropriation claim. b. Breach of fiduciary duty and conversion claims Agents are considered to be fiduciaries of their principal. See Duffy v. Cavalier, 215 Cal.App.3d 1517, 1534, 264 Cal.Rptr. 740, 751 (1st Dist.1989) ("Any agent is also a fiduciary, whose obligation of diligent and faithful service is the same *788 as that of a trustee."). It is clear that through Michelson's actions, outlined supra, he put himself and his interests above that of his principal, thus, breaching his fiduciary duties. Accordingly, Maxim has a substantial likelihood of prevailing on the merits of its breach of fiduciary duty claim. c. Conversion claim The elements of a conversion claim are: (1) the plaintiff's ownership or right to possession of the property; (2) the defendant's conversion by a wrongful act or disposition of property rights; and (3) damages. Moore v. Regents of Univ. of Cal., 51 Cal.3d 120, 144 & n. 38, 271 Cal. Rptr. 146, 793 P.2d 479 (1990); Burlesci v. Petersen, 68 Cal.App.4th 1062, 1065, 80 Cal.Rptr.2d 704, 706 (1st Dist.1998) (citing Moore). It is undisputed that Maxim owned the material on the hard drive of Michelson's laptop, as well as the computer printouts of the client information Michelson ordered. It is also undisputed that Michelson, at a minimum, destroyed this property. It is also without question, that Maxim has spent monies on recovering the information from the laptop hard drive. Therefore, there is a substantial likelihood that Maxim will prevail on the merits of its conversion claim. B. The rest of the preliminary injunction prerequisites This Court has found that Maxim has a substantial likelihood of prevailing on its breach of the confidentiality agreement, misappropriation, breach of fiduciary duty, and conversion claims. Thus, the Court must next determine the remaining three prerequisites to obtaining injunctive relief, i.e., (1) whether there is a substantial threat that the movant will suffer irreparable injury if the injunction is denied; (2) whether the threatened injury outweighs any damage that the injunction might cause the defendant; and (3) whether the injunction will not disserve the public interest. Morales, 164 F.3d at 224. It is beyond dispute that Maxim will suffer irreparable harm if Michelson is permitted to work for PHS until the information he has becomes stale. As discussed supra, absent injunctive relief, Maxim will find itself in the big game competing against one of its own using its own playbook against it. Although Michelson will be without the PHS job until the information he has is stale, i.e., one year,[17] by all accounts, he is a very talented salesman and manager. It is for this very reason that we are here today. Michelson's burden of finding another position is dwarfed by the impact on Maxim of Michelson competing with it. This injunction, which is to ensure that Michelson is not to benefit from his breach of contract, fiduciary duties, conversion, and misappropriation of trade secrets, is solely in the public's interest. If the Court did not enjoin such, Michelson would be permitted to benefit from his own wrongdoing. As a result, the Court determines that Maxim's application for preliminary injunction should be granted. Accordingly, the Court ORDERS that Maxim's application for preliminary injunction is GRANTED; and further ORDERS that Defendant Mark Michelson is enjoined for one year from his resignation date from working as or for a direct competitor of Maxim in any of the product lines he was associated with at Maxim during the last two years. Maxim is not required to post security. The trial date for this cause will issue by separate order. NOTES [1] In the last year or so, Maxim moved its headquarters to Florida, but, Maxim still maintains an office in Sugarland. [2] Id. There is no contention that Texas lacks a substantial relationship to the parties and has no reasonable basis for its law to apply. See RESTATEMENT (SECOND) OF CONFLICT OF LAWS § 187(2)(a). [3] Section 188 of the Restatement states: Law Governing in Absence of Effective Choice by the Parties (1) The rights and duties of the parties with respect to an issue in contract are determined by the local law of the state which, with respect to that issue, has the most significant relationship to the transaction and the parties under the principles stated in § 6. (2) In the absence of an effective choice of law by the parties (see § 187), the contacts to be taken into account in applying the principles of § 6 to determine the law applicable to an issue include: (a) the place of contracting, (b) the place of negotiation of the contract, (c) the place of performance, (d) the location of the subject matter of the contract, and (e) the domicile, residence, nationality, place of incorporation and place of business of the parties. These contacts are to be evaluated according to their relative importance with respect to the particular issue. (3) If the place of negotiating the contract and the place of performance are in the same state, the local law of this state will usually be applied, except as otherwise provided in §§ 189-199 and 203. Section 6 of the Restatement sets out the general principles by which the more specific rules are to be applied, and states: Choice-of-Law Principles (1) A court, subject to constitutional restrictions, will follow a statutory directive of its own state on choice of law. (2) When there is no such directive, the factors relevant to the choice of the applicable rule of law include (a) the needs of the interstate and international systems, (b) the relevant policies of the forum, (c) the relevant policies of other interested states and the relative interests of those states in the determination of the particular issue, (d) the protection of justified expectations, (e) the basic policies underlying the particular field of law, (f) certainty, predictability and uniformity of result, and (g) ease in the determination and application of the law to be applied. [4] Id. Section 196 states: Contracts for the Rendition of Services The validity of a contract for the rendition of services and the rights created thereby are determined, in the absence of an effective choice of law by the parties, by the local law of the state where the contract requires that the services, or a major portion of the services, be rendered, unless, with respect to the particular issue, some other state has a more significant relationship under the principles stated in § 6 to the transaction and the parties, in which event the local law of the other state will be applied. RESTATEMENT (SECOND) OF CONFLICT OF LAWS § 196 (emphasis added). The fact that some services were not performed in California is of less import because section 196, by its plain terms, is applicable where a major portion of the services are performed in a given state. [5] Maxim argues that this case is different that Desantis. Maxim contends that Desantis involved an employee who worked solely in Florida and that in this case, Michelson worked in several states, including, for a time, Texas. A close reading of Desantis reveals that the Texas Supreme Court directly spoke to Maxim's contention: When parties to a contract reside or expect to perform their respective obligations in multiple jurisdictions, they may be uncertain as to what jurisdiction's law will govern construction and enforcement of the contract. To avoid this uncertainty, they may express in their agreement their own choice that the law of a specified jurisdiction apply to their agreement. Judicial respect for their choice advances the policy of protecting their expectations. This conflict of laws concept has come to be referred to as party autonomy. However, the parties' freedom to choose what jurisdiction's law will apply to their agreement cannot be unlimited. They cannot require that their contract be governed by the law of a jurisdiction which has no relation whatever to them or their agreement. And they cannot by agreement thwart or offend the public policy of the state the law of which ought otherwise to apply. DeSantis, 793 S.W.2d at 677 (emphasis added and citations omitted). The court further elaborated on this concept of limited autonomy in the context of section 187 of the Restatement. As delineated supra, the party must show two things: (1) there is a reasonable relationship between the state of the law to be applied and the contract in question; and (2) the application of this law does not offend the public policy of a state that has a greater interest. In this case, Maxim's attempt to distinguish Desantis solely relates to the first of these two categories, i.e., that Texas has a reasonable relationship here. The problem with Maxim's contention is that it fails to take into account the second category, the public policy aspect of the rule. [6] In the noncompetition agreement, Michelson also agreed "that for so long as he is employed by the Company [Maxim], and for one (1) year thereafter, he will not, either directly or indirectly, through any person, firm, association, or corporation with which he is now or may hereafter become associated, cause or induce any present or future employee of the Company [Maxim] to leave the employ of the Company to accept employment with the Optionee [Michelson] or with any Competitor [PHS]." Plaintiff's Ex. 2, p. 3. [7] At the hearing on this matter, John Winslow, Maxim's representative and Michelson's former supervisor, testified that he thought Michelson just going to a competitor would indirectly induce Maxim employees to leave the employ of Maxim. If this Court were to accept this assertion, no employee could ever leave Maxim and the non-solicitation agreement would act in effect as a covenant not to compete. Nonetheless, even if it were true, there is no evidence that a Maxim employee has left since Michelson resigned. [8] The confidentiality agreement portion of the stock option agreement stated in relevant part: Nondisclosure of Company Secrets. The Optionee acknowledges that in the course of his employment or other relationship with the Company, he has had and may continue to have access to certain trade secrets and proprietary information of the Company, know-how, programs, lists of customers, information regarding inventions, ... and other confidential information and knowledge concerning the business of the Company (hereinafter collectively referred to as the "Information") which the Company desires to protect. The Optionee understands that the Information is confidential and has been or will be received or learned by him in confidence, and the Optionee agrees that unless and until such information shall become a matter of public knowledge, he will not reveal any such Information to any third party for any reason or under any circumstances, either during or subsequent to his employment by the Company, other than in the ordinary course of his duties for the benefit of the Company, or as required by applicable law. Plaintiff's Ex. 2, p. 4. [9] See supra, note 3 (setting out section 6 in full). [10] Section 145 lists factual matters to be considered when applying the principles of Section 6 to a tort case, and states: The General Principle (1) The rights and liabilities of the parties with respect to an issue in tort are determined by the local law of the state which, with respect to that issue, has the most significant relationship to the occurrence and the parties under the principles stated in S6. (2) Contacts to be taken into account in applying the principles of S6 to determine the law applicable to an issue include: (a) the place where the injury occurred, (b) the place where the conduct causing the injury occurred, (c) the domicile, residence, nationality, place of incorporation and place of business of the parties, and (d) the place where the relationship, if any, between the parties is centered. These contacts are to be evaluated according to their relative importance with respect to the particular issue. [11] Section 156 reads: Tortious Character of Conduct (1) The law selected by application of the rule of § 145 determines whether the actor's conduct was tortious. (2) The applicable law will usually be the local law of the state where the injury occurred. [12] CAL.CIV.CODE § 3426.2 and 765 ILL.COMP. STAT. 1065/3(a) are identical. [13] Id. at 1263-64. Quaker produces Gatorade, which is the dominant product in the market. Id. at 1264. Quaker had also recently obtained the popular Snapple beverage company and was merging its operations. Id. Pepsi had produced some products, but, its market share was only about half of that of Quaker. Id. [14] Id. at 1269. It is noteworthy that in support of this proposition, the court cited the Fifth Circuit's decision in FMC Corp. v. Varco Int'l, Inc. 677 F.2d 500, 504 (5th Cir.1982) ("Even assuming the best of good faith, Witt will have difficulty preventing his knowledge of FMC's `Longsweep' manufacturing techniques from infiltrating his work."). [15] See, e.g., Cardinal Freight Carriers, Inc. v. J.B. Hunt Transport Servs., Inc., 336 Ark. 143, 987 S.W.2d 642 (1999); Conley v. DSC Communications Corp., NO. 05-98-01051-CV, 1999 WL 89955, *4 (Tex.App. — Dallas Feb 24, 1999, n.p.h.); Novell Inc. v. Timpanogos Research Group Inc., NO. XXXXXXXXX, 1998 WL 177721, 46 U.S.P.Q.2d 1197, 1216 (Utah Jan. 30, 1998); Solutec Corp., Inc. v. Agnew, NO. 16105-6-III, 1997 WL 794496, at *8 (Wash. App.Div. 3 Dec. 30, 1997), review denied, 136 Wash.2d 1004, 972 P.2d 464 (1998); APAC Teleservices, Inc. v. McRae, 985 F.Supp. 852, 857 n. 3 (N.D.Iowa 1997); Southwestern Energy Co. v. Eickenhorst, 955 F.Supp. 1078, 1085 (W.D.Ark.1997); La Calhene, Inc. v. Spolyar, 938 F.Supp. 523, 531 (W.D.Wis. 1996); Lumex, Inc. v. Highsmith, 919 F.Supp. 624, 633-34 (E.D.N.Y.1996); Merck & Co. Inc. v. Lyon, 941 F.Supp. 1443, 1457 (M.D.N.C.1996); Uncle B's Bakery, Inc. v. O'Rourke, 920 F.Supp. 1405, 1435-36 (N.D.Iowa 1996). [16] In Advanced Micro Devices v. Hyundai Electronics America, the Superior Court of Santa Clara County relied upon the doctrine of inevitable discovery and granted a preliminary injunction forbidding five former engineers of Advanced Micro Devices Inc. from taking positions with a competitor, Hyundai Electronics America. Pascal W. DiFronzo, A Little Knowledge Is a Dangerous Thing: The `Inevitable Disclosure' Theory Is Gaining Prominence — but Does it Make Sense?, IP: The Magazine for Law and High Technology . [17] At the hearing on this matter, Winslow, Maxim's representative and Michelson's supervisor, testified that the information Michelson possesses would not be stale for at least one year and perhaps even two years.

991 F.2d 796 NOTICE: Sixth Circuit Rule 24(c) states that citation of unpublished dispositions is disfavored except for establishing res judicata, estoppel, or the law of the case and requires service of copies of cited unpublished dispositions of the Sixth Circuit.Frank SANDERS, Jr., Plaintiff-Appellant,v.Joseph W. SMITH, Correctional Officer; David Hazelwood,Lt., Defendants-Appellees. No. 92-6351. United States Court of Appeals, Sixth Circuit. March 31, 1993. Before RYAN and SUHRHEINRICH, Circuit Judges, and PECK, Senior Circuit Judge. ORDER 1 This pro se Kentucky prisoner appeals a district court summary judgment dismissing his civil rights complaint filed under 42 U.S.C. § 1983. The appeal has been referred to a panel of the court pursuant to Rule 9(a), Rules of the Sixth Circuit. Upon examination, the panel unanimously agrees that oral argument is not needed. Fed.R.App.P. 34(a). 2 In his complaint, Frank Sanders contended that his six-day confinement in administrative segregation at the Kentucky State Penitentiary ("KSP") violated his rights of due process and that conditions were unlawful under the Eighth Amendment. He alleged that, following a disturbance at his regular cell, he was moved to a cell that lacked running water and adequate ventilation and was infested with roaches at night. Defendants are a corrections officer and a Lieutenant at KSP. Sanders requested monetary, declaratory and injunctive relief. 3 Upon review, we conclude that summary judgment was proper because there exist no genuine issues of material fact and defendants are entitled to judgment as a matter of law. See Fed.R.Civ.P. 56(c); Canderm Pharmacal, Ltd. v. Elder Pharmaceuticals, Inc., 862 F.2d 597, 601 (6th Cir.1988). 4 Defendants are entitled to judgment as a matter of law on Sanders's Eighth Amendment claim. The alleged conditions of confinement, while unpleasant, did not deprive him of "the minimal civilized measure of life's necessities." See Wilson v. Seiter, 111 S.Ct. 2321, 2324 (1991). 5 Defendants also are entitled to judgment on Sanders's due process claim. In the absence of a statute or prison regulation creating such an interest, a prisoner has no liberty interest in freedom from placement in a more secure cell for disciplinary reasons. Hewitt v. Helms, 459 U.S. 460, 467-68 (1983). In support of his due process claim, Sanders contended that a liberty interest was created by a prison regulation which provides for placement in maximum lockdown for prisoners who present a threat to the safety and security of the institution. To the extent the regulation is deemed to create a liberty interest, the procedures to which Sanders is entitled are minimal: an informal, nonadversary review of the information support his confinement, including any statement Sanders wished to submit, within a reasonable time after placing him in the more secure cell. See Hewitt, 459 U.S. at 472; Childs v. Pellegrin, 822 F.2d 1382, 1387-88 (6th Cir.1987). 6 Review of the record shows that Sanders received all the process he was due. The placement was authorized following review of a written behavior problem report. Sanders pursued his institutional remedies. His argument that no misconduct charges were filed lacks merit. Neither due process nor the prison regulations require the filing of formal charges to support placement in maximum lockdown. 7 Sanders also argues on appeal that he has been denied his personal property, including legal materials, the assistance of a legal aide and access to the law library. These claims were presented to the district court in support of Sanders's request for appointment of counsel. Moreover, the district court did not abuse its discretion by denying the request for counsel. See Henry v. City of Detroit Manpower Dep't, 763 F.2d 757, 760 (6th Cir.), cert. denied, 474 U.S. 1036 (1985). 8 Accordingly, the district court's summary judgment is affirmed. Rule 9(b)(3), Rules of the Sixth Circuit.

517 F.3d 781 (2008) Curtis MOORE, Petitioner-Appellant, v. Nathaniel QUARTERMAN, Director, Texas Department of Criminal Justice, Correctional Institutions Division, Respondent-Appellee. No. 07-70026. United States Court of Appeals, Fifth Circuit. February 14, 2008. *782 William Stanley Harris, Fort Worth, TX, for Moore. Baxter Ryan Morgan, Austin, TX, for Quarterman. Before HIGGINBOTHAM, WIENER, and BARKSDALE, Circuit Judges. PATRICK E. HIGGINBOTHAM, Circuit Judge: Curtis Moore was convicted of capital murder in Texas and sentenced to death. After his conviction and sentence were affirmed on direct review, Moore unsuccessfully sought state and federal habeas relief. Following the Supreme Court's decision in Atkins v. Virginia,[1] Moore sought state habeas relief on a mental retardation claim. The state courts rejected his claim on the merits. Moore then filed a motion for authorization to file a successive habeas application based on *783 the Atkins claim, which we granted.[2] The district court denied Moore relief on his claim,[3] and denied Moore's application for a Certificate of Appealability (COA). Moore now seeks a COA from this court. We deny his application for a COA. Under 28 U.S.C. § 2253(c)(2), a habeas petitioner must obtain a COA in order to appeal the district court's denial of relief. "This is a jurisdictional prerequisite because the COA statute mandates that `[u]nless a circuit justice or judge issues a certificate of appealability, an appeal may not be taken to the court of appeals. . . .'"[4] "A certificate of appealability may issue . . . only if the applicant has made a substantial showing of the denial of a constitutional right."[5] "To make such a showing, a petitioner `must demonstrate that the issues are debatable among jurists of reason; that a court could resolve the issues [in a different manner]; or that the questions are adequate to deserve encouragement to proceed further.'"[6] As the Supreme Court has explained, "The COA determination under § 2253(c) requires an overview of the claims in the habeas petition and a general assessment of their merits. We look to the District Court's application of AEDPA to petitioner's constitutional claims and ask whether that resolution was debatable amongst jurists of reason."[7] In Atkins, the Supreme Court held that the Constitution prohibits executing the mentally retarded.[8] "The Court . . . left `to the State[s] the task of developing appropriate ways to enforce the constitutional restriction upon [their] execution of sentences,' but cited with approval the American Association on Mental Retardation ('AAMR') definition of mental retardation."[9] The Texas courts have adopted a test for mental retardation that mirrors the AAMR definition, and thus require an applicant claiming mental retardation to demonstrate (1) significantly subaverage general intellectual functioning; (2) accompanied by related limitations in adaptive functioning; and (3) onset prior to the age of eighteen.[10] "To state a successful claim, an applicant must satisfy all three prongs of this test."[11] Because the state court decided Moore's Atkins claim on the merits, the state court decision receives AEDPA deference.[12]*784 The district court concluded that the state court judgment could not be disturbed: In short, having independently reviewed all of the evidence, the court concludes that, while there is evidence indicative of perhaps mild mental retardation, there is ample evidence that Moore is not mentally retarded. Consequently, the state court's finding that Moore is not mentally retarded was not unreasonable. See 28 U.S.C. § 2254(d)(2). Moreover, these findings are presumed to be correct unless controverted by Moore with clear and convincing evidence. See 28 U.S.C. § 2254(e)(1). Moore has failed to meet that burden here.[13] The court also explained that it "views the issue of Moore's mental capacity as one of fact. Even if viewed as a mixed issue of fact and law, the state-court decision on this issue was not contrary to or otherwise involved an unreasonable application of clearly established federal law."[14] Moore presented a thin case of mental retardation. Moore's IQ has been tested numerous times: as reported by Moore, a WISC-R test in 1980 yielded a full-scale score of 68;[15] a WISC-R in 1981 a full-scale score of 72; a WISC-R in 1984 a full-scale score of 72;[16] a WAIS-R in 1996 a full-scale score of 76; a WAIS-III in 2003 a full-scale score of 63; and, finally, a WAIS-III in 2004 a full-scale score of 76. While these scores could support a finding of subaverage intellectual functioning, the scores can also sustain a finding that Moore is not retarded. Furthermore, there was conflicting expert evidence introduced at the state habeas proceeding concerning these scores; that is, while some expert opinion supported a finding of subaverage intellectual functioning, there was other expert evidence indicating that Moore did not suffer from such functioning and that he underperformed on at least some of the tests. The evidence as to deficits in adaptive functioning cuts both ways, and the evidence in support of a finding of adaptive limitations is not without problems. Although Moore presented affidavits from those who knew him and the expert opinion of Dr. Rosin describing deficits, there was also credible evidence, both expert and not, that Moore did not suffer from deficits in adaptive functioning. Given the conflicted nature of the evidence, and the weaknesses in the evidence in Moore's favor, Moore cannot overcome the state court's findings. Although Moore's claim founders on the first two elements of the mental retardation analysis, we also note that the evidence of onset before age 18 was conflicted. On this record, reasonable jurists could not disagree with the able district court's determination that Moore's Atkins claim is beyond the reach of AEDPA relief. Moore's application for a Certificate of Appealability is DENIED. NOTES [1] 536 U.S. 304, 122 S.Ct. 2242, 153 L.Ed.2d 335 (2002). [2] See In re Moore, No. 07-10168, 217 Fed. Appx. 350 (5th Cir. Feb.9, 2007) (unpublished). [3] See Moore v. Quarterman, No. 4:07-CV-077-A, 2007 WL 1965544 (N.D.Tex. July 6, 2007). [4] Miller-El v. Cockrell, 537 U.S. 322, 336, 123 S.Ct. 1029, 154 L.Ed.2d 931 (2003). [5] 28 U.S.C. § 2253(c)(2). [6] ShisInday v. Quarterman, 511 F.3d 514, 520 (5th Cir.2007) (quoting Barefoot v. Estelle, 463 U.S. 880, 893 n. 4, 103 S.Ct. 3383, 77 L.Ed.2d 1090 (1983)). [7] Miller-El, 537 U.S. at 336, 123 S.Ct. 1029. [8] See 536 U.S. at 321, 122 S.Ct. 2242 ("Construing and applying the Eighth Amendment in the light of our `evolving standards of decency,' we therefore conclude that such punishment is excessive and that the Constitution `places a substantive restriction on the State's power to take the life' of a mentally retarded offender." (quoting Ford v. Wainwright, 477 U.S. 399, 405, 106 S.Ct. 2595, 91 L.Ed.2d 335 (1986))). [9] In re Salazar, 443 F.3d 430, 432 (5th Cir. 2006) (quoting Atkins, 536 U.S. at 317, 122 S.Ct. 2242). [10] Id.; see Ex parte Briseno, 135 S.W.3d 1, 7 (Tex.Crim.App.2004). [11] Salazar, 443 F.3d at 432. [12] See 28 U.S.C. § 2254(d), (e). [13] Moore, 2007 WL 1965544, at *6. [14] Id. at *6 n. 13. [15] The district court, based on the trial court findings, reported this score as 67 and not 68. Id. at *5 & n. 8. The difference is not material to the outcome. [16] Moore argues that the result of this test should be heavily discounted because the examiner and circumstances of the test "are unknown and the report is not in evidence." Discounting the result does not change the outcome.

59 B.R. 553 (1986) In re Larry SHIMP, Debtor. Larry Charles SHIMP, Plaintiff, v. Gayle A. SHIMP, Defendant. Bankruptcy No. 84-0211, Related Case No. 84-00035. United States Bankruptcy Court, N.D. Ohio, W.D. February 13, 1986. Timothy C. Hamman, Lima, Ohio, for plaintiff. Anthony J. Bowers, Lima, Ohio, for defendant. MEMORANDUM OPINION AND ORDER RICHARD L. SPEER, Bankruptcy Judge. This cause comes before the Court upon the Amended Complaint filed by the Plaintiff-Debtor *554 in the above entitled adversary action. The original Complaint filed in this case sought to enjoin the Defendant from proceeding with a Contempt action that she had filed against the Debtor in the Allen County Court of Common Pleas. In that action, the Defendant sought an Order enforcing the provisions of a divorce decree, whereby the Debtor was to hold the Defendant harmless on a mutual obligation to Associates Financial Services (hereinafter Associates). It appears that prior procedural issues which have arisen in this case have been resolved, and that the parties have requested this Court to make a determination as to the dischargeability of the obligation imposed by the divorce decree as it relates to the debt to Associates. In that regard, the parties have submitted a Stipulation of Facts to the Court and have had the opportunity to file any written arguments they wish the Court to consider. The Court has reviewed the Stipulation, the arguments, and the entire record in this case. Based upon that review, and for the following reasons the Court finds that the debt is DISCHARGEABLE IN PART and NONDISCHARGEABLE IN PART. FACTS The facts in this case are not in dispute. The parties were married on or about January 15, 1983. One child was born during this union. At some time during the marriage the parties received a loan from Associates. The parties to this proceeding are jointly and severally liable on that obligation. As indicated in the Stipulation of Facts, the proceeds of the loan were used to purchase furniture, to make repairs to their residence, and for personal expenses. The original amount of the loan and the amounts applied to each of these purposes is unclear. On October 26, 1983, the Defendant filed a Complaint for divorce in the Allen County Court of Common Pleas. The Debtor filed his voluntary Chapter 7 Petition with this Court on January 7, 1984. In the Schedules filed with that Petition, the Debtor listed the debt to Associates as a secured obligation in the amount of Two Thousand Forty-six and no/100 Dollars ($2,046.00). He also listed an unsecured obligation to his wife as a result of the pending domestic relations action. On March 28, 1984, the Allen County Court issued a decree of divorce. As a part of that decree, the Court Ordered that the Debtor would be liable for the debt to Associates, and that he would hold the Defendant harmless on that obligation. The Court also made specific provisions as to child support and visitation. There was no provision made for the payment of alimony. The Court further Ordered that the parties would be awarded the property that was in their possession as of the time of the decree. It appears that the Debtor received the furniture that was purchased with the loan in question. The action presently before the Court seeks a determination as to the dischargeability of the debt owed to Associates. Specifically, the question raised in this proceeding involves the determination as to what, if any, part of the obligation to Associates is dischargeable as a result of the fact that that obligation was addressed in the Order of the Allen County Court of Common Pleas. LAW The provisions of 11 U.S.C. Section 523(a)(5) state in pertinent part: (a) A discharge under section 727, 1141, or 1328(b) of this title does not discharge an individual debtor from any debt— (5) to a spouse, former spouse, or child of the debtor, for alimony to, maintenance for, or support of such spouse or child, in connection with a separation agreement, divorce decree, or other order of a court of record or property settlement agreement, but not to the extent that— (B) such debt includes a liability designated as alimony, maintenance, or support, unless such liability is actually in the nature of alimony, maintenance, or support . . . *555 Under this provision, those obligations which are imposed by a divorce decree, and which are in the nature of alimony maintenance and support, are not dischargeable in a proceeding under Chapter 7. In that regard, it is well established that the Bankruptcy Court does not have to accept as determinative the provisions of a divorce decree which establish an obligation imposed thereunder as alimony, maintenance, and support or as a property settlement. Rather, the provisions of 11 U.S.C. Section 523(a)(5) clearly provide that the Bankruptcy Court has the prerogative to look behind the divorce decree and determine whether or not an obligation is actually in the nature of alimony, maintenance, and support, or whether it constitutes a property settlement. See, Kline v. Kline (In re Kline), 42 B.R. 141 (Bkcy.N.D.Ohio 1984), Conrad v. Conrad (In re Conrad), 33 B.R. 601 (Bkcy.N.D.Ohio 1983). Before the Court can proceed with a determination as to the dischargeability of the debt in question, it must first be noted that the record does not make clear the amounts of the loan which were applied to each of the purposes set forth in the Stipulation of Facts. The nature of each of these purposes is determinative of whether or not the proceeds applied thereto are dischargeable. Therefore, this Court cannot make a dispositive finding as to the amounts to be held dischargeable and nondischargeable. However, the record is sufficient for this Court to make a determination as to the dischargeability of the proceeds which were applied to any given purpose. Accordingly, this Court will proceed with that finding. The Court will, at a later time, afford the parties the opportunity to present evidence as to the respective amounts that were spent on each activity. When that has been accomplished, the Court will then be able to determine the percentages of the total loan that were applied to each purpose, and will be able to apportion the dischargeability and nondischargeability of the remaining debt. In the present case, it appears that the proceeds of the loan were used for several purposes. In part, they were used to purchase furniture which, as a result of the decree, remained in the possession of the Debtor. Since this part of the debt goes toward paying for property that is in the Debtor's possession, it cannot be said that the continuing obligation contributes anything towards the support and maintenance of the Debtor's former family. Therefore, it must be concluded that the percentage of the outstanding balance which is attributable to the purchase of the furniture is in the nature of a property settlement and is dischargeable. A further review of the Stipulation of Facts finds that part of the proceeds were used to accomplish some repairs to the parties' residence. The effectuation of repairs to one's residence can be characterized as maintenance and support, inasmuch as such repairs would be in furtherance of the requirement that the Debtor provide his family with an adequate place to live. See, Conrad v. Conrad, supra. Accordingly, that portion of the debt which was applied to repairs must be considered to be in the nature of support and, therefore, is nondischargeable. Finally, the Stipulation of Facts indicates that the remaining proceeds were used for personal expenses. The specific purpose towards which they were used is unclear. In the absence of such evidence, it must be presumed that they were applied towards the benefit or enjoyment of the members of the family. In that event, the obligation can be said to have arisen from an activity which supported the welfare of the family. Since the Debtor had a duty to provide for the well being of his wife and child, then the financial obligation attendant to that duty can accurately be characterized as maintenance and support. Accordingly, the repayment of the percentage of the debt which was not used for the purchase of furniture, or for repairs, would be in the nature of maintenance and support and would not be dischargeable. It should be noted that the Court is cognizant of the argument which asserts *556 that the "hold harmless" clause operates in a fashion so as to make payment of the entire obligation to Associates in the nature of alimony and support. However, "hold harmless" clauses do not, in and of themselves, constrain the Bankruptcy Court to find that such obligations are maintenance and support. See, Conrad v. Conrad, supra. They can only be found to maintenance and support if the clause, taken as a whole, operates in that manner. Otherwise, as in the present case, the items which fall under the clause must be taken individually. Therefore, based upon the foregoing analysis, it must be concluded that the debt to Associates is nondischargeable to the extent the proceeds of the loan were used for personal expenses, and to the extent they were used to affectuate the repairs to the residence. It must also be concluded that the debt is dischargeable to the extent the proceeds were used to purchase the furniture. In reaching these conclusions the Court has considered all the evidence and arguments of counsel, regardless of whether or not they are specifically referred to in this Opinion. It is ORDERED that a Hearing be, and is hereby, set for Wednesday, March 19, 1986, at 1:30 o'clock P.M., in Courtroom No. 2, United States Courthouse, 1716 Spielbusch Avenue, Toledo, Ohio. The purpose of this Hearing will be for the presentation of evidence that is consistent with the issues addressed in this Opinion.

595 F.Supp. 1385 (1984) Paul KALMANOVITZ, individually and as a shareholder of Pabst Brewing Company, and S & P Company, a California corporation, Plaintiffs, v. G. HEILEMAN BREWING COMPANY, INC., a Wisconsin corporation, Russell G. Cleary, HBC Acquisition, Inc., a Delaware corporation, Pabst Brewing Company, a Delaware corporation, William F. Smith, Jr., Irwin L. Jacobs, Dennis Mathisen, Gerald A. Schwalbach and Daniel T. Lindsay, Defendants. Paul KALMANOVITZ, an individual, and S & P Company, a California corporation, Plaintiffs, v. Irwin JACOBS, an individual, Dennis Mathisen, an individual, Gerald A. Schwalbach, an individual, and Daniel T. Lindsay, an individual, Defendants. Civ. A. No. 82-797, (Formerly California A. Nos. C83 0196, C83 0704). United States District Court, D. Delaware. September 28, 1984. *1386 *1387 *1388 Robert K. Payson and Peter M. Sieglaff of Potter, Anderson & Corroon, Wilmington, Del., and Joseph L. Alioto, Joseph M. Alioto, John I. Alioto, and Gary D. Elion of Alioto & Alioto, San Francisco, Cal., for plaintiffs. R. Franklin Balotti of Richards, Layton & Finger, Wilmington, Del., and Harry Davidow of Weil, Gotshal & Manges, New York City, for defendants Irwin L. Jacobs, Dennis M. Mathisen, Gerald A. Schwalbach and Daniel T. Lindsay. Bruce M. Stargatt of Young, Conaway, Stargatt & Taylor, Wilmington, Del., Maurice J. McSweeney of Foley & Lardner, Milwaukee, Wis., and Leslie C. Smith of Foley, Lardner, Hollabaugh & Jacobs, Washington, D.C., for defendants G. Heileman Brewing Co., Inc., Russell G. Cleary, and HBC Acquisition, Inc. A. Gilchrist Sparks, III, Eric Howard and Michael Houghton of Morris, Nichols, Arsht & Tunnell, Wilmington, Del., and Willis B. Snell of Sutherland, Asbill & Brennan, Washington, D.C., for defendants Pabst Brewing Co. and William F. Smith, Jr. OPINION LATCHUM, Senior District Judge. I. BACKGROUND Plaintiffs, Paul Kalmanovitz[1] ("Kalmanovitz"), individually and as a shareholder of Pabst Brewing Company ("Pabst"), and S & P, a California corporation ("S & P") (collectively "plaintiffs"), brought this action on December 10, 1982, pursuant to (a) Sections 10(b), 13(e), 14(d), and 14(e) of the Exchange Act, 15 U.S.C. §§ 78j(b), 78m(e), 78n(d), and 78n(e), and the rules and regulations promulgated by the SEC thereunder; (b) Section 1 of the Sherman Act, Section 7 of the Clayton Act, 15 U.S.C. §§ 1, 18; and (c) the laws of the State of Delaware. (Docket Item ["D.I."] 1 at 3.) Originally, three separate lawsuits were filed, however, the cases have subsequently been consolidated into this present case. This lawsuit began in 1982, the result of the fierce battle for control of Pabst between Kalmanovitz, the Jacobs Group which included Irwin L. Jacobs ("Jacobs"), Dennis Mathisen ("Mathisen"), Gerald A. Schwalbach ("Schwalbach") and Daniel I. Lindsay ("Lindsay"), and G. Heileman Brewing Company, Inc. ("Heileman"). Presently pending before this Court are two motions: (a) defendants' motion to dismiss Counts I through X of the Complaint[2] (D.I. 166); and (b) plaintiffs' motion to certify the antitrust and tortious interference claims for appeal pursuant to Fed.R.Civ.P. 54(b). (D.I. 160.) *1389 II. FACTS Because this Court has already recounted the details of the battle for control of Pabst,[3] this discussion therefore will be limited to a thumbnail sketch of the operative facts. On October 26, 1982, Kalmanovitz and Jacobs, along with three of Jacobs' associates (the "Jacobs Group"), entered into a Memorandum of Terms (the "October 26 contract"), by which Kalmanovitz and the Jacobs Group, through JMSL Acquiring Corporation ("JMSL"),[4] agreed to make a tender offer for 3,000,000 Pabst shares at $24 per share.[5] (D.I. 121, Ex. 1 at 2.) Acquisition of these 3,000,000 shares, combined with 1,440,305 Pabst shares the Jacobs Group already owned, would have given the parties to the agreement a majority of outstanding Pabst stock. On October 27, 1982, Kalmanovitz and the Jacobs Group made the tender offer for 3,000,000 shares of Pabst stock at $24 per share (the "Jacobs-Kalmanovitz offer"). (Id. at Ex. 2.) The Jacobs-Kalmanovitz offer was opposed by the management of Pabst, e.g., William F. Smith, Jr., Pabst's president. As a result of a series of meetings between Smith and the chief executive officer of Heileman, Russell G. Cleary, on November 10, 1982, Heileman commenced a competing tender offer through a wholly-owned subsidiary called "HBC Acquisition, Inc." ("HBC"), a wholly-owned subsidiary of Heileman (the "Heileman offer"). (Id. at Ex. 3.) The Heileman offer was for 5,500,000 shares of Pabst stock at $27.50 per share. On November 18, 1982, the Jacobs-Kalmanovitz offer was amended and increased to $30 per share. This increase in the Jacobs-Kalmanovitz offer was made possible by an amendment to the October 26 contract whereby Kalmanovitz agreed to increase his cash participation in the offer from $26,394,720 to $44,394,720. (Id. at Ex. 4.) At the same time, on November 18, 1982, defendant Jacobs promised, on behalf of the Jacobs Group in a letter to Kalmanovitz, that in the event the Jacobs Group decided to sell its 1,140,305 shares of Pabst stock, rather than continuing to bid higher, it would pay Kalmanovitz 50% of all amounts it received in excess of $24 per share for all the shares in the Group (the "Letter Agreement"). (Id. at Ex. 6.) On November 23, 1982, the Jacobs-Kalmanovitz offer was further amended and increased to $35 per share. This increase in offer was accompanied by the further understanding that Kalmanovitz would increase his cash participation in the offer to $59,394,720. (Id. at Exs. 7 & 8.) On November 24, 1982, this Court denied motions for preliminary injunctions against the Jacobs-Kalmanovitz offer (brought by the Heileman group) and against the Heileman offer (brought by the Jacobs Group and Kalmanovitz). Heileman announced after the hearing that it would reduce the number of shares sought in its offer to 4.25 million and that it had approximately 3.9 million shares already in its depository. That afternoon, on November 24, 1982, Jacobs telephoned Cleary and expressed concern about his (Jacobs) ability to go ahead financially. Cleary gathered from the conversation that Jacobs felt that he didn't want to go any further from a resources standpoint and he asked for suggestions *1390 to resolve the situation. During this conversation, Jacobs told Cleary that he would withdraw from the bidding for Pabst shares in exchange for $7,500,000. As a result of the negotiations begun on November 24, 1982, the Jacobs and Heileman groups entered into a contract on November 26, 1982, in which HBC agreed to terminate its old offer and announce a new offer which increased the number of shares to 5,600,000, raised the price to $29, and increased the value of notes to be paid to stockholders in a second-step merger from $20 to $24 per share. (Id. at Exs. 9, 10.) The Jacobs Group agreed to tender its shares into the new offer. The parties also agreed to dismiss all outstanding non-derivative litigation and that, upon dismissal, the Jacobs Group would be reimbursed $7.5 million for expenses incurred in its battle for control, this cost to be shared equally by Heileman and Pabst. Also on November 26, 1982, Jacobs called Kalmanovitz's attorney and stated that "he worked out a deal with Heileman to pay [Kalmanovitz] $5,000,000 if [he] would agree to withdraw from the bidding." This offer to pay Kalmanovitz was accompanied by an offer that he might share with Jacobs "in a bargain purchase of Pabst's Milwaukee office building." Kalmanovitz rejected the offer. On December 2, 1982, HBC made a new tender offer for Pabst shares (seeking 5,600,000 shares at $29 per share) (the "HBC Offer"). (Id. at Ex. 11.) Kalmanovitz made a competing offer on December 6, 1982 for 4,150,000 shares at $32 per share. (Id. at Ex. 13.) On December 10, 1982, Kalmanovitz filed this action and moved for a preliminary injunction to stop the HBC Offer. On December 20, 1982, this Court denied Kalmanovitz's motion. HBC increased its offering price to $32 per share on December 15, 1982. On December 22, 1982 — the withdrawal date for the HBC Offer — Kalmanovitz increased his offering price to $40 per share. (Id. at Ex. 16.) On December 23, 1982, Heileman accepted for payment 5,600,000 shares of Pabst and the contest for control of Pabst ended. III. DEFENDANTS' MOTION TO DISMISS Because affidavits have been filed by plaintiffs and defendants in this proceeding, the Court will consider defendants' motion to dismiss as one for summary judgment pursuant to Rule 56. Fed.R. Civ.P. 12(b). Under Rule 56, a court may enter summary judgment only "if the pleadings, depositions, answers and admissions, together with affidavits, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." Any reasonable inferences from the facts must be resolved in favor of the party against whom the judgment may be entered. Peterson v. Lehigh Valley Dist. Council, United Bhd. of Carpenters and Joiners, 676 F.2d 81, 84 (3d Cir.1982). 1. Plaintiffs' Claims For Injunctive Relief Courts will not consider granting injunctions when "the circumstances are such that the injunction cannot be enforced by the court." 43 C.J.S. Injunctions § 34; Penn Central Co. v. Buckley & Co., 293 F.Supp. 653 (D.N.J.1963), aff'd, 415 F.2d 762 (3d Cir.1969). It is presently infeasible to ask this Court to enjoin acts which purportedly will violate the federal securities laws and antitrust laws or Delaware state law when these acts have already occurred. See Kauffman v. Johnston, 454 F.2d 267 (3d Cir.1972) (petition to enjoin deprivation of religious rights in connection with 1969 Passover mooted by passing of the holiday); Tymiak v. Omodt, 676 F.2d 306 (8th Cir.1982) (plaintiff's request for injunction to prevent his ejectment was rendered moot by his ejectment); Mougios v. W.R. Grace & Co., 52 F.R.D. 576 (S.D.N.Y.1971) (request to enjoin stockholders meeting was rendered moot by the holding of the meeting); see also Friends of the Earth Inc. v. Bergland, 576 F.2d 1377 (9th Cir. 1978); Marchand v. Director, U.S. Probation Office, 421 F.2d 331 (1st Cir.1970). A review of plaintiffs' request for relief illustrates the complete impracticality *1391 of the request in light of the events of the past two years. Plaintiffs ask that Heileman be enjoined from voting its Pabst shares (D.I. 1 at 34, ¶ B); that the asset transfer be stopped (¶ C); and that the solicitation and purchase of Pabst shares (¶¶ D, E) and the implementation of the merger be stopped (¶ F). Plaintiffs also ask that the defendants be enjoined from violating federal and state law. (Id., ¶¶ G, H, J, K, O.) The solicitation and purchase of shares, the vote, the merger and the asset transfers have, however, all occurred. This Court, therefore, cannot retroactively prohibit acts which are finished and which this Court refused to primarily enjoin on December 23, 1982. 2. Standing To Maintain Action For Damages Plaintiffs allege in Counts I through IV of the Complaint that defendants, in connection with the HBC Offer, violated Sections 13(e), 14(d) and 14(e) of the Securities and Exchange Act of 1934 (the "Exchange Act"), 15 U.S.C. §§ 78m(e), 78n(d), and 78n(e). (D.I. 1 at 16-20.) The defendants argue that because the purpose of the Williams Act was to protect investors faced with an offer for the purchase of their shares and not to provide a money damages remedy to unsuccessful contestants for control of a corporation, plaintiffs lack standing to maintain any action for money damages based on alleged violations of Sections 14(d), 14(e) or 13(e), of the Exchange Act. a. Count I — Fraud In Connection With a Tender Offer: Section 14(e) of the Exchange Act. Section 14(e) of the Exchange Act is a general anti-fraud statute in connection with a tender offer which provides in part: (e) It shall be unlawful for any person to make any untrue statement of a material fact or omit to state any material fact necessary in order to make the statements made, in the light of the circumstances under which they are made, not misleading, or to engage in any fraudulent, deceptive, or manipulative acts or practices, in connection with any tender offer or request or invitation for tenders, or any solicitation of security holders in opposition to or in favor of any such offer, request, or invitation. 15 U.S.C. § 78n(e). Kalmanovitz argues that he has standing to bring this suit because he "brings suit individually and as a shareholder of Pabst, the target corporation." (D.I. 1, ¶ 16.) Kalmanovitz emphasizes that point in the hope of circumventing the holding of the United States Supreme Court in Piper v. Chris-Craft Industries, Inc., 430 U.S. 1, 97 S.Ct. 926, 51 L.Ed.2d 124 (1977). In that case, the Court held that a tender offeror, suing in its capacity as a takeover bidder, does not have standing to sue for damages under section 14(e). That case arose out of a contest between Chris-Craft Industries, Inc. ("Chris-Craft") and Bangor Punta Corp. ("Bangor") for control of Piper Aircraft Corp. ("Piper"). In that contest, Bangor, with the support of Piper, was successful, through a tender offer and over-the-counter purchases, in acquiring a majority of Piper's outstanding stock. During the course of the struggle for control, Chris-Craft filed an action against Bangor, Piper, and The First Boston Corp. (Bangor's underwriter in its tender offer), claiming that Bangor's tender offer violated Section 14(e) of the Exchange Act. After the Court denied the requests for injunctive relief, Bangor acquired a majority interest in Piper and Chris-Craft sought to press its claim for money damages. The Court, in applying the analysis of Cort v. Ash, 422 U.S. 66, 95 S.Ct. 2080, 45 L.Ed.2d 26 (1975),[6] held that Section 14(e) does not *1392 create a private right of action for money damages by an unsuccessful competitor for control. The Court in Piper v. Chris-Craft began its analysis by framing the issue before it as: [w]hether tender offerors such as Chris-Craft, whose activities are regulated by the Williams Act, have a cause of action for damages against other regulated parties under the statute on a claim that anti-fraud violations by other parties have frustrated the bidder's efforts to obtain control of the target corporation. 430 U.S. at 24, 97 S.Ct. at 940. In holding that there was no such private remedy for money damages, the Court relied in part on the following findings: The purpose of the Williams Act is to insure that public shareholders who are confronted by a cash tender offer for their stock will not be required to respond without adequate information. We find no hint in the Legislative history, on which respondent so heavily relies, that Congress contemplated a private cause of action for damages by one of several contending offerors against a successful bidder or by a losing contender against a target company. 430 U.S. at 35, 97 S.Ct. at 946. (emphasis added). Kalmanovitz attempts to avoid the holding in Piper by claiming that he brought this suit individually in his capacity as a stockholder of Pabst and not as a competing tender offeror. The Court finds this argument to be without merit. A cursory review of the facts will demonstrate why the Court cannot accept Kalmanovitz's argument. First, Kalmanovitz entered into an agreement with the Jacobs Group to purchase 3,000,000 shares of Pabst stock. As part of the October 26 contract, Kalmanovitz was to become a 50% shareholder in PST, the parent company to JMSL, the maker of the tender offer. On October 27, 1982, the Jacobs-Kalmanovitz tender offer was made for 3,000,000 shares at a total price of $72,000,000. Kalmanovitz, pursuant to the October 26 contract and the subsequent amendments, agreed to a cash participation in the offer up to $59,394,720. (D.I. 121 at Ex. 8.) When Jacobs wished to withdraw from the offer, Kalmanovitz not only refused to withdraw, he subsequently made a competing tender offer for 4,150,000 shares at $32 per share (Kalmanovitz later increased his offering price to $40 per share). Then during his competing tender offer, on December 10, 1982, Kalmanovitz filed this action seeking a preliminary injunction to stop the HBC Offer. Finally, Kalmanovitz alleged ownership of only 20 shares of Pabst stock. Given this miniscule stake in any possible recovery, his assertion of standing on the basis of a shareholder is without merit. See also Luptak v. Central Cartage Co., [1981 Transfer Binder] Fed.Sec.L.Rep. (CCH) ¶ 98,034 (E.D.Mich.1979), aff'd, 647 F.2d 165 (6th Cir.1981), where the court noted that "plaintiff's individual stake in the outcome of the suit as a shareholder is minimal when compared with his interest as a potential offeror. Thus, although plaintiff seeks relief as a DIBC shareholder, it would be more realistic to characterize him as a competing tender offeror...." Id. at ¶ 91,352.[7] In Piper v. Chris-Craft, the Court addressed this exact problem and it specifically rejected the notion that Chris-Craft could sue as a disappointed Piper stockholder. As the Court noted: As a tender offeror actively engaged in competing for Piper stock, Chris-Craft was not in the posture of a target shareholder *1393 confronted with the decision of whether to tender or retain its stock. 430 U.S. at 35, 97 S.Ct. at 946 (emphasis added). Because Kalmanovitz was actively engaged in competing for control of Pabst, Kalmanovitz has no standing to sue for damages based on a section 14(e) violation. b. Count II: Fraudulent, Misleading and Incomplete SEC Filings: Section 14[d] of the Exchange Act Kalmanovitz alleges in Count II of his complaint that all of the defendants "have filed and have caused Heileman to file, a Schedule 14D-1 and Offer to Purchase and have caused Pabst to file a Schedule 14D-9, which contain statements which are false and misleading with respect to material facts and which omit to state the material facts necessary in order to make the statements therein not false or misleading, in violation of Rules 14d-6(e)(1) and 14d-9."[8] Section 14(d), like Section 14(e), was enacted as a part of the Williams Act, and imposes upon tender offerors various disclosure and reporting requirements. The defendants argue and Kalmanovitz concedes that the same analysis applied by the Supreme Court in Piper v. Chris-Craft dictates whether or not Kalmanovitz can maintain claims predicated on alleged violations of Section 14(d). Like subsection (e), subsection (d) was enacted to provide adequate protection for investors, and not to enrich disappointed competing tender offerors. In Luptak v. Central Cartage Co., [1981 Transfer Binder] Fed.Sec.L.Rep. (CCH) ¶ 98,034 (E.D.Mich.1979), aff'd, 647 F.2d 165 (6th Cir.1981), plaintiff was an unsuccessful competitor for control of Detroit International Bridge Company ("DIBC") who brought suit against other bidders who had obtained control over DIBC. In disposing of plaintiff's claims based on Section 14(d) as well as Section 14(e), the Court held: Under the Supreme Court's rationale in Chris-Craft, emphasizing that section 14 and other provisions of the Williams Act were intended to benefit shareholders rather than competing offerors, Luptak would appear to have no standing to bring a private action for money damages under any subdivision of section 14. See 430 U.S. at 35 [97 S.Ct. at 946]. * * * * * * Because this Court has found both that plaintiff has no standing to assert his claims under section 14 of the Exchange Act and that Cartage's market purchases of DIBC stock did not constitute a tender offer under section 14, it must determine that defendants Cartage and Centra are entitled to judgment as a matter of law on those portions of plaintiff's complaint alleging violations of section 14(d) and (e) of the Act and the rules promulgated thereunder. Id., ¶ 98,034 at 91,352-54. Thus, for the same reasons plaintiffs lack standing to maintain an action under Section 14(e), plaintiffs likewise have no standing to bring an action for damages under Section 14(d) and Count II will be dismissed as well. c. Counts III and IV: No Private Right of Action For Damages Under Section 13(e) In Counts III and IV of the Complaint, Kalmanovitz alleges violations of Section 13(e) of the Exchange Act, 15 U.S.C. § 78m(e). (Count III—Disguised Issuer Tender: Section 13(e) of the Exchange Act and Rule 13e-4; Count IV — Disguised "Going Private" Transaction: Section 13(e) and Rule 13e-3.) (D.I. 1 at 17, 19.) The defendants argue that Kalmanovitz lacks standing to seek money damages for the alleged violations of Section 13 because under Section 13 there is no private right of action for money damages. Kalmanovitz disagrees. Section 13(e) of the Exchange Act provides in pertinent part: *1394 It shall be unlawful for an issuer ... to purchase any equity security issued by it if such purchase is in contravention of such rules and regulations as the Commission, in the public interest or for the protection of investors, may adopt (A) to define acts and practices which are fraudulent, deceptive, or manipulative, and (B) to prescribe means reasonably designed to prevent such acts and practices. (Emphasis added.) Section 13(e), like any other section of the Williams Act (15 U.S.C. § 78m(d)-(e), 78n(d)-(f) (1976)), does not expressly afford a private right of action for enforcement of its provisions. Thus, this Court is again faced with the issue: whether or not there is an implied private right of action for money damages under Section 13(e) of the Exchange Act. Neither the United States Supreme Court nor the Third Circuit Court of Appeals has determined whether an implied private right of action exists under Section 13(e). As a result, both Kalmanovitz and the defendants look to the case law under Section 13(d) for guidance. This Court, in Jacobs v. Pabst Brewing Co., 549 F.Supp. 1050 (D.Del.1982), a case arising out of the same battle for control of Pabst, presented a comprehensive analysis of Section 13(d) which included an exhaustive list of cases from various jurisdictions which stated that parties may and may not pursue a claim under Section 13(d).[9] This Court then reviewed the case history and the legislative history of Section 13(d) before concluding that "Congress intended to preserve a private cause of action which had been judicially created." 549 F.Supp. at 1062. Having determined that an implied right of action for injunctive relief exists under Section 13(d) and 13(g), the Court went on to determine whether the Jacobs Group, as shareholders, has standing to bring an action for injunctive relief against an investment adviser. In the present action, however, this Court must decide whether or not an implied private right of action for money damages under Section 13(e) exists before it reaches the issue of standing. When other courts have faced the issue of whether there is an implied private right of action for damages, they have determined that none exists. In duPont v. Wyly, 61 F.R.D. 615 (D.Del.1973), Judge Stapleton determined that no implied right to recover damages existed when he stated: "By including an express and expressly limited private remedy in Section 18, [15 U.S.C. § 78r] I think Congress clearly negated the existence of a further implied remedy for violation of Section 13. I agree that `where Congress has specifically authorized a remedy for violation of an act, the courts should not nullify the congressional scheme by implying a right of action on behalf of those not otherwise entitled to recover.'" 61 F.R.D. at 628 citing In re Penn Central Securities Litigation, 347 F.Supp. 1327, 1340 (E.D.Pa.1972), modified, [1973 Transfer Binder] Fed.Sec.L.Rep. (CCH) ¶ 93,980 (E.D.Pa.1973). See also Schnell v. Schnall, 550 F.Supp. 650 [1981 Transfer Binder] Fed.Sec.L.Rep. (CCH) ¶ 97,927 at 90,715-16 (S.D.N.Y.1981), and Berman v. Metzger, [1981 Transfer Binder] Fed.Sec.L.Rep. (CCH) ¶ 97,857 at 90,293-94 (D.D.C.1981) (federal courts applied the rationale of Piper v. Chris-Craft and held that Section 13 does not provide a private right of action for money damages); Myers v. American Leisure Time Enterprises, Inc., 402 F.Supp. 213 (S.D.N.Y.1975), aff'd, 538 F.2d 312 (2d Cir.1976); Crane v. Harsco, 511 F.Supp. 294 (D.Del.1981) (tender offeror possessed no private cause of action for an injunction under 13(e) as a stockholder since he was not a stockholder to whom a tender offer had been made and, thus, not an intended beneficiary of the Williams Act). In recent decisions, the United States Supreme Court has clearly stated that a private right of action for money damages will not be judicially implied unless there is a clear mandate from Congress concerning the relevant statute which either creates or alters civil liabilities in addition to a legislative history which contains some expression of Congressional *1395 intent to imply a private remedy. If the language of the statute and legislative history is silent, particularly if the statute contains other sections which include express provisions for enforcement and remedies, no right of action for money damages will be implied. See Transamerica Mortgage Advisors, Inc. v. Lewis, 444 U.S. 11, 100 S.Ct. 242, 62 L.Ed.2d 146 (1979) (no private right of action for damages under the Investment Advisers Act of 1940, 15 U.S.C. § 80b-1 (1976)); and Touche Ross & Co. v. Redington, 442 U.S. 560, 99 S.Ct. 2479, 61 L.Ed.2d 82 (1979) (no private right of action under Section 17(a) of the Exchange Act, 15 U.S.C. § 78q(a) (1976)). Because the legislative history of the 1934 Exchange Act is silent on the issue of whether a private cause of action for damages should be available under Section 13(e)[10] and in light of the recent Supreme Court decisions which refuse to imply a private right of action for damages, the mandate to this Court is clear. Moreover, because Courts imply equitable remedies under the securities laws more readily than money damage remedies,[11] this Court finds that no private right of action for money damages exists under Section 13(e). d. Count V: Fraud in Connection with the Purchase and Sale of Securities: Section 10(b) of the Exchange Act In Count V of the Complaint, Kalmanovitz alleges that: The defendants have knowingly, by instrumentalities of interstate commerce, employed devices, schemes and artifices to defraud; made untrue statements of material facts and omitted to state material facts necessary in order to make the statements made, in light of the circumstances under which they were made, not misleading; engaged in acts, practices and a course of business which operate and will operate as a fraud and deceit upon the Pabst stockholders and others in connection with each and every purchase and sale of securities contemplated by the Heileman Offer and the Agreement in Principle, which purchases and sales will ultimately be paid for with assets belonging to Pabst stockholders which have been wrongfully and fraudulently misappropriated by the defendants. (D.I. 1, ¶ 69.) Section 10 of the Act, 15 U.S.C. § 78j, provides: It shall be unlawful for any person, directly or indirectly, by the use of any means or instrumentality of interstate commerce or of the mails, or of any facility of any national securities exchange— * * * * * * (b) To use or employ, in connection with the purchase or sale of any security registered on a national securities exchange or any security not so registered, any manipulative or deceptive device or contrivance in contravention of such rules and regulations as the Commission may prescribe as necessary or appropriate in the public interest or for the protection of investors. Rule 10b-5 of the Commission, 17 C.F.R. § 240.10b-5 provides: It shall be unlawful for any person, directly or indirectly, by the use of any means or instrumentality of interstate commerce, or of the mails or of any facility of any national securities exchange, (1) to employ any device, scheme, or artifice to defraud, (2) to make any untrue statement of a material fact or to omit to state a material fact necessary in order to make the statements made, in the light of the circumstances under which they were made, not misleading, or (3) to engage in any act, practice, or course of business which operates or would operate as a fraud or deceit upon any person, in connection with the purchase or sale of any security. *1396 The defendants argue that because Kalmanovitz did not tender his shares pursuant to the HBC Offer, he is neither a purchaser nor seller of securities and therefore lacks standing to maintain an action for damages under either Section 10(b) or Rule 10b-5. In support of its position, defendants rely on Blue Chip Stamps v. Manor Drug Stores, 421 U.S. 723, 95 S.Ct. 1917, 44 L.Ed.2d 539 (1975), where the United States Supreme Court held that one who does not buy or sell stock in connection with an offer cannot maintain an action under Section 10(b) for alleged misstatements made by the offeror. Conceding that he must comply with the purchaser/seller requirement of Blue Chip Stamps v. Manor Drug Stores, 421 U.S. 723, 95 S.Ct. 1917, 44 L.Ed.2d 539 (1975), Kalmanovitz contends that the words "in connection with the purchase or sale of any security" in Section 10(b) are to be construed so liberally as to encompass the conversion of his stock in the March, 1983 merger, which occurred more than four months after his complaint was filed. Relying upon the "forced seller" exception established in Vine v. Beneficial Finance Company, 374 F.2d 627 (2d Cir.1967), Kalmanovitz argues that a merger following a tender offer in which the majority stockholder may eliminate the minority stockholders without their approval relieves a stockholder of the need to plead "purchase or sale" of securities or "reliance." Because Vine v. Beneficial Finance Company was decided by the Second Circuit Court of Appeals prior to the 1974 Supreme Court decision of Blue Chip Stamps v. Manor Drug Stores, and because Vine is not the law in this Circuit, the Court is not persuaded by Kalmanovitz's argument. In Blue Chip Stamps, the complaint alleged that the offeror had intentionally made the prospectus "overly pessimistic in order to discourage [complainant] and other members of the allegedly large class whom it represents from accepting what was intended to be a bargain offer, so that the rejected shares might later be offered to the public at a higher price." 421 U.S. at 726, 95 S.Ct. at 1921. The Supreme Court held that the issue before it was: "[w]hether respondent may base its action on Rule 10(b)-5 of the Securities and Exchange Commission without having either bought or sold the securities described in the allegedly misleading prospectus." 421 U.S. at 727, 95 S.Ct. at 1921. In a comprehensive opinion which traces the purpose of Section 10(b) and Rule 10(b)-5 and the judicially created cause of action to which they give rise, the Supreme Court, adopting the rationale of Birnbaum v. Newport Steel Corp., 193 F.2d 461 (2d Cir.), cert. denied, 343 U.S. 956, 72 S.Ct. 1051, 96 L.Ed. 1356 (1952), held that only actual purchasers or sellers of a security, relying upon an alleged violation of Section 10(b), may bring an action for money damages based upon Section 10(b). (Emphasis added.) See Shivers v. Amerco, 670 F.2d 826, 829 (9th Cir.1982); Sanders v. Thrall Manufacturing Co., 582 F.Supp. 945 [1983 Transfer Binder] Fed.Sec.L.Rep. (CCH) ¶ 99,500 (S.D.N.Y.1983); see also Landy v. Federal Deposit Ins. Corp., 486 F.2d 139, 156-58 (3d Cir.1973), cert. denied, 416 U.S. 960, 94 S.Ct. 1979, 40 L.Ed.2d 312 (1974). The Court in Blue Chip Stamps stated very clearly the guidelines[12] for Section 10(b). "The wording of § 10(b) directed at fraud `in connection with the purchase or sale' of securities stands in contrast with the parallel antifraud provision of the 1933 Act, § 17(a), as amended, 68 Stat. 686, 15 U.S.C. § 77q, reaching fraud `in the offer or sale' of securities.... When Congress wished to provide a remedy to those who neither purchase nor sell securities, it had little trouble in doing so expressly." 421 U.S. at 734, 95 S.Ct. at 1925 (citations omitted). The Court also stated that underlying policy considerations of the Birnbaum *1397 Rule advocate adherence to the rule. The Court then expressed its concern that the failure to follow the rule may result in "vexatious litigation" caused by a "widely expanded class of plaintiffs" bringing "strike" suits under Section 10(b) and Rule 10b-5. 421 U.S. 737-41, 95 S.Ct. at 1926-28. In recent Supreme Court decisions, the Court has refused to ignore the literal, "operative language" of the securities statutes and has denied plaintiffs the statutory construction which they desired but which conflicted with that literal language. See Chiarella v. United States, 445 U.S. 222, 100 S.Ct. 1108, 63 L.Ed.2d 348 (1980); Santa Fe Indus. v. Green, 430 U.S. 462, 97 S.Ct. 1292, 51 L.Ed.2d 480 (1977); Ernst & Ernst v. Hochfelder, 425 U.S. 185, 96 S.Ct. 1375, 47 L.Ed.2d 668 (1976). Furthermore, the Court has refused plaintiffs' requests that it supplement the existing securities statutes by providing a private right of action by implication where the statute itself said nothing about such a right. See, e.g., Touche Ross & Co. v. Redington, 442 U.S. 560, 568-78, 99 S.Ct. 2479, 2485-90, 61 L.Ed.2d 82 (1979) (construing Securities Exchange Act § 17(a)); Transamerica Mortgage Advisors, Inc. v. Lewis, 444 U.S. 11, 19-24, 100 S.Ct. 242, 246-49, 62 L.Ed.2d 146 (1979) (construing Investment Advisors Act § 206, 15 U.S.C. § 80b-6 (1976)); Piper v. Chris-Craft Indus., Inc., 97 S.Ct. 926, 940-50, 51 L.Ed.2d 124 (1977) (construing Securities Exchange Act § 14(e)). While it is true that in many of these cases the Court supported its decisions with policy arguments and legislative history analyses, in most of them the Court emphasized that the language of the statute was at least the starting place of the Court's inquiry. See, e.g., Chiarella v. United States, 445 U.S. 222, 226, 100 S.Ct. 1108, 1113, 63 L.Ed.2d 348 (1980); Transamerica Mortgage Advisors, Inc. v. Lewis, 444 U.S. 11, 16, 100 S.Ct. 242, 245, 62 L.Ed.2d 146 (1979); Touche Ross & Co. v. Redington, 442 U.S. 560, 568, 99 S.Ct. 2479, 2485, 61 L.Ed.2d 82 (1979); Piper v. Chris-Craft Indus., Inc., 430 U.S. 1, 24, 97 S.Ct. 926, 940, 51 L.Ed.2d 124 (1977); Santa Fe Indus. v. Green, 430 U.S. 462, 472, 97 S.Ct. 1292, 1300, 51 L.Ed.2d 480 (1977); Ernst & Ernst v. Hochfelder, 425 U.S. 185, 197, 96 S.Ct. 1375, 1383, 47 L.Ed.2d 668 (1976). In a number of these cases, the Court intimated that the statutory language alone could determine the meaning of the statute, at least where the construction sought by the plaintiff conflicted with the precise literal language of the existing statute. Thus, in Blue Chip Stamps, Justice Powell, concurring, said: The courts already have inferred a private cause of action that was not authorized by the legislation. In doing this, however, it was unnecessary to rewrite the precise language of § 10(b) and Rule 10b-5. This (rewriting of the statutory language, which the Court refused to permit) is exactly what respondent ... sought in this case. 421 U.S. at 759, 95 S.Ct. at 1936. (footnote omitted). The majority opinion in Blue Chip Stamps also recognized that in some circumstances the statutory language itself could be dispositive: "If Congress had legislated the elements of a private cause of action for damages, the duty of the judicial branch would be to administer the law which Congress enacted." Id. at 748, 95 S.Ct. at 1931. When the Third Circuit Court of Appeals was faced with this issue, it refused to expand the rule beyond the exceptions noted by the Supreme Court. See Pittsburgh Terminal Corp. v. Baltimore and Ohio Railroad Company, 680 F.2d 933 (3d Cir. 1982) (the Court held that the conversion option in a convertible debenture qualifies as a contract for the purchase or sale of security). Therefore, in the present case, this Court finds that Kalmanovitz failed to either purchase or sell any shares pursuant to the HBC Offer, and as a result, he lacks standing to maintain an action for money damages under either Section 10(b) or Rule 10b-5.[13] *1398 e. Count VI: Illegal Agreement to Vote Pabst Treasury Stock Although the parties did not address the issue, because the state and federal claims are derived from "a common nucleus of operative fact," this Court has the power and may exercise its discretion and consider the pendent state claim even though the federal claims are dismissed. See generally United Mine Workers v. Gibbs, 383 U.S. 715, 86 S.Ct. 1130, 16 L.Ed.2d 218 (1965), and Paine, Webber, Jackson & Curtis, Inc. v. Merrill Lynch, Pierce, Fenner & Smith, Inc., 587 F.Supp. 1112 (D.Del.1984). In Count VI of his Complaint, Kalmanovitz alleges that: "If the terms contemplated by the Agreement in Principle and the Heileman Offer are consummated, the tendered shares of Pabst common stock will belong to Pabst or will be under the control of Pabst within the meaning of Section 160(c)." (8 Del.C. § 160) (D.I. 1, ¶ 73.) Defendants argue that the tendered shares belonged to HBC at the time they were voted and because the plaintiff failed to allege that the Pabst shares HBC agreed to vote in the merger did not "belong to" Pabst, directly or indirectly, the plaintiff has failed to allege any basis for a violation of Section 160. (D.I. 166 at 32.) Section 160(c) states: (c) Shares of its own capital stock belonging to the corporation or to another corporation, if a majority of the shares entitled to vote in the election of directors of such other corporation is held, directly or indirectly, by the corporation, shall neither be entitled to vote nor be counted for quorum purposes. Nothing in this section shall be construed as limiting the right of any corporation to vote stock, including but not limited to its own stock, held by it in a fiduciary capacity. 8 Del.C. § 160(c) (emphasis added). Although the language of 8 Del.C. § 160(c) is unambiguous, there is a question as to the exact meaning of "directly or indirectly" and unfortunately the case law provides little guidance. In Italo Petroleum Corp. v. Producers' Oil Corp. of America, 20 Del.Ch. 283, 174 A. 276 (1934), the court was faced with an issue which arose under the predecessor to Section 160.[14] In that case, the court noted: The statute prevents the voting either directly or indirectly by a corporation of its own stock belonging to it. What can "indirectly" mean unless it be some such thing as having stock belonging to the corporation held in some third party's name and having that third party vote it? It requires some moments of reflection to discover any other possible device of indirection which the corporation could conjure up. The thought I have given to the matter, which I confess has not been lengthy, has failed to suggest any other. There may be other methods. But the one suggested is so obvious that it is reasonable to suppose that it certainly was dominant in the legislative mind when the section was enacted. There can be no doubt that if a corporation acquired its own stock and caused it to be held in the name of an individual who would vote it as ordered by the corporation's directors, the vote of the individual would be the vote, indirectly given, of the corporation. Nor can there be any doubt that if a corporation planned to buy its own stock and its directors, desiring to vote that stock in violation of the statutory inhibition, organized a wholly owned subsidiary to hold the stock and vote it, the scheme would prove abortive. It would be so crude as to lack even the merit of cleverness. The fiction of the corporate entity would in that case be brushed aside and the device unhesitatingly pronounced but *1399 a mere scheme for the indirect voting by the corporation of its own stock in violation of the statute. 174 A. at 278. It is defendants' position that there is nothing in the Complaint to support the allegation that Pabst directly or indirectly owned or controlled the shares purchased by Heileman and subsequently cancelled in the merger. Although there are allegations of an agreement between Pabst and Heileman, the agreement does not rise to the level of control, domination and dictation consistent with a parent-subsidiary relationship noted in Italo Petroleum Corp. As a result, plaintiffs' claim that the defendants have violated 8 Del.C. § 160(c) of the Delaware Corporation Law will be dismissed. f. Count VII: Smith's Breach of Fiduciary Duty In Count VII of the Complaint (D.I. 1, ¶¶ 76-82), plaintiffs allege that defendant Smith, the Chief Executive Officer of Pabst, breached his duty to the Pabst shareholders under Delaware law. Before reaching the merits, the Court must first determine whether the plaintiff has standing to bring this action. (1) Derivative Nature of the Action. Whether a claim is individual or derivative is determined from the body of the complaint, not the label employed by counsel. Crane v. Harsco, 511 F.Supp. at 304. Plaintiffs' claim here is that Smith breached his fiduciary duties to Pabst and its shareholders "through the mismanagement, waste and conversion of assets." (D.I. 1, ¶ 82.) Although Kalmanovitz purports to bring these claims both individually and derivatively on behalf of the corporation, it is clear from every claim alleged by Kalmanovitz under Count VII that it constitutes a derivative claim because each alleged injury is one which would be suffered by all the stockholders of Pabst due to their status as stockholders and not as the result of any unique relationship with the corporation. See Elster v. American Airlines, 34 Del.Ch. 94, 100 A.2d 219, 222 (1953); Bokat v. Getty Oil Company, 262 A.2d 246, 249 (Del.Supr.1970). The plaintiffs' standing to pursue derivative claims alleging violations of Delaware common law is also a question of substantive Delaware law. See Crane v. Harsco, 511 F.Supp. at 304 (alleged violations of Delaware law in connection with a tender offer were reviewed under Delaware law). It is well established under Delaware law that a plaintiff who brings a derivative suit on behalf of a corporation must be a stockholder of the corporation at the time he commences the suit and must maintain that status throughout the course of the litigation. Lewis v. Anderson, 453 A.2d 474 (Del.Ch.1982), aff'd, 477 A.2d 1040 (Del.1984); Heit v. Tenneco, 319 F.Supp. 884 (D.Del.1970). In Lewis v. Anderson, the Delaware Supreme Court held that "a plaintiff who ceases to be a shareholder, whether by reason of a merger or for any other reason, loses standing to continue a derivative suit...." 477 A.2d at 1049. Lewis v. Anderson, a suit by a Conoco stockholder alleging derivative claims was dismissed when, subsequent to the filing of the suit, a third party (DuPont Holdings, Inc., a wholly-owned subsidiary of E.I. duPont de Nemours and Company) acquired all of the outstanding stock of Conoco through a tender offer followed by a merger. The court, in its analysis, stated: [T]he right to a pending cause of action is an asset of the merged corporation which passes to the corporation surviving the merger. Under the facts of this case, any right to equitable relief possessed by the original Conoco against the individual defendants, its officers and directors, passed to DuPont Holdings, and thus to the present Conoco, by virtue of the merger. Likewise, by the terms of the same merger, the plaintiff Lewis ceased to be a shareholder of Conoco — either new or old — and instead became a shareholder of Du Pont. The company of which the plaintiff is now a shareholder, Du Pont, now owns all of the stock of *1400 the present Conoco and, if the original Conoco had a claim for relief against its former officers and directors for the reasons set forth in the Complaint in this action, that claim is now owned by the present Conoco. The shareholder beneficiary of such a claim is now Du Pont, and not the plaintiff Lewis and the other shareholders of the original Conoco as was the situation when the suit was filed. 477 A.2d at 1043. The court recognized only two exceptions to this rule — where the merger itself is the subject of a claim of fraud (i.e., a device to eliminate the derivative litigation) or where the merger is a holding company reorganization which does not affect plaintiff's ownership of the business enterprise. 477 A.2d at 1046, n. 10. Neither exception is applicable in this case. As in Lewis, "plaintiff has not asserted that the merger was perpetrated [to deprive Pabst] of its claim against the individual defendant and the merger was clearly not a reorganization resulting in a holding company...." Id. See also Schreiber v. Carney, 447 A.2d 17, 21-22 (Del.Ch.1982). The plaintiffs also allege in a conclusory fashion that unlike the plaintiff in Lewis, Kalmanovitz attacks the fairness of the merger and wrongdoing by the acquiring corporation. In addition, after stating the two exceptions to the rule regarding standing and mergers, Kalmanovitz concludes: These exceptions are both applicable to this case. Plaintiff here possesses the same equitable derivative standing as the plaintiffs in the above cited cases. The plaintiff should have standing to maintain a derivative suit to correct an alleged breach of fiduciary duty. Plaintiff possesses equitable derivative standing to bring this claim against defendants Smith. Plaintiff falls within the standing exception of both Bokat and Schreiber. Accordingly, defendants' motion to dismiss must be denied. (D.I. 168 at 30.) Needless to say, without any factual support, this Court is not persuaded by plaintiffs' "arguments." However, the Court does find that as a result of the merger, Kalmanovitz has ceased to have any equity interest, direct or indirect, in Pabst. Plaintiffs' claims do not fit within either exception to the broad rule that a plaintiff who, as a result of a merger, loses his stockholder status, loses his standing to pursue derivative claims. As a result, Count VII must be dismissed due to plaintiffs' lack of standing.[15] g. Count VIII: Conspiracy Count VIII of the Complaint alleges in toto: 83. Plaintiffs repeat and reallege each and every allegation contained in paragraphs 1 through 82 as if fully set forth herein. 84. Each defendant has agreed and conspired with one or more of the other defendants to violate the laws of the United States and the State of Delaware, as set forth above. (D.I. 1, ¶¶ 83-84.) It is a longstanding rule in the Third Circuit that a mere general allegation of conspiracy is insufficient. Black & Yates, Inc. v. Mahogany Assoc., 129 F.2d 227 (3d Cir.1942); Leeward Petroleum, Ltd. v. Mene Grande Oil Co., 415 F.Supp. 158 (D.Del.1976). A general averment of conspiracy or collusion without alleging the facts which constituted such conspiracy or collusion is a conclusion of law and is insufficient. As has been noted: Generally, fraud, conspiracy and collusion must be charged by allegations of fact; and general allegations of fraud, fraudulent intent, and conspiracy or collusion, without a statement of supporting facts, are conclusions of law and are insufficient. *1401 71 C.J.S. Pleading § 21. The plaintiffs must plead with particularity the "circumstances" of the alleged wrongdoing in order to place the defendants on notice of the precise misconduct with which they are charged. See Seville Industrial Machinery Corp. v. Southmost Machinery Corp., 742 F.2d 786 (3d Cir.1984). Only allegations of conspiracy which are particularized, such as those addressing the period of the conspiracy, the object of the conspiracy, and certain actions of the alleged conspirators taken to achieve that purpose, will be deemed sufficient. See, e.g., James Julian, Inc. v. Raytheon, Co., 499 F.Supp. 949, 955 (D.Del.1980). To establish the specificity of their conspiracy allegations, plaintiffs do no more than refer the Court to the eighty-one paragraphs included, by reference, in Count VIII and state that they "give rise to an inference of conspiracy."[16] (D.I. 168 at 34.) Such an inference, even if it could be gleaned from the Complaint, would be no substitute for the requirement that the circumstances of the conspiracy be plead with specificity. As a result, Count VIII will be dismissed. h. Count IX: Purported Threat to Competition — Claims Are Moot In Count IX of his Complaint, Kalmanovitz contends inter alia that "unless enjoined, the effect of the Heileman/Pabst Offer challenged herein will be substantially to lessen competition or tend to create a monopoly" in the malt beverage business due, essentially, to the combined resources of Pabst, Olympia and Heileman and the elimination of Pabst from the market. (D.I. 1, ¶¶ 116-19.) The claim is brought pursuant to Section 7 of the Clayton Act, 15 U.S.C. § 18, which prohibits corporate mergers or acquisitions the effect of which "may be to substantially lessen competition, or tend to create a monopoly." Plaintiffs unsuccessfully attempted to enjoin the HBC Offer in December of 1982. (D.I. 167, Ex. H.) Subsequently, the Pabst/Heileman transaction was consummated and both Heileman and HBC were removed from any stock ownership position in either Pabst or Olympia. The sole basis of the plaintiffs' Count IX was plaintiffs' apparent apprehension of the imminent injury that Heileman's control of Pabst would purportedly cause in the market for malt beverages.[17] As this Court noted: [M]ovants [Kalmanovitz and two of his brewing companies] have argued ... that the proposed Final Judgment [i.e., consent decree] would not effectively prevent Heileman from exercising control over all the assets of Pabst and Olympia. This contention, however, has by time gone by the board. With the consummation of the exchange transaction on March 19, 1983, Heileman has transferred all of its Pabst and Olympia stock to Pabst in exchange for the retained assets and Pabst again has become an independent company beyond Heileman's control. At that point, any *1402 previous concern about the adequacy of the proposed judgment in precluding Heileman from exercising any control over, or retaining any interest in, the non-retained assets has become moot. (emphasis added) United States v. G. Heileman Brewing Co., 563 F.Supp. 642, 651 (D.Del.1983). The consent decree, as suggested, prevented Heileman from retaining any interest in or control over Pabst and Olympia assets except for specific assets acquired without governmental objection. (Id. at 644.) Plaintiffs also argued that Count IX is not moot on the ground that post-acquisition evidence is "significant in determining the validity of the merger." However, plaintiffs ignore the fact that the post-acquisition evidence here conclusively demonstrates that the very basis for the Section 7 claim — that Heileman would continue to control all Pabst/Olympia assets — has evaporated. As this Court found in connection with the government consent decree proceedings, any claim based on that theory is now moot. United States v. Heileman Brewing Co., 563 F.Supp. 642, 650 (D.Del.1983). i. Count X: Lack of Standing to Assert Violation of Section 7 of the Clayton Act In Count X, Kalmanovitz again claims the right to sue the defendants under Section 7 of the Clayton Act, i.e., 15 U.S.C. § 18. Count X is based on a claim that, subsequent to a successful completion of the HBC/Heileman tender offer and the exchange of shares for assets with Pabst, what remains of Pabst/Olympia "will not be viable as a competitor" in the production, distribution and sale of malt beverages in the United States. (D.I. 1 at 31-32.) In order to have standing to sue under the antitrust laws, generally a plaintiff must adequately allege (1) a violation of the antitrust law; (2) injury to his business or property; and (3) a causal relationship between the violation of his injury, that is, that the injury complained of was caused by the antitrust violation charged. See Von Kalinowski, Antitrust Laws and Trade Regulation, § 101.02, Standing to Sue (1983 ed.); see, e.g., Loeb v. Eastman Kodak Co., 183 F. 704 (3d Cir.1910). Kalmanovitz's role as a competitor does not give him automatic standing to sue under the antitrust laws. Bayou Bottling, Inc. v. Dr. Pepper Co., 725 F.2d 300 [1984-1] Trade Cases (CCH) ¶ 65,866 (5th Cir.1984); Pennzoil Co. v. Texaco Inc., [1984-1] Trade Cases ¶ 65,848 (N.D.Okla. 1984). Appropriate injury must be pleaded and the plaintiffs have failed to cogently claim how the alleged non-viability of the post-merger Pabst would in any manner injure them. Plaintiffs claim only that, as competitors, the "six separate and distinct injuries" contained in Paragraph 120 of Count IX, and incorporated by reference in Paragraph 120 of Count X, constitute the injury necessary to confer standing. (D.I. 168 at 36.) The alleged injuries set forth in Paragraph 119, however, are all premised on Heileman's continued ownership of Pabst, and are therefore inapposite to the Count X claim that competition will be lessened because the Pabst that remains, after the transactions with Heileman are completed, will not be a viable competitor. With respect to the remaining effects alleged in paragraph 121 of Count X, there has been no attempt to show that plaintiffs have suffered any injury at all, let alone to make the required showing that plaintiffs have suffered "antitrust injury, which is to say injury of the type the antitrust laws were intended to prevent and that flows from that which makes defendants' acts unlawful." Brunswick Corp. v. Pueblo Bowl-O-Mat, Inc., 429 U.S. 477, 489, 97 S.Ct. 690, 697, 50 L.Ed.2d 701 (1977). Indeed, there is no way that plaintiffs could make the required showing, since the alleged antitrust violation is Pabst's weakness as a competitor and since such weakness would benefit, not hurt, its competitors such as Kalmanovitz. See Schoenkopf v. Brown & Williamson Tobacco Corp., 637 F.2d 205 (3d Cir.1980). Plaintiffs' theory of injury under Count X does not meet the threshold standing *1403 requirements, therefore, Count X will be dismissed.[18] Accordingly, the Court finding that Counts I through X are without merit, those counts will be dismissed and summary judgment entered thereon in favor of defendants and against plaintiffs. IV. PLAINTIFFS' RULE 54(b) MOTION TO CERTIFY This consolidated litigation as above captioned originally consisted of three separate law suits. The first was the twelve count complaint filed in this Court as C.A. No. 82-797. The second was the two count complaint brought by plaintiffs in the United States District Court for the Northern District of California (the "California District Court"). (D.I. 41.) The third was brought by the plaintiffs in the Superior Court of California for the County of Marin (the "California State Court action"). Defendants thereafter removed the latter action to the California District Court, consolidated with the second action, and then upon defendants' motion transferred to this Court pursuant to 28 U.S.C. § 1404(a). (D.I. 70.) Upon the transfer of California actions here, those actions were consolidated with C.A. No. 82-797. In Kalmanovitz v. G. Heileman Brewing Co., Inc., 576 F.Supp. 922 (D.Del.1983), this Court dismissed Counts XI and XII of the complaint in C.A. No. 82-797 and both Counts of the California District Court complaint against all of the named defendants. (D.I. 139.) In accordance with this opinion, the Court will enter an order dismissing all of the remaining counts (Count I through X) of the complaint in C.A. No. 82-797 against all of the named defendants. These dismissals result in leaving only one claim outstanding and unresolved. The unresolved claim is found in the complaint originally filed by the plaintiffs in the California State Court action against only defendants Irwin Jacobs, Dennis Mathisen, Gerald A. Schwalbach and Daniel T. Lindsay (the "Jacobs Group") for breach of contract. (D.I. 71, Ex. A.) In that complaint plaintiffs allege that the individuals of the Jacobs Group by a letter dated November 18, 1982, unconditionally bound themselves to pay plaintiffs fifty percent of all proceeds should the Jacobs Group sell its Pabst shares to others for more than $24 per share.[19] Since plaintiffs' breach of contract claim against the Jacobs Group is the only one which remains unresolved in this consolidated litigation, the Court finds no just reason exists for delay in entering a final judgment on all claims which were dismissed on November 21, 1983, or by the order to be entered today. This is so because the major claims involving federal securities violations, antitrust violations and tortious interference with contract claims have already been timely decided. The sole remaining breach of contract claim is subsidiary and unrelated to those issues and it involves fewer than all the multiple parties to this suit. It would be unduly harsh and wholly unrealistic to delay an appeal on the major unrelated issues until after trial of the subsidiary breach of contract claim. Accordingly, the Court will enter a Rule 54(b) certification on the claims already decided. *1404 An order will be entered in accordance with this Opinion. NOTES [1] Kalmanovitz is a citizen of California and the beneficial owner of twenty shares of common stock of Pabst. (D.I. 1 at 1.) [2] This Court in Kalmanovitz v. G. Heileman Brewing Co., Inc., 576 F.Supp. 922 (D.Del.1983), dismissed Counts XI and XII of Kalmanovitz's original, twelve-count complaint in C.A. No. 82-797. [3] The Court has six prior published opinions concerning this litigation: Kalmanovitz v. G. Heileman Brewing Co., 576 F.Supp. 922 (D.Del. 1983); United States v. G. Heileman Brewing Co., 563 F.Supp. 642 (D.Del.1983); Pabst Brewing Co. v. Kalmanovitz, 551 F.Supp. 882 (D.Del. 1982); Jacobs v. G. Heileman Brewing Co., 551 F.Supp. 639 (D.Del.1982); Pabst Brewing Co. v. Jacobs, 549 F.Supp. 1068 (D.Del.), aff'd, 707 F.2d 1392 & 1394 (3d Cir.1982); Jacobs v. Pabst Brewing Co., 549 F.Supp. 1050 (D.Del.1982). [4] The tender offer was to be made by JMSL Acquiring Corp. ("JMSL"), a Delaware corporation wholly owned by PST Acquiring Corp. ("PST"), another Delaware corporation which was to be owned 50% by the Jacobs Group and 50% by Kalmanovitz. (D.I. 121, Ex. 1 at 3.) As part of the October 26 contract, Kalmanovitz would become a 50% shareholder in PST for $1,000. [5] At the time the parties entered into the October 26 contract, the price for shares of stock in Pabst trading on the New York Stock Exchange was approximately $20 per share. [6] Because the Exchange Act does not expressly provide a private remedy for alleged violations of Section 14 or 13, any private right of action arising from violations of those sections must be implied. In Cort v. Ash, the Supreme Court set forth four factors relevant in determining whether a private remedy is implicit in a federal statute not explicitly providing one. Those four factors are (1) whether plaintiff is one of the class for whose special benefit the statute was enacted, (2) whether the legislature intended to create a private remedy, (3) whether a private right of action would be consistent with the underlying purposes of the legislative scheme, and (4) whether the cause of action is one traditionally relegated to state law. Cort v. Ash, 422 U.S. at 78, 95 S.Ct. at 2088. [7] See also Pabst Brewing Company v. Kalmanovitz, 551 F.Supp. 882 (D.Del.1982) where this Court found that the "[f]acts clearly indicate that Kalmanovitz and Jacobs ... have personally invested substantial capital in order to capitalize the tender offer by the acquiring corporations. Thus, there is no question that Kalmanovitz and Jacobs are the dominating and motivating principals behind the JMSL tender offer." 551 F.Supp. at 892-93. [8] Kalmanovitz argues that he has standing to bring an action for money damages for violations of Section 14(d). However, he fails to cite and the Court has not found any authority to support his claim. [9] 549 F.Supp. 1050, 1054, n. 3, 4. [10] See Piper v. Chris-Craft Industries, Inc., 430 U.S. 1, 31-32, 97 S.Ct. 926, 944, 51 L.Ed.2d 124 (1977). [11] See Transamerica Mortgage Advisors v. Lewis, 444 U.S. 11, 18-19, 100 S.Ct. 242, 246, 62 L.Ed.2d 146 (1979). [12] The Court also noted that those who have a contractual right to purchase or sell securities have also been recognized as "purchasers" or "sellers" of securities for purposes of Rule 10b-5, not because of judicial conclusion that they were similarly situated to "purchasers" or "sellers" but because the definitional provisions of the 1934 Act grant them such a status. 421 U.S. at 751, 95 S.Ct. at 1932-33. [13] The defendants also argue that: (a) plaintiff has failed to make his allegations with the requisite specificity and; (b) plaintiff failed to plead reliance. (D.I. 166 at 25-28.) Because the Court found that Kalmanovitz lacks standing to sue as a "purchaser or seller," the Court need not reach defendants' other arguments. [14] Although Italo Petroleum Corp. deals with a statute which was later amended to the current edition of Section 160, subsection (c) existed in the wording of the statute prior to the amendment. [15] Because the Court finds that Kalmanovitz no longer has standing to pursue the claim that defendant Smith had breached his fiduciary duty to the Pabst shareholders, this Court need not reach defendants' other arguments that the derivative claims must be dismissed because: "(a) of plaintiff's unexcused failure to make a demand on the Pabst Board of Directors and; (b) plaintiff could not adequately represent the interest of the other stockholders." (D.I. 166 at 37-41.) [16] In support of the allegations in Count VIII, Kalmanovitz in a conclusory manner and without reference to any specific part of the Complaint states: Plaintiff has pleaded conspiracy with great specificity. Plaintiff sets forth 81 paragraphs covering some 21 pages of specific facts before setting forth the conspiracy allegation. Plaintiff has set out the parties to the conspiracy, the period of the conspiracy, the object of the conspiracy and numerous certain actions of the conspirators taken to achieve that purpose. The allegations are precise enough to give rise to an inference of conspiracy and therefore defendants' motion to dismiss must fail. (D.I. 168 at 34.) [17] For example, in D.I. 1, ¶ 104, plaintiffs allege that "a recent proposed Consent Decree between Heileman and the Department of Justice will probably be rejected...." The Consent Decree was not rejected. In ¶ 109, plaintiffs allege "there is no assurance that the Pabst or Olympia mergers will be consummated on any basis or upon the same terms as described in the HBC/Heileman Offer." These mergers were consummated substantially in accordance with the terms of that offer with Heileman relinquishing all control over the operations of Pabst and Olympia. Again, in ¶¶ 113-16, plaintiffs contend that various regional markets will be seriously altered by "Heileman control of Pabst and Olympia" and offer figures demonstrating how the "combination" of these three impacts on the markets to lessen competition. No such "combination" ever occurred. [18] Plaintiffs' answering memorandum cites Blue Shield of Virginia v. McCready, 457 U.S. 465, 102 S.Ct. 2540, 73 L.Ed.2d 149 (1982), for the general proposition that "[c]ompetitors may be able to prove antitrust injury and thus have standing." (D.I. 168 at 36; emphasis added.) The parties do not disagree with this general proposition. However, in some circumstances, such as a boycott directed against a competitor of one of the parties to a conspiracy, the competitor is injured by the violation and has standing. See, e.g., Klor's, Inc. v. Broadway Hale Stores, Inc., 359 U.S. 207, 79 S.Ct. 705, 3 L.Ed.2d 741 (1959). Such is not the case here. Neither this general proposition nor McCready suggests that Kalmanovitz has standing on the facts which he alleges. Indeed, McCready, which held that a customer had sustained antitrust injury, did not in any way alter, but rather reaffirmed, the requirement of Brunswick that plaintiffs have suffered antitrust injury in the particular case in order to have standing. See 457 U.S. at 482-84, 102 S.Ct. at 2550-51. [19] On November 21, 1983, the Court denied plaintiffs' motion for summary judgment on their breach of contract claim because material facts were in dispute. Kalmanovitz v. G. Heileman Brewing Co., Inc., 576 F.Supp. at 930-31.

714 N.W.2d 658 (2006) 270 Mich. App. 74 Board of Trustees of the POLICEMEN AND FIREMEN RETIREMENT SYSTEM of the City of Detroit, Plaintiff-Appellant, v. CITY OF DETROIT, Defendant-Appellee. Docket No. 263144. Court of Appeals of Michigan. Submitted November 15, 2005, at Detroit. Decided February 28, 2006, at 9:00 a.m. Released for Publication May 11, 2006. *659 Martens, Ice, Klass, Legghio & Israel, P.C. (by Christopher P. Legghio and Michael J. Bommarito), Royal Oak, for the plaintiff. Bruce A. Campbell, Detroit, for the defendant. Before: WHITBECK, C.J., and SAAD and O'CONNELL, JJ. SAAD, J. Plaintiff, Board of Trustees of the Policemen and Firemen Retirement System of the City of Detroit (Board), appeals the trial court's grant of summary disposition to defendant, city of Detroit. We reverse. I. Facts and Procedural History The Board is responsible for the general administration, management, and operation of the Policemen and Firemen Retirement System, which provides retirement and death benefits to active and retired uniformed city employees, their families, and beneficiaries. According to the Board's complaint, the retirement system currently provides benefits to nearly 14,000 Detroit employees and retirees and has assets of approximately $3 billion. Several Detroit officials and employees sit on the Board, including the mayor or his representative, a city council member, the city treasurer, the police chief, the fire commissioner, three fire fighters, and three police officers. Part of the Board's responsibilities is to ensure that the retirement system is properly funded. Accordingly, the Board, after consultation with an actuary, determines the amount of Detroit's annual pension contribution. The plan actuary calculates plan assets and liabilities to determine whether the plan is overfunded or underfunded. The annual contribution Detroit must make to the plan includes present service cost, plus a credit or additional payment depending on whether the plan is overfunded or underfunded. The 2004 plan was underfunded and, therefore, one component of the pension contribution is the amount of time necessary for Detroit to meet the system's unfunded accrued liabilities. Logically, the amount of time permitted to satisfy the accrued liabilities, also known as the amortization period, affects the amount Detroit is obligated to contribute to the plan each year. In March 2004, the Board, by a six-to-five vote, adopted a 14-year amortization period to calculate Detroit's annual contribution to finance the unfunded accrued pension liabilities. However, Detroit maintained that a 20-year amortization period should apply under a local ordinance, notwithstanding that Detroit never followed the ordinance in the past and the Board had set the amortization period for many years.[1] *660 On June 4, 2004, the Board filed a complaint against Detroit and sought a declaratory judgment "that it has the right to determine the time period for the financing of unfunded accrued pension liabilities." Thereafter, the Board filed a motion for summary disposition under MCR 2.116(C)(10) and argued that, under Michigan law, the Board has the authority to determine the amortization period and that Detroit must abide by its recommendation and pay the amount of pension contribution calculated by the Board. Detroit responded and argued that a Detroit ordinance controls the issue and that it permits the city to use a 20-year amortization period. Accordingly, Detroit asked the trial court to grant it summary disposition under MCR 2.116(I)(2). After oral argument, the trial court issued a written opinion and order that granted summary disposition to Detroit under MCR 2.116(I)(2). For the reasons articulated below, we reverse the trial court's decision and hold that the Board has the authority to set the amortization period. II. Standard of Review and Applicable Law This Court reviews de novo a trial court's decision on a motion for summary disposition. Scott v. Farmers Ins. Exch., 266 Mich.App. 557, 560, 702 N.W.2d 681 (2005). As our Supreme Court recently reiterated in Nastal v. Henderson & Assoc. Investigations, Inc., 471 Mich. 712, 721, 691 N.W.2d 1 (2005): A motion under MCR 2.116(C)(10) tests the factual sufficiency of the complaint. Maiden v. Rozwood, 461 Mich. 109, 120, 597 N.W.2d 817 (1999). The trial court must consider the affidavits, pleadings, depositions, admissions, and other evidence submitted by the parties, MCR 2.116(G)(5), in the light most favorable to the party opposing the motion. Maiden, supra at 120, 597 N.W.2d 817. Where the proffered evidence fails to establish a genuine issue regarding any material fact, the moving party is entitled to judgment as a matter of law. MCR 2.116(C)(10), (G)(4). Quinto v. Cross & Peters Co., 451 Mich. 358, 547 N.W.2d 314 (1996). "The trial court properly grants summary disposition to the opposing party under MCR 2.116(I)(2) if the court determines that the opposing party, rather than the moving party, is entitled to judgment as a matter of law." Washburn v. Michailoff, 240 Mich.App. 669, 672, 613 N.W.2d 405 (2000). This case also requires the interpretation of a statute and a city ordinance. "This Court . . . reviews questions of statutory interpretation de novo." Local Area Watch v. Grand Rapids, 262 Mich.App. 136, 142, 683 N.W.2d 745 (2004). This Court also reviews "a lower court's interpretation of the meaning of an ordinance de novo." Warren's Station, Inc. v. City of Bronson, 241 Mich.App. 384, 388, 615 N.W.2d 769 (2000). Const. 1963, art. 9, § 24 provides that "[t]he accrued financial benefits of each pension plan and retirement system of the state and its political subdivisions shall be a contractual obligation thereof which shall not be diminished or impaired thereby." The Board relies on MCL 38.1140m to argue that the Legislature conferred on it the power to determine the amortization period to finance unfunded accrued pension liabilities. The statute provides: The governing board vested with the general administration, management, and operation of a system or other decision-making *661 body that is responsible for implementation and supervision of any system shall confirm in the annual actuarial valuation and the summary annual report required under section 20h(2)[2]that each plan under this act provides for the payment of the required employer contribution as provided in this section and shall confirm in the summary annual report that the system has received the required employer contribution for the year covered in the summary annual report. The required employer contribution is the actuarially determined contribution amount. An annual required employer contribution in a plan under this act shall consist of a current service cost payment and a payment of at least the annual accrued amortized interest on any unfunded actuarial liability and the payment of the annual accrued amortized portion of the unfunded principal liability. For fiscal years that begin before January 1, 2006, the required employer contribution shall not be determined using an amortization period greater than 40 years. For years that begin after December 31, 2005, the required employer contribution shall not be determined using an amortization period greater than 30 years. In a plan year, any current service cost payment may be offset by a credit for amortization of accrued assets, if any, in excess of actuarial accrued liability. A required employer contribution for a plan administered under this act shall allocate the actuarial present value of future plan benefits between the current service costs to be paid in the future and the actuarial accrued liability. The governing board vested with the general administration, management, and operation of a system or other decision-making body of a system shall act upon the recommendation of an actuary and the board and the actuary shall take into account the standards of practice of the actuarial standards board of the American academy of actuaries in making the determination of the required employer contribution. [MCL 38.1140m (emphasis added).] At issue on appeal is whether the above statute conflicts with City Code § 54-2-6(c), which provides: The City's annual contribution, expressed as a percent of active member compensations, to finance any unfunded accrued service pension liabilities shall be determined by dividing such unfunded accrued service pension liabilities by one percent of the present value of future compensations payable during the period of future years. Such period of future years shall be thirty years for actuarial valuation as of June 30, 1974, decreasing one year at each subsequent June 30 until a twenty year period is reached, which twenty year period shall then be used in each subsequent actuarial valuation. III. Analysis As noted, the Board maintains that the trial court erred because, under MCL *662 38.1140m, the Board has the authority to adopt the amortization period to finance unfunded accrued pension liabilities. In contrast, Detroit argues that MCL 38.1140m merely places caps on the amortization periods starting in 2006, but that "[i]t does not give the Board the right to decide on the amortization period." We disagree. The statute provides that the Board, acting on the recommendation of an actuary, makes "the determination of the required employer contribution." MCL 38.1140m. Further, the statute explicitly provides that the Board "shall confirm" that the plan "provides for the payment of the required employer contribution" and "shall confirm" that the system receives "the required employer contribution. . . ." Id. "The word `shall' is unambiguous and is used to denote mandatory, rather than discretionary, action." STC, Inc. v. Dep't. of Treasury, 257 Mich.App. 528, 537, 669 N.W.2d 594 (2003). Thus, the statutory language is unequivocal that the Board determines the amount the employer (Detroit) contributes annually to the Retirement System and that the employer, in turn, is "required" to make the contribution.[3] The Board's determination also necessarily includes the amount of time in which Detroit must pay the unfunded accrued pension liabilities because the period directly affects the amount Detroit must contribute to the plan each year.[4] As noted, MCL 38.1140m states that the Board is to determine the annual contribution, which "consist[s] of a current service cost payment . . . and the payment of the annual accrued amortized portion of the unfunded principal liability." Thus, the statute contemplates that the Board, through an actuary, shall determine the annual payment, which includes a determination of the "amortized portion of the unfunded principal liability." Id. Moreover, the next portion of the statute provides: For fiscal years that begin before January 1, 2006, the required employer contribution shall not be determined using an amortization period greater than 40 years. For years that begin after December 31, 2005, the required employer contribution shall not be determined using an amortization period greater than 30 years. [Id.] A plain reading of this section, in conjunction with the rest of MCL 38.1140m, compels the conclusion that, while the amortization period is capped at no greater than 30 years at the end of 2005, the actuary and the Board have discretion, within that limit, to determine the appropriate amortization period. Indeed, the above language evidences the Legislature's intent to grant the Board the authority to determine the *663 amortization period because it included limits (caps) in its grant of authority to the Board to determine the employer's annual contribution. Further, it is self-evident that, because the Board has the responsibility to determine the employer's annual contribution to the system and to ensure that the system is adequately funded, an integral element of that calculation is how much the city must annually contribute to pay down its unfunded liabilities. Again, how long those liabilities are amortized, according to the calculations of the actuary, directly affects the adequacy of the system funding and the amount Detroit must pay each year. Because MCL 38.1140m authorizes the Board to set the annual amortization periods, the statute conflicts with City Code § 54-2-6, which dictates that, after 1974, the amortization period shall decrease one year each year from 30 years to 20 years and that, once the period reaches 20 years, the amortization rate shall remain at 20 years.[5] Therefore, under the ordinance, by 1984, the amortization period would be 20 years and remain 20 years regardless of whether the Board and an actuary conclude that Detroit's contribution should be different. Detroit argues that the statute and the ordinance may arguably be read in conjunction *664 to conclude that, while it is up to the Board to determine the amount Detroit owes based, in part, on the amortized portion of the unfunded principal liability, the city may determine the amortization period, as long as it complies with the Board's determination of how much it owes to cover the "amortized portion" of the unfunded liability. In other words, according to the city, Detroit may decide that its amortization period is 20 years if it complies with the caps in MCL 38.1140m and the Board's determination of how much it owes, including the current service cost, the amortized interest on unfunded actuarial liability, and the amortized portion of the unfunded principal liability. Again, however, the Detroit ordinance directly interferes with the Board's authority to decide the annual contribution, which includes a determination of the amortization period. As this Court recently explained in Shelby Charter Twp. v. Papesh, 267 Mich.App. 92, 105-106, 704 N.W.2d 92 (2005): State law preempts a municipal ordinance where the ordinance directly conflicts with a state statute or the statute completely occupies the field that the ordinance attempts to regulate. Rental Prop. Owners Ass'n. of Kent Co. v. Grand Rapids, 455 Mich. 246, 257, 566 N.W.2d 514 (1997). A direct conflict exists when the ordinance permits what the statute prohibits or the ordinance prohibits what the statute permits. People v. Llewellyn, 401 Mich. 314, 322 n. 4, 257 N.W.2d 902 (1977). The ordinance clearly conflicts with the statute, and the statute prevails over the ordinance. The Legislature granted the Board the authority to determine the annual plan contributions, which necessarily includes the annual amortization period, and the statute granting that authority preempts the ordinance.[6] Accordingly, the trial court erred when it granted summary disposition to Detroit. We reverse the trial court's decision and grant the Board's declaratory judgment that it has the authority under applicable law to set the amortization period. Reversed. NOTES [1] The record also reflects that, until now, Detroit has not followed or relied on the ordinance to limit its financing to a 20-year amortization period. The Board attached to its motion for summary disposition the affidavit of board member Walter Stampor, who stated that, since 1976, the Board has adopted the amortization periods for Detroit. According to Stampor's statement and accompanying chart of amortization rates, the Board adopted a 25-year amortization period in 1992 which descended one year in each subsequent year. Accordingly, by 2003, the amortization period as adopted by the Board was 14 years. Stampor further stated that, until 2003, Detroit did not object to, and regularly complied with the Board's descending amortization periods. As explained here, had Detroit enforced City Code § 54-2-6, the amortization period would have been 20 years throughout that period. Other than a copy of MCL 38.1140m, Detroit did not attach any other evidence to its response to the Board's motion for summary disposition. Accordingly, the evidence clearly indicates that Detroit at least acquiesced to the Board's decreasing amortization period recommendations from 1992 to 2002. [2] Section 20h(2), MCL 38.1140h(2), provides: Except as otherwise provided in subsection (4), a system shall have an annual actuarial valuation with assets valued on a market-related basis. A system shall prepare and issue a summary annual report. The system shall make the summary annual report available to the plan participants and beneficiaries and the citizens of the political subdivision sponsoring the system. The summary annual report shall include all of the following information: (a) The name of the system. (b) The names of the system's investment fiduciaries. (c) The system's assets and liabilities. (d) The system's funded ratio. (e) The system's investment performance. (f) The system's expenses. [3] City Code § 54-43-4(b) also states: The board of trustees shall annually ascertain and report to the mayor and the council the amount of contributions due the retirement system by the city, and the city council shall appropriate and the city shall pay such contributions to the retirement system during the ensuing fiscal year. . . . [4] City Code § 54-2-7 similarly provides: Based upon the provisions of this ordinance, including any amendments, the Board of Trustees shall compute the City's annual contributions, expressed as a percent of active member compensation, to the retirement system for the fiscal year beginning July 1, 1975, using actuarial evaluation data as of June 30, 1974, and for each subsequent fiscal year using actuarial evaluation data as of the June 30 date which is a year and a day before the first day of such fiscal year. The Board shall report to the Mayor and to the city council the contribution percents so computed and such contribution percent shall be used in determining the contribution dollars to be appropriated by the city council and paid to the retirement system. . . . [5] The trial court did not agree that the statute and ordinance conflict. As the trial court observed: MCLA 38.1140m sets a ceiling on the amortization period for determining employer contributions: 40 years for fiscal years that begin before January 1, 2006 and 30 years for years that begin after December 31, 2005. The ordinance sets a floor of twenty years for the amortization period. If, as [the Board] contends, the ordinance has the inherent flaw of allowing the City to "effectively determine its annual pension contribution," thus potentially causing conflict in practice, it must be addressed legislatively. Plaintiff's actuary, who is mandated pursuant to MCLA 38.1140m to make recommendations to the Board taking into account actuarial standards of practice, agrees that the City "reserved the right to determine annual decrement probability and salary factors and the amortization term for financing unfunded accrued service pension liabilities." While the actuary finds that Ordinance 76-H, § 54-43-4, provides the Board with authority "to adopt, from time to time, assumptions as to future financial experiences," he harmonizes the ordinance provisions by reasoning that while the Board of Trustees is given authority to decide financial assumptions, the City Council retained authority to decide, inter alia, the amortization term relative to unfunded accrued service pension liabilities. Noting that he does not believe such a "restriction/reservation" is advisable, the actuary concludes that "[a]n ordinance change is required to use an amortization period other than twenty years regarding financing of unfounded [sic] accrued service pension liabilities." The trial court's reasoning in the first paragraph is incorrect because MCL 38.1140m not only caps the amortization periods permitted for retirement systems, it provides that it is the Board's responsibility to determine Detroit's annual contribution, which would arguably include a determination of the amortization period. Further, in the second paragraph above, the trial court erroneously attributes the quoted statements to the Board's actuary. According to the trial court, the actuary on whom the Board must rely in making its determination of the employer contribution under MCL 38.1140m, concluded that the statute and ordinance should be read together and that the correct interpretation gives the Detroit City Council the authority to decide the amortization period. As the Board points out in its appeal brief, the opinions the trial court attributed to the actuary were, in fact, those of a lawyer who was asked for a legal opinion, not those of the actuary charged with advising the Board. Furthermore, to the extent the trial court's opinion suggest otherwise, the City Code § 54-2-6 does not permit the city council any discretion to decide the amortization period; rather, the ordinance dictates that the amortization period shall remain at 20 years. Accordingly, the trial court erred in its interpretation of the evidence and the ordinance. [6] In light of our decision, we need not address the Board's equitable estoppel and laches claims.

708 F.Supp.2d 130 (2010) UNITED STATES of America v. Manelenho FERNANDES. Criminal No. 09-10272-RGS. United States District Court, D. Massachusetts. April 28, 2010. *131 Syrie D. Fried, Federal Public Defender Office, District of Massachusetts, Boston, MA, for Manelenho Fernandes. FINDINGS OF FACT, RULINGS OF LAW, AND ORDER ON DEFENDANT'S MOTIONS TO SUPPRESS STEARNS, District Judge. On October 28, 2007, as the Morabeza Night Club on Main Street in Brockton, Massachusetts, approached its 2:00 a.m. closing, defendant Manelenho Fernandes arrived on the fringe of the departing crowd. After greeting a friend in the Club's parking lot, Fernandes walked across the street, talking on his cell phone. He was grabbed by two Brockton police detectives who seized a loaded handgun hidden inside his waistband. Fernandes had no permit for the firearm. On September 23, 2009, Fernandes was indicted by a federal grand jury as a felon in possession of a firearm and ammunition, in violation of 18 U.S.C. § 922(g). Following the indictment, Fernandes moved to suppress the gun and ammunition, arguing that police had seized him without the requisite level of suspicion. The court heard testimony, including that of Fernandes, on January 22, 2010. At the parties' request, the matter was adjourned to *132 permit the preparation of a transcript of the hearing. Further briefing followed. Argument on the motion was heard on March 19, 2010. FINDINGS OF FACT Based on the credible evidence offered at the hearing, I make the following findings of fact. 1. Patrolman Francis Czarnowski regularly worked Saturday night details at the Morabeza Night Club (Club). The Club is frequented by a mostly Cape Verdean clientele. The area around the Club, and particularly the parking lot of the auto repair shop across the street, was considered by Czarnowski to be a "hot spot" for criminal activity, including shootings, stabbings, and fist fights. Czarnowski had been involved in a potentially lethal shooting incident in March of 2007 when a gun fight erupted on Main Street near the Club. Czarnowski had made a number of arrests in the vicinity of the Club, including ten for illegal possession of firearms.[1] 2. At around 2:00 a.m. on the morning of October 28, 2007, Detectives James Smith and Eric Hilliard, who were dressed in plain clothes, arrived at the Club as was their custom to monitor the closing. The detectives observed "hundreds" of patrons streaming out of the Club's entrance towards Main Street, disrupting traffic. Both officers were aware of the reputation of the neighborhood for violent crime, some of which they had personally witnessed. Fearing trouble from the crowd, Hilliard summoned three other Brockton detectives (Carde, Paul, and Almeida) to act as backup, "for our safety and public safety." Shortly after 2:00 a.m., Smith and Hilliard observed a black Nissan Pathfinder pull into the parking lot of the repair shop.[2] Three individuals exited the Pathfinder.[3] Detective Smith recognized the driver as Rui Barbosa, someone whom he had previously run across while serving on details at other clubs. Smith knew that Barbosa had no connection with the CVOs. He did not recognize either of the other two men. 3. The detectives believed—mistakenly—that one of the men who had exited the Pathfinder was defendant Manelenho Fernandes.[4] They observed Fernandes, *133 who was wearing "baggy" jeans and a mid-thigh-length white t-shirt,[5] pacing in front of the repair shop while speaking on a cell phone. The detectives were positioned some 100' away. Fernandes "nonchalantly" touched his right hip "at least three" times with his right hand while holding the cell phone in his left. 4. Hilliard formed the belief that he had encountered Fernandes two weeks earlier when he and Smith had been called to the Club by Czarnowski. When they arrived, Czarnowski warned them that the defendant and his friends were "CVOs out of Boston . . . here every week causing problems."[6] On that occasion, Hilliard approached the group and told them to leave (which they did).[7] 5. Fernandes was greeted from a distance by an exiting patron. Fernandes walked towards him and the two men briefly embraced. Fernandes then touched his waist, as if to adjust his clothing, and walked in the direction of the Pathfinder. Smith and Hilliard had earlier attended a Department of Alcohol, Tobacco, Firearms and Explosives (ATF)-sponsored video training lecture in which a retired Maryland police lieutenant had warned them to watch peoples' hands in a crowd and to be suspicious of "touch and turn" movements and "security checks."[8] 6. As the detectives kept watch on the three men, Smith and Hilliard did not observe them fighting or engaged in boisterous or inappropriate behavior. They observed one of the men, later identified as John Fernandes, reach into the back seat of the Pathfinder and retrieve a rolled-up sweatshirt.[9] 7. Carde and Almeida crossed the street and confronted John Fernandes. He was frisked, as was the sweatshirt. They also searched the Pathfinder. No weapons were found. Paul frisked Barbosa who also proved to be unarmed. 8. As Manelenho Fernandes approached the repair shop parking lot, Smith and Hilliard ran up and grabbed his arms.[10] Hilliard warned Fernandes not to *134 "do anything foolish." He then felt Fernandes's waist. Hilliard instantly recognized the contour of a gun beneath Fernandes's waistband. He removed the gun (a .380 semi-automatic revolver chambered with seven rounds of ammunition) and passed it to Almeida. When Hilliard asked Fernandes if he had a permit for the gun, Fernandes replied that he did not. He stated: "I got shot in Boston, I got problems with people out here. I wasn't planning on shooting anybody." As he was being placed in a cruiser, he called out to the crowd: "They got me with a hammer."[11] No Miranda warnings were given until Fernandes was booked later that morning at the Brockton station.[12] RULINGS OF LAW "The Fourth Amendment does not require a policeman who lacks the precise level of information necessary for probable cause to arrest to simply shrug his shoulders and allow a crime to occur or a criminal to escape. . . . A brief stop of a suspicious individual, in order to determine his identity or to maintain the status quo momentarily while obtaining more information, may be most reasonable in light of the facts known to the officer at the time." Adams v. Williams, 407 U.S. 143, 145-146, 92 S.Ct. 1921, 32 L.Ed.2d 612 (1972). See Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968). "[T]he police officer's action [must] be based on specific and articulable facts and the specific reasonable inferences which follow from such facts in light of the officer's experience." Commonwealth v. Silva, 366 Mass. 402, 406, 318 N.E.2d 895 (1974). "Based upon [the] whole picture the detaining officers must have a particularized and objective basis for suspecting the particular person stopped of criminal activity." United States v. Cortez, 449 U.S. 411, 417-418, 101 S.Ct. 690, 66 L.Ed.2d 621 (1981). A combination of suggestive circumstances, largely innocent in and of themselves, when considered in their totality, may constitute the "reasonable suspicion" necessary to justify a Terry stop, United States v. Sokolow, 490 U.S. 1, 9, 109 S.Ct. 1581, 104 L.Ed.2d 1 (1989), particularly when viewed by an experienced police officer. United States v. Arvizu, 534 U.S. 266, 273, 122 S.Ct. 744, 151 L.Ed.2d 740 (2002). As in the case of an arrest, facts must be assessed in light of the collective knowledge of the officers involved. United States v. Hensley, 469 U.S. 221, 232, 105 S.Ct. 675, 83 L.Ed.2d 604 (1985); United States v. Cook, 277 F.3d 82, 86 (1st Cir.2002). The test is an objective one, "view[ing] the circumstances as a whole." Whren v. United States, 517 U.S. 806, 812-813, 116 S.Ct. 1769, 135 L.Ed.2d 89 (1996). Where "a police officer observes unusual conduct which leads him reasonably to conclude in light of his experience that criminal activity may be afoot and that the persons with whom he is dealing may be armed and presently dangerous *135. . . and where nothing in the initial stages of the encounter serves to dispel his reasonable fear for his own or others' safety, he is entitled for the protection of himself and others in the area to conduct a carefully limited search of the outer clothing of such persons in an attempt to discover weapons which might be used to assault him." Terry, 392 U.S. at 30, 88 S.Ct. 1868. The frisk may extend beneath a person's outerwear if the officer feels a suspicious object that could be a weapon. Id. at 22-25, 88 S.Ct. 1868. "The purpose of this limited [Terry] search is not to discover evidence of crime, but to allow the officer to pursue his investigation without fear of violence." Adams, 407 U.S. at 146, 92 S.Ct. 1921. "Nothing in Terry can be understood to allow a generalized `cursory search for weapons' or, indeed, any search whatever for anything but weapons." Ybarra v. Illinois, 444 U.S. 85, 93-94, 100 S.Ct. 338, 62 L.Ed.2d 238 (1979). ULTIMATE RULINGS OF FACT AND LAW In applying the "totality of the circumstances" test, courts have developed specific categories of indicia of suspicion, which when considered alone or in combination, may amount to the quantum of suspicion necessary to justify a Terry stop. In reviewing these categories in the context of Fernandes's case, it is easier to begin with those that are absent. The detectives were not responding to a report of a serious and ongoing crime. Compare United States v. Raino, 980 F.2d 1148, 1150 (8th Cir.1992) (officers responding to reports of gunfire). If Fernandes did recognize Hilliard as a police officer, he made no attempt to flee. Compare Illinois v. Wardlow, 528 U.S. 119, 124, 120 S.Ct. 673, 145 L.Ed.2d 570 (2000) (suspect fled after looking at police). He displayed no signs of apprehension or nervousness. Compare United States v. Atlas, 94 F.3d 447, 451 (8th Cir.1996) (suspect's eyes grew wide with surprise upon seeing police). But cf. United States v. Chavez-Valenzuela, 268 F.3d 719, 725-726 (9th Cir.2001) (nervousness by itself is not a basis for a reasonable belief that a person is engaged in criminal activity). Nor was there anything innately suspicious about Fernandes's presence in the proximity of the Club. Compare United States v. Sears, 663 F.2d 896, 903 (9th Cir.1981) ("The Riverside officers observed individuals in a vehicle with out-of-state license plates looking at a bank through binoculars for about ten minutes. These facts are sufficient to justify the stop."). Also significant is the fact that the officers had no prior knowledge of Fernandes or of his reputation for criminal activity. Compare United States v. Kimball, 25 F.3d 1, 7 (1st Cir.1994) ("A third articulable factor was that Deputy Word recognized the vehicle as belonging to Huertas, and he knew that Huertas had a criminal history involving burglaries."). Nor did the officers possess any credible information that Fernandes was a member or associate of the CVOs or another street gang. Compare United States v. Am, 564 F.3d 25, 30 (1st Cir.2009) ("The stop occurred in a location of known gang violence based on suspicion that [defendant] was engaged in criminal activity related to his gang membership, namely carrying a weapon for protection from rival gangs."). The officers had not received a tip from a known informant that Fernandes possessed a gun. Compare Adams, 407 U.S. at 145, 146-147, 92 S.Ct. 1921 (officer warned by a reliable informant that defendant had a gun tucked inside his waistband). Nor had they received an anonymous report suggesting a need for emergency action. See United *136 States v. Holloway, 290 F.3d 1331, 1338 (11th Cir.2002) (although the 911 calls were anonymous, the nature of the reported emergency justified a warrantless search of defendant's home for possible victims of gunfire). Cf. Florida v. J.L., 529 U.S. 266, 276, 120 S.Ct. 1375, 146 L.Ed.2d 254 (2000) (Kennedy, J., concurring). Fernandes had not given police evasive answers or implausible explanations of his conduct. Compare Devenpeck v. Alford, 543 U.S. 146, 155-156, 125 S.Ct. 588, 160 L.Ed.2d 537 (2004) (individual suspected of impersonating a police officer gave inconsistent and implausible explanations for car modifications, a police radio scanner, and a pair of handcuffs). Finally, the detectives did not observe any offense being committed, even one of a minor or technical nature, that would justify a stop and arrest. See Whren, 517 U.S. at 813, 116 S.Ct. 1769 (police stop for a traffic violation can lead to a search for evidence of far more serious illegal activity). Shorn of these often cited indicia, there are only two possible bases for a finding of reasonable suspicion: (1) Fernandes's presence in a high-crime area, see United States v. Trullo, 809 F.2d 108, 111-112 (1st Cir.1987); and (2) his arguably ambiguous touching or patting of his waist area as he walked. See Florida v. Rodriguez, 469 U.S. 1, 6, 105 S.Ct. 308, 83 L.Ed.2d 165 (1984) (strange movements justified aroused suspicion). As for the first factor, the cases are consistent in holding that mere presence in a high-crime area is insufficient to justify a Terry stop, for the reason that were it otherwise, large groups of citizens would be subject to random police searches based solely on the character of the neighborhoods in which they live (by choice or by constraint). See Wardlow, 528 U.S. at 124, 120 S.Ct. 673 ("An individual's presence in an area of expected criminal activity, standing alone, is not enough to support a reasonable, particularized suspicion that the person is committing a crime."). The second factor has a bit more heft. A gesture (like a touching of the body) that might appear perfectly innocent to a casual onlooker (scratching oneself or feeling for a wallet, for example), depending on the setting and circumstances, may nonetheless appear suspect to an experienced officer. Arvizu, 534 U.S. at 275-276, 122 S.Ct. 744 (driver's slowing down, stiffening of posture, and failure to acknowledge a law enforcement officer in rural area combined with "methodical" waving to the officer by child passengers raised reasonable suspicion for an experienced border patrol agent). See also United States v. Padilla, 548 F.3d 179, 187-188 (2d Cir.2008) (two men walking single-file behind a third off a sidewalk onto a dark wooded path at night appeared to be readying themselves for potential robbery or drug deal). But cf. United States v. McKoy, 428 F.3d 38, 41 (1st Cir.2005) ("It is simply not reasonable to infer that a driver is armed and dangerous because the officers believe that he appears nervous and reaches toward the car's console when approached by police, even in a high-crime neighborhood."). Weighing against this factor (apart from the ambiguity of the gesture) is that its significance was not something gleaned by Smith and Hilliard from their extensive street experience, but was rather a suggestion put forward in an ATF-training video.[13] On balance, what the officers had was a hunch—a good one as it turned out—and *137 they are not to be faulted for taking a proactive stance in circumstances they perceived as potentially explosive. But a salutary result (here, the seizure of the gun), cannot be used to justify a confrontation that was constitutionally flawed at its outset. This is not the balance struck by the judicially-created exclusionary rule. Cf. Smith v. Ohio, 494 U.S. 541, 543, 110 S.Ct. 1288, 108 L.Ed.2d 464 (1990) (per curiam) ("`[J]ustify[ing] the arrest by the search and at the same time . . . the search by the arrest,' just `will not do.'" (quoting Johnson v. United States, 333 U.S. 10, 16-17, 68 S.Ct. 367, 92 L.Ed. 436 (1948))).[14] ORDER For the foregoing reasons, defendant's motion to suppress the gun and ammunition is ALLOWED.[15] SO ORDERED. NOTES [1] Czarnowski was not present during Fernandes's arrest. He was called as a witness by the government for the apparent purpose of establishing the reputation of the area surrounding the Club for criminal activity. He also testified to his general familiarity with gang activity in Brockton, including that of the Cape Verdean Outlaws or CVOs, a Boston-based street gang. There is no evidence that Fernandes or any of the others who were involved in the events of October 28 were members or associates of the CVOs (or any other street gang). [2] This was Smith's memory of this sequence of events. Hilliard testified that he had called for backup a few minutes later after seeing John Fernandes, one of the occupants of the Pathfinder, remove a "balled up" sweatshirt from the rear seat. While it is not material to this decision, Smith's account seems the more consistent with the uninterrupted and rapid flow of events that followed (particularly given Hilliard's testimony that he had to call four times before the backup officers responded). [3] Although Hilliard testified that at that hour, "they shouldn't be parked there," he agreed that there was nothing "strange" about a car parking in the repair shop's lot or pulling up at the Club as it closed. Both Czarnowski and Hilliard testified that there were no after-hours restrictions on parking in the lot and that Club goers often parked there. [4] I credit Fernandes's testimony that he did not arrive at the Club with Barbosa, but that he and John Fernandes (a second cousin) were driven there by Isabelle Teixeira, a friend of the defendant's who had picked him up earlier that night at his mother's home in Boston. Teixeira had taken the defendant first to John Fernandes's house in Brockton and had then driven the two men to the Club. There, Fernandes was looking for a friend whom he was trying to contact on his cell phone. I believe that the mistaken identification on the detectives' part is attributable to the hubbub caused by the exiting crowd and the sea of unfamiliar faces. [5] Smith and Hilliard testified that Fernandes's garb was typical of the club-going gear worn by young men in Brockton. [6] Czarnowski did not recall the conversation or the incident. He did not recognize Fernandes when he was pointed out at the hearing and was confident that he had "never personally interacted with him." Smith also did not remember the incident or the conversation, nor did he have any recollection of having seen Fernandes before the night of the arrest. [7] On direct examination, Hilliard testified that he did not recall when he first recognized Fernandes from this earlier encounter. On cross-examination, he testified that he recognized the defendant only after the arrest. On redirect examination, after some prompting, he stated that he recognized Fernandes as he approached him from his vantage point across the street. I credit Hilliard's earlier testimony. [8] A "security check" is a reflexive patting of a concealed weapon to insure that it remains safely in place. Smith agreed that there are many innocent reasons for someone to touch his or her waist or body. [9] Hilliard testified that John Fernandes spoke with the defendant before retrieving the sweatshirt. Smith did not recall seeing an interaction between the two men. [10] Smith testified that he did not believe that Fernandes recognized him as a police officer. (Smith was wearing Army fatigue pants and a dark windbreaker). Hilliard testified that, although he was also in plain clothes, he "thought" that at one point Fernandes made eye contact with him and was "taken aback by it, turned around, went right back to that— the truck there." [11] In a second motion to suppress, Fernandes moves to suppress this statement as well as the earlier statement explaining why he was carrying a gun. He denies having made either statement, although he admits telling Hilliard that he did not possess a firearms permit. [12] Although Detective Smith testified that Fernandes was not seized at that point, it is clear as a matter of law that he was. See California v. Hodari D., 499 U.S. 621, 626, 111 S.Ct. 1547, 113 L.Ed.2d 690 (1991) ("The word `seizure' readily bears the meaning of a laying on of hands or application of physical force to restrain movement, even when it is ultimately unsuccessful."). [13] Of the other potential indicia of suspicion suggested by the government, it concedes in its brief that there is nothing innately suspicious about a car arriving at a night club at its closing. The court also does not find anything reasonably suspicious about a person fetching a sweater or sweatshirt from a car on a cool night in late October. Finally, as indicated earlier, I do not credit the government's suggestion that Hilliard recognized Fernandes before the seizure, or that there was any credible information that Fernandes was a member of the CVOs (or any other gang). [14] The result is not without its critics. Rejection of the evidence does nothing to punish the wrong-doing official, while it may, and likely will, release the wrongdoing defendant. It deprives society of its remedy against one lawbreaker because he has been pursued by another. It protects one against whom incriminating evidence is discovered, but does nothing to protect innocent persons who are the victims of illegal but fruitless searches. Irvine v. California, 347 U.S. 128, 136, 74 S.Ct. 381, 98 L.Ed. 561 (1954) (Jackson, J.). [15] Given the court's ruling on the Fourth Amendment issue, it follows that Fernandes's statements must be suppressed as the "fruit" of a poisonous tree. Wong Sun v. United States, 371 U.S. 471, 488, 83 S.Ct. 407, 9 L.Ed.2d 441 (1963). (The statements in any event have no evidentiary value without the gun and the ammunition). However, should the Court of Appeals disagree with my Fourth Amendment assessment, I would not suppress the statements as there was no independent Fifth Amendment violation. While Fernandes was seized (that is, not free to leave) at the moment he was grabbed by the officers and was therefore in custody, Hilliard's inquiry regarding Fernandes's possession of a firearms permit (that led to the explanation by Fernandes of why he was carrying a gun) falls within the "general on-the-scene questioning" exception of Berkemer v. McCarty, 468 U.S. 420, 440-442, 104 S.Ct. 3138, 82 L.Ed.2d 317 (1984). Fernandes's later exclamation: "They got me with a hammer," was a voluntary statement that was not a product of police interrogation. See Miranda v. Arizona, 384 U.S. 436, 478, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966).

J-S42005-14 NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37 COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF PENNSYLVANIA Appellee v. LOUIS RICE Appellant No. 1125 WDA 1013 Appeal from the Judgment of Sentence January 18, 2013 In the Court of Common Pleas of Allegheny County Criminal Division at No(s): CP-02-CR-0004804-2012 CP-02-CR-0004805-2012 BEFORE: PANELLA, J., JENKINS, J., and MUSMANNO, J. MEMORANDUM BY PANELLA, J. FILED SEPTEMBER 12, 2014 Appellant, Louis Rice, appeals from the judgment of sentence entered on January 18, 2013, by the Honorable Edward J. Borkowski, Court of Common Pleas of Allegheny County. After careful review, we affirm. Rice committed a series of armed robberies. In one, he held a knife to a woman’s neck; in another, he fired a shot inside the store he was robbing. There are more examples of such behavior in the record. See N.T., Guilty Plea Hearing, 10/12/12, at 9-20. He committed most of the robberies with accomplices. Rice ultimately entered a guilty plea to, among other things, 22 counts of robbery. The trial court sentenced Rice to an aggregate term of 25 to 50 years’ incarceration—a result of running several of the robbery J-S42005-14 sentences consecutively. This timely appeal follows. On appeal, Rice’s sole claim is that the trial court imposed an excessive sentence. Rice challenges the discretionary aspects of his sentence. A challenge to the discretionary aspects of a sentence must be considered a petition for permission to appeal, as the right to pursue such a claim is not absolute. See Commonwealth v. McAfee, 849 A.2d 270, 274 (Pa. Super. 2004). An appellant challenging the discretionary aspects of his sentence must invoke this Court’s jurisdiction by satisfying a four-part test: [We] conduct a four-part analysis to determine: (1) whether appellant has filed a timely notice of appeal, see Pa.R.A.P. 902 and 903; (2) whether the issue was properly preserved at sentencing or in a motion to reconsider and modify sentence, see Pa.R.Crim.P. [720]; (3) whether appellant’s brief has a fatal defect, Pa.R.A.P. 2119(f); and (4) whether there is a substantial question that the sentence appealed from is not appropriate under the Sentencing Code, 42. Pa.C.S.A. § 9781(b). Commonwealth v. Moury, 992 A.2d 162, 170 (Pa. Super. 2010) (quotation marks and some citations omitted). Here, Rice filed a timely appeal and challenged his sentence in a post- sentence motion. Rice’s appellate brief also contains the requisite 2119(f) concise statement, in which he argues that the trial court’s cumulative sentence of 25 to 50 years’ incarceration was unreasonable and so manifestly excessive as to constitute an abuse of discretion. See Appellant’s Brief at 10. He also claims that the trial court failed to properly consider his rehabilitative needs. See id. -2- J-S42005-14 “[A] sentencing court generally has discretion to impose multiple sentences concurrently or consecutively, and a challenge to the exercise of that discretion does not ordinarily raise a substantial question.” Commonwealth v. Raven, ___ A.3d ___, ____, 2014 WL 3907103, *6 (Pa. Super., filed August 12, 2014) (citation omitted). “[T]he key to resolving the preliminary substantial question inquiry is whether the decision to sentence consecutively raises the aggregate sentence to, what appears upon its face to be, an excessive level in light of the criminal conduct at issue in the case.” Id. (citation omitted). Rice fails to raise a substantial question as to the consecutive nature of his sentence in this case. We need only look at the sheer breadth of Rice’s robbery spree and the number of people terrorized by his criminal acts to find that the sentence is not excessive. As for his claim that the trial court failed to properly consider his rehabilitative needs and his claims elsewhere in his brief that the trial court failed to adequately consider other mitigating factors, we note that such claims do not raise a substantial question for our review. See, e.g., Commonwealth v. Dodge, 77 A.3d 1263, 1272 n.8 (Pa. Super. 2013). Indeed, the trial court in this case had a pre-sentence investigation report. Where the trial court had the benefit of reviewing a pre-sentence report, we must presume that the sentencing judge was aware of relevant information regarding the defendant's character and weighed those considerations along with mitigating statutory factors. A -3- J-S42005-14 pre-sentence report constitutes the record and speaks for itself. In order to dispel any lingering doubt as to our intention of engaging in an effort of legal purification, we state clearly that sentencers are under no compulsion to employ checklists or any extended or systematic definitions of their punishment procedure. Having been fully informed by the pre-sentence report, the sentencing court's discretion should not be disturbed. This is particularly true, we repeat, in those circumstances where it can be demonstrated that the judge had any degree of awareness of the sentencing considerations, and there we will presume also that the weighing process took place in a meaningful fashion. It would be foolish, indeed, to take the position that if a court is in possession of the facts, it will fail to apply them to the case at hand. Commonwealth v. Hallock, 603 A.2d 612, 616 (Pa. Super. 1992) (citing Commonwealth v. Devers, 519 Pa. 88, 101-02, 546 A.2d 12, 18 (1988)). As the trial court in this case did have the benefit of a pre-sentence report, we must presume that he considered all relevant sentencing factors. At sentencing, the trial court thoroughly discussed what it was taking into consideration in sentencing Rice. See N.T., Sentencing Hearing, 1/18/13, at 15-21. In short, the trial court committed no abuse of discretion in sentencing Rice. Judgment of sentence affirmed. Judgment Entered. Joseph D. Seletyn, Esq. Prothonotary Date: 9/12/2014 -4- 

(2008) Jamal RANDLE, Petitioner, v. Andrew JACKSON, Respondent. No. 04-10322. United States District Court, E.D. Michigan, Southern Division. March 31, 2008. OPINION AND ORDER DENYING PETITION FOR WRIT OF HABEAS CORPUS DAVID M. LAWSON, District Judge. The petitioner, Jamal Randle, presently confined at the Boyer Road Correctional Facility in Carson City, Michigan, has filed a pro se application for a writ of habeas corpus pursuant to 28 U.S.C. § 2254 challenging his convictions and prison sentences for armed robbery, Mich. Comp. L. § 750.529, and possession of a firearm in the commission of a felony, Mich. Comp. L. § 750.227b. The robbery in this case took place on January 10, 1994, Randle was arrested for the offense sometime in December 1998, and trial began in the Wayne County, Michigan circuit court on November 14, 1999. The petitioner contends that the delay both before and after his arrest deprived him of rights under the Constitution. He also alleges that his attorney's performance was substandard. The respondent has filed an answer to the petition asserting that the claims lack merit because the state court of appeals decided the federal issues correctly. The Court agrees; therefore, the petition will be denied. I. The petitioner's convictions arise from the January 10, 1994, robbery of Frank Harris. The petitioner was not formally charged with the alleged crime until five years later, on December 30, 1998. The trial evidence showed that the pre-arrest delay resulted from the inability to identify the petitioner by name and locate him. The petitioner defended at trial against the charges on the bases that he was not the robber, and he was not physically capable of performing the acts described by the State's witnesses. Frank Harris, the robbery victim, testified that on January 10, 1994 at around 7 p.m. he was with his eight-year-old son on Superior Street in Detroit, Michigan in front of the home of Ms. Annie Cook (his son's grandmother). A man with a rifle ran up to him, pointed the rifle at his head, and ordered him to lie face down on the ground. Harris complied. As he was lying face down, the robber took his cash, his wallet, and other personal items. Harris testified that in spite of the darkness, he was able to see the robber's face because of the street light. Hams also said that he could see the robber's face because the robber was standing directly over him. He said that when the robber went through his pockets, the robber's face was very close to his; and when the robber asked him questions Harris said that he turned and looked directly at the robber's face. Harris said that he had never seen the robber before. At trial, he identified the petitioner as the robber. According to Harris, hiding behind a dumpster was a second man who was wearing an overcoat and had something covering his eyes, like goggles or a ski mask. Harris testified that the second man had his hand positioned at his waist, suggesting that he had a weapon. It was Harris's impression that the second man was a lookout. Harris said that after robbing him, the robber told him to run. Harris complied, and as he did so he looked behind him and saw the robber and the other man running at a slow pace in the opposite direction. Harris did not see whether the robber was limping. That night Harris went to the police department and reported the robbery to an Officer Clarence Lucas, whom he knew. Harris could not identify the robber by name, but he gave the officer a general description of him. Officer Lucas then gave the report to the detectives at the precinct; the detectives however did not talk to Harris. About three to six months after the robbery while Harris was working at a pawn shop, he saw the man who robbed him come into the shop carrying a large television set. Harris testified that the robber was with an older gentleman who appeared to be around fifty or sixty years old. Harris was behind a one-way glass when the men entered the shop so they could not see him. Harris said that he recognized the man carrying the television as soon as he came into the shop. Harris was on the phone with a customer at the time. He said that he put the customer on hold, walked out to where the man was standing, and looked him right in the face. The man looked at Harris and then immediately dropped his head, turned around, and walked quickly out of the shop. Harris said that he did not talk to the man, but he told co-workers, "This is the S.O.B. that robbed me." Trial Tr., Nov. 14, 1999 at 26. Harris said that he tried to go after the man, but his co-workers stopped him. By the time Harris broke free of the co-workers, the man was out of the shop and in his car. Nevertheless, Harris was able to see the license number of the man's car and he called the police, who came to the shop. Harris testified that he gave the license number of the car to the responding officer and also to a couple of his police officer friends who periodically came into the pawn shop. The older man was still in the shop when Harris returned, and he asked the man if he knew the person who was carrying the television. The older man denied knowing the individual. However, when the older man pawned the television Harris got his address from the store computer. An unknown bystander told Harris that he knew the man who had held the television; Harris heard the man say that his name was "Jamal Rando." Harris entered that name into the store computer, but no such name came up. Harris testified that he also conveyed that information to the police. Harris testified that after the incident at the pawn shop, he periodically called the police inquiring about the status of the case and continued to do so for a few months after the robbery. Then in December 1998, four years after the robbery, Hams testified that his son, Loren, saw a picture of the man who had robbed him on the television nightly news. Harris said that his son called him to look at the man that was on the television, and when he did Harris saw the picture of the man who had robbed him in 1994. Harris testified that he heard the man's name as Jamal Randle several times on the television news; he said that Randle was being sought for a police shooting. Harris testified that he immediately recognized the image as the man who had robbed him four years earlier. It was only then that Harris realized that he had the incorrect spelling of the robber's name. Harris then went to the police and reported that he had seen Jamal Randle's photograph on the television and told them he was the man who had robbed him. Harris spoke with Sergeant David Mallory, who arranged for an in-person line-up at the police station for Harris and his son Loren. However, Randle refused to stand for the in-person line-up; he believed it was not a fair line-up because Harris had seen his photograph repeatedly on television. So Harris and his son viewed a photograph show-up. Harris testified that both he and his son picked Randle out of the photograph show-up as the robber. Loren Harris also testified at trial. He said that on the day that his father was robbed, he was at his grandmother's home because she was babysitting him that day. Loren was nine years old at the time of the robbery. On that night his father came to pick him up, and as they were leaving his grandmother's house a man with a gun came from the side of the house and told his father to get down on the ground. Loren said that when he saw the gun he got scared and ran back to his grandmother's house and went inside. He said that he went to a window, looked out, and saw the man take his father's wallet and his coat. He testified that he saw the man's face. He then saw the man run away after he took the property from his father. Loren then went upstairs to tell his grandmother what he had witnessed. Then Loren, his father, and his grandmother went to the police station. Loren testified that he did not see the person who robbed his father again until he saw him on television. When Loren saw a picture of the man on television, he called to his father, who was in the bathroom at the time. His father came out of the bathroom and saw the television picture, and then they then went to the police station. At the police station, Loren was asked to look at a man in person to see if he was the one who had robbed his father. Loren testified that he never actually saw that man in person at the police station, but he did identify a photograph of the man who robbed his father. At trial, Loren identified the petitioner as the man that robbed his father. Annie Cook next testified that she lived on Superior Street in Detroit, Michigan where she was babysitting her grandson Loren on the night in question. After Frank Harris picked him up Loren and left her apartment, Cook opened the door to lock the screen door and saw Frank Harris lying on the ground. Ms. Cook testified that she saw two men. One of the men told her to go back into the house, but she said that she simply froze at the door. Ms. Cook testified that eventually Frank Harris came back into the house and told her what had happened and they talked about going to the police. Marion Davis, the pawnbroker, testified that he was working at the pawn shop in 1994 where Frank Harris also worked. Davis recalled an incident in which a man came into the pawn shop and Harris said to him, "Hey, that's the guy that robbed me right there." Davis said that the guy left the store at that point and Harris tried to follow him, but he stopped Harris because he did not think that there was anything that Harris could do at that point. At trial, Davis identified the petitioner as the man in the pawn shop that day. Detroit Police Officer Clarence Lucas testified that in 1994 he was assigned to the Seventh Precinct and employed as a patrol officer. He said that he saw Frank Harris. Officer Lucas said that he was not working on the day of the pawn shop incident but did have the occasion to go there, which he did frequently. When Officer Lucas entered the shop, Harris told him that he had been robbed at gun point. Because Officer Lucas was not on duty, he told Harris to go to the Seventh Precinct and make an armed-robbery report. Officer Lucas testified that he also made his own written report of what Harris told him about the armed robbery, a copy of which was allegedly given to the detective squad at the Seventh Precinct. Officer Lucas testified that he and Harris were acquaintances, and that he saw Harris on nearly a daily basis. According to Lucas, at some point Harris gave him some information about a license-plate number. Lucas recalled running a check of the license-plate number, but he did nothing further because he was not the investigating officer in the case. Detroit Police Sergeant David Mallory testified that in 1994 he was the officer in charge of the investigation. That changed from 1995 to 1998, when Mallory received a new job assignment. Mallory said that when he initially received the case in 1994, he only had descriptions of the individuals involved in the robbery; he did not have any names of the individuals who might have been involved. According to Mallory, it was not until December 9, 1998 that he was given the name of "Jamal Randle" as the individual involved in the robbery. When Sergeant Mallory became aware of the robbery suspect's name, he responded by taking statements from Annie Cook, Loren Cook, and two witnesses at the pawn shop. Sergeant Mallory explained that he "went to Homicide and ascertained if any weapons that fit the description that were used in the holdup had been confiscated in search warrants and a number of locations. [He also] reviewed some of the statements at Homicide in regards to Mr. Jamal's arrest [and] went to the Wayne County Jail and took a statement from or as much information as [he] could get from him at that time." Trial Tr., Nov. 14, 1999 at 113. Sergeant Mallory also testified that he was aware of the incident that occurred at the pawn shop about three months after the robbery. When asked if he searched for a police report of the pawn shop incident, Sergeant Mallory testified as follows: At the time I typed out the warrant I had spent something like three hours looking through our archives to find the police report or an activity log that would indicate that there was a police run to [the pawn shop] and possibly the reports indicating that the [petitioner] was in fact involved in the holdup either by his actual spelling of his name or close spelling of that name. Since then, I have repeatedly gone back to those same archives in attempts to locate either the report or an activity log so that I could substantiate in fact that those things had occurred. I did substantiate that they did occur or that an incident had occurred at [the pawn shop], that the complainant had gone outside, had taken down a license number and at some point that it was in regards to the holdup. . . . I was unable to obtain a police report indicating that either the scout car was sent to the scene at [the pawn shop] or that information was put in a report that should have or would have been forwarded to me in regards to the case. Trial Tr., Nov. 14, 1999 at 114-15. Sergeant Mallory said that after he learned the identity of the robber, he asked Frank and Loren Harris to come to the police station to attend an in-person lineup. He made the necessary arrangements to have a defense attorney present and notified the jail that he wanted the petitioner in this case available for the in-person lineup. However, the petitioner refused to participate. As a result, Sergeant Mallory testified that he arranged for a photograph show-up with six photographs. An attorney was present for that as well, and he did not object to the array. Mallory explained that at the photograph show-up, he first brought in Frank Harris to view the array. Sergeant Mallory testified that Harris immediately identified the petitioner as the robber before Harris even sat down. Sergeant Mallory then brought Loren in to look at the photographs. After about two minutes, Loren identified the petitioner as the man who robbed his father. The petitioner called several defense witnesses and testified in his own behalf. His defense theory was that he was not the person who robbed Harris or the person who was identified at the pawn shop. He insisted that at the time of the robbery he suffered from injuries sustained in a 1993 shooting, and he was shot again before the pawn shop incident, which required that he either use crutches or walk with a limp, and could not carry heavy objects. Harris contended that the "older man" who came into the pawn shop with the person carrying the television was his father, who did not testify at trial. The person carrying the television was Daniel Purvis, who was killed by the police during a robbery sometime between 1994 and 1998. It was the petitioner's position that Purvis also was the robber. Earline Webb, the petitioner's grandmother, was the first defense witness. She testified that on or about December 3, 1993 the petitioner was shot in the knee, and she said that the petitioner was on crutches for a month or more. According to Ms. Webb, although the petitioner no longer needed the crutches, he walked with a limp. She said that she took care of the petitioner during this time because the woman that he lived with, Felicia Pickett, worked during the day and the petitioner needed attendant care. Ms. Webb also testified that the petitioner was shot in the back in 1994 around Valentine's Day. She said that as a result of that shooting, the petitioner lost a lung. He was in the hospital for about two weeks, she said, and he had physical therapy for about nine months afterward. Ms. Webb testified that she took care of the petitioner during the day for that period of time, and she described him as having difficulty breathing and walking. It was her testimony that the petitioner was not able to walk upright. Felicia Pickett, the petitioner's girlfriend from 1992 to 1998, corroborated Ms. Webb's testimony. She confirmed that the petitioner was shot in the leg in 1993, and he could not walk, stand, or prepare his own meals, and he was on crutches for about six weeks. According to Ms. Pickett, the petitioner was not able to lift things until he was able to walk without crutches. Ms. Pickett also confirmed that the petitioner was shot in the back on Valentine's Day in 1994. She testified that the petitioner was hospitalized for about two weeks, after which he was bedridden for about one month and was unable to do much of anything. Ms. Pickett also testified that the petitioner had difficulty standing, and he was not able to do so until after months of physical therapy. She said that he also had difficulty breathing, and at one point he thought he was having a heart attack because he could not breathe. It was Ms. Pickett's impression that the petitioner could not have carried a television set into a pawn shop in April or May of 1994 because he could not even carry groceries into the house. However, Ms. Pickett acknowledged that during that time, the petitioner lived for periods with her and also spent some time with his grandmother. She testified that during April and May of 1994, he also had contact with his father, Dexter Randle. Michelle Coleman, the petitioner's stepmother, testified that she took care of the petitioner several times during March or April of 1994. She said that after he was injured, the petitioner frequently was in pain and had trouble with shortness of breath. On cross-examination, Ms. Coleman testified that during the months of March, April, May, and June of 1994, it would have been out of the ordinary for the petitioner to be carrying something around, but it would not have been out of character for him to be walking around. The petitioner testified that he was shot in the knee in 1993. He said that he had gone to a neighborhood store with Ms. Pickett, and upon exiting the store a man approached them demanding money. As the man was leaving, he shot the petitioner in the knee. He said he was admitted to the hospital and released the next day on crutches. He testified that he could not walk without the assistance of crutches for approximately six weeks. The petitioner then stated that he was shot in the back on Valentine's Day 1994. He said that he was at a club with a friend when he stopped at a pay phone to make a call. He was approached by a man while he was in the phone booth, and as he tried to run away he was shot in the back. His friend who was waiting in the car was also shot. The petitioner testified that he had surgery to remove part of his lung. He testified that he was hospitalized for about two weeks as a result. The petitioner said that he was discharged to home where he remained on total bed rest for one month. He said that he could not even sit up and feed himself during that period of time. He said that he began physical therapy around March 1994 to help him correct his posture. He could not raise his arm above his shoulder without feeling pain, and he could not lift anything over ten pounds. The petitioner testified that he would not have been able to carry a television set during that period of time. He said that he did not leave the house except to go to physical therapy. The petitioner acknowledged that he had applied for disability payments after he was shot. The trial court admitted the petitioner's medical records from his 1994 hospitalization and his subsequent physical therapy visits. The records were voluminous. Before trial, defense counsel discovered that the physical therapist who treated the petitioner had moved to the Philippines and was unavailable to testify. The doctor who treated the petitioner after his second surgery had moved to Ohio. There was no expert medical testimony. On December 15, 1999, the jury sent out a note to the trial court saying that it had reached a verdict, whereupon the petitioner left the courtroom. The trial court took the verdict in his absence; the jury found the petitioner guilty as charged. The trial court then issued a capias for the petitioner's arrest and ordered his bond forfeited. The petitioner was not found until November 1, 2000, almost one year later, and he was sentenced on November 15, 2000 to prison for seven to twenty years for the armed robbery conviction and two years for the felony firearm conviction, with the terms to be served consecutively. The petitioner filed a timely direct appeal in the Michigan Court of Appeals raising the following claims: I. The trial court committed legal error in denying the motion to dismiss, because the five-year delay between the alleged crime and Randle's arrest violates due process. II. The trial court committed legal error by not entering a directed verdict of acquittal, because the loss of witnesses and evidence, due to the pre-arrest delay, violated Randle's right to compulsory process under the Sixth and Fourteenth Amendments. III. A new trial is warranted, because counsel was ineffective for failing to investigate a supporting witness, failing to digest the medical reports for the jury, and failing to investigate an important witness. IV. Trial counsel was ineffective for not moving for a mistrial after a police witness told the jury about [the petitioner's] arrest for homicide, in violation of an order in limine. On February 25, 2003, the Michigan Court of Appeals affirmed the convictions in an unpublished per curiam opinion. People v. Randle, 2003 WL 550004 (Mich.Ct.App. Feb. 25, 2003). The petitioner then filed a delayed application for leave to appeal in the Michigan Supreme Court raising the same claims raised in the Michigan Court of Appeals. On August 29, 2003, the Michigan Supreme Court denied the petitioner's delayed application for lack of merit. People v. Randle, 469 Mich. 879, 668 N.W.2d 151 (2003). Thereafter, the petitioner filed his petition for a writ of habeas corpus in this Court presenting the following claims: I. The trial court committed legal error in denying the motion to dismiss because the five-year delay between the alleged crime and Randle's arrest violates due process. II. The trial court committed legal error by not entering a directed verdict of acquittal because the loss of witnesses and evidence due to the pre-arrest delay violated Randle's right to compulsory process under the Sixth and Fourteenth Amendments. III. A new trial is warranted because counsel was ineffective for failing to digest the medical reports for the jury, and for failing to investigate an important witness. II. The provisions of the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA), Pub.L. No. 104-132, 110 Stat. 1214, which govern this case, "circumscribe" the standard of review federal courts must apply when considering applications for a writ of habeas corpus raising constitutional claims, including claims of ineffective assistance of counsel. See Wiggins v. Smith, 539 U.S. 510, 520, 123 S.Ct. 2527, 156 L.Ed.2d 471 (2003). As amended, 28 U.S.C. § 2254(d) imposes the following standard of review for habeas cases: An application for a writ of habeas corpus on behalf of a person in custody pursuant to the judgment of a State court shall not be granted with respect to any claim that was adjudicated on the merits in State court proceedings unless the adjudication of the claim — (1) resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States; or (2) resulted in a decision that was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding. 28 U.S.C. § 2254(d). Therefore, federal courts are bound by a state court's adjudication of a petitioner's claims unless the state court's decision was contrary to or involved an unreasonable application of clearly established federal law. Franklin v. Francis, 144 F.3d 429, 433 (6th Cir. 1998). Mere error by the state court will not justify issuance of the writ; rather, the state court's application of federal law "must have been objectively unreasonable." Wiggins, 539 U.S. at 520-21, 123 S.Ct. 2527 (quoting Williams v. Taylor, 529 U.S. 362, 409, 120 S.Ct. 1495, 146 L.Ed.2d 389 (2000) (internal quotes omitted)). Additionally, this Court must presume the correctness of state court factual determinations. 28 U.S.C. § 2254(e)(1) ("In a proceeding instituted by an application for a writ of habeas corpus by a person in custody pursuant to the judgment of a State court, a determination of a factual issue made by a State court shall be presumed to be correct."); see also West v. Seabold, 73 F.3d 81, 84 (6th Cir. 1996) (stating that "[t]he court gives complete deference to state court findings of historical fact unless they are clearly erroneous"). The Supreme Court has explained the proper application of the "contrary to" clause as follows: A state-court decision will certainly be contrary to [the Supreme Court's] clearly established precedent if the state court applies a rule that contradicts the governing law set forth in our cases. . . . A state-court decision will also be contrary to this Court's clearly established precedent if the state court confronts a set of facts that are materially indistinguishable from a decision of this Court and nevertheless arrives at a result different from [the Court's] precedent. Williams, 529 U.S. at 405-06, 120 S.Ct. 1495. The Supreme Court has held that a federal court, should analyze a claim for habeas corpus relief under the "unreasonable application" clause of § 2254(d)(1) "when a state-court decision unreasonably applies the law of this Court to the facts of a prisoner's case." Id. at 409, 120 S.Ct. 1495. The Court defined "unreasonable application" as follows: [A] federal habeas court making the "unreasonable application" inquiry should ask whether the state court's application of clearly established federal law was objectively unreasonable. . . . [A]n unreasonable application of federal law is different from an incorrect application of federal law. . . . Under § 2254(d)(1)'s "unreasonable application" clause, then, a federal habeas court may not issue the writ simply because that court concludes in its independent judgment that the relevant state-court decision applied clearly established federal law erroneously or incorrectly. Rather, that application must also be unreasonable. Id. at 409, 410-11, 120 S.Ct. 1495; see also Eady v. Morgan, 515 F.3d 587, 594-96 (6th Cir.2008); Davis v. Coyle, 475 F.3d 761, 766 (6th Cir.2007); King v. Bobby, 433 F.3d 483, 489 (6th Cir.2006); Harbison v. Bell, 408 F.3d 823, 828-29 (6th Cir.2005); Rockwell v. Yukins, 341 F.3d 507, 512 (6th Cir.2003) (en banc). A. The main focus of the petition is on the claims of prejudice that resulted from the long delay in arresting the petitioner after the robbery and bringing him to trial. The delay is at the heart of the petitioner's first two claims: the five-year delay between the crime and the arrest infringed his rights under the Due Process Clause, and the delay trenched upon his right to compulsory process secured by the Sixth Amendment. He also argues that his Sixth Amendment right to a speedy trial was violated by this delay. These issues were fully litigated in the state courts. Before trial, the petitioner's attorney filed three motions to dismiss because of the delay in his arrest. The trial court denied the first motion finding that the police did not know the identity of the perpetrator. The court observed however that the police should have done more to follow up on the information from the pawn shop, run various spellings of the last name listed in the pawn shop computer, and gone to the address derived from the license-plate number. The second motion was treated as a motion to reconsider the first, and it also was denied because it did not contain any new information. The third motion to dismiss was based on the fact that the physical therapist who treated the petitioner after his second gunshot wound had moved to the Philippines. In defense counsel's opinion, she was the best witness to testify to the petitioner's disabilities. But the trial court denied that motion because there was no showing when the therapist left the United States, and there were other persons who were able to testify to the petitioner's disabilities, including friends, relatives, and other medical professionals who treated him during that time. The petitioner's trial counsel also filed a post-trial motion for a directed verdict of acquittal or in the alternative a new trial, which was denied. The Michigan Court of Appeals agreed with the trial court's findings and rejected the petitioner's claims that the delay warranted dismissal of the case. It stated: We find no abuse of discretion. The delay in this case resulted from an erroneous transcription of defendant's last name as "Rando" and an apparent recordkeeping error at the police department, which kept helpful information from reaching the appropriate investigating officer. Defendant has not shown that the prosecution intended a tactical advantage from these errors. Moreover, defendant has not shown substantial prejudice. His claim that he may have been receiving physical therapy during isolated portions of certain days beginning in April 1994 does not establish an alibi for the pre-dawn robbery in January 1994. It is unduly speculative to conclude that a "therapy" alibi would contradict the complainant's testimony that defendant was the person at the pawn shop — the therapy sessions only lasted between 45 minutes and an hour, once or twice a week, for about five weeks. Defendant also argues that the "real" robber, who he alleges was a Mr. Purvis (now deceased) could have been subpoenaed to attend defendant's trial and confess to the crime had defendant been arrested and charged sooner. We agree with the trial court, however, that it is unreasonable to conclude that Purvis would admit that he accompanied defendant's father to the pawn shop and confess to the crime. We also agree with the trial court that photographs of Purvis and defendant do not exhibit similarities. Accordingly, we do not believe it is likely that the complainant would have identified Purvis as the robber had Purvis been available for a live in-court viewing. Randle, 2003 WL 550004 at *2. The petitioner contends that this ruling misapplies federal law. However, the Supreme Court has held consistently that "[t]here is no constitutional right to be arrested." Hoffa v. United States, 385 U.S. 293, 310, 87 S.Ct. 408, 17 L.Ed.2d 374 (1966). Elaborating on that concept, the Court explained: The police are not required to guess at their peril the precise moment at which they have probable cause to arrest a suspect, risking a violation of the Fourth Amendment if they act too soon, and a violation of the Sixth Amendment if they wait too long. Law enforcement officers are under no constitutional duty to call a halt to a criminal investigation the moment they have the minimum evidence to establish probable cause, a quantum of evidence which may fall far short of the amount necessary to support a criminal conviction. Ibid. The Due Process Clause does provide some measure of protection against preindictment delay. United States v. Lovasco, 431 U.S. 783, 789, 97 S.Ct. 2044, 52 L.Ed.2d 752 (1977); see also United States v. Marion, 404 U.S. 307, 324, 92 S.Ct. 455, 30 L.Ed.2d 468 (1971). But the Court once again has observed that "no one's interests would be well served by compelling prosecutors to initiate prosecutions as soon as they are legally entitled to do so." Lovasco, 431 U.S. at 792, 97 S.Ct. 2044. Proof of prejudice is a necessary element of a due process claim for preindictment delay. Lovasco, 431 U.S. at 790, 97 S.Ct. 2044. The Sixth Circuit has consistently read Lovasco to hold that dismissal for preindictment delay is warranted only when the defendant shows both substantial prejudice to his right to a fair trial and that the delay was intentionally imposed by the government to gain a tactical advantage. See United States v. Brown, 959 F.2d 63, 66 (6th Cir. 1992). The prosecution of a defendant following an investigative delay does not necessarily deprive him of due process, even if his defense is somewhat prejudiced by the lapse of time. Lovasco, 431 U.S. at 796, 97 S.Ct. 2044. The petitioner in this case does not contend that the almost five-year delay was intentional or used by the prosecution to gain a tactical advantage. The state trial court found that the delay was not intentional and appeared to be the result of bureaucratic negligence at worst. The Court accepts that factual finding, which is consistent with the record. See 28 U.S.C. 2254(e)(1). However, the petitioner does argue that the delay caused him substantial prejudice. Nonetheless, the Sixth Circuit has found long periods of delay do not ipso facto deny due process. Brown, 959 F.2d at 67 (citing cases in which pre-indictment delay was thirty-three months, twenty-nine months, and five years). The Supreme Court has acknowledged that substantial delays in charging a suspect carry the potential for prejudice, but the procedural protection against such harm is found in statutes of limitation. Marion, 404 U.S. at 325-26, 92 S.Ct. 455. More must be shown to establish a deprivation of due process when a prosecution is commenced within the period of limitation. The Supreme Court explained: Appellees rely solely on the real possibility of prejudice inherent in any extended delay: that memories will dim, witnesses become inaccessible, and evidence be lost. In light of the applicable statute of limitations, however, these possibilities are not in themselves enough to demonstrate that appellees cannot receive a fair trial and to therefore justify the dismissal of the indictment. Ibid. The Court believes that the state court of appeals's determination that the petitioner did not demonstrate sufficient prejudice was reasonable. The petitioner claims that because of the delay he was unable to locate witnesses to support his alibi defense. But he has never alleged with specificity where he was at the time of the armed robbery, and except for Mr. Purvis not being available, he has not named any other witnesses who were denied him due to the delay in arresting him. The petitioner suggests that witnesses' memories faded over the time between the crime and his arrest. But a vague assertion that memories have diminished, witnesses have been lost, and documents have been misplaced does not establish actual prejudice from a pre-charge delay. United States v. Beszborn, 21 F.3d 62, 67 (5th Cir.1994); United States v. Mask, 154 F.Supp.2d 1344, 1348 (W.D.Tenn.2001). When the claimed prejudice from a preindictment delay is the unavailability of a witness, courts require the petitioner to identify the witness that would have been called, show with specificity what the witness was expected to say, demonstrate a serious attempts to find the witness, and establish that the information that the witness would have provided was not available from other sources. Jones v. Angelone, 94 F.3d 900, 908 (4th Cir.1996). The petitioner has done none of this. The petitioner's defense at trial was that he was not the one on the street on January 14, 1994 who committed the pre-dawn robbery (nor could he have done that because he was walking with crutches after having been shot in the knee about one month prior), and he was not the man who carried a television into the victim's pawn shop two to three months later because he was shot again in February 1994 and his lung had been surgically removed. No aspect of the pre-arrest delay prevented the jury from assessing these claims. Rather, the petitioner's delay argument hinges on the unreasonable expectation that Mr. Purvis would have exonerated him by coming to court and confessing to the crime. It is, of course, convenient to blame a crime on a dead man; it is far fetched to suggest that the dead man would have readily accepted the blame were he alive. The denial of such an "opportunity" to one accused of the crime is not fundamentally unfair. The petitioner does not allege that he was prosecuted in violation of the applicable statute of limitations. The Michigan Court of Appeals found that the petitioner had not shown prejudice or an intent by the State to gain an advantage. These findings are well supported by the record. The Court concludes, therefore, that the state court's findings regarding this claim were not contrary to or an unreasonable application of federal law. The petitioner is not entitled to habeas relief regarding this claim. B. The petitioner also argues that the state courts should have dismissed his case on speedy trial grounds. This Court cannot agree. To be sure, individuals charged with crimes "enjoy the right to a speedy and public trial." U.S. Const. amend. VI. However, the mere passage of time does not necessarily signal the denial of that right. For instance, courts have held that a delay of five-and-a-half years between the filing of charges and trial abridged the right, see United States v. Brown, 169 F.3d 344 (6th Cir.1999), while a delay of twenty-two years did not, see Wilson v. Mitchell, 250 F.3d 388 (6th Cir.2001). In Barker v. Wingo, 407 U.S. 514, 92 S.Ct. 2182, 33 L.Ed.2d 101 (1972), it was observed that the speedy trial right was "vague," "amorphous," and "slippery," and that it was not possible to ascertain with precision the time that the right was violated. Barker, 407 U.S. at 521-22, 92 S.Ct. 2182. See also United States v. Schreane, 331 F.3d 548, 553 (6th Cir.2003) (holding that "no one factor constitutes a `necessary or sufficient condition to the finding of a deprivation of the right of speedy trial'") (quoting Barker, 407 U.S. at 533, 92 S.Ct. 2182). The Court therefore counseled against a "rigid approach[]" and established instead a functional, four-factor test intended to account for all relevant facts, and to be applied "on an ad hoc basis." Barker, 407 U.S. at 530, 92 S.Ct. 2182. The four factors identified by the Court are: "Length of delay, the reason for the delay, the defendant's assertion of his right, and prejudice to the defendant." Ibid. In Doggett v. United States, 505 U.S. 647, 651, 112 S.Ct. 2686, 120 L.Ed.2d 520 (1992), the Court stated the test slightly differently: "whether delay before trial was uncommonly long, whether the government or the criminal defendant is more to blame for that delay, whether, in due course, the defendant asserted his right to a speedy trial, and whether he suffered prejudice as the delay's result." In this case, approximately eleven months elapsed between arrest and trial. That delay, although substantial, is not uncommonly long, and it does not plainly cross the threshold separating those cases that warrant further examination because of presumptive prejudice. See id. at 651-52, 112 S.Ct. 2686 ("Simply to trigger a speedy trial analysis, an accused must allege that the interval between accusation and trial has crossed the threshold dividing ordinary from `presumptively prejudicial' delay."); Schreane, 331 F.3d at 553 ("[I]f the delay is not uncommonly long, judicial examination ceases."); Wilson, 250 F.3d at 394 ("Twenty-two years is an extraordinary delay that far exceeds this court's guideline that a delay longer than a year is presumptively prejudicial."). Courts generally have found post-conviction delays that approach one year to be presumptively prejudicial. Doggett, 505 U.S. at 652 n. 1, 112 S.Ct. 2686; United States v. Brown, 90 F.Supp.2d 841, 846 (E.D.Mich.2000); see also Wilson, 250 F.3d at 394 (twenty-two years presumed prejudicial); United States v. O'Dell, 247 F.3d 655, 667 (6th Cir.2001) (seven years presumed prejudicial); United States v. Brown, 169 F.3d 344, 348-49 (6th Cir.1999) (five-and-one-half years presumed prejudicial). Nevertheless, skipping forward to the last factor in Barker, the Supreme Court recognized that several different forms of prejudice can result from delay: loss of liberty that comes from lengthy pretrial incarceration; "anxiety" that stems from the uncertainty of a pending criminal charge; and the impairment of one's ability to mount a defense due to fading memories and other loss of exculpatory evidence. See Barker, 407 U.S. at 532, 92 S.Ct. 2182. The third of these reasons is the most pernicious, because it "skews the fairness of the entire system." Ibid. Of course, in the present case almost five years elapsed from the time of the crime to when the petitioner was charged. During that time, the petitioner's identity remained unknown until late 1998 when Harris's son recognized the petitioner's face in a television news report. That delay does not impact the petitioner's rights under the Sixth Amendment, however, because he was not yet within the criminal justice system. He has not pointed to any prejudice resulting from the delay between his arrest and trial. Nor could he, since the record is silent as to when his physical therapist left the country or his doctor moved to Ohio. There is nothing to suggest that any of this occurred in the eleven months that intervened between arrest and trial. Nor has the petitioner shown a violation of the Compulsory Process Clause of the Sixth Amendment. Certainly, the Compulsory Process Clause of the Sixth Amendment "stands on no lesser footing than the other Sixth Amendment rights that [the Supreme Court has] previously held applicable to the States." Taylor v. Illinois, 484 U.S. 400, 409, 108 S.Ct. 646, 98 L.Ed.2d 798 (1988). In fact, "[f]ew rights are more fundamental than that of an accused to present witnesses in his own defense." Id. at 408, 108 S.Ct. 646 (citing Chambers v. Mississippi 410 U.S. 284, 302, 93 S.Ct. 1038, 35 L.Ed.2d 297 (1973)). But the petitioner was able to call witnesses in his defense, and the State did not interfere with his ability to procure witnesses with the state court's assistance. The Court finds no Sixth Amendment violation, and habeas relief premised on a violation of the federal rights protected by that amendment is not warranted. C. Finally, the petitioner alleges that trial counsel was ineffective for failing to (1) "digest" the medical reports for the jury and locate and call as a witness the physical therapist who treated him, (2) investigate an important witness for the defense, namely his father who accompanied "the robber" to the pawn shop, and (3) move for a mistrial after the officer-in-charge referred to a homicide investigation that was the cause of the petitioner's television exposure. Each of these claims was presented to the state court of appeals, which rejected them in turn. The first claim concerning the manner of presentation of medical proof was relegated to a decision of trial strategy. The appellate court stated: We will not second-guess [defense counsel's] decision not to call defendant's physical therapist as a witness. See People v. Rice (On Remand), 235 Mich. App. 429, 445, 597 N.W.2d 843 (1999). Other defense witnesses supplied ample medical testimony. Counsel's decision not to summarize the medical records, and his closing argument in which he stated that the records were voluminous and confusing, also did not constitute ineffective assistance. The records were indeed voluminous and not easily translated by lay persons. Contrary to defendant's argument, however, trial counsel did not urge the jury to ignore the records. Instead, he asked them to focus on those portions that were written in "plain English" rather than concentrate on confusing portions. Because counsel presented ample evidence of defendant's medical condition through witnesses, we cannot say that a different presentation of the medical records would have led to a different result. Randle, 2003 WL 550004 at *4. On the claim that trial counsel made a mistake by not calling the petitioner's father's, the court stated: Even assuming counsel was aware of defendant's father's testimony, based on the evidence presented, it is clear the witness' credibility would have been called into question. Counsel's reasons for failing to call defendant's father do not appear on the record and, therefore, cannot support reversal. Therefore, on this record, we are unable to find counsel was ineffective for failing to present defendant's father as a witness. Ibid. Finally, the court refused to find deficient performance in defense counsel's failure to move for a mistrial, stating: [T]here are no evidentiary proofs or judicial findings regarding whether a mistrial motion would have been successful or whether counsel was ineffective for failing to make such a motion. We are not persuaded that the police officer's non-responsive testimony violated the specific terms of the order in limine. The order focused on defendant's connection to the killing of a police officer; the trial testimony did not link him to the killing of a police officer or to any other killing. Id. at *5. The federal law against which these state court rulings must be measured is found in Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). There, the Court held that to show a violation of the Sixth Amendment right to effective assistance of counsel, a petitioner must establish that his attorney's performance was deficient and the deficient performance prejudiced the defense. Id. at 687, 104 S.Ct. 2052. An attorney's performance is deficient if counsel's representation falls below an "objective standard of reasonableness." Id. at 688, 104 S.Ct. 2052. The defendant must show "that counsel made errors so serious that counsel was not functioning as the `counsel' guaranteed the defendant by the Sixth Amendment." Id. at 687, 104 S.Ct. 2052. "Judicial scrutiny of counsel's performance must be highly deferential." Id. at 689, 104 S.Ct. 2052. An attorney's deficient performance is prejudicial if "counsel's errors were so serious as to deprive the defendant of a fair trial, a trial whose result is reliable." Id. at 687, 104 S.Ct. 2052. The defendant must show "a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different. A reasonable probability is a probability sufficient to undermine confidence in the outcome." Id. at 694, 104 S.Ct. 2052. Unless the petitioner demonstrates both deficient performance and prejudice, "it cannot be said that the conviction . . . resulted from a breakdown in the adversary process that renders the result unreliable." Strickland, 466 U.S. at 687, 104 S.Ct. 2052. The standards quoted above are precisely the ones used by the state court in assessing the petitioner's ineffective assistance of counsel claim. That court's discussion was thorough, analytical, and faithful to the record. More importantly, it properly applied Supreme Court precedent. Little would be added in rehashing the analysis. It is enough to say that the decision of the Michigan Court of Appeals was consistent with and a reasonable application of federal law. III. The Court concludes that the petitioner has not established that he is in custody in violation of the Constitution or laws of the United States. Accordingly, it is ORDERED that the petition for a writ of habeas corpus [dkt. # 3] is DENIED.

911 F.2d 726Unpublished Disposition NOTICE: Fourth Circuit I.O.P. 36.6 states that citation of unpublished dispositions is disfavored except for establishing res judicata, estoppel, or the law of the case and requires service of copies of cited unpublished dispositions of the Fourth Circuit.Mohamed Khairy Mohamed ZAYED, Jr., Plaintiff-Appellant,v.John Robert INGRAM, Special Agent of the Drug EnforcementAdministration, Ruger Chemical Company, Inc.,Defendants-Appellees. No. 90-6566. United States Court of Appeals, Fourth Circuit. Submitted July 9, 1990.Decided July 24, 1990. Appeal from the United States District Court for the Middle District of North Carolina, at Winston-Salem. Richard C. Erwin, Chief District Judge. (C/A No. 90-111-WS) Mohamed Khairy Mohamed Zayed, Jr., appellant pro se. M.D.N.C. VACATED AND REMANDED. Before SPROUSE and WILKINS, Circuit Judges, and BUTZNER, Senior Circuit Judge. PER CURIAM: 1 Mohamed Khairy Mohamed Zayed, Jr. appeals the district court's dismissal of his civil suit as frivolous under 28 U.S.C. Sec. 1915(d). Zayed v. Ingram, C/A No. 90-111-WS (M.D.N.C. April 12, 1990). Zayed is currently in state custody pending the outcome of his state arrest. He filed suit claiming that a federal drug enforcement agent and a chemical company conspired with local police to entrap him. Zayed's pending state criminal case will deal with the issues of entrapment and conspiracy raised in this complaint. As a matter of comity, federal courts should abstain from deciding issues pending in state criminal cases. See Younger v. Harris, 401 U.S. 37 (1971); Traverso v. Penn, 874 F.2d 209, 212 (4th Cir.1989). In order to avoid any statute of limitations problems, the appropriate course is for the federal judiciary to abstain by staying the entire proceeding pending the ultimate termination of the state prosecution. Suggs v. Brannon, 804 F.2d 274, 280 (4th Cir.1986); see also Traverso, 874 F.2d at 213. 2 We therefore vacate the district court's order dismissing this action and remand for an order staying further proceedings until the ultimate termination of the state prosecution. 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 VACATED AND REMANDED.

295 F.2d 809 Winifred BOLAM and Christiane Massias, Plaintiffs-Appellees,v.LOUISVILLE & NASHVILLE RAILROAD COMPANY, Defendant-Appellant. No. 14446. United States Court of Appeals Sixth Circuit. November 15, 1961. C. R. Beirne, Cincinnati, Ohio, Stanley J. Aronoff, Cincinnati, Ohio, on brief, for plaintiffs-appellees. Thomas S. Calder, Cincinnati, Ohio, Dinsmore, Shohl, Barrett, Coates & Deupree, James O. Coates, Cincinnati, Ohio, on brief, for defendant-appellant. Before MILLER, Chief Judge, and CECIL and O'SULLIVAN, Circuit Judges. SHACKELFORD MILLER, Jr., Chief Judge. 1 Appellees brought this action against the Pennsylvania Railroad and the appellant, Louisville & Nashville Railroad Company, to recover for personal injuries suffered by them when the automobile in which they were riding as passengers was struck by a locomotive, owned and operated at the time by the Pennsylvania Railroad over track owned and maintained by the appellant. Appellees alleged in their complaint negligent operation of the locomotive by the Pennsylvania Railroad and negligent maintenance of the crossing by the Louisville & Nashville Railroad Company, which negligence caused the accident and injuries complained of. 2 The accident occurred about 8:45 P.M. January 15, 1958, at the intersection of Fifth Street and Saratoga Street in Newport, Kentucky. Saratoga Street runs north and south; Fifth Street runs east and west. 3 The Pennsylvania locomotive was backing on Saratoga Street in a northerly direction on a single track, which ran down the center of Saratoga Street, with lanes reserved for vehicular traffic on the east and west sides. It was traveling at about six miles per hour. Its rear headlight was on, four groundlights were in operation, and its bell was ringing. 4 Appellees were passengers in an automobile which was being operated by Eugene C. Tower in an eastwardly direction on Fifth Street. The automobile in attempting to cross the intersection was hit by the locomotive at its right rear door. The evidence as to the speed of the automobile varied from "six to eight miles an hour," "kind of slow," "We weren't going fast," "35 to 40 miles per hour," "a fairly high speed," to "at least 50." 5 The crossing is located in a business and residential district of downtown Newport with a Gulf Service Station on the southeast corner, a vacant lot on the southeast corner, a bar on the northeast corner, and a three-story building on the northwest corner. A large volume of traffic crosses the railroad at this intersection. There are street lights along Saratoga and Fifth Streets which were lighted at the time of the accident. 6 The City of Newport had placed standard stop signs for vehicular traffic at each of the four corners of the intersection, about twenty feet from the corner. It was a four-way stop intersection. None of the signs contained any notice of the presence of the railroad track. The ordinances of the City of Newport did not require any additional warning of this intersection. The railroad crossing was not equipped with manual or automatic signal devices, nor was it equipped with gates or watchmen, nor was there a crossarm or other railroad sign. 7 A driver going east on Fifth Street, who stopped at the stop sign on Fifth Street, had a view of about 100 feet to the south if there were no obstructions in the way. Parking was not permitted in the 20-foot area from the stop signs to the corner. 8 The District Judge, hearing the case without a jury, dismissed the action against the Pennsylvania Railroad on the ground that it was not negligent in the operation of the locomotive. He found that the appellant was not in violation of any statute, ordinance or regulation in the maintenance of the crossing, but that the hazardous character of the crossing required that a warning signal or sign be installed and maintained, that it was negligent in the maintenance and operation of the crossing in failing to install and maintain any signal or any sign warning persons approaching the crossing, and that such negligence was a proximate cause of the accident. He also found that Tower, the driver of the automobile, was negligent in the operation of the automobile, but that his negligence was not imputed to the appellees, and that the appellees were not contributorily negligent. Judgment was entered for the appellees against the appellant, from which this appeal was taken. 9 Appellant contends it was error for the District Judge to find it negligent in not installing and maintaining a warning signal or sign at the intersection, in that it was not required by any statute or ordinance to do so, that stop signs had been placed at the intersection by the city of Newport, and that the crossing was not of such a hazardous character as to require of it such extra-statutory duty. Section 277.160, Kentucky Revised Statutes; Louisville & N. R. Co. v. Craig, 310 Ky. 43, 45-46, 219 S.W.2d 954; Land v. Cincinnati, N. O. & T. P. R. Co., 226 Ky. 374, 10 S.W.2d 1084; Louisville & N. R. Co. v. Marshall's Adm'x, 289 Ky. 129, 137-138, 158 S.W.2d 137; Milner's Adm'r v. Evansville Railways Co., 188 Ky. 14, 22, 221 S.W. 207. There may be merit under the authorities above referred to in this contention, but under the view which we take of this case, we find it unnecessary to make a ruling on that issue. 10 There was a conflict in the evidence whether the driver of the automobile stopped at the intersection and looked for approaching vehicles going north and south on Saratoga. Although appellant introduced testimony that the driver did not stop, both appellees and the driver, in addition to an impartial witness, testified that the driver stopped at the intersection before proceeding across it. 11 Appellee Winifred Bolam testified on direct examination, "Well, we were driving along, kind of slow because we were looking for directions, you know, and we came to a stop like for a stop street" and that the automobile was hardly in motion when she looked to the right and saw the locomotive about six feet away. To a later question by her counsel, "When your automobile came up to Saratoga Street, did it come to a complete stop?", she answered, "Yes." On cross-examination she was asked, "Now, you have testified that you stopped at the intersection of Saratoga?", to which she answered "Yes, we did." She also stated that she did not notice a stop sign, but "I just knew that we stopped." To the question, "Do you recall how long you remained in a stationary position?", she answered, "No. It was just like a normal stop." 12 Appellee Christiane Massias testified on direct examination, "Well, we were going kind of slow, and I do recall definitely that we did make a stop." On cross-examination she testified as follows. Question: "You have also testified that you came to a stop at the intersection of Fifth and Saratoga: is that correct?" Answer: "That's correct, sir." Question: "How long were you in a stationary position?" Answer: "Well, I couldn't say exactly how long: and the very best way I could explain, that the car came to a complete stop, it was not moving. That explains it." With respect to the actions of the driver, she was asked, "Then he looked both ways, you believe, and then he started up?", to which she answered, "He started up again." She estimated that the automobile was about nine feet from the locomotive when she first saw it. 13 Appellant moved for a dismissal of the action against it at the close of appellees' case and at the close of all the evidence in the case, which motions were denied. In the consideration of these motions the appellees were bound by their own testimony that the automobile made a complete stop at the intersection before attempting to cross. Where a party's own testimony, if true, would defeat his right to a verdict, and such statements are not modified or explained, a verdict should be directed against him. Bell v. Harmon (Ky.1955), 284 S.W.2d 812; Kansas Transport Co. v. Browning, 219 F.2d 890, 893, C.A.10th; Barnett v. Terminal Railroad Association of St. Louis, 228 F.2d 756, 761, C.A.8th, certiorari denied, 351 U.S. 953, 76 S.Ct. 850, 100 L.Ed. 1476; Ercoli v. United States, 76 U.S.App.D.C. 360, 131 F.2d 354, 357. Annotations: 169 A.L.R. 798; 9 Vanderbilt Law Review, 879. See: Mathis v. Tutweiler, 295 F. 661, C.A.6th. Appellees' testimony on this phase of the case was not inadvertent, but was definite and unequivocal, stated several times on both direct and cross-examination, with no attempt made later to withdraw it, modify it or explain it away. They are bound by the position deliberately taken by them on this issue, even though there was other testimony contradicting it. Bell v. Harmon, supra, (Ky.1955), 284 S.W.2d 812; Harlow v. LaClair, 82 N.H. 506, 136 A. 128, 50 A.L.R. 973; Bockman v. Mitchell Bros. Truck Lines, 213 Or. 88, 320 P.2d 266, 69 A.L.R.2d 152; Stein v. General Necessities Corp., 232 Mich. 322, 329, 205 N.W. 104. See: Mathis v. Tutweiler, supra, 295 F. 661, C.A.6th. 14 The driver stated in a deposition taken by the appellant that there was no traffic at the intersection in any direction, that he had no recollection of any parked cars, that he noticed the "stop sign" at the southwest corner of the intersection, that he stopped at the intersection, and "I looked left and right, saw no traffic, and proceeded, and the next thing was the impact with the engine," and that at no time prior to the impact did he see or hear the engine. 15 We are of the opinion that if the driver saw the "stop sign" before reaching the intersection and made a complete stop at the intersection and looked to the left and right for approaching vehicles before starting across the intersection, the failure of the appellant to install a warning sign of its own was not, under the circumstances of this case, the proximate cause of the accident. If the driver knew that there was an intersection at which he was required by law to stop before entering and he actually stopped at the crossing, the proximate cause of the accident was his failure to look and see the approaching locomotive, not the failure of the appellant to warn him that the crossing existed. Under Kentucky law a party will not be heard to say that he looked and did not see what was in plain sight. Chesapeake & O. Ry. Co. v. Trimble, (Ky.1957), 306 S.W.2d 310; Louisville & N. R. Co. v. Hines, (Ky.1957), 302 S.W.2d 553. The presence of a train in an intersection is, in the absence of unusual circumstances, a sufficient warning to an approaching motorist. Louisville & N. R. Co. v. Branson (Ky.1954), 267 S.W.2d 945; Illinois Central R. Co. v. Maxwell, 292 Ky. 660, 167 S.W.2d 841. 16 We are, accordingly, of the opinion that as a matter of law the negligence of the driver of the automobile, rather than any negligence on the part of the appellant, was the proximate cause of the accident, and that the District Judge was in error in denying appellant's motion to dismiss the action against it. 17 The judgment is reversed and the cause remanded to the District Court with instructions to enter judgment for the appellant. Section 2106, Title 28 U. S.Code.

IN THE COURT OF APPEALS OF THE STATE OF IDAHO Docket Nos. 39235/39524 STATE OF IDAHO, ) 2013 Unpublished Opinion No. 420 ) Plaintiff-Respondent, ) Filed: March 28, 2013 ) v. ) Stephen W. Kenyon, Clerk ) JAMES H. CRUMBLE, ) THIS IS AN UNPUBLISHED ) OPINION AND SHALL NOT Defendant-Appellant. ) BE CITED AS AUTHORITY ) Appeal from the District Court of the First Judicial District, State of Idaho, Bonner County. Hon. Steven C. Verby, District Judge. Order denying motion to disqualify district judge, affirmed. Silvey Law Office, Ltd.; Greg S. Silvey, Star, for appellant. Hon. Lawrence G. Wasden, Attorney General; Mark W. Olson, Deputy Attorney General, Boise, for respondent. ________________________________________________ GRATTON, Judge James H. Crumble appeals from the district court’s order denying his motion to disqualify the district judge who presided over his criminal case. I. FACTS AND PROCEDURE In these consolidated appeals, the State brought two criminal cases against Crumble in July 2005. In Docket No. 33627, Crumble was charged with rape, Idaho Code § 18-6101, for acts he committed against a twelve-year-old girl. In Docket No. 33625, Crumble was charged with burglary, I.C. § 18-1401, for entering a person’s garage and committing theft. Pursuant to Idaho Criminal Rule 11, Crumble pled guilty to burglary and an amended charge of assault with the intent to commit a serious felony, I.C. §§ 18-901, 18-909. Prior to accepting the pleas, the district court informed the parties that it would defer its decision to accept or reject the agreement until it had the opportunity to review the presentence investigation report (“PSI”). 1  At the sentencing hearing, the district court rejected the plea agreement based on its review of the PSI and the psychosexual evaluation. Crumble withdrew his guilty pleas. Several months later, Crumble pled guilty to burglary and an amended charge of lewd and lascivious conduct, I.C. § 18-1508. The district court imposed a unified term of life with twenty years determinate for the lewd and lascivious conduct charge and a concurrent unified term of ten years with five years determinate for the burglary charge. The district court entered the judgment and commitment on October 13, 2006. Crumble appealed, asserting that his sentences were excessive. This Court affirmed the district court’s sentences in State v. Crumble, Docket Nos. 33625/33627 (Ct. App. Oct. 28, 2008) (unpublished), and issued a remittitur on January 9, 2009. On December 31, 2009, Crumble filed motions with the district court to disqualify the district judge who presided over his sentencing, to withdraw his guilty plea, and to have counsel appointed for him. The district court denied his motion to disqualify the judge and granted his motion to have counsel appointed for him. Thereafter, appointed counsel filed another motion to disqualify the judge and an amended motion to withdraw Crumble’s guilty plea. The district court denied the motion to disqualify the judge and Crumble filed a motion for permission to appeal pursuant to Idaho Appellate Rule 12(b). The district court granted permission to appeal; however, Crumble’s counsel failed to file a motion with the Idaho Supreme Court requesting acceptance of the appeal by permission, pursuant to I.A.R. 12(c), and that Court dismissed the appeal. The district court reentered the order granting permission to appeal and Crumble filed a motion with the Idaho Supreme Court requesting acceptance of the appeal, pursuant to I.A.R. 12(c). The Idaho Supreme Court denied the motion for permission to appeal. On August 8, 2011, the district court reentered Crumble’s judgment and commitment pursuant to the court granting post-conviction relief. The reentered judgment and commitment provided Crumble the right to appeal the judgment and to “assert and pursue all issues arising from the trial proceedings, including sentencing proceedings, and as may be further encompassed by the existing Motions under I.C.R. 33.” Crumble timely appeals from the reentered judgment and conviction. 2  II. ANALYSIS Crumble claims that the district court erred when it denied his motion to disqualify the judge. The State contends that the district court lacked jurisdiction to consider Crumble’s motion because Crumble’s judgment of conviction had already become final. The issue of whether the district court had jurisdiction over Crumble’s motion to disqualify the judge is a question of law over which we exercise free review. Troupis v. Summer, 148 Idaho 77, 79, 218 P.3d 1138, 1140 (2009); State v. Peterson, 148 Idaho 610, 613, 226 P.3d 552, 555 (Ct. App. 2010). In State v. Jakoski, 139 Idaho 352, 79 P.3d 711 (2003), the Idaho Supreme Court stated: This Court has long recognized that a court’s jurisdiction to amend or set aside the judgment in a case does not continue forever. Boyd v. Steele, 6 Idaho 625, 59 P. 21 (1899) (where action had been dismissed by plaintiff, district court lost jurisdiction over the matter); State ex rel. Conner v. Ensign, 38 Idaho 539, 223 P. 230 (1924) (order annulling jail sentence and remitting fine made over three months after sentencing was void because district court no longer had jurisdiction); Mathers v. Mathers, 42 Idaho 821, 248 P. 468 (1926) (where divorce decree had become final upon expiration of time for appeal, district court did not have jurisdiction to modify the decree to add a provision for alimony); McAllister v. Erickson, 45 Idaho 211, 261 P. 242 (1927) (where district court dismissed case for lack of prosecution, it did not have jurisdiction one year later to reinstate the case); State v. Neil, 58 Idaho 359, 74 P.2d 586 (1937) (where statutory time within which to move for a new trial had lapsed, district court was without jurisdiction to grant the motion); State v. Johnson, 75 Idaho 157, 269 P.2d 769 (1954) (where judgment had been affirmed on appeal, the district court did not have jurisdiction to amend judgment by placing defendant on probation); State v. Iverson, 79 Idaho 25, 310 P.2d 803 (1957) (where statutory time within which to move for a new trial had expired and judgment had been affirmed on appeal, district court did not have jurisdiction to grant motion for a new trial based upon newly discovered evidence); Paul v. Paul, 97 Idaho 889, 556 P.2d 365 (1976) (district court did not have jurisdiction to modify the property provisions of a divorce decree after time for appeal had expired); State v. Chapman, 121 Idaho 351, 825 P.2d 74 (1992) (because of unreasonable delay in ruling upon motion for probation or to reduce sentence, district court lost jurisdiction). Absent a statute or rule extending its jurisdiction, the trial court’s jurisdiction to amend or set aside a judgment expires once the judgment becomes final, either by expiration of the time for appeal or affirmance of the judgment on appeal. Id. at 354-55, 79 P.3d at 713-14. A challenge to the district court’s subject matter jurisdiction may be raised at any time and may not be waived by the parties. Peterson, at 612, 226 P.3d at 554. 3  In the instant case, the district court’s jurisdiction to entertain a motion in Crumble’s criminal proceedings expired when this Court affirmed Crumble’s sentence on appeal. Therefore, the district court lacked jurisdiction to entertain Crumble’s motion to disqualify the judge filed on December 31, 2009. Crumble has failed to assert a statute or rule that extended the district court’s jurisdiction to entertain his motion. 1 To the extent Crumble is arguing that I.C.R. 25(c) extends the district court’s jurisdiction, we conclude that I.C.R. 25(c) raises an issue of timeliness rather than subject matter jurisdiction. This rule allows a party to disqualify a judge for cause at any time. 2 However, this rule does not provide the district court the authority to act in a case in which it lacks jurisdiction. Instead, this rule permits a party to move to disqualify a judge at any time during a proceeding in which the district court already has jurisdiction. As such, the district court had no jurisdiction to entertain the motion. Therefore, to the extent that this is a direct appeal from Crumble’s criminal proceedings, the district court had no jurisdiction to entertain such a motion; thus, all the district court proceedings that resulted from its entertainment of the motion are void. See State v. Armstrong, 146 Idaho 372, 378, 195 P.3d 731, 737 (Ct. App. 2008) (holding that the district court lacked jurisdiction to grant Armstrong’s motion to withdraw his guilty plea after the time to appeal had lapsed; therefore, all court proceedings following the court’s granting the motion were void because they occurred without subject matter jurisdiction). Crumble contends that he is entitled to appeal the denial of his motion to disqualify because the district court reentered judgment in this case to allow for just such an appeal. Crumble asserts that “this now well established remedy means that a case which was final is not 1 Rules extending the district court’s jurisdiction are few. For example, I.C.R. 34 allows a district court to grant a new trial within two years after final judgment based upon newly discovered evidence. A district court can also correct a sentence that is illegal from the face of the record at any time, including after final judgment, pursuant to I.C.R. 35. 2 Idaho Criminal Rule 25(c) provides that: Any such disqualification for cause shall be made by a motion to disqualify accompanied by an affidavit of the party or that party’s attorney stating distinctly the grounds upon which disqualification is based and the facts relied upon in support of the motion. Such motion for disqualification for cause may be made at any time. The presiding judge or magistrate sought to be disqualified shall grant or deny the motion for disqualification upon notice and hearing in the manner prescribed by these rules for motions. 4 final until the conclusion of the direct appeal filed following the [post-conviction].” Crumble points us to our decision in Beasley v. State, 126 Idaho 356, 883 P.2d 714 (Ct. App. 1994), as support for this “well established remedy.” In Beasley, this Court found a basis for post- conviction relief because Beasley’s defense counsel failed to file an appeal despite Beasley’s requests. This Court ordered the judgment of conviction to be vacated and reentered to allow Beasley to seek review through a delayed appeal. Id. at 363, 883 P.2d at 721. However, Beasley is distinguishable from the instant case. In Beasley, the district court had jurisdiction to entertain the underlying proceedings that led to the appeal. In the instant case, the district court never had jurisdiction to entertain the motion to disqualify the judge, which is the underlying proceeding that is the subject of this appeal. Therefore, contrary to Crumble’s assertions, we determine that the reentering of the judgment did not retroactively confer jurisdiction on the district court to entertain a motion that it otherwise did not have jurisdiction to entertain, nor provide an avenue of appeal to this Court. The remedy in post-conviction proceedings is limited to the scope of the proven allegation. Without having the basis of post-conviction relief before us, we are unable to divine any basis or purpose for reentering the judgment and commitment as relief to Crumble’s post-conviction petition. If Crumble had asserted in his post-conviction petition that the district court was, because of the exposure to the psychosexual evaluation, biased and/or that counsel was ineffective for failing to file a motion to disqualify and the district court, in the post-conviction proceeding, agreed, then relief in the form of withdrawal of the guilty pleas may have been granted. In such case, any appeal of that decision would be in the post-conviction case. Similarly, if such a claim was made in the post-conviction proceeding and the district court denied the claim, i.e., determined that no bias existed, then, once again, appeal of that determination would be in the post-conviction case. This appeal is asserted in the criminal case. The district court could not grant post-conviction relief in the form of reentry of judgment in the criminal case in order to either establish jurisdiction in itself to entertain the motion to disqualify, or in this Court to entertain an appeal therefrom. 5  III. CONCLUSION The district court did not have jurisdiction to grant Crumble’s motion to disqualify the judge. Therefore, we affirm the district court’s denial of the motion. Judge LANSING and Judge MELANSON CONCUR. 6 

840 F.2d 23 Edwardsv.Johnson (2 Cases)* NOS. 86-7510, 86-7783 United States Court of Appeals,Eleventh Circuit. FEB 12, 1988 1 Appeal From: M.D.Ala. 2 AFFIRMED. * Fed.R.App.P. 34(a); 11th Cir.R. 23

997 F.2d 880 Jacobsv.Shalala* NO. 92-8330 United States Court of Appeals,Fifth Circuit. June 28, 1993 1 Appeal From: W.D.Tex. 2 AFFIRMED. * Fed.R.App.P. 34(a); 5th Cir.R. 34.2

UNITED STATES ARMY COURT OF CRIMINAL APPEALS Before KERN, YOB, and ALDYKIEWICZ Appellate Military Judges UNITED STATES, Appellee v. Specialist ERIC L. NORDIN United States Army, Appellant ARMY 20090044 Headquarters, 82nd Airborne Division Patrick J. Parrish, Military Judge (arraignment) Gary J. Brockington, Military Judge (trial) Jeffrey Nance, Military Judge (DuBay Hearing) Lieutenant Colonel Jeffrey C. Hagler, Staff Judge Advocate (pretrial) Major Nelson J. Van Eck, Acting Staff Judge Advocate (post-trial) For Appellant: Lieutenant Colonel Peter Kageleiry, Jr., JA; Lieutenant Colonel Jonathan F. Potter, JA (on brief); Major Richard E. Gorini, JA. For Appellee: Major Robert A. Rodrigues, JA; Major Katherine S. Gowel, JA; Captain Kenneth W. Borgnino, JA (on brief). 3 July 2013 ----------------------------------------------------------------- MEMORANDUM OPINION ON FURTHER REVIEW ----------------------------------------------------------------- This opinion is issued as an unpublished opinion and, as such, does not serve as precedent. YOB, Senior Judge: A general court-martial composed of officer and enlisted members convicted appellant, contrary to his pleas, of one specification of rape in violation of Article 120(a), Uniform Code of Military Justice [hereinafter UCMJ], 10 U.S.C. § 920(a) (2000 & Supp. V 2005), amended by 10 U.S.C. § 920 (2012), two specifications of sodomy in violation of Article 125, UCMJ, two specifications of indecent liberties NORDIN—ARMY 20090044 with a child in violation of Article 134, UCMJ, 1 and one specification of enticement of a minor under the age of 16 years in violation of 18 U.S.C. § 2422(b) charged as a violation of Clause 3 of Article 134, UCMJ. The panel sentenced appellant to a dishonorable discharge, confinement for twenty-five years, forfeiture of all pay and allowances, and reduction to the grade of E-1. The convening authority (CA) approved the sentence as adjudged. I. BACKGROUND On 18 April 2011, this court issued a memorandam opinion setting aside certain findings, but affirming the remaining findings and the sentence. 2 United States v. Nordin, ARMY 20090044, 2011 WL 1532033 (Army Ct. Crim. App. 18 Apr. 2011) (mem. op.). On 28 October 2011, the Court of Appeals for the Armed Forces (CAAF) set aside our decision and returned the record of trial to The Judge Advocate General of the Army for remand to this court for consideration of the following issues: WHETHER TRIAL DEFENSE COUNSEL PROVIDED, TO THE SUBSTANTIAL PREJUDICE OF APPELLANT, INEFFECTIVE ASSISTANCE OF COUNSEL WHERE TRIAL DEFENSE COUNSEL FAILED TO PRESENT A DEFENSE CASE ON FINDINGS OR TO PREPARE A DEFENSE SENTENCING CASE. WHETHER AN ARTICLE 134 CLAUSE 1 OR 2 SPECIFICATION THAT FAILS TO EXPRESSLY ALLEGE EITHER POTENTIAL TERMINAL ELEMENT STATES AN OFFENSE UNDER THE SUPREME COURT’S HOLDINGS IN UNITED STATES v. RESENDIZ-PONCE AND RUSSELL v. 1 The Article 134, UCMJ, offense “Indecent acts or liberties with a child” covered misconduct pre-dating the amendment to Article 120, UCMJ, which deleted “Indecent acts or liberties with a child” as an Article 134, UCMJ, offense effective 1 October 2007. See Manual for Courts-Martial, United States (2005 ed.), pt. IV, ¶ 87.b., deleted by Exec. Order No. 13447, 72 Fed. Reg. 56179 (Sep. 28, 2007). 2 During this initial appellate review by this court, we disapproved the finding of guilty as to sodomy in violation of Article 125, UCMJ (Specification 2 of Charge II), but affirmed the lesser-included offense of attempted sodomy in violation of Article 80, UCMJ. We also disapproved the finding as to enticement of a minor on divers occasions in violation of Article 134, UCMJ (Specification 3 of Charge III), affirming a finding of guilty as to enticement of a minor on only a single occasion. 2 NORDIN—ARMY 20090044 UNITED STATES, AND THIS COURT’S OPINION IN UNITED STATES v. FOSLER, 70 M.J. 225 (C.A.A.F. 2011). United States v. Nordin, 70 M.J. 384, 385 (C.A.A.F. 2011) (summ. disp.). Our superior court further ordered us to “obtain an additional affidavit from the military trial defense counsel relating to the assigned issue, an issue that is broader in scope than a similar one raised below,” and then determine whether it is necessary to order a fact-finding hearing pursuant to United States v. DuBay, 17 U.S.C.M.A. 147, 37 C.M.R. 411 (1967) (per curiam). Id. On 16 December 2011, this court ordered appellant’s military defense counsel to provide an additional affidavit addressing issues of ineffective assistance of counsel, and the requested affidavit was received by this Court on 20 January 2012. On 6 March 2012, after applying the principles of United States v. Ginn, 47 M.J. 236 (C.A.A.F. 1997), this court ordered a DuBay hearing to resolve material inconsistencies in the post-trial affidavits relating to the representation of appellant at his court-martial. The DuBay hearing was held on 18 and 19 May 2012, and the DuBay military judge issued findings on 27 July 2012. II. LAW AND DISCUSSION We have reviewed appellant’s case again pursuant to our authority under Article 66, UCMJ. In conducting our review we have considered the issues directed for review by our superior court, appellant’s original assignments of error, appellate briefs concerning these assignments of error, the record of trial, affidavits to include those submitted by appellant’s civilian and military defense counsel, the record of the DuBay hearing, the military judge’s findings that resulted from this session, and further appellate briefs addressing the issues for consideration that were associated with the remand of this case from CAAF. In light of this review, we find that appellant’s original assigned errors, to include his allegation of ineffective assistance of counsel, have no merit. We have also considered the ineffective assistance of counsel issue as returned to us from our superior court, and conclude that appellant failed to meet the burden of showing his defense counsel provided ineffective representation by not presenting a case on findings or by failing to prepare a sentencing case. In addition, we conclude that, consistent with the initial holding of this court prior to its remand from CAAF, the evidence is factually and legally insufficient to support a finding of guilty as to the sodomy alleged in Specification 2 of Charge II, but does support a finding of guilty to the lesser-included offense of attempted sodomy, and that the evidence is factually and legally insufficient to establish that appellant committed the offense of enticement “on divers occasions” as alleged in Specification 3 of Charge III. Finally, in light of our superior court’s decisions in United States v. Fosler, 70 M.J. 3 NORDIN—ARMY 20090044 225 (C.A.A.F. 2011), and United States v. Humphries, 71 M.J. 209 (C.A.A.F. 2012), we conclude that appellant’s convictions for indecent liberties with a child in violation of Article 134, UCMJ (Specifications 1 and 2 of Charge III), must be set aside. We address these issues in more detail below. A. INEFFECTIVE ASSISTANCE OF COUNSEL To establish ineffective assistance of counsel, appellant must show that his counsel’s performance was deficient. Strickland v. Washington, 466 U.S. 668, 687 (1984). This requires establishing that his counsel made errors that were so serious that they deprived appellant of “counsel” as guaranteed a criminal defendant under the Sixth Amendment. Id. It also requires appellant to show that his counsel’s performance prejudiced appellant to such a degree that it denied appellant a fair trial. Id. In assessing an ineffective assistance of counsel claim, this court must determine: (1) whether appellant’s claims are true, and, if so, whether there is a reasonable explanation for counsel’s actions; (2) if true, whether the level of advocacy on the part of appellant’s lawyers fell measurably below the performance expected of fallible lawyers; and, (3) whether, absent the errors, there is a reasonable probability that the fact finder would have a reasonable doubt about appellant’s guilt. United States v. Miller, 63 M.J. 452, 456 (C.A.A.F. 2006); United States v. Polk, 32 M.J. 150, 153 (C.M.A. 1991). Appellant was represented by both a military and civilian defense counsel. As set forth in appellant’s original assignment of error and later filings, as well as affidavits submitted in support of these, appellant alleged his defense counsel were ineffective in that they failed to: (1) conduct adequate pretrial investigation and preparation for trial; (2) present any evidence on the merits after the government rested its case; (3) use the services of an investigator retained to support the defense team; (4) call a retained defense expert to testify during the defense case-in-chief, or to have the expert observe the government’s witnesses and provide consultation to the defense team; (5) call appellant, his cousin, his mother or his father as witnesses during the defense case in chief to rebut certain aspects of testimony provided by the victim during the government’s case; (6) prepare a sentencing case in advance of findings; (7) present adequate material for consideration on the issue of an appropriate sentence, that was available or could have been made available with adequate preparation; and (8) include all relevant matters in appellant’s post-trial submissions made pursuant to Rule for Court-Martial [hereinafter R.C.M.] 1105, requesting clemency from the convening authority. We note that in support of his claim, appellant included two affidavits from his civilian defense counsel stating his opinion that both he and appellant’s military defense counsel failed to provide effective assistance of counsel. Appellate courts 4 NORDIN—ARMY 20090044 take a dim view of such after-the-fact conclusions by defense counsel that their performance was ineffective, Hendricks v. Calderon, 70 F.3d 1032, 1039–40 (9th Cir. 1995), and have held such conclusions to be irrelevant, McAfee v. Thurmer, 589 F.3d 353, 356 (7th Cir. 2009), since ineffectiveness is a question the courts must decide as a matter of law, Harris v. Dugger, 874 F.2d 756, 761 n.4 (11th Cir. 1989). Contrary to the civilian counsel’s conclusions, appellant’s military defense counsel submitted two affidavits in which he denied providing ineffective assistance of counsel and contradicted some of the assertions made by the civilian defense counsel. We review the military judge’s DuBay findings of fact under a clearly erroneous standard and his conclusions of law under a de novo standard. United States v. Anderson, 55 M.J. 198, 201 (C.A.A.F. 2004). We find none of the DuBay judge’s factual findings clearly erroneous and adopt them as our own. 1. Pretrial Investigation, Preparation, and Failure to Present Evidence Defense counsel’s pretrial investigation and preparation was not ineffective. The record indicates extensive pretrial preparation by appellant’s military defense counsel and two paralegals. These efforts initially included reviewing the case file, conducting legal research, and discussing the case and relevant facts with appellant. Defense counsel and paralegals traveled to Fort Bragg, 3 where they interviewed the criminal investigators, members of appellant’s unit, the child victim’s teachers, the pediatrician who examined the child victim (LM), and the government’s proposed expert witness. They also canvassed the neighborhood around appellant’s residence, interviewed appellant’s parents, reviewed appellant’s military personnel records, requested the mental health records of LM and her mother, attempted to interview LM and her mother, and attempted to call them as witnesses at the investigation held pursuant to Article 32, UCMJ. Further, they investigated appellant’s claims of misconduct by his wife. By the time appellant retained civilian counsel in October 2008, and had access to his civilian private investigator, there was little investigative activity to complete. Appellant complains that his counsel did not fully investigate the areas around all of the locations where he was charged with committing sexual assaults and failed to interview Ms. HM, who knew appellant, his wife and daughter, and who had provided a statement included in the criminal investigation report. The record 3 Appellant’s detailed military defense counsel was assigned to Fort Gordon, Georgia, approximately 250 miles from Fort Bragg, North Carolina, where appellant was assigned, investigated and tried. 5 NORDIN—ARMY 20090044 clearly indicates appellant’s military defense team did canvass appellant’s neighborhood and his unit, but were met with people who did not have information relevant to the offenses themselves and who were reluctant to get involved due to their unfamiliarity with appellant. The defense counsel interviewed appellant’s parents, who were with appellant and LM in Richmond, Virginia, around the time of some of the charged offenses. However, they were unable to account for appellant’s whereabouts and activities at all times and could not rule-out the opportunity for him to have committed the charged offenses. There is nothing to indicate appellant’s counsel’s efforts to identify relevant witnesses and question those with knowledge concerning the charged offenses was not reasonable in light of the circumstances. Ms. HM’s statement, contained in the investigation report, revealed no exculpatory information, but did contain information damaging to the defense case. Nonetheless, appellant’s counsel went to Ms. HM’s home twice and tried to reach her by phone more than once without success. Given that Ms. HM’s statement contained no favorable information and that she was not identified as a potential witness, the efforts appellant’s counsel made to contact her were not unreasonable. We thus find, based on all defense counsel’s investigative efforts as described in the record, appellant has not met the burden to establish any deficiency in his counsel’s pretrial investigation of his case. Further, appellant has not demonstrated any prejudice from the alleged failure to investigate. After conducting a pretrial investigation, appellant’s defense counsel was aware that the government case consisted of no physical evidence. Specifically, the pediatrician who medically examined LM would testify the victim had no signs of penetration or physical sexual trauma. There were no eye-witnesses to the assaults other than LM and appellant. Defense counsel assessed the government’s case as “thin,” a reasonable conclusion at the time, based on what the parties knew. The defense team was also aware of potentially damaging uncharged misconduct the government could admit if defense opened the door by presenting evidence and undiscovered misconduct that could be revealed to the government if defense requested additional technical examination of appellant’s computer. While there were competing claims as to how the defense arrived at a strategy, we find the DuBay judge properly found the military defense counsel’s recollection most plausible. This counsel stated the strategy employed by the defense was determined after reviewing all the evidence and facts from their investigation and after consultation with both defense counsel and appellant himself. All parties associated with the defense agreed on a strategy of “less is more and adapt as contingencies presented themselves.” We conclude this was a sound strategy under the facts and circumstances of this case. Given the defense’s concern about opening the door to admission of damaging uncharged misconduct, we also find the defense strategy of attacking the government’s thin case while presenting no evidence themselves did not amount to ineffective assistance of counsel. 6 NORDIN—ARMY 20090044 2. Failure to Use the Services of a Defense Expert or Call Specific Witnesses to Testify Appellant alleges his counsel were ineffective in not using the services of a defense expert or calling him to testify. Defense had retained an expert in forensic psychiatry, who was present at appellant’s trial. Consistent with their trial strategy, defense did not intend to call any witnesses, but had the expert, appellant’s cousin, and appellant’s parents standing by to testify if necessary. The DuBay record revealed the expert never testified because defense counsel decided his testimony was not necessary. Defense counsel believed they had effectively cross-examined the government expert by having her admit that indicia she relied upon to suggest child sexual abuse could also be considered as indicia that child sexual abuse did not occur. The government expert also admitted she was not a medical doctor and had only interviewed LM for a limited period of time. We conclude the defense decision not to call their expert was part of the sound defense strategy. There is no explanation as to why the defense team did not ask their expert to observe testimony from government witnesses or consult with him, but the record contains nothing that would indicate these omissions, even if falling below the standards of competent representation, prejudiced appellant in light of the defense strategy employed and the effective cross-examination of the government expert. We further find defense counsels’ decision not to call appellant’s cousin or parents did not amount to ineffective assistance of counsel because it was supported by their strategy and other considerations. Defense counsel aptly explained the rationale for deciding not to call these witness: they had no relevant evidence and could not provide an alibi, since they would not be able to account for all of appellant’s time at home with the child victim, leaving open the opportunity for him to commit the crime; as close relatives, the members would likely view the witnesses as biased and not credible; if the witnesses became emotional and made verbal comments attacking LM and her mother, it could create additional sympathy for them; and, their testimony could open the door to testimony about the child victim’s unusual behavior the members could view as corroborating her accusations. Likewise, the decision that appellant would not testify was consistent with the defense strategy to present less evidence so as not to open the door to potentially damaging rebuttal evidence. As this court recently noted, “[w]hen an accused testifies on his own behalf, he does so at his own peril, risking that he might fill gaps or provide affirmative evidence contributing to or resulting in his conviction.” United States v. Pleasant, 71 M.J. 709, 712 (Army Ct. Crim. App. 2012). The record clearly indicates appellant was aware the decision as to whether to testify was his to make, and that appellant personally made this decision following consultation and advice from his counsel. 7 NORDIN—ARMY 20090044 3. Preparing a Sentencing Case and Presenting Available Evidence Related to an Appropriate Sentence While appellant alleges his defense counsel was ineffective for failing to prepare any sentencing case in advance of trial, we concur with the DuBay judge’s findings that defense did prepare for sentencing by: reviewing appellant’s personnel files; interviewing potential character witnesses from appellant’s unit; asking appellant to provide documentary materials to assemble into a “good soldier book” reflecting positively on his character; and interviewing appellant and his parents to prepare them to testify. Appellant never followed through in providing materials for the “good soldier book.” In addition, defense counsel were unable to find witnesses from appellant’s unit who possessed relevant knowledge helpful to appellant’s sentencing case. Nevertheless, appellant and his father did testify on sentencing, and the DuBay judge concluded defense counsel did advance preparation with these witnesses prior to trial in anticipation of the need to call them during the sentencing case. The defense counsel considered calling their expert as a sentencing witness but decided against doing so because his testimony would relate to appellant’s rehabilitative potential and potentially would open the door to damaging defense evidence concerning appellant’s uncharged bad acts. On appeal, appellant submits an affidavit from a pastor who knew appellant and his family, stating the pastor was willing to testify during appellant’s sentencing hearing, but was not asked. The DuBay judge found that the military defense counsel was unaware of this witness as no one ever informed him of the witness’s identity. The judge further found the witness had “nothing of evidentiary value he could have offered as a sentencing witness.” Therefore, we find there is no indication defense counsel failed to take reasonable steps to prepare a sentencing case or to prepare sentencing witnesses to testify. Under the circumstances, defense counsel’s failure to submit documentary material or call additional sentencing witnesses did not amount to ineffective assistance of counsel at the sentencing stage of appellant’s trial. 4. Submitting Appellant’s Post-Trial Matters Pursuant to R.C.M. 1105 to the Convening Authority Without Including a Statement from Ms. HM The original report of criminal investigation into the allegations made against appellant contained a statement from Ms. HM, a woman who knew the child victim’s mother. This statement indicated only that the child victim and her mother told Ms. HM that appellant had requested the child victim send nude pictures of herself to him. After trial, but before submission of R.C.M. 1105 matters, Ms. HM contacted appellant’s parents by telephone and told them the child victim’s mother had admitted to Ms. HM that she told her daughter to falsely state appellant asked for nude pictures to make the case against him stronger. Ms. HM said the admission 8 NORDIN—ARMY 20090044 by the child victim’s mother was made in October or November 2007, but Ms. HM never came forward with this information until March 2009. Appellant’s parents informed the defense counsel about the conversation, and the counsel waited for Ms. HM to contact him, but he later unsuccessfully tried to contact her to obtain a statement. The statement was not obtained from Ms. HM until 18 June 2009, when appellant’s parents arranged for an investigator to go to her location. In order to make a timely submission under R.C.M. 1105 for consideration by the convening authority, appellant’s defense counsel submitted matters on 21 May 2009, without including any statement from Ms. HM. However, defense counsel did submit a recording of Ms. HM’s conversation with appellant’s parents in which she can be heard stating the child victim’s mother admitted lying and telling her daughter to lie. Defense counsel referenced this recording in appellant’s R.C.M. 1105 submission as an enclosure, and the R.C.M. 1105 submission contained a summary of Ms. HM statements contained in the recording. Based on this, appellant’s counsel asked the convening authority to order a new trial. The DuBay judge found no evidence that appellant asked his counsel to delay making his R.C.M. 1105 submissions until he could obtain a statement directly from Ms. HM. We find that appellant’s counsel’s actions under the circumstances, in submitting timely R.C.M. 1105 matters with the recordings and a summary of Ms. HM’s statement that concerned the child victim’s mother admitting to lying and telling her daughter to lie, without waiting for a written statement from Ms. HM, does not amount to ineffective assistance of counsel. In sum, we will not fault appellant’s defense counsel for employing a strategy of “less is more” in this case, given that it was based on a reasonable investigation and was the product of consultation amongst defense counsel and appellant. We certainly do not find that the defense counsel’s investigation or strategy to present no defense evidence on the merits amounted to ineffective assistance of counsel. Appellant has failed to demonstrate how his counsel’s actions in representing him at trial and in post-trial matters fell measurably below the performance expected of fallible lawyers or prejudiced him to such a degree that he did not receive a fair trial or consideration for clemency by the convening authority. B. FAILURE TO STATE AN OFFENSE Our superior court, in part, remanded this case with direction for us to consider the validity of Specifications 1 and 2 of Charge III, in that the charges are for offenses falling under Clause 1 or 2 of Article 134, UCMJ, and these specifications fail to include any reference to the “terminal element” the offense. In consideration of our superior court’s decision in United States v. Humphries, 71 M.J. 209 (C.A.A.F. 2012), we are compelled to set aside Specifications 1 and 2 of Charge III without prejudice. See United States v. 9 NORDIN—ARMY 20090044 Saintatude, 56 M.J. 888, 891 (Army Ct. Crim. App. 2002), aff’d, 61 M.J. 175 (C.A.A.F. 2005). These two specifications allege appellant committed indecent acts upon a female child under sixteen years of age. Neither specification alleges either of the Article 134, UCMJ, terminal elements of conduct that is prejudicial to good order and discipline (Clause 1) or conduct of a nature to bring discredit upon the armed forces (Clause 2). Pursuant to United States v. Fosler, 70 M.J. 225 (C.A.A.F. 2011), it was error to omit the terminal elements from these specifications. However, appellant did not object to the form of either specification at trial, and “where defects in a specification are raised for the first time on appeal, dismissal of the affected charges or specifications will depend on whether there is plain error— which, in most cases will turn on the question of prejudice.” Humphries, 71 M.J. at 213–14 (citing United States v. Cotton, 535 U.S. 625, 631–32 (2002)). Therefore, appellant must demonstrate “the Government’s error in failing to plead the terminal element of Article 134, UCMJ, resulted in material prejudice to [appellant’s] substantial, constitutional right to notice.” Id. at 215; UCMJ art. 59(a). To assess prejudice, “we look to the record to determine whether notice of the missing element is somewhere extant in the trial record, or whether the element is ‘essentially uncontroverted.’” Id. at 215–16 (citing Cotton, 535 U.S. at 633; Johnson v. United States, 520 U.S. 461, 470 (1997)). After thoroughly reviewing the record, we do not find any indication that notice of the missing terminal element is “somewhere extant in the trial record,” and we find the evidence was controverted as to at least one clause of Article 134, UCMJ. See id. Neither specification on its face provides any notice of which terminal element or theory of criminality the government relied upon to prove this case. See United States v. Gaskins, 72 M.J. 225 (C.A.A.F. 2013). Furthermore, no witness testified as to how appellant’s conduct violated either Clause 1 or 2 of Article 134, UCMJ. Cf. United States v. Goings, 72 M.J. 202 (C.A.A.F. 2013). Although the military judge properly instructed the panel on the terminal elements, this instruction came after the close of evidence, and “did not alert [appellant] to the Government’s theory of guilt.” Humphries, 71 M.J. at 216 (citing Fosler, 70 M.J. at 230). Based on a totality of the circumstances, we are not convinced appellant was placed on sufficient notice of the government’s theory as to which clause(s) of Article 134, UCMJ, he violated. As a result, the Government’s failure to allege the terminal elements constituted material prejudice to appellant’s substantial right to notice. See UCMJ art. 59(a). C. LEGAL AND FACTUAL SUFFICIENCY Finally, with respect to whether the evidence is factually and legally insufficient to support Specification 2 of Charge II as charged and a portion of Specification 3 of Charge III, we adhere to our previous decision as follows: 10 NORDIN—ARMY 20090044 Charge III - Enticement Charge on “Divers Occasions” In Specification 3 of Charge III, the government charged appellant with enticing L.M. to send him naked pictures of herself over the internet on divers occasions. At the time, appellant was located in Afghanistan and [LM] was located at or near Fort Bragg, North Carolina. The specific language of the specification alleged appellant: [D]id, at or near Bagram Afghanistan, on divers occasions between on or about 30 August 2007 and 2 September 2007, knowingly entice through means of interstate or foreign commerce, Miss [LM] a female under the age of 16 years, to take naked pictures of herself and to send them to him over email, in violation of 18 United States Code 2422(b) which conduct was likely to bring discredit upon the armed forces or was prejudicial to good order and discipline. (emphasis added). We find the evidence in the record of trial factually and legally insufficient to establish that appellant committed the offense of enticement on “divers occasions” as alleged. Specifically, we find the record of trial insufficient to establish appellant committed the charged offense at least twice or on at least two occasions. See, e.g., United States v. Rodriguez, 66 M.J. 201, 203 (C.A.A.F. 2008). See also United States v. Craion, 64 M.J. 531, 534 (Army Ct. Crim. App. 2006) (citing United States v. Brooks, 60 M.J. 495, 497 (C.A.A.F. 2005); Jackson v. Virginia, 443 U.S. 307, 318–319 (1979). We further find, however, the evidence sufficient to establish that appellant committed the charged offense on or about 2 September 2007. FN* . . . FN* In finding appellant guilty to Specification 2 of Charge II, the panel made no exceptions or substitutions when making its general verdict finding. As a result, “[t]here [is] no actual or implicit finding of not guilty by the members to [this offense].” See United States v. Rodriguez, 202, 204, fn. 3 (C.A.A.F. 2008). .... 11 NORDIN—ARMY 20090044 Charge II - Sodomy Charge in Richmond,VA In Charge II, the government averred in two separate specifications that appellant committed oral sodomy with his 12- year old stepdaughter — Miss [LM]. Each specification alleged, in effect, appellant had [LM] place his penis in her mouth, but the specifications differed in stating where and when the offenses occurred. Specification 1 alleged the offense occurred at Fort Bragg, North, Carolina, while Specification 2 alleged the offense occurred in Richmond, Virginia. While we find Specification 1 legally and factually sufficient, we find Specification 2 factually and legally insufficient. As reflected on the charge sheet, the government alleged appellant: [D]id, at or near Richmond, Virginia, on divers occasions, between on or about 21 June and 5 July 2007, commit sodomy with Miss [LM], a child who had attained the age of 12 years but was under the age of 16 years, by placing his penis in her mouth. (emphasis added) At trial, the government predicated its evidence regarding the actual act of sodomy almost exclusively on the testimony of [LM]. In relevant part, [LM] testified that while she and her parents were visiting appellant's parents' house in Richmond, Virginia: “[E]verybody went out to go look at furniture or something and it was just me and him there. He went and he called me into the bathroom and he made me put my mouth on it again.” (emphasis added) The offense of sodomy consists of unnatural carnal copulation with a person of the same or opposite sex. Article 125, UCMJ (10 U.S.C. § 925). In relevant part, the Manual for Courts-Martial states “[i]t is unnatural carnal copulation for a person to take into that person’s mouth or anus the sexual organ of another person . . . or to place that person’s sexual organ in the mouth . . . of another person . . .” Manual for Courts-Martial, United States (2008 ed.), Part IV, para 51c. Penetration, however slight, is sufficient. Article 125, UCMJ (10 U.S.C. § 925). In the instant case, for Specification 2 of Charge II, the evidence was 12 NORDIN—ARMY 20090044 insufficient to establish that any penetration of any orifice occurred. As a result, the evidence is factually and legally insufficient to establish that appellant is guilty of the offense of sodomy. See Craion, 64 M.J. at 534 (citations omitted); Brooks, 60 M.J. at 497; Jackson v. Virginia, 443 U.S. at 318-319. In addition to the defect regarding lack of penetration, Specification 2 of Charge II is factually and legally insufficient to establish appellant committed the offense on “divers occasions.” Specifically, we find the record of trial fails to establish appellant committed the charged offense at least twice or on at least two occasions. See, e.g., Rodriguez, 66 M.J. at 203. See also Craion, 64 M.J. at 534 (citations omitted); Brooks, 60 M.J. at 497; Jackson v. Virginia, 443 U.S. at 318–319. We find, however, the evidence factually and legally sufficient to establish the lesser included offense of attempted sodomy between on or about 21 June and 30 June 2007. Accordingly, we affirm appellant’s conviction to Specification 2 of Charge II on the lesser included offense of attempted sodomy in violation of Article 80, UCMJ. See Article 59(b) (10 U.S.C. § 859(b)). See also United States v. Medina, 66 M.J. 21, 25 (C.A.A.F. 2008). United States v. Nordin, ARMY 20090044, 2011 WL 1532033, at *1–2 (Army Ct. Crim. App. 18 Apr. 2011) (mem. op.). D. SENTENCE REASSESSMENT AND APPROPRIATENESS As discussed above, this court has determined that the findings of guilty relating to four specifications must be modified or set aside. Therefore, we must consider whether reassessment without a rehearing is possible, and if so, whether appellant’s sentence must be reduced. United States v. Sales, 22 M.J. 305, 308 (C.M.A. 1986); United States v. Moffeit, 63 M.J. 40, 43 (C.A.A.F. 2006) (Baker, J., concurring). In this case, we can be “reasonably certain as to the severity of the sentence that would have resulted in the absence of the error,” Sales, 22 M.J. at 307 n.3, and therefore, we will reassess the sentence at our level. In performing our reassessment, we conclude that the modified findings do not warrant a reduction of appellant’s sentence. The maximum sentence that could have been imposed, life without parole, remains unchanged, see United States v. Riley, 58 M.J. 305, 312 (C.A.A.F. 2003) (noting that a “dramatic change in the ‘penalty landscape’” lessens a service court’s ability to reassess a sentence), and appellant remains convicted of the most serious charges he faced at court-martial, see United States v. Doss, 57 M.J. 182, 185 (C.A.A.F. 2002) (holding a service court must be confident “that, absent 13 NORDIN—ARMY 20090044 the error, the sentence would have been at least of a certain magnitude” (citing Sales, 22 M.J. at 308)). Accordingly, we find the approved sentence is correct in law and fact and, based on the entire record, should be affirmed. See UCMJ art. 66(c). CONCLUSION On consideration of the entire record, the assigned errors, the briefs submitted by the parties, and in light of Humphries, the following action is taken regarding the findings. The findings of guilty to Specifications 1 and 2 of Charge III are set aside and those specifications are dismissed without prejudice. We affirm only so much of the finding of guilty to Specification 2 of Charge II as finds appellant did: “at or near Richmond, Virginia, between on or about 21 June 2007 and 5 July 2007, attempt to commit sodomy with Miss [LM], a child who had attained the age of 12 years but was under the age of 16 years, by placing his penis in her mouth.” We affirm only so much of the finding of guilty to Specification 3 of Charge III as finds appellant did: “at or near Bagram, Afghanistan, on or about 2 September 2007, knowingly entice through means of interstate or foreign commerce, Miss [LM], a female under the age of 16 years, to take naked pictures of herself and to send them to him over email, in violation of 18 United States Code 2422(b) which conduct was likely to bring discredit upon the armed forces or was prejudicial to good order and discipline.” The remaining findings of guilty are AFFIRMED. Reassessing the sentence on the basis of the above modified findings, the errors noted, the entire record, and in accordance with the principles of Sales and Moffeit, to include the factors Judge Baker identified in his concurring opinion in Moffeit, the sentence as approved by the convening authority is AFFIRMED. All rights, privileges, and property, of which appellant has been deprived by virtue of that portion of the findings set aside by this decision, are hereby ordered restored. See UCMJ art. 75(a). 14 NORDIN—ARMY 20090044 Senior Judge KERN and Judge ALDYKIEWICZ concur. FOR FOR THE THE COURT: COURT: MALCOLM H. MALCOLM H. SQUIRES, SQUIRES, JR. JR. Clerk of Clerk of Court Court 15 

45 So.3d 160 (2010) In re Shantel Comminie OCTAVE. No. 2010-B-1515. Supreme Court of Louisiana. October 1, 2010. *161 ATTORNEY DISCIPLINARY PROCEEDINGS PER CURIAM.[*] This disciplinary matter arises from formal charges filed by the Office of Disciplinary *162 Counsel ("ODC") against respondent, Shantel Comminie Octave, an attorney licensed to practice law in Louisiana, but currently ineligible to practice.[1] UNDERLYING FACTS AND PROCEDURAL HISTORY In July 2008, the ODC filed formal charges against respondent in 08-DB-058. Respondent failed to answer the formal charges. Accordingly, the factual allegations contained therein were deemed admitted and proven by clear and convincing evidence pursuant to Supreme Court Rule XIX, § 11(E)(3). No formal hearing was held, but the parties were given an opportunity to file with the hearing committee written arguments and documentary evidence on the issue of sanctions. Respondent filed nothing for the hearing committee's consideration. In August 2009, the ODC filed a second set of formal charges against respondent in 09-DB-051. Respondent answered the formal charges but neither admitted nor denied the alleged misconduct. However, she indicated her desire to "surrender her license to practice law in the State of Louisiana as a resolution to this matter." The matter proceeded to a formal hearing on the merits, conducted by a separate hearing committee in November 2009. Thereafter, the two sets of formal charges were consolidated by order of the disciplinary board. The board subsequently filed in this court a single recommendation of discipline encompassing both sets of formal charges. 08-DB-058 The United States Bankruptcy Court for the Eastern District of Louisiana has sanctioned respondent numerous times for failing to appear for scheduled hearings: On May 16, 2006, respondent failed to appear at a hearing on the trustee's motion to compel compliance, or alternatively, to dismiss case in the Green matter. The bankruptcy court ordered respondent to appear at a contempt of court hearing on July 11, 2006. Respondent failed to appear, and the bankruptcy court found her in contempt, sanctioning her $500. On May 30, 2006, respondent failed to appear at a hearing on the trustee's motion to dismiss case in the Victor matter. The bankruptcy court ordered respondent to appear at a contempt of court hearing on June 27, 2006. Respondent failed to appear, and the bankruptcy court found her in contempt, sanctioning her $500. Respondent's July 7, 2006 check in payment of the sanction was returned due to insufficient funds in her account. On July 18, 2006, respondent failed to appear at a hearing on the trustee's motion to compel compliance, or alternatively, to dismiss case in the Kimble matter. The bankruptcy court ordered respondent to appear at a contempt of court hearing on August 1, 2006. Respondent failed to appear, and the bankruptcy court found her in contempt, sanctioning her $500. On December 19, 2006, respondent failed to appear at a hearing on the trustee's motion to dismiss case in the Markey matter. The bankruptcy court ordered respondent to appear at a contempt of court hearing on January 9, 2007. Respondent *163 failed to appear, and the bankruptcy court found her in contempt, sanctioning her $1,000. On January 23, 2007, respondent failed to appear at a hearing on the issue of whether additional sanctions should be imposed for her contempt of the bankruptcy court. On October 18, 2007, the bankruptcy court entered an order to enforce the sanctions imposed above and to terminate respondent's access to the court's electronic filing system until she pays the sanctions. As of the date the ODC filed the formal charges against respondent, she had not paid the court-ordered sanctions. The ODC alleged respondent's conduct violated the following provisions of the Rules of Professional Conduct: Rules 1.3 (failure to act with reasonable diligence and promptness in representing a client), 3.4(c) (knowing disobedience of an obligation under the rules of a tribunal), 8.4(a) (violation of the Rules of Professional Conduct), and 8.4(d) (engaging in conduct prejudicial to the administration of justice). Hearing Committee Report As previously indicated, respondent failed to file an answer to the formal charges in 08-DB-058, and consequently, the factual allegations contained therein were deemed admitted. After considering the ODC's deemed admitted submission, the hearing committee made the following factual findings: In four separate bankruptcy cases, respondent failed to appear at a scheduled hearing, which resulted in each case being dismissed. In each case, the bankruptcy court scheduled a contempt hearing. When respondent again failed to appear, she was fined by the court. The court scheduled yet another hearing to determine if further sanctions should be considered. When respondent failed to appear for this hearing, the court ordered that she be barred from making any further electronic filings of bankruptcy petitions and pleadings until she paid the sanctions. As of the date of the committee's report, respondent had not paid the court-ordered sanctions. Based on these facts, the committee determined respondent violated the Rules of Professional Conduct as alleged in the formal charges. Because respondent has made no effort to pay the sanctions, the committee determined the baseline sanction is suspension. In aggravation, the committee found bad faith obstruction of the disciplinary proceeding by intentionally failing to comply with the rules or orders of the disciplinary agency and indifference to paying the bankruptcy court sanctions. In mitigation, the committee found respondent had numerous personal or emotional problems: 1) she had to relocate her law practice after Hurricane Katrina flooded her office; 2) after she relocated her law practice, a fire destroyed her new office; and 3) the bankruptcy case dismissals and sanctions occurred while she was trying to raise young children and was pregnant and gave birth. Under these circumstances, the committee recommended respondent be suspended from the practice of law for one year and one day. Neither respondent nor the ODC filed an objection to the hearing committee's recommendation. 09-DB-051 Following a 2003 automobile accident, Marquita Morse hired respondent to handle her personal injury claim. Some time prior to April 14, 2005, respondent settled Ms. Morse's claim for an undisclosed *164 amount.[2] On December 22, 2005, respondent provided Ms. Morse with a letter containing a breakdown of the fees, costs, and expenses paid from Ms. Morse's settlement. In the letter, respondent listed the following payments:[3] Respondent's attorney's fees $7,753.59 Reimbursement to Ms. Morse's previous attorney $5,283.00 Renaissance Rehab $1,818.00 Haydel Chiropractic $2,405.00 Pain Specialty Center $1,428.00 Southeast Neuroscience $1,350.00 Court reporters $ 488.05 Bank records indicated that respondent did, in fact, pay the Pain Specialty Center, Haydel Chiropractic, and the court reporters. Ms. Morse's previous attorney also verified he received payment from respondent. However, Renaissance Rehab and Southeast Neuroscience both indicated they did not receive any payments from respondent on Ms. Morse's behalf.[4] Furthermore, respondent failed to maintain a separate client trust account. Instead, she maintained a client expense account where she deposited client funds and personal funds. On several occasions, checks made payable to respondent's husband were drawn on her client expense account. Other checks or withdrawals were made from the account to satisfy respondent's personal obligations, such as payments to a childcare provider and Entergy. The ODC alleged respondent's conduct violated the following provisions of the Rules of Professional Conduct: Rules 1.15(a) (safekeeping property of clients or third persons) and 1.15(d) (failure to timely remit funds to a client or third person). Formal Hearing As previously indicated, respondent answered the formal charges in 09-DB-051, and the matter proceeded to a formal hearing on the merits. Just prior to the hearing, respondent wrote to the ODC and the hearing committee chair indicating the following: 1. I am not contesting any action by the Louisiana Attorney Disciplinary Board and/or Louisiana Supreme Court; 2. I will consent to any punishment imposed in this matter, including the surrender of my license to practice law in the State of Louisiana; and 3. I waive all delays and proceedings in this matter, and desire an immediate conclusion. Accordingly, respondent did not appear at the hearing and was not represented by counsel. The ODC introduced documentary evidence but called no witnesses to testify before the committee. Hearing Committee Report After considering the evidence presented at the hearing, the hearing committee determined that respondent did not pay at least two of Ms. Morse's medical providers. Respondent's omission has caused harm to Ms. Morse because at least one of the medical providers has instituted collection procedures against her. Respondent also did not have a proper client trust *165 account and, in fact, commingled her personal funds with those of her clients. Based on these facts, the committee determined respondent violated the Rules of Professional Conduct as alleged in the formal charges. The committee further determined respondent violated duties owed to her client. Her failure to pay two of Ms. Morse's medical providers was most likely negligent. However, her failure to maintain a proper client trust account and her commingling of personal and client funds were both knowing. After considering the ABA's Standards for Imposing Lawyer Sanctions, the committee determined the baseline sanction is suspension. In aggravation, the committee found vulnerability of the victim. In mitigation, the committee recognized respondent's personal or emotional problems. After also considering this court's prior jurisprudence involving similar misconduct, the committee recommended respondent be suspended from the practice of law for six months. The committee also recommended respondent be ordered to pay restitution of any money Ms. Morse had to pay to any third-party medical provider in this matter. Neither respondent nor the ODC filed an objection to the hearing committee's recommendation. Disciplinary Board Recommendation 08-DB-058 & 09-DB-051 After reviewing these consolidated matters, the disciplinary board determined the hearing committee's factual findings in the first set of formal charges are supported by the factual allegations in the formal charges, which were deemed admitted, and/or by the evidence submitted in support of the allegations. Based on these facts, the board found respondent violated the Rules of Professional Conduct as alleged in the formal charges. In the Morse matter, the board determined the committee's factual findings do not appear to be manifestly erroneous. The board also found the committee correctly applied the Rules of Professional Conduct. The board further determined respondent violated duties owed to her clients and the legal system. Respondent's failure to remit the settlement funds to Ms. Morse's medical providers was most likely negligent. Her failure to maintain a client trust account and failure to comply with the bankruptcy court's orders were knowing, if not intentional. Respondent's conduct harmed Ms. Morse by subjecting her to the collection process in order to satisfy her debt to her medical provider. Respondent also harmed Ms. Morse's medical providers by failing to disburse their share of the settlement funds. Finally, respondent harmed her bankruptcy clients and the bankruptcy court. After reviewing the ABA's Standards for Imposing Lawyer Sanctions, the board determined the baseline sanction is suspension. The board found the following aggravating factors present: a pattern of misconduct, multiple offenses, vulnerability of the victims, and indifference to making restitution. In mitigation, the board found the following: absence of a prior disciplinary record and personal or emotional problems. Turning to the issue of an appropriate sanction, the board determined the misconduct in the first set of formal charges warrants at least a one-year suspension given the case law involving similar misconduct. In the Morse matter, the board determined case law establishes that at least a one year and one day suspension is warranted. Noting that respondent has not participated in these proceedings, has not made restitution, and has not complied with the *166 bankruptcy court's orders, the board recommended respondent be suspended from the practice of law for two years. The board also recommended respondent be ordered to pay restitution to the bankruptcy court, Renaissance Rehab, and Southeast Neuroscience. Neither respondent nor the ODC filed an objection to the disciplinary board's recommendation. DISCUSSION Bar disciplinary matters fall within the original jurisdiction of this court. La. Const. art. V, § 5(B). Consequently, we act as triers of fact and conduct an independent review of the record to determine whether the alleged misconduct has been proven by clear and convincing evidence. In re: Banks, 09-1212 (La.10/2/09), 18 So.3d 57. While we are not bound in any way by the findings and recommendations of the hearing committee and disciplinary board, we have held the manifest error standard is applicable to the committee's factual findings. See In re: Caulfield, 96-1401 (La.11/25/96), 683 So.2d 714; In re: Pardue, 93-2865 (La.3/11/94), 633 So.2d 150. The record of this consolidated matter reveals that respondent neglected bankruptcy cases, failed to comply with several bankruptcy court orders, failed to maintain a proper client trust account, commingled her personal funds with client funds, and failed to remit funds owed to third-party medical providers. Based on these facts, respondent has violated the Rules of Professional Conduct as alleged in both sets of formal charges. Having found evidence of professional misconduct, we now turn to a determination of the appropriate sanction for respondent's actions. In determining a sanction, we are mindful that disciplinary proceedings are designed to maintain high standards of conduct, protect the public, preserve the integrity of the profession, and deter future misconduct. Louisiana State Bar Ass'n v. Reis, 513 So.2d 1173 (La. 1987). The discipline to be imposed depends upon the facts of each case and the seriousness of the offenses involved considered in light of any aggravating and mitigating circumstances. Louisiana State Bar Ass'n v. Whittington, 459 So.2d 520 (La.1984). Respondent violated duties owed to her clients, the public, and the legal system. We agree with the disciplinary board that her failure to remit the settlement funds to Ms. Morse's medical providers was negligent. We also agree with the board that her failure to maintain a client trust account and failure to comply with the bankruptcy court's orders were knowing, if not intentional. Respondent's conduct harmed her clients, Ms. Morse's medical providers, and the legal system. The baseline sanction for respondent's misconduct is suspension. We agree with the aggravating and mitigating factors found by the board. In addition, we find the mitigating factor of imposition of other penalties or sanctions is present. Turning to the issue of an appropriate sanction, case law suggests the two-year suspension recommended by the board is not unduly harsh for respondent's collective misconduct. In light of this jurisprudence, and considering respondent's continued failure to pay the sanctions imposed by the bankruptcy court and her failure to pay restitution to Ms. Morse's medical providers, we will adopt the disciplinary board's recommendation and suspend respondent from the practice of law for two years. We will further order respondent to pay restitution to Ms. Morse's medical *167 providers and pay the sanctions imposed by the bankruptcy court. DECREE Upon review of the findings and recommendations of the hearing committees and disciplinary board, and considering the record, it is ordered that Shantel Comminie Octave, Louisiana Bar Roll number 27201, be and she hereby is suspended from the practice of law for two years. It is further ordered that respondent pay restitution to Renaissance Rehab and Southeast Neuroscience and pay the sanctions imposed by the United States Bankruptcy Court for the Eastern District of Louisiana. All costs and expenses in the matter are assessed against respondent in accordance with Supreme Court Rule XIX, § 10.1, with legal interest to commence thirty days from the date of finality of this court's judgment until paid. NOTES [*] Chief Justice Kimball not participating in the opinion. [1] Respondent has been ineligible to practice law since October 1, 2008 for failing to pay her bar dues and the disciplinary assessment. She is also ineligible to practice law for failing to comply with mandatory continuing legal education requirements and failing to file her trust account disclosure statement. [2] Respondent was unable to provide copies of any documents related to her representation of Ms. Morse because her office flooded in August 2005 following Hurricane Katrina, and her new office was destroyed by a fire in 2007. She also had no clear recollection of her handling of Ms. Morse's matter. [3] Respondent also informed Ms. Morse that "all settlement funds have been expended, and in fact, have been over-expended by $25.64. Unfortunately, there are no remaining funds to be disbursed to you." [4] In her disciplinary complaint, Ms. Morse indicated that Renaissance Rehab forwarded her outstanding bill to a collection agency, who contacted her for payment.

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326 F.Supp.2d 195 (2004) Charles M. VAUGHN, et al., Plaintiffs, v. The AMERICAN AUTOMOBILE ASSOCIATION, INC., et al., Defendants. No. CIV.A.03-11902-NG. United States District Court, D. Massachusetts. July 19, 2004. *196 Richard P. Campbell, Campbell, Campbell, Edwards & Conroy, PC, Boston, MA, for U.S. Airways, Inc. Defendant. Kathleen M. Guilfoyle, Campbell, Campbell, Edwards & Conroy, PC, Boston, MA, for U.S. Airways, Inc. Defendant. Marc D. Wallick, Wallick & Paolino, Warwick, RI, for The American Automobile Association, Inc. Defendant. ORDER ADOPTING REPORT AND RECOMMENDATION GERTNER, District Judge. After reviewing the objections, I agree with Judge Dein's recommendation granting AAA's motion for summary judgment because plaintiffs have not presented evidence of unfair or deceptive acts sufficient to support a claim under G.L. chapter 93A. REPORT AND RECOMMENDATION ON DEFENDANT'S MOTION FOR SUMMARY JUDGMENT DEIN, United States Magistrate Judge. I. INTRODUCTION The plaintiffs, Charles M. Vaughn ("Vaughn") and Joyce A. Russis ("Russis"), have brought this suit against The American Automobile Association, Inc., ("AAA") and U.S. Airways, Inc. alleging that the defendants are liable under Mass. Gen. Laws ch. 93A for damages they sustained as a result of a trip to Italy being cut short when their luggage was lost. The action against U.S. Airways, Inc. has been stayed due to the airline's bankruptcy (Docket # 9) and the parties have indicated that they expect to dismiss this case against the airline shortly in accordance with orders of the Bankruptcy Court. This case is presently before the court on AAA's Motion for Summary Judgment (Docket # 12). For the reasons detailed herein, this court recommends to the District Judge to whom this case is assigned that the Motion for Summary Judgment be ALLOWED. II. STATEMENT OF FACTS The following facts are undisputed for purposes of this Motion for Summary Judgment. The plaintiffs have been members of AAA for about fifteen years. (Plaintiffs' Memorandum In Opposition to Defendant's Motion for Summary Judgment (Docket # 16) ("Opp.") at 6). In late February 1999, they used AAA's travel agency services to book a tour of Italy conducted by Trafalgar Tours of New York City. (Complaint ("Compl.") ¶ 5). AAA provided the air tickets and tour confirmation to the plaintiffs upon final payment for the tour. (Id. ¶ 9). The total original cost of the trip was $5,174.60. (Id.). The plaintiffs left for Italy on June 29, 1999. (Id. ¶ 10). Their original flight from Boston to Philadelphia was two hours late, which resulted in the plaintiffs missing their connecting flight to Rome. (Id. ¶¶ 9-12). The plaintiffs were able to secure an alternate flight to Rome, through Paris. (Id. ¶¶ 12-14). However, their luggage failed to arrive in Rome. (Id. ¶ 16). Before the plaintiffs left the airport, they placed a claim for their luggage with the appropriate airline's lost and found department. (Id.). The plaintiffs then proceeded *197 to their hotel and met up with their tour group. (Id. ¶ 17). The next day, June 30, 1999, the plaintiffs contacted the AAA office in Burlington, Massachusetts to request assistance in recovering their baggage. (Id. ¶ 19). Cathy Grover, a AAA customer service representative, told the plaintiffs that she would try to contact U.S. Airways and follow-up on the status of the bags. (Id.). The plaintiffs found Ms. Grover and her immediate supervisor, Donna Muller, unresponsive to their plight. (Id. ¶¶ 20-21). Ms. Muller stated to the plaintiffs that she could only file a report with U.S. Airways, and did not offer the plaintiffs any additional assistance. (Id.). On July 1, 1999, the plaintiffs decided to terminate their vacation because they did not want to continue on without their personal belongings. (Id. ¶ 22). After making this decision, the plaintiffs called AAA and requested that Ms. Muller arrange airplane reservations for them back to the United States. (Id.). Ms. Muller refused to make the reservations, claiming it would be easier for the plaintiffs to secure reservations them-selves since they were in Rome. (Id.). While the plaintiffs were able to make reservations for a flight leaving the next day for the United States, it was a time consuming process. (Id. ¶ 23). The return tickets cost the plaintiffs a total of $1,854.00. (Id.). The plaintiffs left Italy on July 2, 1999, but did not receive their bags until the end of that month. (Id. ¶ 24; Opp. at 5). On July 2, 2003, the plaintiffs filed a complaint against AAA and U.S. Airways in Woburn District Court alleging a violation of Mass. Gen. Laws ch. 93A, § 9. On September 9, 2003, U.S. Airways removed the action to this court. (Docket # 1). III. DISCUSSION A. Standard of Review Summary judgment is appropriate when "the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." Fed.R.Civ.P. 56(c). The court "must view the evidentiary record in the light most hospitable to the nonmovant and must indulge all reasonable inferences in his favor." Sheinkopf v. Stone, 927 F.2d 1259, 1262 (1st Cir.1991). Applying these principles to the instant case compels the conclusion that the Motion for Summary Judgment should be allowed. B. Statute of Limitations The defendant asserts that this action is time-barred, either under the Warsaw Convention, or pursuant to the terms of Mass. Gen. Laws ch. 93A. As detailed herein, this court finds that the Warsaw Convention does not apply to the instant case, as AAA is not an "air carrier" governed by the Treaty. In addition, this court finds that the claim was timely brought under ch. 93A. 1. The Warsaw Convention AAA contends that this action is barred by the two-year statute of limitations found in Article 29 of the Warsaw Convention.[1] "The Warsaw Convention is an international treaty governing the liability of air carriers engaged in the international transportation of passengers and cargo. *198 The Convention creates a presumption of air carrier liability but, in turn, substantially limits that liability." Dazo v. Globe Airport Sec. Serv., 295 F.3d 934, 937 (9th Cir.2002) (internal citation omitted). "The cardinal purpose of the Warsaw Convention ... is to achieve uniformity of rules governing claims arising from international air transportation." El Al Israel Airlines, Ltd. v. Tsui Yuan Tseng, 525 U.S. 155, 169, 119 S.Ct. 662, 671-72, 142 L.Ed.2d 576 (1999) (internal citation and punctuation omitted). To accomplish this goal, "the Convention describes and defines the three areas of air carrier liability (personal injuries in Article 17, baggage or goods loss, destruction, or damage in Article 18, and damage occasioned by delay in Article 19), the conditions exempting air carriers from liability (Article 20), the monetary limits of liability (Article 22), and the circumstances in which air carriers may not limit liability (Articles 23 and 25)." Id. at 169, 119 S.Ct. at 672 While the Warsaw Convention may be relevant to the plaintiffs' claim against the airline for lost luggage, it has no relevance to the claim against AAA. As plaintiffs admit, the lost luggage was not AAA's responsibility, rather it was AAA's failure to assist the plaintiffs which forms the basis of their claim. Thus, as an initial matter, it is not clear that the substance of the claim against AAA is governed by the Warsaw Convention. More importantly, however, the Warsaw Convention applies to "carriers" and there is nothing in the record which would support the conclusion that AAA, as a travel agent, is a carrier under the Convention. See, e.g., Am. Home Assur. v. Jacky Maeder (Hong Kong), Ltd., 969 F.Supp. 184, 190 (S.D.N.Y.1997) (proposed defendant is not a carrier under the Convention where plaintiff did not allege it was a carrier and "no facts are alleged which would lead the Court to conclude that [the entity] was involved in actually operating airplanes and transporting the freight in question through international air travel"); Dazo v. Globe Airport Sec. Serv., 295 F.3d at 938-40 ("carrier" status under Warsaw Convention not extended to security company operating various checkpoints at airport). Therefore, this action is not barred by the two-year statute of limitations found in the Warsaw Convention. 2. Mass. Gen. Laws ch. 93A Claims under Mass. Gen. Laws ch. 93A are governed by a four-year statute of limitations. Mass. Gen. Laws. ch. 260, § 5A. A cause of action under ch. 93A typically accrues "at the time injury results from the assertedly unfair or deceptive acts" subject to the caveat that "a cause of action does not accrue until a plaintiff discovers, or reasonably should have discovered, that she may have been injured as a result of the defendant's conduct." Cambridge Plating Co. v. Napco, Inc., 991 F.2d 21, 25 (1st Cir.1993) (internal citation omitted). In the instant case, the plaintiffs left Italy on July 2, 1999, and filed suit on July 2, 2003. AAA has taken the position that the cause of action accrued on July 2, 1999. (See Defendant's Memorandum in Support of Motion for Summary Judgment (Docket # 13) ("Def.Mem.") at 4). This court finds that suit was filed within four years of that date, and thus, within the statute of limitations.[2] *199 To avoid a timeliness bar given the close proximity between the filing date and the expiration of the statute of limitations (see note 2, supra), the plaintiffs argue that ch. 93A's four-year statute of limitations should begin to run either on the day that their tour of Italy would have ended, July 12, 1999, or the day that their last item of luggage was returned, July 30, 1999. (Opp. at 5). However, their claim against AAA challenge's the defendant's efforts (or lack thereof) in assisting the plaintiffs in locating their luggage, finding alternative methods for dealing with their clothing loss (such as helping them get money from the airline to pay for clothes) and/or getting them alternate flights home. All of these actions were completed by July 2, 1999, when the plaintiffs flew home without AAA's assistance. (See Compl. ¶ 23). Thus, their injuries had occurred by then, and they knew that they had been injured. The date the trip ended and/or when they received their luggage is irrelevant to when they were injured by AAA's allegedly wrongful conduct. Nevertheless, as detailed above, this court concludes that suit was timely filed within four years of July 2, 1999. C. The Merits[3] Even though this court has found that the plaintiffs' claim was timely, it concludes further that, even viewing the evidence most favorable to the plaintiffs, AAA's conduct does not rise to the level of a violation of ch. 93A. Therefore, the Motion for Summary Judgment should be allowed. Mass. Gen. Laws ch. 93A, § 2(a) provides that "[u]nfair methods of competition and unfair or deceptive acts or practices in the conduct of any trade or commerce are hereby declared unlawful." In addition, Mass. Gen. Laws. ch. 93A, § 9 "creates a cause of action in favor of plaintiffs who are injured as a result of an unfair or deceptive act or practice." Lord v. Commercial Union Ins. Co., 60 Mass.App.Ct. 309, 322, 801 N.E.2d 303, 314, review denied, 441 Mass. 1104, 805 N.E.2d 45 (2004). In order to prevail on a claim under ch. 93A, "a plaintiff must establish both that an unfair or deceptive act or practice has been committed and that the commission of that act or practice has caused him an injury. The plaintiff must show that there was a causal connection between the deception and the loss and that the loss was foreseeable as a result of the deception." Id. at 317, 801 N.E.2d at 311 (emphasis in original). The statute does not define "unfair or deceptive" conduct; rather, it "depends on the facts and circumstances of each case." Darviris v. Petros, 59 Mass.App.Ct. 323, 328, 795 N.E.2d 1196, 1200, review granted, 440 Mass. 1108, 801 N.E.2d 802 (2003). *200 Nevertheless, it is up to the court, as a matter of law, to determine "the boundaries of what may qualify for consideration as a c. 93A violation[.]" Id. (quoting Shepard's Pharmacy, Inc. v. Stop & Shop Cos., 37 Mass.App.Ct. 516, 520, 640 N.E.2d 1112, 1115, review denied, 419 Mass. 1102, 644 N.E.2d 226 (1994)) (additional citations omitted). Certain principles are well-established, however. For example, "[a] negligent act standing by itself does not give rise to a claim under c. 93A. There must in addition be evidence that the negligence was or resulted in an unfair or deceptive act or practice." Squeri v. McCarrick, 32 Mass.App.Ct. 203, 207, 588 N.E.2d 22, 25 (1992), and cases cited. Similarly, "[a] mere breach of contract does not constitute an unfair or deceptive trade practice under 93A, ... unless it rises to the level of `commercial extortion' or a similar degree of culpable conduct." Commercial Union Ins. Co. v. Seven Provinces Ins. Co., Ltd., 217 F.3d 33, 40 (1st Cir.2000) (internal citations omitted). The plaintiffs have explained their dissatisfaction with AAA as follows: If this were the case of a citizen doing business with an independent travel agency, it could be assumed that the only responsibility of the agent would be to provide nothing more tha[n] pre-travel arrangements and tickets. But, this was not the case. The Plaintiffs took to heart and accepted the not-for-profit, different from the money grubbing, independent travel agent, slogan, "Travel With Someone You Trust." After all, they were and had been, members for years and were traveling with someone they trusted. The Plaintiffs trusted that AAA would be "friendly and helpful," that AAA would "listen to members [sic] needs" and that AAA would "serve members promptly and efficiently" as their literature proclaims. These are not statements taken out of context, but those advertised by AAA.... However inviting these advertised proclamations may be, AAA was as cold-hearted, unsympathetic, indifferent, inconsiderate and uncaring as could be. When the need was expressed, the help, paid for at a $40 per year rate, was not tendered. (Opp. at 6). While the plaintiffs' frustration with AAA is evident, it is frustration arising out of AAA's alleged failure to meet either its obligations or to live up to the plaintiffs' expectations. AAA did not engage in "conduct that was unethical, immoral, oppressive, or unscrupulous" and its actions did not rise to a level of a violation of ch. 93A as a matter of law. Duclersaint v. Fed. Nat'l Mortg. Assoc., 427 Mass. 809, 814, 696 N.E.2d 536, 540 (1998) (internal citations omitted). IV. CONCLUSION For the reasons detailed herein, this court recommends to the District Judge to whom this case is assigned that AAA's "Motion for Summary Judgment" (Docket # 12) be ALLOWED.[4] June 7, 2004. NOTES [1] Convention for the Unification of Certain Rules Relating to International Transportation by Air, Oct. 12, 1929, 49 Stat. 3000, T.S. No. 876 (1934), reprinted in note following 49 U.S.C. § 40105. [2] Both parties assert that suit was filed four years and one day after July 2, 1999. (See Def. Mem. at 4; Opp. at 5). However, for statute of limitations purposes "[o]ne year means 365 days or 366 days in a leap year." Carreras-Rosa v. Alves-Cruz, 127 F.3d 172, 175 (1st Cir.1997), and cases cited. Under Massachusetts law, the time period begins to run one day after the cause of action accrues, "with the last day for filing suit being the anniversary date of the event." Poy v. Boutselis, 352 F.3d 479, 483 (1st Cir.2003). Under this analysis, suit was timely filed within four years of July 2, 1999. [3] In its Motion, AAA claims that the plaintiffs cannot bring a 93A claim against it because the allegedly unfair and deceptive practices did not occur primarily and substantially in Massachusetts. (Def. Mem. at 4). However, this requirement only applies to disputes between businesses under ch. 93A, § 11, not to actions such as this one brought by individuals under § 9. See Boos v. Abbott Laboratories, 925 F.Supp. 49, 55 (D.Mass.1996). In addition, the parties both address AAA's potential status as an "agent" for U.S. Airways. (See Def. Mem. at 6 (AAA not liable as agent for disclosed principals); Opp. at 5-7 (while AAA was an agent, it was not entitled to Warsaw Convention protection)). This potential agency relationship does not require any extended discussion as plaintiffs' claim against AAA arises out of their direct relationship with AAA, and AAA's own alleged responsibilities. The plaintiffs are not seeking to hold AAA vicariously liable for U.S. Airways' conduct. [4] The parties are hereby advised that under the provisions of Fed.R.Civ.P. 72 any party who objects to these proposed findings and recommendations must file a written objection thereto with the Clerk of this Court within 10 days of the party's receipt of this Report and Recommendation. The written objections must specifically identify the portion of the proposed findings, recommendations or report to which objection is made and the basis for such objections. The parties are further advised that the United States Court of Appeals for this Circuit has repeatedly indicated that failure to comply with this Rule shall preclude further appellate review. See Keating v. Sec'y of Health & Human Services, 848 F.2d 271, 275 (1st Cir.1988); United States v. Valencia-Copete, 792 F.2d 4, 6 (1st Cir.1986); Park Motor Mart, Inc. v. Ford Motor Co., 616 F.2d 603, 604-605 (1st Cir.1980); United States v. Vega, 678 F.2d 376, 378-79 (1st Cir.1982); Scott v. Schweiker, 702 F.2d 13, 14 (1st Cir.1983); see also Thomas v. Arn, 474 U.S. 140, 153-54, 106 S.Ct. 466, 474, 88 L.Ed.2d 435 (1985). Accord Phinney v. Wentworth Douglas Hosp., 199 F.3d 1, 3-4 (1st Cir.1999); Henley Drilling Co. v. McGee, 36 F.3d 143, 150-51 (1st Cir.1994); Santiago v. Canon U.S.A., Inc., 138 F.3d 1, 4 (1st Cir.1998).

886 So.2d 270 (2004) Rick A. SWOPE, Appellant, v. Santo DiMARCO and Rosanna DiMarco, husband and wife, Larry Lunsford, and Triple AAA Realty, Inc., a Florida Corporation, Appellees. No. 4D03-4612. District Court of Appeal of Florida, Fourth District. November 3, 2004. Frank J. McKeown, Jr. of McKeown and Associates, P.A., West Palm Beach, for appellant. No brief filed on behalf of appellees. WARNER, J. Appellant's complaint alleging fraud in the inducement of a real estate contract was dismissed with prejudice. We reverse because the fraudulent inducement claim was not barred by the economic loss rule. Appellant, Rick Swope, filed a complaint in 2002 alleging that he had entered into a *271 contract to purchase a home from appellees, Santo and Rosanna DiMarco, with appellee Triple AAA Realty acting as broker. The sale closed in 1997. Swope claimed that while the defendants affirmatively represented that there were no matters or defects that affected the property's value, they knew or should have known that latent material defects were present, including flooding of the home during inclement weather and structural defects with the patio and family room. His complaint alleged damages based upon the defendants' fraudulent inducement to purchase the property. After the defendants moved for a more definite statement, Swope amended the complaint to allege that he discovered the defects in 1998, within four years of bringing the complaint, when the property flooded. The defendants filed a motion to dismiss alleging that the suit was barred by the economic loss rule, because Swope failed to allege property damage independent of the breach of contract. The court granted the motion and dismissed Swope's complaint with prejudice. This appeal follows. In HTP, Ltd. v. Lineas Aereas Costarricenses, S.A., 685 So.2d 1238, 1239 (Fla.1996), the supreme court held "[t]he economic loss rule has not eliminated causes of action based upon torts independent of [a] contractual breach even though there exists a breach of contract action. Where a contract exists, a tort action will lie for either intentional or negligent acts considered to be independent from acts that breached the contract." The case came to the court on conflict with Woodson v. Martin, 663 So.2d 1327 (Fla. 2d DCA 1995). The court disapproved the majority in Woodson and approved Judge Altenbernd's dissenting opinion. HTP, 685 So.2d at 1240. Woodson involved a claim by a buyer of residential real estate for fraudulent inducement by the seller and broker. Woodson, 663 So.2d at 1327-28. The buyer alleged that the home had defects that were not revealed by the seller and were only discovered after the buyers moved into the home. Id. at 1327. In reviewing the case, the supreme court said: Judge Altenbernd in his Woodson dissent recognized that fraudulent inducement claims may coexist with breach of contract claims, safe from the economic loss rule because the interest protected by fraud is society's need for true factual statements in important human relationships, primarily commercial or business relationships. More specifically, the interest protected by fraud is a plaintiff's right to justifiably rely on the truth of a defendant's factual representation in a situation where an intentional lie would result in loss to the plaintiff. Generally, the plaintiff's loss is a purely economic loss.... HTP, 685 So.2d at 1240 (citing Woodson, 663 So.2d at 1330 (Altenbernd, J., dissenting)). See also Hinton v. Brooks, 820 So.2d 325, 326 (Fla. 5th DCA 2001) (finding claim of fraudulent inducement to purchase real estate by failing to reveal extensive termite damage was not barred by economic loss rule). In this case, Swope alleged that the defendants misrepresented that the property was free from defects in order to induce him to enter the contract. After Swope moved into the home, he discovered material defects in the property, of which he alleged that the sellers were or should have been aware, and that their failure to notify him of such defects constituted fraudulent inducement. These allegations are indistinguishable from the facts of Woodson. While Woodson held that the economic loss rule barred the plaintiff's fraudulent inducement claim, HTP disapproved Woodson and held that this type of *272 fraudulent inducement claim is not barred by the economic loss rule. The court erred in dismissing the complaint with prejudice. We reverse and remand for further proceedings. STONE, J., and BRYAN, BEN L., JR., Associate Judge, concur.

Honorable R. L. Coffman Opinion Ro. C-501 Administrator Texas mployment Commission Re: Requisites for issuance, Austin, Texas service, and enforcement of Commission subpoenasunder Dear Mr. Coffman: Article 5221b-g(g),V.C.S. You have requested our opinion relative to five questions, and we will discuss and answer them in a different order from which you stated them, in order to more clearly develop the subject. One of the questions propoundedby you in your opinion re- quest was whether Article 5221b-g(g),V.C.S., authorized the filing of criminal proceedings or merely prescribes the penalty to be assessed in contempt proceedings in connectionwith a court order commanding obedience to the Commission's subpoena. The cardinal rule of statutory interpretationis to ascertain the intent of the Legislatureafter reading the statute as a whole and in light of past laws. Article 5221b-g(g)provides as follows: macy "') Subpoenas: In case of contu- or refusal to obey a subpoena issued iy a member of the Commission or any duly authorized representative thereof to any person, any County or District Court of this State within the jurisdictionof which the inquiry ‘iscarried on or within the jurisdic- tion of which said uerson guilty of contumacv or refusal to ob& is-found or residks or transacts business, application by the Commission or iF=- s duly authorized representative,shall have jurisdictionto issue to such erson an order requiring such person representative,there to produce evi- denceif so ordered or there to give touching the matter under i5%%Y- gation or in question; and any -2368- Hon. R. L. Coffman, page 2 (C-501) failure to obey such order of the court may be punished by said court as a contempt thereof. Any person who shall without just cause fail or refuse to attend and testify or to answer any law- ful inquiry or to produce books, papers, correspondence,memoranda, and other records, if it is in his power so to do, in obedience to a subpoena of the Com- mission, shall be punished by a fine of not less than Two Hundred Dollars ($200), or by imprisonmentfor not longer than, sixty (60) days, or by both such fine and imprisonment,and each day such vio- lation continues shall be deemed to be a separate offense." (Rmphasisadded) After reading Section (g) of Article 5221b-9 as a whole, it is clear that the Legislaturemerely intended to prescribe a penalty to be assessed in contempt proceedings in connectionwith a court order commanding obedience to the Commission'ssubpoena rather than authorizingthe filing of criminal proceedings. The third question in your opinion request was whether mis- demeanor charges may be filed under Article 5221b-g(g) in cases where the subpoena is not signed by three (3) Commissioners who comprise the Texas Employment Commissionbut rather by duly authorized representatives. In light of our holding above, we feel this question is not germane since misdemeanor charges are not authorizedby the Act. You also asked whether a witness fee must be tendered with service of the Administrativesubpoena and in answer thereto we would again direct your attention to Article 5221b-9, and state that this Act does not provide for tender of any witness fee. Therefore, it is the opinion of this office that no witness fee need be tendered with service of the Administrative subpoena. The first question asked by your opinion request was whether a subpoena issued under Article 5221b-9 may be lawfully served by someone other than a peace officer. Article 5221b-9 does not directly provide who may serve such a subpoena. It is elementarythat in determininglegislativeintent one should look to the entire act and all of its terms. Barber v. Giles, 146 Tex. 401, 208 s.w.2a 553 (1948); Mason v. Q est Texas fnmties Co., 150 Tex. 18, 237 s.w.2a 273 (1951 R d Waco, . . 247 (Tex.Civ.App.1949, error ref.). 'it zi aI;o -2369- Hon. R. L. Coffman, page 3 (C-501) elementarythat in determininglegislativeintent one should look to the history of the legislationfinquestion. 53 Tex.Jur.2d 252. In light of these two rules of interpretationit should be noted that subsection (f) of Article 5221b-g,,V.C.S.,was amended by the 59th Legislature of the State of Texas. Subsection (f) of Article 5221b-9, V.C.S., prior to amendment provided as follows: "(f) Oaths and Witnesses: In the discharge of the duties imposed by this Act, the chairman of an appeal tribunal and any duly authorized representativeor member of the Commission shall have power to administer oaths and affirmations,take depositions,certify to official acts, and issue subpoenas to compel the attendance of witnesses and the production of books, papers, correspondence,memoranda, and other records deemed necessary as evidence in connectionwith a disputed claim or the administrationof this Act." Subsection (f) as amended by Chapter 150 of the 59th Legis- lature provides as follows: "(f) Oaths and Witnesses: . Notwithstandingthe provisions of'Article 3912e, Vernon's Texas Civil Statutes, or anv other nrovision of the laws of this It is therefore the opinion of this office that a sheriff or constable would be the proper person to lawfully serve the administrativesubpoena in question. Your fifth uestion was whether the punishment provided in Article 5221b-97g), V.C.S., is unconstitutionaland in answer thereto we state that we are unable to find any ground on which this provision could be held unconstitutional. SUMMARY 1. Article 5221b-g(g),V.C.S., prescribes the -2370- Hon. R. L. Coffman, page 4 (C-501) penalty to be assess.edin contempt pro- ceedings in connectionwith a court order commanding obedience to the Com- mission's subpoena. 2. A witness fee need not be tendered with service of the administrativesubpoena. 3. The administrativesubpoena authorized under Article 5221b-g(g),V.C.S., should be served by a sheriff or constable. 4. The punishment provided by Article 5221b- 9(g), V.G.S., is constitutional. Yours very truly, WAGGONRRCARR Attorney General of Texss torney General JPB:sss APPROVED: OPINION COMMITTEE W. V. Geppert, Chairman Pat Bailey Brandon Bickett Robert Norris Howard M. Fender APPROVED FOR TRE ATTORNEY GENRRAL BY: T. B. wright -2371- 

32 A.3d 286 (2011) COM. v. EMMANUELLE. No. 2700 EDA 2010. Superior Court of Pennsylvania. July 29, 2011. Affirmed.

Fourth Court of Appeals San Antonio, Texas March 4, 2020 No. 04-20-00069-CV IN RE Devry Marie SAENZ Original Mandamus Proceeding 1 ORDER On January 31, 2020, relator filed a petition for writ of mandamus and a motion for temporary relief asking this court to vacate or stay the trial court’s order of commitment or set a bond on such commitment in a reasonable amount. On January 31, 2020, this court granted the motion for temporary relief and ordered relator released from confinement on a cash bond pending final resolution of relator’s petition. The real party in interest filed a response to the petition for writ of mandamus. After considering the petition, the response, and the record, this court concludes relator is not entitled to the relief sought. Accordingly, we deny the petition for writ of mandamus, revoke relator’s bond, and order her remanded to the custody of the Sheriff of Kendall County. It is so ORDERED on March 4, 2020. _____________________________ Rebeca C. Martinez, Justice IN WITNESS WHEREOF, I have hereunto set my hand and affixed the seal of the said court on this 4th day of March, 2020. _____________________________ Michael A. Cruz, Clerk of Court 1 This proceeding arises out of Cause No. 17-538, styled In the Marriage of Devry Marie Saenz and Matthew Joseph Springer, and In the Interest of L.V.S., P.M.S., and P.M.S., Children, pending in the 451st Judicial District Court, Kendall County, Texas, the Honorable Solomon Casseb, III presiding. 

66 So.2d 204 (1953) FOSTER v. STATE. 8 Div. 243. Court of Appeals of Alabama. June 9, 1953. *206 Bradshaw, Barnett & Haltom and E. B. Haltom, Jr., Florence, for appellant. Si Garrett, Atty. Gen., and Robt. P. Bradley, Asst. Atty. Gen., for the State. CARR, Presiding Judge. On an indictment charging murder in the first degree, the indictee was convicted of the lesser offense of manslaughter in the first degree. The defendant introduced a number of character witnesses. With only a few exceptions they declared that they knew the general character of the defendant and that it was good. Then followed: "I will ask you if prior to this May 24th, 1952, you ever heard anything against his character?" In each instance the court sustained the State's objection to this question. The early case of Hussey v. State, 87 Ala. 121, 6 So. 420, 423, has become the master authority on the question of the right of a defendant to introduce negative evidence in support of his good character. This case has been cited many times in subsequent appellate court opinions. Justice Somerville, writing for the Supreme Court, had this to say: "The rulings of the court below raise in this case a question of evidence which is of great importance, as it occurs to us, in the practical administration of justice. It involves the right of a defendant to introduce negative testimony in support of his good character,—a right which does not seem to be recognized by the old text-writers and authorities, but may be said to be accorded from necessity almost universally by the nisi prius courts in the trial of causes. The defendant was allowed to prove his good character generally for peace and quiet,—an issue having reference to the nature of the charge against him, which was murder. Two witnesses were asked the question whether they had `ever heard of the defendant having any other difficulty except the one in question?' This question was objected to by the state, and on such objection was excluded. There is good authority in support of this ruling of the circuit court, but we are all of one opinion, that the question should have been allowed. Bare evidence by a witness that he knows the general character of a given person, and it is good, or very good, or excellent, is, after all, closely analogous to a mere opinion in the nature of a fact, and, standing alone, carries with it an impression that it is lacking in some element to give force to the statement. The party testifying can render it more satisfactory and convincing by showing the foundation on which it rests. It is well to prove a person to be reputed honest, or truthful, or a woman chaste, or a man loyal to his country, or peaceably disposed towards all his neighbors. But great emphasis is added by the declaration that the witness, who has had every opportunity to know, has never heard any human being challenge the honesty or veracity of the one, or breathe the slightest breath of suspicion on the virtue of the other, or assert any fact which goes to deny the loyalty or question the humanity and orderly conduct of the third. It is only to put the matter in a slightly different form to inquire of the deposing witness whether he had ever heard of any act or conduct in refutation of the good repute which he has affirmed of the person in question. To say his character is good is a positive expression of the fact. To say that the witness has never heard anything against his character, as to the particular phase in which it is put in issue, is negative in form, but often more satisfactory than evidence of a positive character. "The propriety of this rule, permitting negative evidence of good character, *207 is gradually forcing itself upon the recognition of the courts, and there is a current of modern authority rapidly forming in support of it." In the fairly recent case of Echols v. State, Ala.App., 55 So.2d 522, we held in effect that, if a witness gives positive testimony that the defendant's character and reputation are good, it is error without injury to deny the right to introduce negative testimony in support of good character. This view is out of line with the authorities, and in this aspect the opinion must be disapproved. The incorrectness of the holding in the Echols case is clearly illustrated by the conclusions reached in Dyess v. State, 224 Ala. 610, 141 So. 662. We have the original record before us. The character witnesses, with the exception of one, gave positive statements that the character of the defendant was good. Unlike the order of proof in the case at bar, this was proven after efforts were made to establish the negative evidence. The court held that this was unimportant. We have examined the original record in Singley v. State, 256 Ala. 56, 53 So.2d 729. In that case the witnesses made positive statements that the character of the defendant was good. It is to be noted that Justice Lawson cited Dyess v. State, supra, among the authorities to support his view that it was error to disallow proof of the negative evidence. The trial judge fell into error in sustaining the State's objections to the indicated questions. This is decisive of this appeal, but as a guide for another trial we will review the action of the court in refusing a number of written instructions which were tendered by the defendant. The charges which relate to murder were made inapplicable by the verdict of the jury. Brake v. State, 8 Ala.App. 98, 63 So. 11. Charges numbered 45, 49, and 76 were covered substantially by the oral charge or written instructions given at the instance of the appellant. Title 7, Sec. 273, Code 1940. Those numbered 18, 24, 25, and 67 are not based on the evidence. Edwards v. State, 205 Ala. 160, 87 So. 179. Charge 15 does not take into account the lesser degrees of unlawful homicide which are included in the indictment. Burkett v. State, 154 Ala. 19, 45 So. 682; Thompson v. State, 131 Ala. 18, 31 So. 725. It is likely faulty in other aspects. Davis v. State, 8 Ala.App. 147, 62 So. 1027. Instruction number 19 was approved in Gilbert v. State, 20 Ala.App. 565, 104 So. 45. In Shikles v. State, 31 Ala.App. 423, 18 So.2d 412, we did not specifically condemn the charge, but we held that it was nothing more than an instruction on reasonable doubt. In more recent cases it has been disapproved. Robinson v. State, 243 Ala. 684, 11 So.2d 732; Waller v. State, 32 Ala.App. 586, 28 So.2d 815; Maxwell v. State, 32 Ala.App. 487, 27 So.2d 804. The authorities now hold that it is not error to refuse charge 20. See Hannon v. State, 34 Ala.App. 173, 38 So.2d 26. The courts no longer approve the use of the expression "probability of defendant's innocence" in written instructions. Charge 38 was refused without error. Whittle v. State, 213 Ala. 301, 104 So. 668. Charge 41 contains statements that might be appropriate in argument to the jury, but not in a given written instruction. Under the evidence the deceased did not become a trespasser when he entered the defendant's place of business. Hanners v. State, 147 Ala. 27, 41 So. 973. See also Burns v. State, 251 Ala. 2, 36 So.2d 225; Maxwell v. State, supra; Cauley v. State, 33 Ala.App. 557, 36 So.2d 347. Charge 43 is also argumentative and fails to include the essential element of freedom from fault. Our study of the authorities leads to the conclusion that in the earlier cases the appellate courts did not have a tendency to condemn written instructions because they were not based on the evidence. Charge 52 in the case at bar does not contain this hypothesis. Even so, it was approved in the following cases: Gregory v. State, 140 Ala. 16, 37 So. 259; Brown v. State, 118 Ala. *208 111, 23 So. 81; Howard v. State, 151 Ala. 22, 44 So. 95; Wilson v. State, 14 Ala.App. 87, 71 So. 971; Baker v. State, 19 Ala.App. 437, 97 So. 901; Clayton v. State, 23 Ala. App. 150, 123 So. 250. In the more recent cases the appellate courts seem to be committed to the view that a written charge which is not hypothesized on the evidence may be properly refused. For this reason charge 52 in the instant case was disapproved in: Baker v. State, 210 Ala. 320, 97 So. 903; Deloney v. State, 225 Ala. 65, 142 So. 432; Wood v. State, 17 Ala.App. 654, 88 So. 28; Rountree v. State, 20 Ala.App. 225, 101 So. 325; DuBose v. State, 19 Ala.App. 630, 99 So. 746; and Morgan v. State, 20 Ala.App. 331, 102 So. 236. Charge 53 is substantially a duplicate of refused charge number 38. Instruction numbered 54 was properly refused. Vernon v. State, 239 Ala. 593, 196 So. 96; Bankhead v. State, 33 Ala.App. 269, 32 So.2d 814; Register v. State, 34 Ala. App. 505, 42 So.2d 519; Stovall v. State, 34 Ala.App. 610, 42 So.2d 636; Russell v. State, Ala.App., 52 So.2d 230. It was not error to refuse charge 72. Goodman v. State, 15 Ala.App. 161, 72 So. 687. Charge 75 is argumentative and invasive of the province of the jury. Cox v. State, 22 Ala.App. 102, 112 So. 898; Harris v. State, 22 Ala.App. 121, 113 So. 318; Murphy v. State, 22 Ala.App. 163, 113 So. 623; Stover v. State, 24 Ala.App. 596, 139 So. 573; Crumbley v. State, 26 Ala.App. 24, 152 So. 55; Pratt v. State, 27 Ala.App. 301, 171 So. 393; Carroll v. State, Ala. App., 52 So.2d 171. It may be noted that we approved this charge in Crisp v. State, 21 Ala.App. 449, 109 So. 282. We abandoned this view in the case of Murphy v. State, supra, and expressly overruled the Crisp case in this aspect. The propriety of the refusal of charge 77 is discussed and illustrated in May v. State, 253 Ala. 517, 45 So.2d 698. For error indicated the judgment below is ordered reversed and the cause remanded. Reversed and remanded.

586 S.E.2d 732 (2003) 262 Ga. App. 838 SIMMONS v. FUTRAL. No. A03A0918. Court of Appeals of Georgia. August 21, 2003. Neal H. Howard & Associates, Neal H. Howard, Atlanta, William D. James, for appellant. Edward N. Davis, Butler, for appellee. BLACKBURN, Presiding Judge. J.E. Simmons appeals the trial court's grant of summary judgment to defendant Thomas W. Futral in this defamation and slander of title action, contending that the trial court erred in determining that the language contained in Futral's surveyor's lien is absolutely privileged under OCGA § 51-5-8. While the statements in the lien here are not absolutely privileged, we affirm this ruling because Simmons failed to establish the falsity of the lien statements. Simmons also sought to cancel the lien, and Futral counterclaimed to enforce it. Each filed motions for summary judgment. Based on its determination that Futral had failed to file notice of his intent to enforce his lien as required by OCGA § 44-14-361.1(a)(3), the trial court denied Futral's motion for summary judgment on Simmons's complaint to cancel the lien and granted Simmons's motion for summary judgment on Futral's counterclaim to enforce it. The issue of the lien's enforceability was not raised on appeal, and we do not address it here. We review de novo a trial court's grant of summary judgment. JarAllah v. Schoen.[1] To prevail at summary judgment, the moving party must demonstrate that there is no genuine issue of material fact and that the undisputed facts, viewed in the nonmovant's favor, warrant judgment as a matter of law. OCGA § 9-11-56(c). A defendant who will not bear the burden of proof at trial need only show an absence of evidence to support an essential element of the nonmoving party's *733 case. "If the moving party discharges this burden, the nonmoving party cannot rest on its pleadings, but rather must point to specific evidence giving rise to a triable issue." Lau's Corp. v. Haskins.[2] Viewed in this light, the evidence shows that Simmons hired Futral to survey and subdivide three lots owned by him. Later, Simmons became dissatisfied with Futral's work and disputed Futral's fees. As a result, Futral recorded a surveyor's lien for $3,500 on all three lots, ostensibly pursuant to OCGA § 44-14-361.1(a)(2). Simmons then filed suit against Futral, seeking, among other things, damages for defamation of title under OCGA § 51-9-11 and for libel and libel per se, claiming the liens were "false" because he had allegedly already paid for Futral's services on Lots 46 and 51, two of the lots surveyed. OCGA § 51-5-8 grants absolute privilege from suit for defamatory statements made in "[a]ll charges, allegations, and averments contained in regular pleadings filed in a court of competent jurisdiction, which are pertinent and material to the relief sought, whether legally sufficient to obtain it or not, are privileged. However false and malicious such charges, allegations, and averments may be, they shall not be deemed libelous." Id. The doctrine of absolute privilege, which denies an otherwise basic legal right, is premised on public policy issues. Fedderwitz v. Lamb.[3] As our Supreme Court stated, [t]he wisdom of so broad a privilege lies in the recognition that, without it, every complaint filed could generate a counterclaim for defamation. The privilege is intended "for the promotion of the public welfare, the purpose being that members of the legislature, judges of courts, jurors, lawyers, and witnesses may speak their minds freely and exercise their respective functions without incurring the risk of a criminal prosecution or an action for the recovery of damages." Stewart v. Walton[4] (quoting Fedderwitz, supra). On the other hand, "it is the policy of this state to restrict the rule of absolute privilege in the law of libel to `narrow and well-defined limits,'" Davis v. Shavers[5] (quoting Fedderwitz, supra at 697), 25 S.E.2d 414, specifically including statements made in "official court documents" and "acts of legal process." Williams v. Stepler.[6] Generally, a statement will only be absolutely privileged if at least a quasi-judicial review is otherwise available to determine its truth. Davis, supra. The questions now before this Court are whether and to what extent the privilege afforded by OCGA § 51-5-8 applies to statements made in a surveyor's lien. Two Court of Appeals of Georgia cases have addressed similar factual situations, reaching different results. In Carl E. Jones Dev. v. Wilson,[7] decided in 1979, we held that the absolute privilege of OCGA § 51-5-8 does not apply to an allegedly defamatory mechanic's lien. In so holding, we cited Shirah Contracting Co. v. Waite[8] for the proposition that a lien is not a pleading, but is merely evidence. Carl E. Jones Dev., supra at 681, 255 S.E.2d 135. However, the Shirah case addressed whether a lien is a pleading for purposes of the Civil Practice Act, and it has since been made clear that "we have not strictly limited the privilege under OCGA § 51-5-8 to `pleadings' as they are defined under OCGA § 9-11-7(a)." Williams, supra at 595(3), 490 S.E.2d 167. See, e.g., Bell v. Anderson[9] (certain statements made during trial); Berger v. Shea[10] (valid lis pendens, as mere notice and republication of a filed, privileged complaint). *734 In the 1990 case of Eurostyle, Inc. v. Jones,[11] on the other hand, we held "that Eurostyle's filing of the lien and action to enforce the lien were privileged under OCGA § 51-5-8." While these cases seem to create a conflict, their holdings are very generally worded and their facts are distinguishable. Viewed in the light of related Georgia precedent and with guidance from our sister states, they can be reconciled to hold that a surveyor's lien becomes absolutely privileged only after certain procedural steps are taken to further formalize it. This approach is consistent with the reasoning of courts in several other states. In New Jersey and Alabama, a lien does not become absolutely privileged until a lawsuit is commenced to enforce it, thus deeming it part of a judicial proceeding. Peters Well Drilling Co. v. Hanzula;[12]Sisson v. J.F. Day & Co.[13] In Virginia, liens are absolutely privileged, but only when verified. Donohoe Constr. Co. v. Mount Vernon Assoc.[14] The South Dakota Supreme Court, in Gregory's, Inc. v. Haan,[15] explained why a lien standing alone should not be afforded the absolute privilege: "[A] materialman's lien may be ancillary to judicial action—the filing is a prerequisite to a lien foreclosure. Still, a lawsuit will not necessarily follow from filing a lien and often does not. Yet the lien may remain a valid encumbrance on the property for many years and the property owner must take action to force its removal. We conclude the filing of [a] materialman's lien is not a judicial proceeding, so [only the conditional privilege applies]." (Citations omitted.) Id. at 493-494. In Georgia, a land surveyor has a lien on any real property for which he furnishes labor. OCGA § 44-14-361. To perfect and enforce that lien, the surveyor must take several formal procedural steps. He must (1) file it in the records of the superior court where the property is located within three months of completing the work, (2) notify the property owner that he has filed the lien, and (3) file suit to enforce the lien within twelve months of the date the claim is due. None of these filings must be verified. However, within 14 days of filing suit, the lien claimant must file notice of the suit, and that notice must be made under oath. OCGA § 44-14-361.1(a)(3). If the lien is not perfected by suit and verified notice within 12 months of the contested bill's due date, the property owner may petition to have the lien cancelled. OCGA § 44-14-362. Taking into account the principles and precedents stated by Georgia's appellate courts, the varying approaches of our sister states, and our own lien statutes, we find that a lien is not a pleading for purposes of OCGA § 51-5-8, and statements made within it are not afforded absolute privilege, until the lien becomes attached to a lawsuit and verified notice of the suit is filed under OCGA § 44-14-361.1. At that point, the lien becomes an act of legal, or judicial, process, Williams, supra, and achieves the formality, solemnity, and status of sworn testimony. The facts of this case further illustrate why liens should not be afforded absolute privilege until all procedural requisites are met. Here, because Futral never fulfilled his procedural requisites, his suit was dismissed before the truth or falsity of his statements could be determined. Only after Futral committed himself by swearing under oath to the truth of his statements, the final procedural hurdle, would a suit on the merits be otherwise available to Futral. We hold that, because Futral never filed a verified notice following the filing of his counterclaim, the statements made in his lien are not subject to the absolute privilege of OCGA § 51-5-8, but only to the conditional privilege of OCGA § 51-5-7. See F.S. Assoc., Ltd. v. McMichael's Constr. Co.[16] In ruling *735 that liens are absolutely privileged under OCGA § 51-5-8, the trial court acknowledged the apparent split of authority between Carl E. Jones Dev., supra, and Eurostyle, Inc., supra, and purported to follow our holding in Eurostyle, Inc. as the more recent case. However, because Eurostyle, Inc., correctly interpreted, stands for the proposition that liens are absolutely privileged only when legitimately part of a valid suit to enforce them, we conclude that the trial court misapplied this precedent. Futral argues that statements in liens should be absolutely privileged under OCGA § 51-5-8 as a matter of public policy because filing such a lien is a statutory prerequisite to bringing a complaint to enforce it. See OCGA § 44-14-361.1(a)(2). That reasoning was recently rejected by this Court in the context of filed foreclosure notices prepared in accordance with statutory requirements. See Boaz v. Latson[17] (physical precedent only). Furthermore, we note that while filing the lien is necessary in order to sue to enforce it, a lawsuit does not necessarily follow from filing a lien, yet the lien may remain an encumbrance on the property for 12 months. Although we find that the statements in Futral's lien are not absolutely privileged, we must affirm the trial court's grant of summary judgment because Simmons failed to present evidence of falsity necessary to support his prima facie case for defamation, libel, and libel per se. Hanna v. McWilliams[18] (summary judgment right for any reason must be affirmed). Defamation of title requires: (1) publication of slanderous or libelous words; (2) with malice; (3) causing special damages; and (4) regarding property in which the plaintiff has an ownership interest. OCGA § 51-9-11. A false lien may support a cause of action for defamation of title under OCGA § 51-9-11, Daniels v. Johnson,[19] but the statements in the lien must be false and the claimant must be aware of their falsity. Lincoln Log Homes Marketing v. Holbrook.[20] Similarly, libel requires proof of "a false and malicious defamation of another, expressed in print." OCGA § 51-5-1. The burden of proving falsity is on the plaintiff. Jaillett v. Ga. Television Co.[21] The evidence is undisputed that Futral performed work on Lots 46 and 51 and was paid for it. However, the evidence is also undisputed that Futral later performed additional work on those lots at Simmons's request, and billed him accordingly. Simmons's verified complaint sets forth only conclusions that he fully paid his bill in regard to the work on those two lots, and his interrogatory responses indicate only that he was unhappy with some of Futral's work. Simmons has presented no evidence that he paid Futral for the additional work or that no payment was owing. In contrast, Futral has offered specific evidence of the additional work he performed at Simmons's request, and has referenced and attached copies of itemized bills and correspondence regarding that work in his interrogatory responses. Simmons's conclusory statements, although sworn, do not create a material issue of fact regarding the falsity of the statements in the lien. McCarter v. La Hacienda Condo. Assn.[22] Because Simmons's claims require a showing of falsity, they must fail. Judgment affirmed. ELLINGTON and PHIPPS, JJ., concur. NOTES [1] JarAllah v. Schoen, 243 Ga.App. 402, 403, 531 S.E.2d 778 (2000). [2] Lau's Corp. v. Haskins, 261 Ga. 491, 405 S.E.2d 474 (1991). [3] Fedderwitz v. Lamb, 195 Ga. 691, 696, 25 S.E.2d 414 (1943). [4] Stewart v. Walton, 254 Ga. 81, 82(2), 326 S.E.2d 738 (1985). [5] Davis v. Shavers, 269 Ga. 75, 76, 495 S.E.2d 23 (1998). [6] Williams v. Stepler, 227 Ga.App. 591, 595(3), 490 S.E.2d 167 (1997). [7] Carl E. Jones Dev. v. Wilson, 149 Ga.App. 679, 255 S.E.2d 135 (1979). [8] Shirah Contracting Co. v. Waite, 143 Ga.App. 355, 238 S.E.2d 728 (1977). [9] Bell v. Anderson, 194 Ga.App. 27, 28, 389 S.E.2d 762 (1989). [10] Berger v. Shea, 150 Ga.App. 812, 258 S.E.2d 621 (1979). [11] Eurostyle, Inc. v. Jones, 197 Ga.App. 188(2), 397 S.E.2d 620 (1990). [12] Peters Well Drilling Co. v. Hanzula, 242 N.J.Super. 16, 575 A.2d 1375 (1990). [13] Sisson v. J.F. Day & Co., 619 So.2d 1339 (Ala.1993). [14] Donohoe Constr. Co. v. Mount Vernon Assoc., 235 Va. 531, 369 S.E.2d 857 (1988). [15] Gregory's, Inc. v. Haan, 545 N.W.2d 488, 1996 SD 35 (1996). [16] F.S. Assoc., Ltd. v. McMichael's Constr. Co., 197 Ga.App. 705, 399 S.E.2d 479 (1990). [17] Boaz v. Latson, 260 Ga.App. 752, 580 S.E.2d 572 (2003). [18] Hanna v. McWilliams, 213 Ga.App. 648, 651(3), 446 S.E.2d 741 (1994). [19] Daniels v. Johnson, 191 Ga.App. 70, 73(2), 381 S.E.2d 87 (1989). [20] Lincoln Log Homes Marketing v. Holbrook, 163 Ga.App. 592, 594(2), 295 S.E.2d 567 (1982). [21] Jaillett v. Ga. Television Co., 238 Ga.App. 885, 520 S.E.2d 721 (1999). [22] McCarter v. La Hacienda Condo. Assn., 255 Ga.App. 68, 69-70, 564 S.E.2d 483 (2002).

647 S.E.2d 592 (2007) PETERSON v. The STATE. No. S07A0471. Supreme Court of Georgia. July 13, 2007. *593 Dell Jackson, Atlanta, for Appellant. Paul L. Howard, Jr., Dist. Atty., Elizabeth A. Baker, Asst. Dist. Atty., Bettieanne C. Hart, Asst. Dist. Atty., Thurbert E. Baker, Atty. Gen., Robin Joy Leigh, Asst. Atty. Gen., for Appellee. HINES, Justice. Terri Lynn Peterson ("Peterson") appeals from her conviction for malice murder in connection with the death of her five-year-old nephew, Terrell Peterson ("Terrell"). For the reasons that follow, we affirm.[1] *594 Construed to support the verdicts and judgement of conviction, the evidence showed that Terrell lived with Peterson, her boyfriend Calvin Pittman, Peterson's mother Pharina Peterson, and Terrell's brother Tommy Peterson and sister Tasha Peterson; at the time of Terrell's death, Tasha was eleven years old and Tommy was six years old. Along with her mother, Peterson raised the children, and was responsible for feeding and disciplining Terrell. Peterson telephoned 911 when Terrell was not breathing. Terrell arrived at the hospital in cardiac arrest and died 45 minutes later. The treating physician contacted the police because Terrell displayed the worst symptoms of child abuse that the physician had seen. Terrell had a recurring pattern of abrasions from the back of his head to the bottom of his feet, which indicated that a telephone cord, belt, and dog collar were used to beat him for as much as a year prior to his death. Bruises and scars covered his face in varying hues of purple, depending on the age of the wounds. Ligature marks encircled his wrists, and Terrell's DNA was found on a pair of pantyhose used to bind him, as well as on a belt and dog collar. Swollen lips and lacerations to the mouth revealed that someone had fed him aggressively; scarring to the mouth indicated repeated forceful feeding. The medical examiner determined Terrell's death to be a homicide from chronic and acute abuse, with recent and remote blunt impact injuries to the head, trunk, and extremities. Peterson, Tasha, and Tommy told the police that Terrell slept on a pallet in the hallway and was tied up when he was bad, and Peterson said that he was "always bad." Terrell was permitted to eat only grits, rice, or oatmeal. He was malnourished and lacked body fat. Tasha testified that Peterson whipped Terrell with an extension cord and hit him with her hand, and that she ordered Tasha and Tommy to beat Terrell. Peterson tied Terrell to a banister for most of every day and made him sleep nearby on a pallet in the hallway. She fed Terrell roughly with a large spoon. As punishment, she made him stand on a heating grate, burning his foot so badly that he needed a skin graft to save it. Peterson treated Terrell this way because she believed that he was not actually her nephew, but had been fathered by someone other than her brother. Terrell's teachers reported that he had a ravenous hunger at school. He sometimes stole food from them, and once attempted to eat out of a garbage can. Peterson told Terrell's teachers to feed him less so that he would not defecate on the floor. At home, Peterson fed Terrell only barley, oatmeal, and water. Peterson repeatedly forced Terrell to eat waste from the toilet. 1. Peterson contends that the evidence was insufficient, asserting that the evidence did not demonstrate that she was the perpetrator of any acts that resulted in Terrell's death. There was ample evidence presented showing that Peterson struck and beat Terrell, and deprived him of necessary nutrition, as alleged in the indictment, and that these actions caused the child's death. The jury was authorized to find Peterson guilty beyond a reasonable doubt of the crime of which she was convicted and for which she was sentenced. Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979). 2. During jury voir dire, Peterson sought to strike several prospective jurors for cause, and now challenges the trial court's refusal to strike eight of these prospective jurors. Whether to strike a juror for cause lies within the sound discretion of the trial court. Garland v. State, 263 Ga. 495, 496(1), 435 S.E.2d 431 (1993). For a juror to be excused for cause, it must be shown that he or she holds an opinion of the guilt or innocence of the defendant that is so fixed and definite that the juror will be unable to set the opinion aside and decide the case based upon the evidence or the court's charge upon the evidence. Id.; McClain v. State, 267 Ga. 378, 380(1)(a), 477 S.E.2d 814 (1996). A prospective juror's doubt as to his or her own impartiality *595 does not demand as a matter of law that he or she be excused for cause. Waldrip v. State, 267 Ga. 739, 745(8)(c), 482 S.E.2d 299 (1997). Nor is excusal required when a potential juror states that he or she will "try" to decide the case based upon the court's instructions and the evidence. Brady v. State, 270 Ga. 574, 575(2), 513 S.E.2d 199 (1999); Holmes v. State, 269 Ga. 124, 126(2), 498 S.E.2d 732 (1998); Garland, supra. A conclusion on an issue of juror bias is based on findings of demeanor and credibility which are peculiarly in the trial court's province, and those findings are to be given deference. Kirkland v. State, 271 Ga. 217, 219(2), 518 S.E.2d 687 (1999). Corza v. State, 273 Ga. 164, 166(3), 539 S.E.2d 149 (2000). (a) Peterson sought to strike four prospective jurors who had gleaned some knowledge of the case from news coverage, asserting that their knowledge relieved the State of a portion of its burden of proof. However, all four of these prospective jurors stated that they would decide the case based on the law and the evidence presented, and the trial court did not abuse its discretion in denying Peterson's motions to strike these jurors. See Lawler v. State, 276 Ga. 229, 235(5), 576 S.E.2d 841 (2003); Spivey v. State, 253 Ga. 187, 196(6)(d), 319 S.E.2d 420 (1984). (b) Peterson contends that, because a child was the victim, two prospective jurors had formed opinions regarding the case that would require that Peterson prove that she did not kill Terrell. However, the prospective jurors' responses to questions do not show that they had formed fixed and definite opinions regarding the case. Additionally, after they were questioned further and informed of the instructions the trial court would administer, both prospective jurors stated they could decide the case based upon the evidence and the court's instructions. It was not an abuse of discretion to refuse to strike these prospective jurors. Roberts v. State, 276 Ga. 258, 259(2), 577 S.E.2d 580 (2003). (c) Peterson asserted in the trial court that two prospective jurors were biased against her and needed to be struck for cause. Again, the prospective jurors stated that they could appropriately decide Peterson's guilt, and, as the record does not reveal that these prospective jurors had formed a "fixed and implacable opinion" as to Peterson's guilt, the trial court did not abuse its discretion in denying the motions to strike these prospective jurors. Cox v. State, 279 Ga. 223, 226(5), 610 S.E.2d 521 (2005). 3. Peterson advances several instances of prosecutorial misconduct. However, Peterson did not object to the State's allegedly improper remarks during its opening statement, the State's implication during closing argument that a witness testified who in fact did not do so, or to the State's religious reference made during its closing argument, and thus she has waived review of any error based on those instances. Smith v. State, 277 Ga. 213, 218(11)(a), 586 S.E.2d 639 (2003); Phillips v. State, 275 Ga. 595, 598(5), 571 S.E.2d 361 (2002).[2] When the State cross-examined Peterson, it noted the conflict between her testimony and that of other witnesses, and asked her whether the other witnesses had lied, or had bad memories. However, the questions posed to Peterson served to point out conflicts in the evidence, the jury was properly charged regarding its duty to resolve questions of witness credibility, and there was no reversible error. See Carreker v. State, 273 Ga. 371, 372(3), 541 S.E.2d 364 (2001); Whatley v. State, 270 Ga. 296, 301(13), 509 S.E.2d 45 (1998). During closing argument, the State referred to Peterson as "evil" and untruthful. Peterson objected, and the court properly instructed the jury that closing arguments were not evidence. Further, the State's characterizations were permissible given the *596 evidence, and such oratory is not error requiring reversal. Harris v. State, 279 Ga. 522, 525(4), 615 S.E.2d 532 (2005); Simmons v. State, 266 Ga. 223, 228(6)(b), 466 S.E.2d 205 (1996). 4. Peterson claims that trial counsel failed in several respects to provide effective representation. In order to prevail on this claim, Peterson must show both that counsel's performance was deficient, and that the deficient performance was prejudicial to her defense. Smith v. Francis, 253 Ga. 782, 783(1), 325 S.E.2d 362 (1985), citing Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). To meet the first prong of the required test, the defendant must overcome the "strong presumption" that counsel's performance fell within a "wide range of reasonable professional conduct," and that counsel's decisions were "made in the exercise of reasonable professional judgment." Id. The reasonableness of counsel's conduct is examined from counsel's perspective at the time of trial and under the particular circumstances of the case. Id. at 784, 325 S.E.2d 362. To meet the second prong of the test, the defendant must show that there is a reasonable probability that, absent any unprofessional errors on counsel's part, the result of her trial would have been different. Id. at 783, 325 S.E.2d 362. "`We accept the trial court's factual findings and credibility determinations unless clearly erroneous, but we independently apply the legal principles to the facts.' [Cit.]" Robinson v. State, 277 Ga. 75, 76, 586 S.E.2d 313 (2003). (a) In its opening statement, the State, referring to Terrell's brother who was six years old at the time of Terrell's death, said: I don't expect you will hear from Tommy Peterson in this trial. If you do hear anything about him, I think the evidence will be that he is too traumatized to be able to testify to you. So you will not be hearing from Tommy because of that, because of his condition from this and from seeing what he saw. Peterson contends that her trial counsel was ineffective for not objecting to this portion of the opening statement. During the hearing on Peterson's motion for new trial, trial counsel testified that he expected that Tommy Peterson would testify, and that he did not consider the prosecutor's statement to be harmful to Peterson, as it was the defense's position that if Tommy Peterson was traumatized, it was not due to the defendant. In any event, Peterson fails to show that the result of her trial would have been different if an objection was made. The State's opening statement is to be confined to what [the prosecutor] expects the evidence to prove at trial. [Cit.] If a prosecutor fails to follow that requirement, a conviction will not be reversed if the opening statement was made in good faith, and the trial court instructs the jury that opening statements are not to be considered as evidence during deliberations. [Cit.] Hartry v. State, 270 Ga. 596, 599(2), 512 S.E.2d 251 (1999). Peterson fails to make any showing that the prosecutor's opening statement was made in bad faith, and the jury was properly charged that the opening statements were not evidence. (b) Also during its opening statement, the State said that Peterson and her mother "basically set up a system. Now, what it was was this boy was to be beaten all the time." The State also told the jury: "This is something [Peterson] and her mother carried out together." Peterson notes that, under OCGA § 24-3-5, the fact of a conspiracy must be shown before statements of a co-conspirator would be admissible against her, and contends that counsel should have objected to this portion of the State's opening statement because the requirements for introducing evidence of a conspiracy had not been met.[3] To the extent that Peterson questioned trial counsel at the hearing on her motion for new trial on this subject, counsel testified that he did not object to this portion of the State's opening statement because he did not believe that the evidence would support the assertion, and that he would address *597 the matter in closing argument.[4] Further, Peterson again fails to show that the prosecutor was not exercising good faith in making his opening statement, and the jury was properly charged that the opening statements were not evidence. Hartry, supra. Thus, Peterson does not meet her burden to show that the result of her trial would have been different if counsel had made the now-desired objection. (c) The physician who examined Terrell at the hospital testified that he had not seen injuries to a child as bad as Terrell's before or since examining him. Peterson asserts that the witness invaded the province of the jury in determining what was child abuse, and that it was error for trial counsel to fail to object on that ground. However, during the hearing on the motion for new trial, Peterson asked no questions of trial counsel concerning this matter, and specifically informed the court that she was waiving this ground of her ineffective assistance claim. (d) Peterson contends that during trial, counsel should have introduced testimony from Peterson's sister and brother-in-law, who lived in Miami, Florida. The witnesses were present at Peterson's sentencing hearing and counsel stated to the court what he believed their testimony would have been, which included the information that Terrell suffered beatings at the hands of his sister Tasha and brother Tommy. Counsel testified that he investigated the situation thoroughly, seriously considered calling these potential witnesses to testify, and was certain that he had a specific reason for not calling them to the stand, although he could not recall what that reason was. Peterson did not present these potential witnesses at the hearing on her motion for new trial, and they did not testify in any proceeding. Counsel's testimony during the hearing on the motion for new trial demonstrated that not calling these witnesses was not a mere oversight, but a considered decision. "There is a strong presumption that counsel's actions are the result of sound trial strategy, and those actions are judged from counsel's perspective at the time of trial. [Cit.] The decision regarding which witnesses to present is a matter of trial strategy, [Cit.]. . . ." Brown v. State, 278 Ga. 724, 731(9), 609 S.E.2d 312 (2004). "In the realm of specific decisions regarding trial strategy, and in particular decisions about which witnesses should be called to testify, defense attorneys are afforded wide discretion. [Cit.]" Simpson v. State, 277 Ga. 356, 359(4)(c), 589 S.E.2d 90 (2003). "[I]n the absence of evidence to the contrary, trial counsel's actions are presumed to be strategic. [Cit.]" Stokes v. State, 281 Ga. 825, 835(8)(h), 642 S.E.2d 82 (2007). It was Peterson's burden to overcome the presumption that counsel's decisions were the exercise of sound trial strategy if she was to prevail in her motion for new trial. Relying upon the record of a different proceeding, convened for a different purpose, and which record itself contained only a summary of what counsel believed the relevant testimony would be, does not meet that burden. See Hunt v. State, 278 Ga. 479, 480-481(4), 604 S.E.2d 144 (2004); Prince v. State, 277 Ga. 230, 234(3), 587 S.E.2d 637 (2003). Further, even if failing to call these potential witnesses was considered deficient performance on counsel's part, Peterson fails to demonstrate that the result of her trial would have been different if the potential witnesses had testified. Assuming that their testimony would have been as claimed at the sentencing hearing and could be used to establish prejudice, see Dickens v. State, 280 Ga. 320, 322-323(2), 627 S.E.2d 587 (2006), there is no reasonable likelihood that the jury would have ascribed the litany of abuse leading to Terrell's death to his then-eleven-year-old sister and six-year-old brother. See Head v. Carr., 273 Ga. 613, 622(4)(c)(2), 544 S.E.2d 409 (2001). (e) Peterson also contends that counsel should have introduced the testimony of Peterson's mother and co-indictee, Pharina Peterson. Counsel testified at the hearing on the motion for new trial that he interviewed *598 Pharina Peterson several times, and found her demeanor such that he doubted she would be found credible. After the jury trial, counsel met with her again, when she was not under the influence of medication, and found her to be more articulate, and was willing to present her testimony at the sentencing hearing.[5] Peterson has not demonstrated that counsel's decision not to call Pharina Peterson to testify was not the exercise of reasonable trial strategy. Simpson, supra.[6] (f) One of the State's witnesses at trial was a psychotherapist who interviewed Tasha and Tommy Peterson the day after Terrell's death. The State asked the psychotherapist if Tasha's recounting of certain events to her was "consistent with a child who had, in fact, witnessed these types of events?" The witness responded that it was, and that she believed that Tasha had provided her with accurate information. Peterson's trial counsel objected, the court sustained the objection, and instructed the jury that it alone was to decide the accuracy and truthfulness of Tasha's version of events. Nonetheless, Peterson contends that counsel was ineffective in not making an objection sooner. Counsel's objection was sustained, the court instructed the jury on its role in treating the testimony of witnesses and deciding the facts of the case, both at the time of the objection and in final instructions, and Peterson fails to show that there is a reasonable likelihood that the result of her trial would have been different if counsel had objected sooner. See Moore v. State, 278 Ga. 397, 399-400(2)(a), 603 S.E.2d 228 (2004). (g) During closing arguments, the State referred to the treatment of Terrell as "torture." Counsel testified at the hearing on the motion for new trial that he did not object because he believed that the State was merely drawing a reasonable inference from the evidence. See Harris, supra; Simmons, supra. Peterson fails to establish ineffective assistance of counsel on this ground. Smith v. State, 279 Ga. 48, 50(2), 610 S.E.2d 26 (2005); Huff v. State, 274 Ga. 110, 113(3), 549 S.E.2d 370 (2001). (h) Finally, Peterson urges that counsel should have presented evidence of her own childhood, during which she suffered abuse at the hands of her mother, Pharina Peterson, arguing that such evidence would show that Peterson did not report Pharina's abuse of Terrell because she did not have any proper moral reference on such matters. Counsel testified that he did not present such evidence because the defense was that Peterson did not participate in any abuse of Terrell, or condone it, and that the argument that Peterson now advances was not relevant to that defense. Peterson fails to show that this decision was anything other than the exercise of reasonable strategy, and fails to establish ineffective assistance of trial counsel. Simpson, supra.[7] Judgment affirmed. All the Justices concur. NOTES [1] Terrell died on January 15, 1998. On May 12, 1998, a Fulton County grand jury indicted Peterson, together with Pharina S. Peterson and Calvin Pittman, for malice murder, felony murder while in the commission of aggravated assault, felony murder while in the commission of aggravated battery, felony murder while in the commission of cruelty to a child, aggravated assault, aggravated battery, and cruelty to a child in the first degree; Peterson and Pittman were also charged with an additional count of cruelty to a child in the first degree. The trial court granted Peterson's motion to suppress, the State appealed, and this Court reversed. See State v. Peterson, 273 Ga. 657, 543 S.E.2d 692 (2001). Peterson was tried alone before a jury December 2-17, 2002, and found guilty of all charges. On January 31, 2003, the trial court sentenced Peterson to a term of life in prison for malice murder; the trial court determined that all other counts of the indictment merged with the malice murder or stood vacated by operation of law. See Malcolm v. State, 263 Ga. 369, 372-374 (4, 5), 434 S.E.2d 479 (1993). Peterson filed a motion for new trial on March 2, 2003. Appellate counsel was appointed on June 18, 2004, and on February 22, 2005, Peterson filed a motion for permission to file an out-of-time motion for new trial, which motion was granted that same day. Peterson filed a motion for new trial on March 9, 2005, and amended the motion on May 26, 2005, and again on November 14, 2005; the motion as amended was denied on December 19, 2005. Peterson filed her notice of appeal on January 18, 2006, her appeal was docketed in this Court on December 4, 2006, and submitted for decision on January 29, 2007. [2] To the extent that Peterson preserved an enumeration of error based on the fact that, on re-direct examination, the State asked Tasha if she was a religious and truthful person, in response to Peterson's earlier objection, the court correctly observed that Peterson had introduced this line of questioning on cross-examination by exploring the witness's belief system. See Flanders v. State, 279 Ga. 35, 39(7), 609 S.E.2d 346 (2005). [3] Peterson does not assert that any such statement was, in fact, introduced, and the prosecutor did not use the term "conspiracy" in his opening statement. [4] Peterson's questioning during the hearing on the motion for new trial focused on why counsel did not object if counsel believed the State's "system" characterization to be "untrue and . . . harmful to your client." [5] Peterson's sentencing hearing was 45 days after her adjudication of guilt. [6] Peterson also asserts that counsel should have called an unidentified witness who worked for the Department of Human Resources to testify, but did not ask counsel any questions concerning the decision not to call any such person to testify, and fails to establish ineffective assistance of counsel on this ground. See White v. State, 281 Ga. 276, 281-282(6), 637 S.E.2d 645 (2006). [7] Peterson also enumerates as error that trial counsel did not object to "the prosecutor leading the witness and establishing her credibility," but the enumeration is not supported by argument or authority and is deemed abandoned. Rule 22.

130 B.R. 929 (1991) UNITED STATES of America, Appellant, v. HARTEC ENTERPRISES, INC., Appellee. (Two Cases) Nos. EP-90-CA-458-H, EP-91-CA-134-H. United States District Court, W.D. Texas. July 30, 1991. Prior report: 117 B.R. 865 (Bkrtcy. W.D.Tex.1990). ORDER OF REMAND HUDSPETH, District Judge. On this day came on to be considered the above two cases, which are appeals from orders and judgments of the United States Bankruptcy Court for the Western District of Texas. The Court finds that the parties have compromised and settled their differences, and that the following orders should be entered. It is ORDERED that the orders and judgments of the United States Bankruptcy Court from which appeals were taken be, and they are hereby, VACATED and SET ASIDE. It is further ORDERED that these causes be, and they are hereby, REMANDED to the United States Bankruptcy Court for the Western District of Texas with directions to dismiss.

I attest to the accuracy and integrity of this document New Mexico Compilation Commission, Santa Fe, NM '00'04- 14:02:33 2013.10.24 IN THE SUPREME COURT OF THE STATE OF NEW MEXICO Opinion Number: 2013-NMSC-046 Filing Date: September 19, 2013 Docket No. 33,650 CITY OF FARMINGTON, Plaintiff-Respondent, v. JUAN A. PIÑON-GARCIA, Defendant-Petitioner. and Docket No. 33,676 CITY OF FARMINGTON, Plaintiff-Petitioner, v. JUAN A. PIÑON-GARCIA, Defendant-Respondent. ORIGINAL PROCEEDING ON CERTIORARI Karen L. Townsend, District Judge Bennett J. Baur, Acting Chief Public Defender Mary Barket, Assistant Appellate Defender Santa Fe, NM for Petitioner and Respondent Jennifer Nicole Breakell City of Farmington Farmington, NM 1 for Respondent and Petitioner OPINION CHÁVEZ, Justice. {1} In this case, we discuss the appropriate review by a district court of a municipal court’s pretrial dismissal of a criminal complaint because the government’s key witness failed to appear for the scheduled trial. Because the right of appeal from courts not of record is the right to a trial or hearing de novo in district court, N.M. Const. Art. VI, § 27; State v. Hicks, 1986-NMCA-129, ¶ 6, 105 N.M. 286, 731 P.2d 982, we conclude that the district court must make an independent determination of the merits of the pretrial motion, id.; State v. Foster, 2003-NMCA-099, ¶ 19, 134 N.M. 224, 75 P.3d 824. {2} If district courts are not permitted to review a lower court’s grant or denial of potentially dispositive pretrial motions on appeal, the power of lower courts to grant relief when constitutional safeguards and procedural rules, such as speedy trial, double jeopardy, or discovery rules, are violated would be meaningless. In addition, parties in courts of limited jurisdiction who believe they are entitled to a dispositive order as a remedy for a constitutional or procedural violation would effectively be deprived of the safeguards of the United States and New Mexico Constitutions and our procedural rules if a district court’s de novo review of the lower court’s ruling are bypassed in favor of a trial de novo on the underlying complaint. {3} In this case, the district court rejected Juan Piñon-Garcia’s (Piñon-Garcia) request for it to review a municipal court dismissal for an abuse of discretion. The district court also declined to independently consider Piñon-Garcia’s motion to dismiss because the court believed it was compelled to proceed directly to a trial de novo. The Court of Appeals reversed on this issue. We affirm the Court of Appeals on the second issue and reverse the district court, remanding for its independent consideration of the motion to dismiss. BACKGROUND {4} In January 2009, Piñon-Garcia was arrested and charged in Farmington Municipal Court with three traffic offenses in violation of Farmington municipal ordinances. Piñon- Garcia pleaded not guilty to the charges. During the pretrial conference held on March 19, 2009, the municipal court entered an order scheduling a trial for May 5, 2009. On the notice of trial setting and order to appear, the municipal court ordered the arresting officer, Virgil Todacheeney (Officer Todacheeney), to appear at the trial, stating that if he did not appear, a warrant would be issued for his arrest. {5} On the scheduled trial date, the municipal court granted Piñon-Garcia’s pretrial motion to dismiss all three charges, including a DWI charge, because Officer Todacheeney, who was the only witness to observe Piñon-Garcia driving and who administered Piñon- 2 Garcia’s breath alcohol test, did not appear. The City of Farmington (the City) appealed only the dismissal of the DWI charge to the district court for a trial de novo. During a pretrial hearing before the district court, Piñon-Garcia moved to dismiss the appeal, or alternatively to affirm the municipal court’s dismissal of the charges. He argued that under State v. Candelaria, 2008-NMCA-120, ¶¶ 12, 15, 144 N.M. 797, 192 P.3d 792, the district court must review the dismissal for an abuse of discretion. The district court denied Piñon- Garcia’s motion, stating in its order: It is undisputed that the officer who arrested the Defendant for driving while under the influence of intoxicating liquor or drugs did not appear for trial below in the Farmington Municipal Court on May 5, 2009. Upon Defendant’s oral motion to dismiss at that time, the municipal court judge dismissed the charges against the Defendant with prejudice. The parties agree that for constitutional purposes, jeopardy had not attached. The district court concluded that New Mexico Constitution Article VI, Section 27 precluded it from reviewing the municipal court order for an abuse of discretion, but rather required the district court to hold a trial de novo. {6} A trial de novo was held in district court, and this time Officer Todacheeney appeared and testified. Piñon-Garcia was convicted of a first offense, non-aggravated DWI. He appealed to the Court of Appeals, contending that the district court should have reviewed the municipal court’s order of dismissal for an abuse of discretion. City of Farmington v. Pinon-Garcia, 2012-NMCA-079, ¶¶ 4, 6, 284 P.3d 1086. {7} The Court of Appeals reversed and remanded the case to the district court for a de novo review of the propriety of the municipal court’s dismissal before proceeding to a trial de novo. Id. ¶¶ 1, 7. Both parties filed petitions for certiorari, which we granted. On appeal to this Court, Piñon-Garcia continues to assert that rulings by a municipal court pursuant to its inherent authority should be reviewed on appeal by the district court for abuse of discretion. The City argues that we should reverse the Court of Appeals because the district court conducted a proper de novo review of the municipal court’s order of dismissal. The City also asks this Court to set forth specific guidelines for a district court’s de novo review of pretrial motions. AUTHORITY OF MUNICIPAL COURTS {8} “Each municipal court has jurisdiction over all offenses and complaints under ordinances of the municipality and may issue subpoenas and warrants and punish for contempt.” NMSA 1978, § 35-14-2(A) (1988). In addition, we have promulgated the Rules of Procedure for the Municipal Courts that govern the practice in those courts. See Rules 8- 101 to 8-802 NMRA. As part of these rules, we have (1) empowered municipal court judges to sanction parties for the violation of discovery orders, which includes the authority to dismiss a case, Rule 8-504(F)(5) (such other order as it deems appropriate); (2) explained 3 their contempt power, Rule 8-110; and (3) authorized municipal judges to dismiss with prejudice a complaint or a citation filed against an individual if that person is not brought to trial within the time limits of our rules, Rule 8-506(E). Municipal court judges also must uphold the Constitutions of the United States and the State of New Mexico. N.M. Const. art. XX, § 1. APPEALS FROM MUNICIPAL COURTS TO DISTRICT COURTS CALL FOR HEARINGS OR TRIALS DE NOVO {9} The final judgments and decisions of a municipal court may be appealed to the district court for a trial de novo. N.M. Const. art. VI, § 27 (“Appeals shall be allowed in all cases from the final judgments and decisions of . . . inferior courts to the district courts, and in all such appeals, trial shall be had de novo unless otherwise provided by law.”). In a de novo appeal, the general rule is that a district court conducts a new trial as if the trial in the lower court had not occurred. NMSA 1978, § 39-3-1 (1955) (“All appeals from inferior tribunals to the district courts shall be tried anew in said courts on their merits, as if no trial had been had below, except as otherwise provided by law.” (emphasis added)); State v. Trujillo, 1999-NMCA-003, ¶ 4, 126 N.M. 603, 973 P.2d 855. However, when raised by a party, district courts also consider pretrial motions in de novo appeals. Foster, 2003-NMCA- 099, ¶ 11 (quoting Rule 5-601(B) NMRA (“Any defense[, objection or request] which is capable of determination without a trial on the merits may be raised before trial by motion.”)). The duty of the district court, when a party raises a pretrial motion in a de novo appeal, is to make an independent determination of the merits of the motion. Foster, 2003- NMCA-099, ¶ 19; Hicks, 1986-NMCA-129, ¶ 6. {10} For example, in Foster, the defendant was tried in magistrate court, a court not of record, on a charge of aggravated DWI. 2003-NMCA-099, ¶¶ 1, 3. During the trial, defense counsel posed a question to a witness that resulted in the magistrate court judge granting a mistrial to the state. Id. ¶ 3. The following day, the state asked the judge to enter an order finding manifest necessity for the mistrial so that the defendant could be retried. Id. ¶¶ 3, 7. Over the defendant’s objection, the magistrate court judge granted the state’s motion. Id. ¶ 3. The defendant was subsequently tried and convicted. Id. ¶ 4. He appealed to the district court for a trial de novo and filed a pretrial motion with the district court to dismiss the complaint on double jeopardy grounds because there was not manifest necessity for granting the mistrial. Id. ¶¶ 3, 4; see State v. Martinez, 1995-NMSC-064, ¶ 8, 120 N.M. 677, 905 P.2d 715 (stating that when a mistrial is granted over the defendant’s objection, retrial is not barred if the court finds manifest necessity). The district court denied the defendant’s motion because it concluded that it did not have jurisdiction to review events that transpired in magistrate court. Foster, 2003-NMCA-099, ¶ 5. {11} On appeal, the Court of Appeals reversed and remanded to the district court to independently review, de novo, the merits of the defendant’s motion to dismiss. Id. ¶¶ 19-20. The Foster court cited several cases as examples of a district court’s jurisdiction to review the merits of motions filed in lower courts. Id. ¶ 11 (citing “[State v.] Wilson, 1998-NMCA- 4 084, ¶ 20, 125 N.M. 390, 962 P.2d 636 (remanding to district court for hearing on defendant’s motion to dismiss for speedy trial violation in magistrate court); State v. Vigil, 114 N.M. 431, 433, 839 P.2d 641, 643 (Ct.App. 1992) (considering trial court’s grant of defendant’s motion to dismiss for violation of six-month rule in magistrate court); State v. Hicks, 105 N.M. 286, 287, 731 P.2d 982, 983 (Ct.App.1986) (‘[T]he right of appeal [from courts not of record] . . . is the right to a trial or hearing de novo in the district court.’)”). Foster and the cases cited therein by the Court of Appeals provide ample authority for the proposition that district courts can and must review, de novo, the merits of pretrial motions brought before them on appeal from courts not of record, which includes municipal courts. See Foster, 2003-NMCA-099, ¶¶ 8-9, 11. {12} Simply because municipal courts are not courts of record does not mean that the entire history of a case in municipal court is disregarded. When a municipal court ruling is appealed to district court, the record on appeal consists of, among other things, copies of all papers or pleadings filed in the municipal court, copies of the judgment or final order to be reviewed, and any exhibits filed in the proceedings. Rule 5-826(F) NMRA. In addition, with the prior approval of the municipal judge, the parties, at their own expense, may make a record of the testimony in the municipal court proceeding. Rule 8-601(D). Transcripts from criminal proceedings in courts of limited jurisdiction may be “considered insofar as is necessary for a meaningful review of a motion to dismiss on double jeopardy grounds.” Foster, 2003-NMCA-099, ¶ 16. The record on appeal establishes what issues were preserved in the lower court and facilitates a district court’s de novo review of such issues. {13} Permitting a party to ask a district court to consider the merits of a dispositive pretrial motion filed in municipal court is important if we are to give true meaning to the power vested in municipal courts to enforce our procedural rules and the protections of the United States and New Mexico Constitutions. Examples of dispositive motions in municipal court include speedy trial violations, six-month rule violations, double jeopardy violations, and discovery violations. If a municipality is guaranteed a new trial on appeal, regardless of its violation of procedural rules or violations of the United States or New Mexico Constitutions, a municipal court’s order enforcing the rule violations would be meaningless. In addition, the municipal court could arbitrarily disregard enforcement of procedural rules and constitutional protections, knowing that whatever it does will not be reviewed, because on appeal the district court must grant the appealing party a new trial, as if the municipal court proceeding had never taken place. This situation would lead to an absurd interpretation of the will of the voters who adopted Article VI, Section 27 of the New Mexico Constitution, and we will not interpret our Constitution to lead to absurd results. See State v. Boyse, 2013- NMSC-024, ¶¶ 8-9, 303 P.3d 830. {14} However, we reject Piñon-Garcia’s argument that Candelaria, 2008-NMCA-120, required the district court to review the municipal court’s dismissal for an abuse of discretion. In Candelaria, the State appealed the metropolitan court’s dismissal of charges against a defendant who was charged with battery of a household member. Id. ¶¶ 1-2. The hearing in metropolitan court was on record because the charges involved domestic violence. 5 Id. ¶ 10. Therefore, on appeal to the district court, the district court sat as an appellate court, reviewing the metropolitan court’s dismissal for an abuse of discretion. Id. ¶¶ 10, 12. {15} The important distinction between Candelaria and this case is the role of the district court in the respective cases. In Candelaria, the district court sat as an appellate court because the metropolitan court proceedings were on record. Id. ¶ 10; see Foster, 2003- NMCA-099, ¶ 9 (“If an appeal is on record, the district court acts as a typical appellate court reviewing the record of the lower court’s trial for legal error.”). In this case, the proceedings in municipal court were not on the record, and therefore the appeal to the district court was for a trial or hearing de novo. See Hicks, 1986-NMCA-129, ¶ 6 (“[T]he right of appeal [from a court not of record] is the right to a trial or hearing de novo in the district court.”). Therefore, Candelaria is inapposite. {16} However, the City’s reliance on City of Las Cruces v. Sanchez, 2007-NMSC-042, ¶ 20, 142 N.M. 243, 164 P.3d 942 for the broad proposition that an appeal from municipal court to district court always requires a new trial is misplaced. In Sanchez, the City of Las Cruces appealed a municipal court’s mid-trial dismissal of charges to the district court. Id. ¶ 1. The defendant challenged the municipality’s ability to appeal to the district court for a trial de novo. Id. ¶¶ 4-5. This Court framed the question presented as “whether a district court has jurisdiction to entertain a city’s appeal from a municipal court’s dismissal of charges against a defendant on grounds other than the constitutionality of an ordinance or the sufficiency of a complaint.” Id. ¶ 7. We relied on New Mexico Constitution Article VI, Section 27, which provides that “[a]ppeals shall be allowed in all cases from the final judgments and decisions of . . . inferior courts to the district courts, and in all such appeals, trial shall be had de novo unless otherwise provided by law.” Sanchez, 2007-NMSC-042, ¶ 15. We held that a municipality has “a constitutional right to appeal an adverse final judgment or decision from a municipal court” based on Article VI, Section 27. Sanchez, 2007-NMSC-042, ¶ 15. However, we acknowledged that a municipality’s right to appeal is limited by the double jeopardy clauses of the United States and New Mexico Constitutions. Id. (qualifying the city’s right to appeal,“[p]rovided a defendant’s right to be free from double jeopardy is not violated”). {17} Therefore, Sanchez is only relevant to this case insofar as it supports the City’s argument that it is entitled to appeal the municipal court’s dismissal to district court. Sanchez does not, however, support the argument that the City is automatically entitled to a trial de novo. The limited question we address in this case is the appropriate review in district court of a municipal court’s pretrial ruling. Although it did not address this issue in Sanchez, the Court of Appeals addressed this issue many years ago in both Foster and Hicks. These two cases establish that, if a party raises a pretrial motion in a de novo appeal, the district court must make an independent, i.e., de novo, determination of the merits of the motion. Foster, 2003-NMCA-099, ¶ 19; Hicks, 1986-NMCA-129, ¶ 6. {18} Piñon-Garcia has not provided us with any authority that supports his argument that the district court in this case should have reviewed the municipal court’s dismissal for an 6 abuse of discretion. Accordingly, we decline to stray from precedent and conclude that when a party raises a municipal court’s ruling before the district court on appeal, the district court must consider, de novo, the merits of the motion preserved below and rule accordingly. In this case, the City had the right to appeal the dismissal of the case, and Piñon-Garcia had the right to have the district court consider, de novo, the merits of his motion to dismiss the appeal, or alternatively to affirm the municipal court’s dismissal. If, based on its own independent review, the district court concludes that dismissal of the case because of Officer Todacheeney’s failure to appear was not warranted, the City would be entitled to a trial de novo in district court. {19} Finally, we address the City’s request to clarify what is required of district courts when conducting de novo reviews of decisions from courts that are not of record. The Hicks court explained that “[i]n de novo proceedings, the district court is not in any way bound by the proceedings in the lower court.” 1986-NMCA-129, ¶ 6. We agree with this statement. Therefore, when a district court reviews a lower court’s grant or denial of a dispositive pretrial motion, it does so independently. Id. (concluding that the district court was required to make an independent determination of the merits of a motion raised in a lower court, rather than reviewing for an abuse of discretion). The district court does not consider whether the lower court abused its discretion; rather, it must consider the merits of the motion without regard to what the municipal court decided. See City of Farmington v. Sandoval, 1977-NMCA-022, ¶ 16, 90 N.M. 246, 561 P.2d 945 (explaining that in a de novo review, the reviewing court does not review “the correctness of the proceedings” in the lower court). {20} In this case, the district court did not address the double jeopardy issue because the parties agreed that jeopardy had not attached before the municipal judge dismissed the case with prejudice. This agreement is supported by law because in non-jury trials, jeopardy attaches when the court hears some evidence from the prosecution. State v. Nunez, 2000- NMSC-013, ¶ 28, 129 N.M. 63, 2 P.3d 264. The City listed two Farmington police officers as witnesses who would be called at trial. Officer Todacheeney, who was the only witness who observed Piñon-Garcia drive while impaired and who administered Piñon-Garcia’s breath alcohol test, was not present to testify. The record reflects that the municipal court dismissed the case, as opposed to acquitting Piñon-Garcia for lack of evidence, and the parties agree that this occurred before the municipal court called the City to present evidence. Therefore, double jeopardy had not attached, id., and the district court was correct not to consider the double jeopardy issue any further. {21} The district court also correctly concluded that it did not have to review the municipal court’s order of dismissal for an abuse of discretion. However, the district court should have made an independent determination regarding the validity of the municipal court’s order of dismissal based on the record on appeal and the arguments of counsel at the district court level. The district court must resolve whether it would dismiss the case because Officer Todacheeney failed to appear at trial or if it would consider alternatives to dismissing the case with prejudice, while balancing the need to vindicate the authority of the municipal 7 court and protecting the parties’ rights under our rules and the United States and New Mexico Constitutions. We remand to the district court for proceedings consistent with this opinion. CONCLUSION {22} Because the right of appeal from courts not of record is the right to a trial or hearing de novo in district court, we conclude that the district court must make an independent determination, de novo, of the merits of any pretrial motions raised by the parties. In this case, the district court declined to conduct a de novo review of the merits of Piñon-Garcia’s pretrial motion. Accordingly, we affirm the Court of Appeals and remand to the district court for its independent determination of the merits of Piñon-Garcia’s motion to dismiss. {23} IT IS SO ORDERED. ____________________________________ EDWARD L. CHÁVEZ, Justice WE CONCUR: ___________________________________ PETRA JIMENEZ MAES, Chief Justice ___________________________________ RICHARD C. BOSSON, Justice ___________________________________ CHARLES W. DANIELS, Justice ___________________________________ BARBARA J. VIGIL, Justice Topic Index for City of Farmington v. Pinon-Garcia, Nos. 33,650/33,676 APPEAL AND ERROR Appellate Review Record on Appeal Remand Trial de Novo CONSTITUTIONAL LAW New Mexico Constitution, General GOVERNMENT 8 Municipalities JUDGES Abuse of Discretion JURISDICTION Courts of Limited Jurisdiction, General District Court Municipal Court 9 

2 Mich. App. 442 (1966) 140 N.W.2d 579 CATALDO v. WINSHALL. Docket No. 369. Michigan Court of Appeals. Decided March 9, 1966. Rehearing denied April 15, 1966. Leave to appeal denied July 12, 1966. Sugar & Schwartz (A. Albert Schwartz, of counsel), for plaintiff. Starkey & Gentz (William A. Gentz, of counsel), for defendant. Leave to appeal denied July 12, 1966. See 378 Mich 722. *444 QUINN, J. Plaintiff brought this action to recover commissions and advances he claimed were due him from defendants. The nonjury trial resulted in a judgment for plaintiff and against Jack I. Winshall for $12,666.34 and a judgment of no cause for action as to defendants Bednarsh and Phyllis Winshall. Jack I. Winshall appeals. Defendant states the issues presented as follows: 1. "Was the verdict and judgment of the court against the clear weight of the evidence as to the finding in favor of plaintiff on his complaint as to the following exhibits and claims, to-wit: * * * [Defendant then lists five items that the trial court credited to plaintiff erroneously according to defendant.]? 2. "Did the trial court err in denying appellant's motion to reopen the case for the introduction of supplemental proofs and in denying his motion for new trial?" Plaintiff's action was filed February 24, 1959. Plaintiff is a real-estate broker and over a period of years he acted as broker and agent for defendant in the sale and development of real estate. Defendant dealt in and developed real estate. The transactions involved in the instant case occurred in 1953 and 1954. In its written opinion, the trial court found, "the defendant has produced no books or records and those produced by the plaintiff are the improvised variety with frequent obvious changes, and from entries money cannot be traced except by parol evidence." The forum for the relief defendant seeks by this appeal is the trial court; the manner of obtaining it is the production of records which substantiate his contentions. With one exception, there is evidence in the record to support the findings of the trial judge, and the record does not clearly preponderate *445 against such findings. Some of the findings resulted from the trial court giving more credence to plaintiff and his witnesses than it did to defendant and his witnesses. This is the province of the trial court; it sees and hears the witnesses, and its findings based on the weight it gives testimony will not be disturbed unless clearly erroneous. GCR 1963, 517.1. The record here indicates no reason for disturbing the findings of the trial court. The exception above noted involves exhibit 25, a check issued by plaintiff to defendant Charles Bednarsh on October 16, 1953 in the amount of $3,000. At trial, this was admitted only as to Bednarsh. It should not have been considered by the trial court as to Winshall. The credit allowed plaintiff by the trial court in the amount of $3,000 on the basis of exhibit 25 was improper. With respect to the second issue, motions to reopen for further proof and for new trial are addressed to the sound discretion of the trial court. A showing of abuse of discretion is required before an appellate court reverses a trial court's ruling on such motions. People, for the use and benefit of E.P. Brady & Co., v. Gilliland (1958), 354 Mich 247; Sabo v. New York C.R. Co. (1961), 365 Mich 231. The record here does not show an abuse of discretion. The judgment of the trial court is reduced by $3,000 and affirmed. Neither party having prevailed, no costs are allowed. LESINSKI, C.J., and McGREGOR, J., concurred.

GLD-099 NOT PRECEDENTIAL UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT ___________ No. 10-3013 ___________ STEVEN GRAVLEY, JR., Appellant v. ROBERT TRETNIK, Corrections, Health Care Administrator; IDA DICIA, Nurse; PAM FILCHECK, Nurse ____________________________________ On Appeal from the United States District Court for the Western District of Pennsylvania (D.C. Civil No. 08-cv-01125) Magistrate Judge: Honorable Cathy Bissoon ____________________________________ Submitted for Possible Dismissal Pursuant to 28 U.S.C. ' 1915(e)(2)(B) or Summary Action Pursuant to Third Circuit LAR 27.4 and I.O.P. 10.6 January 28, 2011 Before: AMBRO, CHAGARES AND NYGAARD, Circuit Judges (Opinion filed: February 23, 2011) _________ OPINION _________ PER CURIAM Steven Gravley, Jr., a Pennsylvania prisoner proceeding pro se, appeals from the District Court’s orders granting the defendants’ motions for summary judgment. For the reasons that follow, we will summarily affirm in part, vacate in part, and remand for further proceedings consistent with this opinion. Gravley filed an action pursuant to 42 U.S.C. § 1983, alleging that the received inadequate medical treatment for an asthma attack that began while he was asleep in his cell at SCI-Fayette. According to Gravley’s account of the incident, he used his inhaler once, but it “only had enough medication in it for one puff.” Gravley reported his condition to a Department of Corrections (“DOC”) employee, Sergeant William Lowden, who in turn contacted Ida DiCio, a DOC nurse. Approximately half an hour later, Sergeant Lowden told Gravley that Nurse DiCio would provide more medication “in the morning.” Gravley continued to complain about breathing problems, and was told that another nurse, Pam Filcheck, would charge him $5 if she had to come to his cell. At some point during the night, Gravley lost consciousness and hit his head on the floor. The next morning, Gravley was provided with a new inhaler. Later that day, Gravely submitted a written request to the prison Health Care Administrator, Robert Tretinik (“Administrator Tretinik”), asking that he “get medical to perform the duties outlined in the . . . medical procedure manual.” In his complaint, Gravley named Administrator Tretinik and Nurses Filcheck and DiCio as defendants.1 The parties consented to proceed before a Magistrate Judge. The defendants filed a motion to dismiss under Federal Rule of Civil Procedure 12(b)(6). The Magistrate Judge converted the motion into one for summary judgment and, on May 13, 2009, granted it in part, holding that Gravley’s failure to identify Nurse Filcheck in his prison 1 Two of the defendants’ names are misspelled in the caption of the complaint and on the District Court and appellate dockets. We will use the correct spellings in this opinion. 2 grievance constituted a failure to exhaust administrative remedies and that Administrator Tretinik had no personal involvement in the treatment of Gravley following his asthma attack. As to Nurse DiCio, however, the Magistrate Judge found that there was a genuine issue of material fact concerning whether Gravely had filed a final level administrative appeal, which would satisfy the exhaustion requirement. Several months later, Nurse DiCio moved for summary judgment, arguing that she was not aware that Gravley was suffering from a condition requiring immediate medical treatment. The Magistrate Judge granted the motion by order entered June 24, 2010, holding that “no reasonable jury could find, on the evidence presented by the parties, that Nurse DiCio was ever aware that [Gravley] needed immediate medical attention.” Gravley appealed. We have jurisdiction over this appeal pursuant to 28 U.S.C. § 1291. We exercise plenary review over the District Courts’ orders granting summary judgment. See DeHart v. Horn, 390 F.3d 262, 267 (3d Cir. 2004). Summary judgment is proper where, viewing the evidence in the light most favorable to the nonmoving party and drawing all inferences in favor of that party, there is no genuine issue of material fact and the moving party is entitled to judgment as a matter of law. See Fed. R. Civ. P. 56(a); Kaucher v. County of Bucks, 455 F.3d 418, 422-23 (3d Cir. 2006). The Prison Litigation Reform Act of 1996 (the “PLRA”) requires that a prisoner pursue all avenues of relief available within the prison’s grievance system before bringing a federal civil rights action concerning prison conditions. See 42 U.S.C. § 1997e(a); Booth v. Churner, 532 U.S. 731, 741 (2001). This “exhaustion requirement applies to all inmate suits about prison life, whether they involve general circumstances 3 or particular episodes, and whether they allege excessive force or some other wrong.” Porter v. Nussle, 534 U.S. 516, 532 (2002). A prisoner’s failure to substantially comply with the procedural requirements of the prison’s grievance system will result in a procedural default of the issue and effectively bar the inmate from bringing his claim in federal court. See Spruill v. Gillis, 372 F.3d 218, 231-32 (3d Cir. 2004). Pursuant to Pennsylvania DOC policy, grievances must include “facts relevant to the claim” and, “to the extent practicable,” “should identify any persons who may have information that could be helpful in resolving the grievance.” Id. at 233. Notably, “exhaustion is not per se inadequate simply because an individual later sued was not named in the grievances.” Jones v. Bock, 549 U.S. 199, 219 (2007) (stating that “early notice to those who might later be sued . . . has not been thought to be one of the leading purposes of the exhaustion requirement.”). Gravley did not name Nurse Filcheck in his initial grievance, which was filed on June 2, 2008. Instead, based on erroneous information received from a prison guard at the time of the incident, Gravley alleged in the grievance that it was Nurse Donna Vilcoss who said that he would be charged a fee if medical personnel came to his cell. Later, in July 2008, Gravley learned that Nurse Filcheck had been involved. We conclude that, under the circumstances, Nurse Filcheck’s identity was not a fact relevant to Gravley’s grievance. While she certainly had information that could have been helpful in resolving the grievance, it was not “practicable” for Gravley to identify her. Gravley did not speak directly with the nurses on the night of the incident and had no reason to question the guard’s identification of Nurse Vilcoss. Accordingly, Gravley did not procedurally 4 default his claim against Nurse Filcheck. Gravley further alleged that Administrator Tretinik violated his rights under the Eighth Amendment by not properly treating his asthma attack. The Magistrate Judge concluded that Administrator Tretinik was not liable under a respondeat superior theory because he “had no involvement in the decisions made during the night of May 23, 2008, when [Gravley] allegedly was denied access to medical care.” We agree that, to the extent Gravley sought to hold Administrator Tretinik liable for the misconduct of subordinate officials, the complaint fails to state a claim. See Rode v. Dellarciprete, 845 F.2d 1195, 1207 (3d Cir. 1988). But Gravley’s allegations are not based solely on supervisory liability. The day after the asthma attack, Gravley submitted a written complaint to Administrator Tretinik, alleging that he was not being treated for ongoing pain and tightness in his throat and chest. We have held that “absent a reason to believe (or actual knowledge) that prison doctors or their assistants are mistreating (or not treating) a prisoner, a non-medical prison official . . . will not be chargeable with the Eighth Amendment scienter requirement of deliberate indifference.” Spruill, 372 F.3d at 236. Because Gravley alleged that Administrator Tretinik was aware of an allegedly untreated serious medical need but failed to take any action, his claim is cognizable. Finally, Gravley alleged that Nurse DiCio effectively ignored his need for medical care. To show that his medical care amounted to a violation under the Eighth Amendment, Gravley must demonstrate “(1) that the defendants were deliberately indifferent to [his] medical needs and (2) that those needs were serious.” Rouse v. Plantier, 182 F.3d 192, 197 (3d Cir. 1999) (citing Estelle v. Gamble, 429 U.S. 97, 106 5 (1976)). Gravley must provide an evidentiary basis for concluding that prison officials had a “sufficiently culpable state of mind.” Farmer v. Brennan, 511 U.S. 825, 834 (1994). Deliberate indifference requires that prison officials know of an excessive risk to an inmate’s health or safety and affirmatively disregard that risk. Id. at 837-38. In a declaration, Nurse DiCio stated that while she did remember “some discussion at some point regarding a request for a new inhaler” she “was never informed by anyone at SCI- Fayette that Inmate Gravley was experiencing an asthma attack or otherwise [was] suffering from any medical emergency on” May 23, 2008. We agree with the Magistrate Judge that the summary judgment record does not indicate that Nurse DiCio was aware that Gravley was in need of immediate medical attention. Indeed, as the District Court noted, when Sergeant Lowden contacted Nurse DiCio at Gravley’s request, he had not yet indicated that he was in a “state of emergence.” Accordingly, we agree that Nurse DiCio was entitled to summary judgment. For the foregoing reasons we will affirm in part, vacate in part, and remand the matter to the District Court for further proceedings consistent with this opinion. In particular, we will vacate that order entered on May 13, 2009, which granted summary judgment in favor of Nurse Filcheck and Administrator Tretinik. We will summarily affirm the order entered June 24, 2010, granting summary judgment in favor of Nurse DiCio.2 2 Gravley’s motions for oral argument and for an extension of time to submit argument in support of the appeal are denied. 6 

889 N.E.2d 1118 (2008) 228 Ill.2d 541 PEOPLE v. HART. No. 106281. Supreme Court of Illinois. May Term, 2008. Disposition of petition for leave to appeal[*]. Denied. NOTES [*] For Cumulative Leave to Appeal Tables see preliminary pages of advance sheets and Annual Illinois Cumulative Leave to Appeal Table.

624 F.2d 190 Doesbergv.Sims 78-2116 UNITED STATES COURT OF APPEALS Ninth Circuit 6/13/80 1 D.Ariz. AFFIRMED

556 S.W.2d 45 (1977) STATE of Missouri, Respondent, v. James L. DAVIS, Appellant. No. 59850. Supreme Court of Missouri, en banc. September 27, 1977. Rehearing Denied October 11, 1977. *46 Lee M. Nation, Kansas City, for appellant. Nanette K. Laughrey, Asst. Atty. Gen., Jefferson City, for respondent. RENDLEN, Judge. This cause was transferred here after opinion by the Court of Appeals, Kansas City district, under Rule 83.02. The Court of Appeals identified issues of constitutional construction falling within the exclusive appellate jurisdiction of the Supreme Court by virtue of Mo.Const. Art. V, § 3, as amended 1976, and properly ordered the transfer. Defendant, tried and convicted under the Second Offender Act for stealing more than $50, was sentenced by the circuit court of Jackson County to four years imprisonment. Two assignments of error are raised in this appeal. Defendant first contends the trial court erred in failing to strike the jury panel because Missouri's jury selection process, Mo.Const. Art. I, § 22(b) and § 494.031(2), RSMo Supp. 1975,[1] systematically excludes women from jury service and is therefore unconstitutional, citing Taylor v. Louisiana, 419 U.S. 522, 95 S.Ct. 692, 42 L.Ed.2d 690 (1975). State v. Duren, No. 59914, 556 S.W.2d 11 (Mo.banc 1977), decided concurrently with the case at bar, upheld the challenged constitutional section and its implementing statute which permit women the privilege of declining jury service and that decision is dispositive of this defendant's sex-based challenge to the facial validity of the cited sections. The remaining aspect of defendant's contention concerns the results of the Jackson County jury selection process. In this regard defendant has failed to demonstrate that criminal venires in the county were not "representative of the community" and were "almost totally male" as those constitutional standards were described in Taylor. During the week of defendant's trial, 350 persons were summoned as jurors in Jackson County and of that number 99 (28%) were women. Of the 154 who appeared, 23 (15%) were women. Defendant's panel of 28 included 6 (21%) women and one sat as a juror. No statistical data pertaining to the percentage of women in the community population or any information showing gender distribution of venires for periods prior to or following the week of trial were offered. The proof does not support the contention of systematic sex-based exclusion and the first assignment of error is denied. Defendant next contends the trial court erred admitting certain state's exhibits which though requested prior to trial under Rule 25.32 had not been made available to defense counsel for inspection. The incident precipitating criminal charges against him occurred when defendant and his wife entered Macy's department store in Kansas City on the evening of November 8, 1974. The store security manager observed them in the linen section putting double bed sheets and satin pillowcases into shopping bags and concealing the bags between display beds on the floor. Defendant and his wife left the linen department to visit the budget section of the store and at this point the manager, Mr. Wilk, called Mr. Taylor, a security officer, informed him of the incident and showed him the hidden bags of merchandise. Subsequently the couple returned, retrieved the bags and without paying, exited onto the parking lot where they *47 were apprehended by Wilk and Taylor. The stolen property was delivered to the Kansas City Police Department where it was held until trial. Soon after the information was filed defense counsel served a request for discovery under Rule 25.32, stating "The Defendant,. . . requests the following within 10 days and/or throughout the duration of this cause: . . . (6) Any . . . objects which the State intends to introduce into evidence at the hearing or trial or which were obtained from or belong to the Defendant". The stolen articles were admitted in evidence over defendant's objection and testimony as to value was adduced from Macy's buyer who had purchased the items for the store. The wholesale value of each package of pillowcases was $4.75 or $47.50 for the lot, plus 20 packages of sheets at $7.50 wholesale, totaling $150.00 or a grand total of $197.50 for all items stolen. Defendant offered no evidence but contends the trial court erred admitting the exhibits because the state had failed to produce them for examination prior to trial, effectively denying him the opportunity to show the value of the stolen goods was less than $50.00, which could have defeated the felony charge and have avoided conviction under the Second Offender Act. Rule 25.32(A)(6) provides that on written request the state shall disclose to defendant's counsel "objects, which the state intends to introduce into evidence at hearing or trial or which were obtained from or belong to the defendant". The state argues that because defendant knew the state held the stolen materials and because defendant had photocopied the state's file, this sufficed to meet the disclosure requirements of the Rule. This narrow construction is inconsonant with Rule 25.32(C) which in particular situations requires the items be "made available to defense counsel" and Rule 25.36 which provides that "Unless otherwise ordered by the court, disclosure under Rules 25.32 through 25.35 shall be: . . . (B) By the party making disclosure notifying opposing counsel that the material and information to be disclosed may be inspected, obtained, tested, copied or photographed at a specified time and place and whether suitable facilities are available." The court under Rule 25.40 may issue protective orders to control the manner, place and time for such procedure. While defendant by virtue of his request was entitled to inspect the proposed evidence, during opening statement the prosecuting attorney explained the stolen merchandise had been in the control of the police department and he had no authority "to take them out" prior to trial. This appears counter to the requirement of Rule 25.32(C) that if the requested material is "in the possession or control of other governmental personnel, the state shall use diligence and make good faith efforts to cause such materials to be made available to the defense counsel . . . ." The state was under a continuing duty to make the materials available for defense counsel's inspection. It strains credulity to believe the prosecutor could not have obtained the items from the police department prior to trial and yet with apparent ease produce them for presentation in evidence. However, it was defendant's responsibility to call this failure to the court's attention and request appropriate orders under Rule 25.45 for disclosure of the material, exclusion of the same from evidence, for continuance or other relief. Defendant served his request for discovery within a week following filing of the information. During the ensuing four months he pursued discovery photocopying pertinent portions of the state's file and was aware the stolen merchandise had not been made available for inspection, yet he sought no orders requiring disclosure or other relief under Rule 25.45 nor for subpoenas duces tecum as provided by Rule 25.19. Neglecting these procedures, defendant now contends preparation of his defense was thwarted by the state's noncompliance with the request for discovery. While it seems the state's action (or inaction) is violative of Rule 25.32, exclusion of the evidence not produced for inspection was a matter for the trial court's discretion and defendant has shown no error *48 in the exercise of that discretion, State v. Moten, 542 S.W.2d 317 (Mo.App.1976); State v. Johnson, 524 S.W.2d 97, 101 (Mo. banc 1975), or that the failure to produce resulted in fundamental unfairness or prejudice to the substantial rights of the defendant requiring reversal under Rule 84.13(b). See United States v. Cole, 453 F.2d 902 (8th Cir.), cert. denied 406 U.S. 922, 92 S.Ct. 1788, 32 L.Ed.2d 122 (1972); State v. Gibson, 502 S.W.2d 310 (Mo.1973); State v. Smith, 534 S.W.2d 604 (Mo.App.1967). The unrebutted testimony of two witnesses to the wrongful taking was coupled with the fact of defendant's apprehension outside the store with the stolen property in his possession. Testimony of the items' value came from Macy's purchasing agent who bought the merchandise and personally knew its wholesale price. Defendant argues that if he had inspected the articles he might possibly have developed credible testimony that the 30 items (10 satin pillowcases at $4.75 per package and the 20 double bed sheets at $7.50 per package) were of a value less than $50.00 or approximately ¼ of the wholesale price. We are asked to regard the loss of this possibility as a basis for reversible error though defendant sat by during the four months prior to trial ignoring available procedures to force the desired inspection. Defendant appeared content to proceed with trial, object to the evidence when offered and if overruled, claim error in the event of an unfavorable verdict. Such oversight or trial strategy should not serve as a basis for reversal. We are also mindful as stated in State v. Degraffenreid, Mo., 477 S.W.2d 57, 65, "that error which in a close case might call for reversal may be disregarded as harmless when the evidence of guilt is strong." Because the evidence of guilt was strong and the alleged violation in the discovery proceedings could have readily been corrected by timely action of defendant, we find nothing requiring reversal. The judgment of the trial court is affirmed. MORGAN, C. J., and HENLEY, FINCH and DONNELLY, JJ., concur. SEILER, J., dissents in separate dissenting opinion filed. BARDGETT, J., dissents and concurs in separate dissenting opinion of SEILER, J., except as to the female juror issue. SEILER, Judge (dissenting). While I agree wholeheartedly with the principal opinion that the state should have made the stolen property available to defense counsel and that it strains credulity to believe the prosecution could not have obtained the items from the police department for defense counsel's inspection prior to trial, I am unable to agree that the failure on the part of the state to comply with the discovery rules should be excused so readily. I fear the end result is that the prosecution is rewarded for its disregard of the discovery rules and a dangerous precedent is established whereby future prosecutors can with impunity avoid compliance with the discovery rules. We are signalling prosecutors that even though defense counsel has made the necessary written request, the state need not comply unless the defendant makes additional requests for that for which he has already asked once and to which he is entitled without further request. We are also telling prosecutors that if defendant cannot show that the prosecutor's recalcitrance resulted in "fundamental unfairness or prejudice" to the defendant, the prosecutor escapes scot free. When we consider that defendant is entitled to discovery without first having to show that there would be fundamental unfairness or prejudice unless the requested discovery is made, it seems inconsistent to require that kind of a showing when defendant is complaining about the state's failure to comply with the discovery rules. The state ought to be the one to do the explaining. Additionally, it is most difficult, after verdict, to prove that the state's failure to produce resulted in fundamental unfairness or prejudice. By this time, the jury has already spoken and who can say for sure what would have happened had discovery been made on *49 schedule as called for and defendant been able to have used the information or material or what could have been developed therefrom before the jury? If discovery in criminal cases is desirable and this court, after lengthy and painstaking consideration, has by the adoption of the criminal discovery rules decided that it is desirable, then we should vigorously insist upon discovery at the proper time, which is prior to trial, while the defendant is still presumed to be innocent, and when he is entitled to a decent opportunity to prepare. If we permit the prosecution to maneuver the case to the point where discovery is judged in the light of hindsight, after defendant has been convicted without the required discovery having been made, we will destroy pre-trial discovery and turn it into a game of how much discovery can the prosecutor safely evade, secure in the knowledge that if he can nevertheless obtain a conviction, his omissions will probably be overlooked. The majority opinion says: "While it seems the state's action (or inaction) is violative of rule 25.32, exclusion of the evidence not produced for inspection was a matter for the trial court's discretion and defendant has shown no error in the exercise of that discretion, State v. Moten, 542 S.W.2d 317 (Mo.App.1976); State v. Johnson, 524 S.W.2d 97, 101 (Mo.banc 1975). . . ." I do not find Johnson or Moten to be supportive of the contention for which they are cited. In Johnson, we reversed and remanded a conviction wherein the prosecution had introduced, "in the guise of impeachment testimony", 524 S.W.2d at 101, a statement it had not disclosed during discovery. We specifically noted that the action of the trial court in permitting the introduction of this evidence "does not evidence a proper exercise of discretion" and hence was not subject to review only for abuse of discretion. We went on to decide the case on the application of "fundamental fairness". Id. at 103. That same distinction applies here. It was fundamentally unfair to defendant to keep from him the items of merchandise in question until a point in the trial when it was too late for him to dispute the values placed thereon by the state. In Moten, the court of appeals determined that "the appellant has not shown that the action on the part of the trial court was an abuse of discretion." 542 S.W.2d at 321. The facts there were as follows: "[D]efense counsel objected on the grounds that the photographs had not been produced in response to his discovery request. The prosecutor was not certain that the photographs had been in his file when he exhibited them to appellant's counsel, but he further stated that it was not his original intention to use the photographs and that he decided to do so as a result of the cross-examination of Mrs. Pennington on the lineup. The trial court overruled the objection, stating that the photographs were in the nature of rebuttal and their use produced no unfairness rising to constitutional proportions." Id. at 320. We are not dealing here with a case in which the proffered undisclosed evidence was used in rebuttal or impeachment only, or where it was the subject of facts which were "proved independently" of the disclosed evidence. State v. Dayton, 535 S.W.2d 469, 478 (Mo.App.1976). The value of the allegedly stolen merchandise was a principal element of the criminal charge. Whether prejudice results in such a case "depends upon the nature of the charge, the evidence presented by the State, and the role the undisclosed testimony would likely have played," Id. While exclusion of the evidence produced may have been a matter for the trial court's discretion, I believe that a violation of rule 25.32 by the introduction of such evidence in the presentment of the state's case, where it "strains credulity to believe the prosecutor could not have obtained the items from the police department prior to trial and yet with apparent ease produce them for presentation in evidence," should be deemed fundamentally unfair. We would then avoid what I fear is the unintended invitation to prosecutorial abuse which the majority opinion presents. *50 Nor do I believe we should take the position that because the state has a strong case, failure to disclose thereby becomes harmless. If that is to become the rule, then the state can safely ignore the discovery requests of the defendant any time it has a strong case. In such instances, the prosecutor should scrupulously abide by the rules. Otherwise, we will drift into the rationalization that since the defendant is obviously guilty, why bother with the niceties of compliance with rules and safeguards? Furthermore, how can we be certain the state has such a strong case? It is for the jury to decide which witness will be believed. The fact that to us the testimony of the Macy buyer seems unimpeachable and conclusive does not mean that the jury would not have believed some other qualified witness who, had he been given an opportunity to inspect the stolen merchandise, might have been convinced it was overpriced and testified that it was worth much less, perhaps under $50.00. Defendant's claim of prejudice should not be defeated by our high opinion of the credibility of the state's witness. This is for the jury. McQueen v. Swenson, 560 F.2d 959 (8th Cir. 1977). State v. Degraffenreid, 477 S.W.2d 57 (Mo.banc 1972), relied upon by the principal opinion, did not involve discovery matters and the statement quoted therefrom was dicta, as the case was a close one on the issue of guilt or innocence and the conviction was reversed and the cause remanded. For these reasons, in addition to the reasons given in my dissent in State v. Duren, No. 59914, 556 S.W.2d 11 (Mo.1977), on certain other points which also apply to this case, I respectfully dissent. NOTES [1] The questioned constitutional section and statute are in pertinent part: Mo.Const. Art. I, § 22(b)—"No citizen shall be disqualified from jury service because of sex, but the court shall excuse any woman who requests exemption therefrom before being sworn as a juror." § 494.031, RSMo Supp.1975—"The following persons shall, upon their timely application to the court, be excused from service as a juror, either grand or petit: . . . (2) Any woman who requests exemption before being sworn as a juror; . . . ."

385 F.Supp.2d 1316 (2005) Gerald BAGWELL, individually and on behalf of all others similarly situated, Plaintiffs, v. FLORIDA BROADBAND, LLC, a Florida Limited Liability Company, and Dean C. Lovett, individually, Defendants. No. 04-60655-CIV. United States District Court, S.D. Florida, Ft. Lauderdale Division. July 22, 2005. *1317 Christine Hanley, Sally Still, Christine D. Hanley & Associates, P.A., West Palm Beach, FL, for Defendants. FINDINGS OF FACT AND CONCLUSIONS OF LAW GRAHAM, District Judge. This case involves the interpretation of a provision of the Fair Labor Standards Act ("the FLSA"), 29 U.S.C. § 201 et seq., as applied to Plaintiff Gerald Bagwell Plaintiff was employed by Defendants Florida Broadband, LLC ("Florida Broadband") and its Chief Executive Officer, Dean Lovett ("Lovett"), as a Network Operation Engineer. *1318 The FLSA establishes the minimum labor standards to eliminate "labor conditions detrimental to the maintenance of the minimum standard of living necessary for health, efficiency, and general well-being of workers." 29 U.S.C. § 202(a). "In other words, the statute was designed to `aid the unprotected, unorganized, and lowest paid of the nation's working population; that is, those employees who lacked sufficient bargaining power to secure for themselves a minimum subsistence wage'" Hogan v. Allstate Ins. Co., 361 F.3d 621, 625 (11th Cir.2004) (quoting Brooklyn Sav. Bank v. O'Neil, 324 U.S. 697, 707 n. 18, 65 S.Ct. 895, 89 L.Ed. 1296 (1945)). One of the standards established by the FLSA is to pay employees "engaged in commerce or in the production of commerce" overtime when an employee works more than forty hours in a week. 29 U.S.C. § 207(a)(1). However, an exemption from the overtime pay requirement exists for employees in a "bona fide executive, administrative, or professional capacity," as defined by the regulations of the Secretary of Labor. Defendants contend that Plaintiff was an administrative or computer professional employee, exempt from the FLSA. Defendants also argue that Plaintiff is combination exempt, as defined under 29 C.F.R. § 541.600. The Court held a trial over a seven (7) day period without a jury in this case. For the reasons set forth below, the Court determines that Plaintiff is exempt from the FLSA overtime provisions. I. Findings of Fact A. Defendants Florida Broadband and Dean Lovett Defendants Florida Broadband and Lovett are employers within the meaning of the FLSA. Florida Broadband was engaged in the business of selling and providing high band width Internet service in Dade County and Broward County, Florida. Florida Broadband was an enterprise engaged in commerce or in the production of goods for commerce. Florida Broadband was a start-up company. The organizational structure at Florida Broadband was flexible and evolving. When Lovett entered Florida Broadband in April, 2002, there were approximately fifteen (15) employees. Lovett was the President and CEO of Florida Broadband. Lovett set all policies including normal working hours, pay, and the manner in which employees interacted with customers. Underneath Lovett were two directors: George Morton ("Morton"), Director of Engineering, and Tony Anderson ("Anderson"), Director of Operations. Morton and Anderson owned equity in Florida Broadband. The engineering realm of Florida Broadband was comprised of Plaintiff, Morton, and various field technicians. The field technicians worked on installation in the field. Florida Broadband never had written or formal overtime policies. Nor did it keep records of the hours that Plaintiff worked. B. Plaintiff Gerald Bagwell In April, 2003, Plaintiff was hired by Defendants as a part-time hourly independent contractor. On May 8, 2003, Plaintiff was hired by Defendants as a full-time Network Operation Engineer. On April 15, 2004, Defendants terminated Plaintiff's employment. Plaintiff's job involved comprehending and understanding abstract ideas. Working as a Network Operation Engineer required an understanding of network characteristics and the standards that are used in that network. The job also required knowledge of routing and switching. In 2001, prior to commencing work for Florida Broadband, Plaintiff graduated *1319 from Florida International University with a Bachelor's Degree in Business and a specialty in Management Information Systems. Plaintiff had also received an Associate's Degree in Computer Engineering from Broward Community College. In addition, from 2000 until 2003, Plaintiff worked as an Adjunct Instructor at Broward Community College. Specifically, Plaintiff was the lead instructor for the Cisco Networking Academy Program. Part of that course work involved network routing and switching. The courses Plaintiff taught counted toward a degree program at Broward Community College. Plaintiff possesses various computer and network related certifications. He has a certification associated with networking that helps him diagnose problems within the Windows operating system. He was a Novell associate. He earned certification in Ortronics System Infrastructure and 3-M Fiberoptics. He earned another certification in C-Core and Fiberoptics. Plaintiff also has a certificate in Superior Modular Products which deals with infrastructure components. Plaintiff testified that his Ortronics System Infrastructure Certification and the Superior Modular Products Certification related to the work for Florida Broadband that was done in the field. He also testified that his Cisco CCNA Certificate related to his work at Florida Broadband. C. Plaintiff's Work As Network Operation Engineer As a Network Operation Engineer, Plaintiff was engaged in commerce and the work he performed was directly essential to the business operations of Florida Broadband in interstate commerce. Plaintiff and Morton were responsible for the network functionality. Plaintiff exercised discretion and independent judgment in the performance of his duties. As a Network Operation Engineer for Florida Broadband, Plaintiff performed the following work, among other things: Wrote specifications for wireless network topology; Wrote specifications for routers and switches used in network; Specified protocols used in network; Designed and assured proper installation of all cabling infrastructure including fiber optic; Maintained network availability and security; Interacted with clients for level 3 support; Consulted with clients for LAN design and technical specifications; Interacted with vendors for pricing and availability of materials; Scheduled technical field staff for surveys and installations; Scheduled maintenance of network; Maintained detailed network documentation; Approved site installations of infrastructure and equipment; Designed and implemented LAN infrastructure; Recommended purchases of network equipment; and Evaluated emerging technologies.[1] *1320 In addition, Plaintiff recommended employees for a pay raise based on their job performance. Plaintiff also made recommendations about whether individuals should be hired by Florida Broadband. Plaintiff approved Expense Reports. [Def. Exh. D, H, BB, & DD]. On various Expense Statements, Plaintiff is listed as the "Manager" of the following individuals at Florida Broadband: (1) field technician Jeff Schechtman ("Schechtman") [Def. Exh. D & DD]; and (2) field technicians Mark Anthony Minott ("Minott") [Def. Exh. H]. Additionally, Plaintiff approved vacations for field technicians and signed off on "Personal/Vacation Time Off Request Forms." For example, on the March 24, 2004, Time Off Request Form submitted by Florida Broadband field technicians Maurice Page, Plaintiff provided the "Management Signature." [Def. Exh. F]. Workers contacted Plaintiff about taking time off from work. For example, in an e-mail from Schechtman to Plaintiff, Schechtman writes: "If there is any problem with me taking these few days off please let me know as soon as possible because I will have to change my flight reservations." [Def. Exh. G]. In addition, time sheets were submitted to Plaintiff. [Def. Exh. X]. Plaintiff signed time sheets. [Def. Exh. X & Z]. On some time sheets, Plaintiff provided the "Sup. Signature," which the Court interprets as Supervisor, or Supervising, Signature.[2] [Def. Exh. Z] On other time sheets, Plaintiff provided the "Mgr Signature," which the Court interprets as Manager Signature. [Def. Exh. Z]. Further, individuals who wanted to be hired as part-time installers at Florida Broadband would contact Plaintiff. Plaintiff interviewed job applicants, including field technician Maurice Page ("Page"). The part-time installers were trained by field technicians. Plaintiff gave work assignments to the field technicians according to the directions of Lovett, the CEO of Florida Broadband, and Anderson, the Director of Marketing. Plaintiff and Morton, who was Director of Engineering and an equity holder, sometimes worked in the field. Plaintiff sometimes worked on installation matters in the field. Plaintiff also showed workers in the field how their work should be done. In addition, Plaintiff went into the field to ensure that work was accomplished correctly. The field technicians would go to Morton or Plaintiff when they encountered a problem. In addition, Plaintiff also worked at problem solving, looking at the network to determine what the issues were. The amount of time Plaintiff spent problem solving varied each day. Sometimes, Plaintiff would spend all day solving network problems, and other days he would spend no time at all problem solving. When Plaintiff began working at Florida Broadband, he was asked to examine Florida Broadband's network infrastructure to determine whether it was of appropriate commercial quality and to identify better products. Plaintiff also evaluated the manner in which data was transmitted throughout the network. Plaintiff identified concerns with proprietary software and made recommendations to Lovett based thereon. Plaintiff collaborated with Morton, who was the Director of Engineering, an Officer, and an equity holder of Florida Broadband. *1321 Plaintiff and Morton spoke on a daily basis. Plaintiff and Morton discussed network equipment, transmission media and format, the quality of certain equipment, and whether one type of equipment would be better for Florida Broadband than another. Plaintiff collaborated with Morton on network design. Plaintiff and Morton went to each other with network problems and worked with each other to try and fix those problems. Plaintiff and Morton worked together to come up with better network solutions on a regular basis. D. Plaintiff's Salary And Hours Defendants paid Plaintiff on a salary basis. Plaintiff was paid at a rate of $50,000.00 annually. Plaintiff's salary did not rely on the number of hours worked. Plaintiff's salary was not subject to improper deductions. Plaintiff worked more than forty (40) hours during some weeks of his employment for Defendants. There are no time sheets or records maintained by Florida Broadband that reflect the hours Plaintiff worked. Plaintiff testified that, on average, he worked 50 or 60 hours per week. According to Plaintiff, he spent 15 to 25 hours per week in the field, 25 to 30 hours per week troubleshooting, and five to ten hours per week speaking with vendors. Plaintiff was usually at the Florida Broadband office from 8:00 a.m. until 5:00 p.m. According to Page, Plaintiff arrived to work at 8:00 a.m., when Page arrived Page and Anderson testified that Plaintiff usually left the office at 5:00 p.m., before they left. Plaintiff claims that he worked additional hours outside of the Florida Broadband office and, specifically, from home. The Court finds that there is no credible evidence of the specific number of hours Plaintiff worked. At trial, Plaintiff introduced a copy of records that Plaintiff claims are contemporaneous notes of his hours and work during his employment with Florida Broadband. [Pl. Exh. 2]. The Court requested the original notes. A comparison of the copy introduced by Plaintiff, to the original notes, marked as Court Exhibits 1 through 4, indicates that the original and the copy are dissimilar. The original notes were redacted in places. Indeed, blank paper still covers certain language on the original notes that does not appear in the copy. Also, on the original, the color of the ink varies on different parts of the page and the writing appears to be inconsistent. In addition, in the notes, Plaintiff wrote the number of hours worked beyond 8:00 a.m. to 5:30 p.m. The first page of Plaintiff's notes are dated May 8, 2003, Plaintiff's first day of employment with Florida Broadband. Thus, since his first day of employment with Florida Broadband Plaintiff claims he maintained notes of how many hours he worked beyond 8:00 a.m. to 5:30 a.m. Plaintiff claims that he kept such notes even though he was aware that he was paid a set salary.[3] Plaintiff did not keep track of the time when he ate lunch or otherwise was not working. II. Conclusions of Law The FLSA provides an exemption from the overtime pay provisions for "any employee employed in a bona fide executive, administrative, or professional capacity." 29 U.S.C. § 213(a)(1). In interpreting this provision, the courts are guided by case law and by the Regulations *1322 and Interpretations promulgated by the Secretary of Labor (the "Secretary"). The employer carries the burden of proving the exemption, and the overtime provisions of the FLSA are narrowly construed against the employer. Hogan v. Allstate Ins. Co., 361 F.3d 621, 625 (11th Cir.2004). A. Administrative Exemption The FLSA does not apply with respect to any individual employed in a bona fide administrative capacity. 29 U.S.C. § 213(a)(1). In order for the administrative exemption to apply, Defendants must prove the following: (1) plaintiff was paid on a salary basis of at least $250 per week; (2) plaintiff's primary duty consisted of the performance of office work "directly related to management policies or general business operations of the employer or the employer's customers;" and (3) plaintiff's performance of such primary duty included "work requiring the exercise of discretion and independent judgment."[4] 29 C.F.R. § 541.2(e)(2).[5] 1. Salary The first prong of the administrative exemption test is whether the employee was compensated at a salary of more than $250.00 per week. An employee is considered "paid on a salary basis" if he "regularly receives each pay period on a weekly, or less frequent basis, a predetermined amount constituting all or part of his compensation, which amount is not subject to reduction because of variations in the quality or quantity of the work performed." See id. (quoting 29 C.F.R. §§ 531.118; 541.212). Here, Plaintiff was paid a salary of $50,000.00 per year, which amount was not subject to reduction because of the quality or quantity of his work. Plaintiff was paid on a salary basis of more than $250.00 per week. Accordingly, the first prong of the administrative exemption test is met. 2. Whether Plaintiff's Primary Duty Consisted Of The Performance Of Office Work Directly Related To Management Policies Or General Business Operations Of The Employer Or The Employer's Customers a. Primary Duty The Court begins its analysis of this prong by determining what Plaintiff's primary duty was. The Secretary of Labor has issued an interpretation of "primary duty." That interpretation is as follows: A determination of whether an employee has management as his primary duty must be based on all the facts in a particular case. The amount of time spent in the performance of the managerial duties is a useful guide in determining whether management is the primary duty of an employee. In the ordinary case it may be taken as a good rule of thumb that primary duty means the major part, or over 50 percent, of the employee's time. Thus, an employee who *1323 spends over 50 percent of his time in management would have management as his primary duty. Time alone, however, is not the sole test, and in situations where the employee does not spend over 50 percent of his time in managerial duties, he might nevertheless have management as his primary duty if the other pertinent factors support such a conclusion. 29 C.F.R. § 541.103 (emphasis added). The "other pertinent factors" cited in the interpretation is as follows: [T]he relative importance of the managerial duties as compared with other types of duties, the frequency with which the employee exercises discretionary powers, his relative freedom from supervision, and the relationship between his salary and the wages paid other employees for the kind of nonexempt work performed by the supervisor. Id. The interpretation also provides examples of situations where other pertinent factors weigh in favor of finding an employee's primary duty administrative in nature: For example, in some departments, or subdivisions of an establishment, an employee has broad responsibilities similar to those of the owner or manager of the establishment, but generally spends more than 50 percent of his time in production or sales work. While engaged in such work he supervises other employees, directs the work of warehouse and delivery men, approves advertising, orders merchandise, handles customer complaints, authorizes payment of bills, or performs other management duties as the day-to-day operations require. He will be considered to have management as his primary duty. In the data processing field an employee who directs the day-to-day activities of a single group of programmers and who performs the more complex or responsible jobs in programming will be considered to have management as his primary duty. Id. The Court now turns to the instant case. There was no typical day at work for Plaintiff. As discussed previously, Plaintiff developed and improved Florida Broadband's network system in an effort to make it function reliably. Plaintiff was not a production employee. Plaintiff wrote specifications for wireless network topology, wrote specifications for routers and switches used in network, specified protocols used in the network, designed and assured proper installation of all cabling infrastructure including fiber optic, maintained network availability and security, interacted with clients for level 3 support, consulted with clients for LAN design and technical specifications, interacted with vendors for pricing and availability of materials, scheduled technical field staff for surveys and installations, scheduled maintenance of network, maintained detailed network documentation, approved site installations of infrastructure and equipment, designed and implemented LAN infrastructure, recommended purchases of network equipment, evaluated emerging technologies, handled customer problems and complaints, assigned work to field technicians, solved problems with the network, collaborated with the Director of Engineering, made hiring and pay raise recommendations, spent some time in the field, and checked the work of the field technicians. Plaintiff had broad responsibilities similar to those of the Director of Engineering. Plaintiff's primary duty was not manual in nature. Some of Plaintiff's work may be considered manual in that he performed some physical actions, such as installations. However, those actions do not negate the *1324 administrative exemption because of the prominence of Plaintiff's problem-solving, office, and administrative duties. See Koppinger v. American Interiors, Inc., 295 F.Supp.2d 797, 802 (N.D.Ohio 2003). The Court finds that Plaintiff's primary duty was developing, improving, and making Florida Broadband's network system function reliably. Plaintiff's primary duty was administrative, and not manual, in nature. b. Directly Related To Management Policies Or General Business Operations Of The Employer Or The Employer's Customers The next inquiry is whether Plaintiff's primary duty was "directly related to management policies or general business operations of the employer." Section 541.205(a) of the Secretary's Interpretations explains the phrase "directly related to management policies or general business operations of his employer or his employer's customers": (a) The phrase "directly related to management policies or general business operations of his employer or his employer's customers" describes those types of activities relating to the administrative operations of a business as distinguished from "production" or, in a retail or service establishment, "sales" work. In addition to describing the types of activities, the phrase limits the exemption to persons who perform work of substantial importance to the management or operation of the business of his employer or his employer's customers. 29 C.F.R. § 541.201(a). Thus, in order for the exemption to apply, Plaintiff's work must relate to the administrative operations of Florida Broadband and must be of substantial importance to the management or operation of Florida Broadband's business. The Court turns first to assessing whether Plaintiff's work as a Network Operation Engineer related to the administrative operations of Florida Broadband. 29 C.F.R. § 541.201(b) identifies the administrative operations of a business: (b) The administrative operations of the business include the work performed by so-called white-collar employees engaged in "servicing" a business as, for, example, advising the management, planning, negotiating, representing the company, purchasing, promoting sales, and business research and control. An employee performing such work is engaged in activities relating to the administrative operations of the business notwithstanding that he is employed as an administrative assistant to an executive in the production department of the business. 29 C.F.R. § 541.201(b). In the instant case, Plaintiff engaged in advising management, planning, negotiating, promoting sales, and business research Plaintiff's job involved finding network solutions to complex problems of Florida Broadband and its customers. The Court finds that Plaintiff was engaged in activities relating to the administrative operations of the business. The Court now turns to whether Plaintiff's work was of "substantial importance" to Florida Broadband. "It is not possible to lay down specific rules that will indicate the precise point at which work becomes of substantial importance to the management or operation of a business." 29 C.F.R. § 541.201(c)(1). The Court turns for guidance to Interpretation 29 C.F.R. § 541.201(c), which describes work of "substantial importance": (c) As used to describe work of substantial importance to the management or operation of the business, the phrase "directly related to management policies *1325 or general business operations" is not limited to persons who participate in the formulation of management policies or in the operation of the business as a whole. Employees whose work is "directly related" to management policies or to general business operations include those work affects policy or whose responsibility it is to execute or carry it out. The phrase also includes a wide variety of persons who either carry out major assignments in conducting the operations of the business, or whose work affects business operations to a substantial degree, even though their assignments are tasks related to the operation of a particular segment of the business. Here, Florida Broadband sold internet access and its success was dependent upon whether it could provide the internet service. Plaintiff worked to ensure that Florida Broadband could provide that service Plaintiff's primary duty as a Network Operation Engineer was developing, improving, and making Florida Broadband's network system function reliably. Plaintiff worked at a responsible level and performed work directly related to management policies or the operation of Florida Broadband. The Court concludes that the nature of Plaintiff's work as a Network Operation Engineer was of "substantial importance" to Florida Broadband. Having found (1) that Plaintiff's primary duty was developing, improving, and making Florida Broadband's network system function reliably, and (2) that this activity was directly related to the management policies or general business operations of Florida Broadband and of substantial importance to Florida Broadband, the Court concludes that the Network Operation Engineer position satisfies the second prong of the short test. 3. Whether Plaintiff's Performance Of Such Primary Duty Included Work Requiring The Exercise Of Discretion And Independent Judgment The third prong of the short test requires an analysis of whether the Plaintiff used "discretion and independent judgment" in carrying out his duties. The Secretary's interpretation defines "the exercise of discretion and independent judgment" as "the comparison and the evaluation of possible courses of conduct and acting or making a decision after the various possibilities have been considered." 29 C.F.R. § 541.207(a). The discretion that is contemplated by this part of the test is discretion that is "real and substantial, that is, ... exercised with respect to matters of consequence." 29 C.F.R. § 541.207(d)(1). In distinguishing precisely what sort of "discretion and independent judgment" is "real and substantial," the interpretations distinguish between "the kinds of decisions normally made by clerical and similar types of employees" and "the kinds of decisions normally made by persons who formulate or participate in the formulation of policy within their spheres of responsibility or who exercise authority within a wide range to commit their employer in substantial respects financially or otherwise." 29 C.F.R. § 541.207(d)(2). The interpretations caution that a "frequent cause of misapplication of the term `discretion and independent judgment' is the failure to distinguish it from the use of skill in various respects." 29 C.F.R. § 541.207(c)(1). Purely mechanical or routine work is not professional work. 29 C.F.R. § 541.305(b). As detailed above, Plaintiff recommended decisions that directly affected Florida Broadband's operations and financial future. Although Plaintiff did not *1326 have the ultimate authority to make these decisions, that does not defeat a finding that he exercised independent judgment and discretion. Dymond v. United States Postal Serv., 670 F.2d 93 (8th Cir.1982). Although Plaintiff was guided by the CEO and Director of Engineering, Plaintiff had the discretion to suggest hiring, pay rises, equipment purchases, and ways for improving and correcting the network In addition, Plaintiff sometimes spent most of his day problem solving and thinking about ways to improve the network. Further, Plaintiff's duties of writing specifications for wireless network topology and for routers and switches, designing and assuring proper installation of all cabling infrastructure, consulting with clients for LAN design and technical specifications, and approving installations indicate the exercise of discretion and independent judgment. Plaintiff's work was not routine, but varied dramatically from day to day. In addition, in making the determination that Plaintiff exercised "discretion and independent judgment," the Court is guided by the Secretary's interpretations concerning the meaning of "discretion and independent judgment." In the discussion of the difference between "skill" and "discretion and independent judgment," the interpretations set forth various examples of jobs in which skill might be mistaken for discretion. 29 C.F.R. § 541.207(c)(2). The examples of the application of skills and procedures include "ordinary inspection work of various kinds" and "examiners or graders," who exercise skill within established standards, rather than discretion and independent judgment By contrast, the interpretation states that in the data processing field, a systems analyst is exercising discretion and independent judgment when he develops methods to process, for example, accounting, inventory, sales, and other business information by using electronic computers. The interpretation also provides that [a systems analyst] also exercises discretion and independent judgment when he determines the exact nature of the data processing problem, and structures the problem in a logical manner so that a system to solve the problem and obtain the desired results can be developed. Whether a computer programmer is exercising discretion and independent judgment depends on the facts in each particular case. Every problem processed in a computer first must be carefully analyzed so that exact and logical steps for its solution can be worked out. When this preliminary work is done by a computer programmer he is exercising discretion and independent judgment. None of these positions resemble the job done by Plaintiff as a Network Operation Engineer. Like the systems analyst in the Secretary's interpretation, Plaintiff determined the exact nature of various network problems and, alone or in collaboration with Morton, structured various problems in a logical manner so that a system to solve the problems and obtain the desired results could be developed. The Court has analyzed Plaintiff's job duties and responsibilities in this case and finds that Plaintiff exercised independent judgment. Based upon the foregoing, the Court concludes that Plaintiff exercised discretion and independent judgment, and so meets the third prong of the short test. Having found that the requirements of the administrative exemption are met, the Court finds that Plaintiff is exempt from the overtime provisions of the FLSA. B. Computer Professional Exemption 29 C.F.R. § 541.3 sets forth the requirements for the minimum wage, *1327 overtime, and record keeping exemption for "professional" employees. Under the short test set forth in Section 541.3, a computer professional employee is exempt if: (1) he is paid at least $250.00 per week on a salary basis; (2) his primary duty consists of the performance of "work that requires theoretical and practical application of highly-specialized knowledge in computer systems analysis, programming, and software engineering, and who is employed and engaged in these activities as a computer systems analyst, computer programmer, software engineer, or other similarly skilled worker in the computer software field; and (3) the primary duty involves the consistent exercise of discretion and judgment." Thus, two of the three requirements of the computer professional exemption are identical to the requirements of the administrative exemption. Specifically, both exemptions require that Plaintiff be paid at least $250.00 per week on a salary basis and that Plaintiff's primary duty involve the consistent exercise of discretion and judgment. As discussed previously, both of these requirements are met in the present case. Accordingly, the Court need only address whether Plaintiff's primary duty consists of the performance of "work that requires theoretical and practical application of highly-specialized knowledge in computer systems analysis, programming, and software engineering." To be considered for the computer professional exemption under 29 C.F.R. § 541.3(a)(4), an employee's primary duty must consist of one or more of the following: (1) The application of systems analysis techniques and procedures, including consulting with users, to determine hardware, software, or system functional specifications; (2) The design, development, documentation, analysis, creation, testing, or modification of computer systems or programs, including prototypes, based on and related to user or system design specifications; (3) The design, documentation, testing, creation or modification of computer programs related to machine operating systems; or (4) a combination of the aforementioned duties, the performance of which requires the same level of skills. 29 C.F.R. § 541.303(b)(1)-(4). As discussed previously, Plaintiff's primary duty was developing, improving, and making Florida Broadband's network system function reliably. In carrying out this duty, Plaintiff wrote specifications for wireless network topology, wrote specifications for routers and switches used in network, specified protocols used in the network, designed and assured proper installation of all cabling infrastructure including fiber optic, maintained network availability and security, interacted with clients for level 3 support, consulted with clients for LAN design and technical specifications, interacted with vendors for pricing and availability of materials, scheduled technical field staff for surveys and installations, scheduled maintenance of network, maintained detailed network documentation, approved site installations of infrastructure and equipment, designed and implemented LAN infrastructure, recommended purchases of network equipment, and evaluated emerging technologies. Several of the above-listed duties indicate that Plaintiff was involved in the design, development, and analysis of the computer system or program based on and related to user or system design specifications. Plaintiff was also applying systems analysis techniques and procedures, including consulting with users, "to determine hardware, software, or system functional specifications." *1328 Employees who qualify for the computer professional exemption are highly-skilled in computer systems analysis, programming, or related work in software functions. 29 C.F.R. § 541.303(c). The Eleventh Circuit has held that "before a particular position can qualify as one which climbs to the level of the professional exemption of section 213(a)(1), the duties of that position must call for a person who is in a learned profession with at least a college degree in a specialized type of learning...." Dybach v. State of Fla. Dept. Of Corrections, 942 F.2d 1562, 1565 (11th Cir.1991). Based on Plaintiff's background, education, certifications, teaching experience, and testimony, the Court finds that Plaintiff had expertise and skills in the areas pertaining to carrying out the above-listed duties. Plaintiff applied his highly specialized knowledge to his network engineering position with Florida Broadband on a regular basis. The Court finds that Plaintiff is a "skilled worker" as defined in 29 U.S.C. § 213(a). Accordingly, the Court finds that the computer professional exemption applies in this case. C. Combination Exemption Finally, the Court turns to Defendants' claim that Plaintiff is combination exempt. 29 C.F.R. § 541.600 sets out the requirements of the combination exemption. Specifically, this section reads as follows: (a) The divisions' position under the regulations in Subpart A of this part permits the "tacking" of exempt work under one section of the regulations in Subpart A to exempt work under another section of those regulations, so that a person who, for example, performs a combination of executive and professional work may qualify for exemption. In combination exemptions, however, the employee must meet the stricter of the requirements on salary and nonexempt work. For instance, if the employee performs a combination of an executive's and an outside salesman's function (regardless of which occupies most of his time) he must meet the salary requirement for executives. Also, the total hours of nonexempt work under the definition of "executive" together with the hours of work which would not be exempt if he were clearly an outside salesman, must not exceed either 20 percent of his own time or 20 percent of the hours worked in the workweek by the nonexempt employees of the employer, whichever is the smaller amount. (b) Under the principles in paragraph (a) of this section combinations of exemptions under the other sections of the regulations in Subpart A of this part are also permissible. In short, under the regulations in Subpart A, work which is "exempt" under one section of the regulations in Subpart A will not defeat the exemption under any other section. Defendants claim that Plaintiff is combination exempt under a combination of the administrative, computer professional, and executive exemptions. Having addressed the applicability of the administrative and computer professional exemptions, the Court now turns to examine the applicability of the executive exemption to this case. As with the administrative and computer professional exemptions, there is a short test under the executive exemption. The executive exemption test is as follows: (1) Plaintiff is paid at least $250.00 per week on a salary basis; (2) Plaintiff's primary duty is management of the enterprise in which he is employed or of a customarily recognized department or subdivision thereof; and (3) Plaintiff's primary duty includes the customary and regular direction of the work of two or more other employees therein. 29 C.F.R. § 541.1. *1329 As discussed previously, prong one of this test has been met. As to prong two, the Court previously determined that Plaintiff's primary duty is developing, improving, and making Florida Broadband's network system function reliably. Accordingly, Plaintiff's primary duty is not management. However, Plaintiff performed many management duties. 29 C.F.R. § 541.102 explains the term "management" and provides examples of management duties: (a) In the usual situation the determination of whether a particular kind of work is exempt or nonexempt in nature is not difficult. In the vast majority of cases the bona fide executive employee performs managerial and supervisory functions which are easily recognized as within the scope of the exemption. (b) For example, it is generally clear that work such as the following is exempt work when it is performed by an employee in the management of his department or the supervision of the employees under him: Interviewing, selecting, and training of employees; setting and adjusting their rates of pay and hours of work; directing their work; maintaining their production or sales records for use in supervision or control; appraising their productivity and efficiency for the purpose of recommending promotions or other changes in their status; handling their complaints and grievances and disciplining them when necessary; planning the work; determining the techniques to be used; apportioning the work among the workers; determining the type of materials, supplies, machinery or tools to be used or merchandise to be bought, stocked and sold; controlling the flow and distribution of materials or merchandise and supplies; providing for the safety of the men and the property. Here, Plaintiff interviewed workers and trained field technicians. Plaintiff gave field technicians work assignments. Plaintiff approved vacation time and signed time sheets. Plaintiff also made recommendations concerning the type of equipment Florida Broadband should purchase. The Court now turns to the third prong of the executive exemption test, which requires that Plaintiff supervised at least two employees. Here, there is evidence that Plaintiff supervised contractors. Based upon the foregoing, the Court finds that the requirements of the executive exemption test are not met. The Court finds, however, that, in consideration of Plaintiff meeting the requirements of the administrative exemption and the computer professional exemption, the combination exemption may apply. However, it is not necessary to resolve this issue in view of the Court's aforementioned ruling. III. CONCLUSION In light of the foregoing findings of fact and conclusions of law, in which the Court determined that the administrative exemption and computer professional exemption apply, it is ORDERED AND ADJUDGED that Plaintiff is exempt from the overtime wage provisions of the Fair Labor Standards Act under 29 U.S.C. § 213(a)(1). The Court will enter a Final Judgment denying liability under the FLSA. NOTES [1] This job description is the same as that which Plaintiff listed on his resume when applying for employment with Florida Career College in June, 2004. [Def. Exh. 4-S]. The Court notes that Defendant produced a different version of his resume to Defendants during discovery in this case. The revised resume produced to Defendants reads that Plaintiff "assist[ed]" with many of the tasks listed above and on Defendant's resume submitted to Florida Career College. Plaintiff testified that the resumes are truthful and detail work that he engaged in while at Florida Broadband. [2] The bottom of the time sheets read as follows: Contractor Signature _______ TL Signature _______ Sup Signature _______ Plaintiff signed on the line for Sup Signature. When Plaintiff was asked what "Sup Signature" means on the time sheets, he answered, "I have no idea" [3] The Court asked Plaintiff why he kept notes of the hours he worked beyond 8:00 am to 5:30 p.m., when Plaintiff knew he was a salary employee. Plaintiff first responded that he recorded his hours when he was a truck driver and that the process of maintaining hours is engrained. After additional questioning by the Court, Plaintiff explained that he kept track of the hours as a check and balance tool. [4] The FLSA's implementing Regulations provide employers with two tests by which to prove that employees fall under the administrative exemption: (1) the "long test," which applies to employees paid on a salary or fee basis at a rate of not less than $155 per week; and (2) the "short test," which applies to employees paid at a rate of not less than $250 per week 29 C.F.R. § 541.2(e)(1)-(2). Here, it is undisputed that Plaintiff earned in excess of $250 per week. Accordingly, the Court will examine Defendants' argument under the short test. [5] The Department of Labor revised the FLSA's implementing regulations governing certain exemptions, effective August 23, 2004. 29 C.F.R. § 541. Plaintiff's employment ended on April 15, 2004, and the Complaint was filed on May 17, 2004 Therefore, the Court applies the prior regulations and interpretations.

Filed 6/23/14 IN THE SUPREME COURT OF CALIFORNIA ARSHAVIR ISKANIAN, ) ) Plaintiff and Appellant, ) ) S204032 v. ) ) Ct.App. 2/2 B235158 CLS TRANSPORTATION ) LOS ANGELES, LLC, ) ) Los Angeles County Defendant and Respondent. ) Super. Ct. No. BC356521 ____________________________________) In this case, we again address whether the Federal Arbitration Act (FAA) preempts a state law rule that restricts enforcement of terms in arbitration agreements. Here, an employee seeks to bring a class action lawsuit on behalf of himself and similarly situated employees for his employer‘s alleged failure to compensate its employees for, among other things, overtime and meal and rest periods. The employee had entered into an arbitration agreement that waived the right to class proceedings. The question is whether a state‘s refusal to enforce such a waiver on grounds of public policy or unconscionability is preempted by the FAA. We conclude that it is and that our holding to the contrary in Gentry v. Superior Court (2007) 42 Cal.4th 443 (Gentry) has been abrogated by recent United States Supreme Court precedent. We further reject the arguments that the class action waiver at issue here is unlawful under the National Labor Relations Act and that the employer in this case waived its right to arbitrate by withdrawing its motion to compel arbitration after Gentry. The employee also sought to bring a representative action under the Labor Code Private Attorneys General Act of 2004 (PAGA) (Lab. Code, § 2698 et seq.). This statute authorizes an employee to bring an action for civil penalties on behalf of the state against his or her employer for Labor Code violations committed against the employee and fellow employees, with most of the proceeds of that litigation going to the state. As explained below, we conclude that an arbitration agreement requiring an employee as a condition of employment to give up the right to bring representative PAGA actions in any forum is contrary to public policy. In addition, we conclude that the FAA‘s goal of promoting arbitration as a means of private dispute resolution does not preclude our Legislature from deputizing employees to prosecute Labor Code violations on the state‘s behalf. Therefore, the FAA does not preempt a state law that prohibits waiver of PAGA representative actions in an employment contract. Finally, we hold that the PAGA does not violate the principle of separation of powers under the California Constitution. I. Plaintiff Arshavir Iskanian worked as a driver for defendant CLS Transportation Los Angeles, LLC (CLS) from March 2004 to August 2005. In December 2004, Iskanian signed a ―Proprietary Information and Arbitration Policy/Agreement‖ providing that ―any and all claims‖ arising out of his employment were to be submitted to binding arbitration before a neutral arbitrator. The arbitration agreement provided for reasonable discovery, a written award, and judicial review of the award; costs unique to arbitration, such as the arbitrator‘s fee, would be paid by CLS. The arbitration agreement also contained a class and representative action waiver that said: ―[E]xcept as otherwise required under 2 applicable law, (1) EMPLOYEE and COMPANY expressly intend and agree that class action and representative action procedures shall not be asserted, nor will they apply, in any arbitration pursuant to this Policy/Agreement; (2) EMPLOYEE and COMPANY agree that each will not assert class action or representative action claims against the other in arbitration or otherwise; and (3) each of EMPLOYEE and COMPANY shall only submit their own, individual claims in arbitration and will not seek to represent the interests of any other person.‖ On August 4, 2006, Iskanian filed a class action complaint against CLS, alleging that it failed to pay overtime, provide meal and rest breaks, reimburse business expenses, provide accurate and complete wage statements, or pay final wages in a timely manner. In its answer to the complaint, CLS asserted among other defenses that all of plaintiff‘s claims were subject to binding arbitration. CLS moved to compel arbitration, and in March 2007, the trial court granted CLS‘s motion. Shortly after the trial court‘s order but before the Court of Appeal‘s decision in this matter, we decided in Gentry that class action waivers in employment arbitration agreements are invalid under certain circumstances. (Gentry, supra, 42 Cal.4th at pp. 463–464.) The Court of Appeal issued a writ of mandate directing the superior court to reconsider its ruling in light of Gentry. On remand, CLS voluntarily withdrew its motion to compel arbitration, and the parties proceeded to litigate the case. On September 15, 2008, Iskanian filed a consolidated first amended complaint, alleging seven causes of action for Labor Code violations and an unfair competition law (UCL) claim (Bus. & Prof. Code, § 17200 et seq.). Iskanian brought his claims as an individual and putative class representative seeking damages, and also in a representative capacity under the PAGA seeking civil penalties for Labor Code violations. After conducting discovery, Iskanian moved to certify the class, and CLS opposed the motion. On October 29, 2009, the trial court granted Iskanian‘s motion. 3  On April 27, 2011, the United States Supreme Court issued AT&T Mobility LLC v. Concepcion (2011) 563 U.S. __ [131 S.Ct. 1740] (Concepcion). Concepcion invalidated our decision in Discover Bank v. Superior Court (2005) 36 Cal.4th 148 (Discover Bank), which had restricted consumer class action waivers in arbitration agreements. Soon after, in May 2011, CLS renewed its motion to compel arbitration and dismiss the class claims, arguing that Concepcion also invalidated Gentry. Iskanian opposed the motion, arguing among other things that Gentry was still good law and, in any event, that CLS had waived its right to seek arbitration by withdrawing the original motion to compel arbitration. The trial court ruled in favor of CLS, ordering the case into individual arbitration and dismissing the class claims with prejudice. The Court of Appeal affirmed, concluding that Concepcion invalidated Gentry. The court also declined to follow a National Labor Relations Board ruling that class action waivers in adhesive employment contracts violate the National Labor Relations Act. With respect to the PAGA claim, the court understood Iskanian to be arguing that the PAGA does not allow representative claims to be arbitrated, and it concluded that the FAA precludes states from withdrawing claims from arbitration and that PAGA claims must be argued individually, not in a representative action, according to the terms of the arbitration agreement. Finally, the court upheld the trial court‘s finding that CLS had not waived its right to compel arbitration. We granted review. II. We first address the validity of the class action waiver at issue here and the viability of Gentry in light of Concepcion. In Discover Bank, we held that when a class arbitration waiver ―is found in a consumer contract of adhesion in a setting in which disputes between the contracting parties predictably involve small amounts of damages, and when it is 4 alleged that the party with the superior bargaining power has carried out a scheme to deliberately cheat large numbers of consumers out of individually small sums of money, then . . . the waiver becomes in practice the exemption of the party ‗from responsibility for [its] own fraud, or willful injury to the person or property of another.‘ (Civ. Code, § 1668.) Under these circumstances, such waivers are unconscionable under California law and should not be enforced.‖ (Discover Bank, supra, 36 Cal.4th at pp. 162–163.) The high court in Concepcion invalidated Discover Bank and held that ―[r]equiring the availability of classwide arbitration interferes with fundamental attributes of arbitration and thus creates a scheme inconsistent with the FAA.‖ (Concepcion, supra, 563 U.S. at p. __ [131 S.Ct. at p. 1748].) According to Concepcion, classwide arbitration ―sacrifices the principal advantage of arbitration — its informality — and makes the process slower, more costly, and more likely to generate procedural morass than final judgment.‖ (Id. at p. __ [131 S.Ct. at p. 1751].) Class arbitration also ―greatly increases risks to defendants‖ and ―is poorly suited to the higher stakes of class litigation‖ because of the lack of judicial review, ―thus rendering arbitration unattractive‖ to defendants. (Id. at p. __ & fn. 8 [131 S.Ct. at p. 1752 & fn. 8].) The court concluded that ―[b]ecause it ‗stands as an obstacle to the accomplishment and execution of the full purposes and objectives of Congress,‘ [citation], California‘s Discover Bank rule is preempted by the FAA.‖ (Id. at p. __ [131 S.Ct. at p. 1753].) In Gentry, we considered a class action waiver and an arbitration agreement in an employment contract. The complaint in Gentry alleged that the defendant employer had systematically failed to pay overtime wages to a class of employees. Whereas Discover Bank concerned the application of the doctrine of unconscionability, Gentry focused on whether the class action waiver would ―undermine the vindication of the employees‘ unwaivable statutory rights‖ to 5 overtime pay. (Gentry, supra, 42 Cal.4th at p. 450.) We concluded that a class action waiver may be unenforceable in some circumstances: ―[W]hen it is alleged that an employer has systematically denied proper overtime pay to a class of employees and a class action is requested notwithstanding an arbitration agreement that contains a class arbitration waiver, the trial court must consider the factors discussed above: the modest size of the potential individual recovery, the potential for retaliation against members of the class, the fact that absent members of the class may be ill informed about their rights, and other real world obstacles to the vindication of class members‘ right to overtime pay through individual arbitration. If it concludes, based on these factors, that a class arbitration is likely to be a significantly more effective practical means of vindicating the rights of the affected employees than individual litigation or arbitration, and finds that the disallowance of the class action will likely lead to a less comprehensive enforcement of overtime laws for the employees alleged to be affected by the employer‘s violations, it must invalidate the class arbitration waiver to ensure that these employees can ‗vindicate [their] unwaivable rights in an arbitration forum.‘ ‖ (Id. at pp. 463–464.) Iskanian contends that Gentry survives Concepcion. In his briefing, he argues: ―The Missouri Supreme Court has interpreted Concepcion as holding that Discover Bank was preempted because ‗it required class arbitration even if class arbitration disadvantaged consumers and was unnecessary for the consumer to obtain a remedy.‘ (Brewer v. Missouri Title Loans (Mo. 2012) 364 S.W.3d 486, 489, 494.) Similarly, a recent analysis of Concepcion concludes that ‗the unconscionability defense in Concepcion ―stood as an obstacle,‖ for preemption purposes, because it was a categorical rule that applied to all consumer cases. The sin of the Discover Bank rule was that it did not require the claimant to show that the agreement operated as an exculpatory contract on a case-specific basis.‘ 6 (Gilles & Friedman, After Class: Aggregate Litigation in the Wake of AT&T Mobility v. Concepcion (2012) 79 U. Chi. L. Rev. 623, 651.)‖ Iskanian also contends: ―Gentry, by contrast, ‗is not a categorical rule against class action waivers.‘ [Citation.] Gentry explicitly disclaimed any categorical rule . . . . Unlike Discover Bank, which held consumer class-action bans ‗generally unconscionable‘ ([Gentry, supra, 42 Cal.4th] at p. 453), Gentry held only that when a statutory right is unwaivable because of its ‗public importance,‘ id. at p. 456, banning class actions would in ‗some circumstances‘ ‗lead to a de facto waiver and would impermissibly interfere with employees‘ ability to vindicate unwaivable rights and to enforce the overtime laws.‘ (Id. at p. 457.)‖ According to Iskanian, ―[t]he Courts of Appeal have interpreted Gentry to require an evidentiary showing in which a plaintiff bears the burden of demonstrating, based on the Gentry factors, that enforcing a class-action ban would result in a waiver of substantive rights.‖ Contrary to these contentions, however, the fact that Gentry‘s rule against class waiver is stated more narrowly than Discover Bank‘s rule does not save it from FAA preemption under Concepcion. The high court in Concepcion made clear that even if a state law rule against consumer class waivers were limited to ―class proceedings [that] are necessary to prosecute small-dollar claims that might otherwise slip through the legal system,‖ it would still be preempted because states cannot require a procedure that interferes with fundamental attributes of arbitration ―even if it is desirable for unrelated reasons.‖ (Concepcion, supra, 563 U.S. at p. __ [131 S.Ct. at p. 1753]; see American Express Co. v. Italian Colors Restaurant (2013) 570 U.S. __, __ & fn. 5 [133 S.Ct. 2304, 2312 & fn. 5] (Italian Colors).) It is thus incorrect to say that the infirmity of Discover Bank was that it did not require a case-specific showing that the class waiver was exculpatory. Concepcion holds that even if a class waiver is exculpatory in a particular case, it 7 is nonetheless preempted by the FAA. Under the logic of Concepcion, the FAA preempts Gentry‘s rule against employment class waivers. In his briefing and at oral argument, Iskanian further argued that the Gentry rule or a modified Gentry rule — whereby a class waiver would be invalid if it meant a de facto waiver of rights and if the arbitration agreement failed to provide suitable alternative means for vindicating employee rights — survives Concepcion under our reasoning in Sonic-Calabasas A, Inc. v. Moreno (2013) 57 Cal.4th 1109 (Sonic II). But the Gentry rule, whether modified or not, is not analogous to the unconscionability rule set forth in Sonic II. As noted, Gentry held that the validity of a class waiver turns on whether ―a class arbitration is likely to be a significantly more effective practical means of vindicating the rights of the affected employees than individual litigation or arbitration, and [whether] the disallowance of the class action will likely lead to a less comprehensive enforcement of [labor or employment] laws for the employees alleged to be affected by the employer‘s violations.‖ (Gentry, supra, 42 Cal.4th at p. 463.) In other words, if individual arbitration or litigation cannot be designed to approximate the advantages of a class proceeding, then a class waiver is invalid. But Concepcion held that because class proceedings interfere with fundamental attributes of arbitration, a class waiver is not invalid even if an individual proceeding would be an ineffective means to prosecute certain claims. (See Concepcion, supra, 563 U.S. at p. __ [131 S.Ct. at p. 1753].) The Berman waiver addressed in Sonic II is different from a class waiver. As Sonic II explained, a Berman waiver implicates a host of statutory protections designed to benefit employees with wage claims against their employers. (Sonic II, supra, 57 Cal.4th at pp. 1127–1130.) One of those protections is a special administrative hearing (a Berman hearing) that we had held unwaivable in Sonic- Calabasas A, Inc. v. Moreno (2011) 51 Cal.4th 659 (Sonic I). In Sonic II, we 8 overruled Sonic I in light of Concepcion, reasoning that ―[b]ecause a Berman hearing causes arbitration to be substantially delayed, the unwaivability of such a hearing, even if desirable as a matter of contractual fairness or public policy, interferes with a fundamental attribute of arbitration — namely, its objective ‗ ―to achieve ‗streamlined proceedings and expeditious results‘ ‖ ‘ ‖ and ―is thus preempted by the FAA.‖ (Sonic II, supra, 57 Cal.4th at p. 1141.) Under the logic of Sonic II, which mirrors the logic applied to the Gentry rule above, it is clear that because a Berman hearing interferes with fundamental attributes of arbitration, a Berman waiver is not invalid even if the unavailability of a Berman hearing would leave employees with ineffective means to pursue wage claims against their employers. But Sonic II went on to explain that ―[t]he fact that the FAA preempts Sonic I‘s rule requiring arbitration of wage disputes to be preceded by a Berman hearing does not mean that a court applying unconscionability analysis may not consider the value of benefits provided by the Berman statutes, which go well beyond the hearing itself.‖ (Sonic II, supra, 57 Cal.4th at p. 1149, italics added.) The Berman statutes, we observed, provide for fee shifting, mandatory undertaking, and several other protections to assist wage claimants should the wage dispute proceed to litigation. (Id. at p. 1146.) ―Many of the Berman protections are situated no differently than state laws concerning attorney fee shifting, assistance of counsel, or other rights designed to benefit one or both parties in civil litigation.‖ (Id. at p. 1150; see, e.g., Lab. Code, § 1194, subd. (a) [one-way fee shifting for plaintiffs asserting minimum wage and overtime claims].) The value of these protections does not derive from the fact that they exist in the context of a pre-arbitration administrative hearing. Instead, as Sonic II made clear, the value of these protections may be realized in ―potentially many ways‖ through arbitration designed in a manner ―consistent with its fundamental attributes.‖ (Sonic II, at 9 p. 1149; see ibid. [―Our rule contemplates that arbitration, no less than an administrative hearing, can be designed to achieved speedy, informal, and affordable resolution of wage claims . . . .‖].) Sonic II thus established an unconscionability rule that considers whether arbitration is an effective dispute resolution mechanism for wage claimants without regard to any advantage inherent to a procedural device (a Berman hearing) that interferes with fundamental attributes of arbitration. By contrast, the Gentry rule considers whether individual arbitration is an effective dispute resolution mechanism for employees by direct comparison to the advantages of a procedural device (a class action) that interferes with fundamental attributes of arbitration. Gentry, unlike Sonic II, cannot be squared with Concepcion. In practice, Gentry‘s rule prohibiting class waivers if ―a class arbitration is likely to be a significantly more effective practical means of vindicating the rights of the affected employees than individual litigation or arbitration‖ (Gentry, supra, 42 Cal.4th at p. 463) regularly resulted in invalidation of class waivers, at least prior to Concepcion. (See, e.g., Olvera v. El Pollo Loco, Inc. (2009) 173 Cal.App.4th 447, 457; Sanchez v. Western Pizza Enterprises, Inc. (2009) 172 Cal.App.4th 154, 170–171; Franco v. Athens Disposal Co. (2009) 171 Cal.App.4th 1277, 1298–1299; Murphy v. Check N’ Go of California, Inc. (2007) 156 Cal.App.4th 138, 148–149; Jackson v. S.A.W. Entertainment Ltd. (N.D.Cal. 2009) 629 F.Supp.2d 1018, 1027–1028.) These results are unsurprising since it is unlikely that an individual action could be designed to approximate the inherent leverage that a class proceeding provides to employees with claims against a defendant employer. (See Concepcion, supra, 563 U.S. at p. __ [131 S.Ct. at p. 1752].) By contrast, Sonic II addressed individual wage claims, not class actions, and there is no reason to think that the value of Berman protections distinct from a Berman hearing itself cannot be achieved by designing an 10 arbitration process that is accessible, affordable, and consistent with fundamental attributes of arbitration. (See Sonic II, supra, 57 Cal.4th at p. 1147 [―There are potentially many ways to structure arbitration, without replicating the Berman protections, so that it facilitates accessible, affordable resolution of wage disputes. We see no reason to believe that the specific elements of the Berman statutes are the only way to achieve this goal or that employees will be unable to pursue their claims effectively without initial resort to an administrative hearing as opposed to an adequate arbitral forum.‖].) In sum, Sonic II recognized that the FAA does not prevent states through legislative or judicial rules from addressing the problems of affordability and accessibility of arbitration. But Concepcion held that the FAA does prevent states from mandating or promoting procedures incompatible with arbitration. The Gentry rule runs afoul of this latter principle. We thus conclude in light of Concepcion that the FAA preempts the Gentry rule. III. Iskanian contends that even if the FAA preempts Gentry, the class action waiver in this case is invalid under the National Labor Relations Act (NLRA). Iskanian adopts the position of the National Labor Relations Board (Board) in D.R. Horton Inc. & Cuda (2012) 357 NLRB No. 184 [2012 WL 36274] (Horton I) that the NLRA generally prohibits contracts that compel employees to waive their right to participate in class proceedings to resolve wage claims. The Fifth Circuit recently refused to enforce that portion of the NLRB‘s opinion. (D.R. Horton, Inc. v. NLRB (5th Cir. 2013) 737 F.3d 344 (Horton II).) We consider below the Board‘s position and the Fifth Circuit‘s reasons for rejecting it. 11  A. In Horton I, the employee, Michael Cuda, a superintendent at Horton, claimed he had been misclassified as exempt from statutory overtime protections under the Fair Labor Standards Act (FLSA). He sought to initiate a nationwide class arbitration of similarly situated superintendents working for Horton. Horton asserted that the mutual arbitration agreement (MAA) barred arbitration of collective claims. Cuda then filed an unfair labor practice charge, and the Board‘s general counsel issued a complaint. The complaint alleged that Horton violated section 8(a)(1) of the NLRA by maintaining the MAA provision that said the arbitrator ― ‗may hear only Employee‘s individual claims and does not have the authority to fashion a proceeding as a class or collective action or to award relief to a group or class of employees in one arbitration proceeding.‘ ‖ (Horton I, supra, 357 NLRB No. 184, p. 1.) The complaint further alleged that Horton violated NLRA section 8(a)(1) and (4) by maintaining arbitration agreements that required employees, as a condition of employment, ― ‗to submit all employment related disputes and claims to arbitration . . . , thus interfering with employee access to the [Board].‘ ‖ (Horton I, at p. 2.) An administrative law judge agreed that the latter but not the former is an unfair labor practice. On appeal, the Board concluded that (1) the joining together of employees to bring a class proceeding to address wage violations is a form of concerted activity under section 7 of the NLRA (29 U.S.C. § 157); (2) an agreement compelling an employee to waive the right to engage in that activity as a condition of employment is an unfair labor practice under section 8 of the NLRA (id., § 158); and (3) this rule is not precluded by the FAA because it is consistent with the FAA‘s savings clause (9 U.S.C. § 2) and because the later enacted NLRA prevails over the earlier enacted FAA to the extent there is a conflict. 12  The Board began its analysis with section 7 of the NLRA, which states that ―[e]mployees shall have the right to self-organization, to form, join, or assist labor organizations, to bargain collectively through representatives of their own choosing, and to engage in other concerted activities for the purpose of collective bargaining or other mutual aid or protection, and shall also have the right to refrain from any or all of such activities except to the extent that such right may be affected by an agreement requiring membership in a labor organization as a condition of employment as authorized in section 158(a)(3) of this title.‖ (29 U.S.C. § 157, italics added.) The Board commented: ―It is well settled that ‗mutual aid or protection‘ includes employees‘ efforts to ‗improve terms and conditions of employment or otherwise improve their lot as employees through channels outside the immediate employee-employer relationship.‘ Eastex, Inc. v. NLRB, 437 U.S. 556, 565–566 (1978). The Supreme Court specifically stated in Eastex that Section 7 ‗protects employees from retaliation by their employer when they seek to improve their working conditions through resort to administrative and judicial forums.‘ Id. at 565–566. The same is equally true of resort to arbitration. [¶] The Board has long held, with uniform judicial approval, that the NLRA protects employees‘ ability to join together to pursue workplace grievances, including through litigation.‖ (Horton I, supra, 357 NLRB No. 184, p. 2 [2012 WL 36274 at p. *2].) The Board then turned to section 8(a)(1) of the NLRA, which says it is an unfair labor practice for an employer ―to interfere with, restrain, or coerce employees in the exercise of the rights guaranteed in‖ section 7. (29 U.S.C. § 158(a)(1).) The Board found, based on the previous discussion, ―that the MAA expressly restricts protected activity.‖ (Horton I, supra, 357 NLRB No. 184, p. 4 [2012 WL 36274 at p. *5].) ―That this restriction on the exercise of Section 7 rights is imposed in the form of an agreement between the employee and the 13 employer makes no difference. From its earliest days, the Board, again with uniform judicial approval, has found unlawful employer-imposed, individual agreements that purport to restrict Section 7 rights––including, notably, agreements that employees will pursue claims against their employer only individually.‖ (Ibid.) The Board buttressed this conclusion by reviewing a statute that preceded the NLRA, the Norris LaGuardia Act, which among other things limited the power of federal courts to issue injunctions enforcing ―yellow dog‖ contracts prohibiting employees from joining labor unions. (Horton I, supra, 357 NLRB No. 184, p. 5 [2012 WL 36274 at p. *7].) The types of activity, ―whether undertaken ‗singly or in concert,‘ ‖ that may not be limited by restraining orders or injunctions include ― ‗aiding any person participating or interested in any labor dispute who . . . is prosecuting, any action or suit in any court of the United States or of any State.‘ 29 U.S.C. § 104(d) (emphasis added).‖ (Id. at pp. 5–6 [2012 WL 36274 at p. *7], fn. omitted.) ― ‗The law has long been clear that all variations of the venerable ―yellow dog contract‖ are invalid as a matter of law.‘ Barrow Utilities & Electric, 308 NLRB 4, 11, fn. 5 (1992).‖ (Id. at p. 6 [2012 WL 36274 at p. *8].) The Board concluded its analysis by finding no conflict between the NLRA and the FAA. Relying on the FAA‘s savings clause (see 9 U.S.C. § 2 [arbitration agreements are to be enforced ―save upon such grounds as exist at law or in equity for the revocation of any contract‖]), the Board explained that ―[t]he purpose of the FAA was to prevent courts from treating arbitration agreements less favorably than other private contracts. The Supreme Court . . . has made clear that ‗[w]herever private contracts conflict with [the] functions‘ of the National Labor Relations Act, ‗they obviously must yield or the Act would be reduced to a futility.‘ J. I. Case Co. [(1944)] 321 U.S. [332,] 337. To find that an arbitration agreement must yield to the NLRA is to treat it no worse than any other private 14 contract that conflicts with Federal labor law. The MAA would equally violate the NLRA if it said nothing about arbitration, but merely required employees, as a condition of employment, to agree to pursue any claims in court against the Respondent solely on an individual basis.‖ (Horton I, supra, 357 NLRB No. 184, p. 9 [2012 WL 36274 at p. *11].) The Board also invoked the principle that arbitration agreements may not require a party to ― ‗forgo the substantive rights afforded by the statute.‘ ‖ (Horton I, supra, 357 NLRB No. 184, p. 9, quoting Gilmer v. Interstate/Johnson Lane Corp. (1991) 500 U.S. 20, 26 (Gilmer).) The Board clarified that ―[t]he question presented in this case is not whether employees can effectively vindicate their statutory rights under the Fair Labor Standards Act in an arbitral forum. [Citation.] Rather, the issue here is whether the MAA‘s categorical prohibition of joint, class, or collective federal, state or employment law claims in any forum directly violates the substantive rights vested in employees by Section 7 of the NLRA.‖ (Horton, supra, 357 NLRB No. 184, p. 9, fn. omitted [2012 WL 36274 at p. *11].) The Board recognized a tension between its ruling and Concepcion‘s statements that the ―overarching purpose of the FAA . . . is to ensure the enforcement of arbitration agreements according to their terms so as to facilitate streamlined proceedings‖ and that the ―switch from bilateral to class arbitration sacrifices the principal advantage of arbitration—its informality.‖ (Concepcion, supra, 563 U.S. at pp. __, __ [131 S.Ct. at pp. 1748, 1751].) But in the Board‘s view, ―the weight of this countervailing consideration was considerably greater in the context of [Concepcion] than it is here for several reasons. [Concepcion] involved the claim that a class-action waiver in an arbitration clause of any contract of adhesion in the State of California was unconscionable. Here, in contrast, only agreements between employers and their own employees are at 15 stake. As the Court pointed out in [Concepcion], such contracts of adhesion in the retail and services industries might cover ‗tens of thousands of potential claimants.‘ Id. at 1752. The average number of employees employed by a single employer, in contrast, is 20, and most class-wide employment litigation, like the case at issue here, involves only a specific subset of an employer‘s employees. A class-wide arbitration is thus far less cumbersome and more akin to an individual arbitration proceeding along each of the dimensions considered by the Court in [Concepcion]—speed, cost, informality, and risk—when the class is so limited in size. 131 S.Ct. at 1751–1752. Moreover, the holding in this case covers only one type of contract, that between an employer and its covered employees, in contrast to the broad rule adopted by the California Supreme Court at issue in [Concepcion]. Accordingly, any intrusion on the policies underlying the FAA is similarly limited.‖ (Horton I, supra, 357 NLRB No. 184, pp. 11–12, fn. omitted [2012 WL 36274 at p. *15, fn. omitted].) ―Finally,‖ the Board said, ―even if there were a conflict between the NLRA and the FAA, there are strong indications that the FAA would have to yield under the terms of the Norris-LaGuardia Act. As explained above, under the Norris- LaGuardia Act, a private agreement that seeks to prohibit a ‗lawful means [of] aiding any person participating or interested in‘ a lawsuit arising out of a labor dispute (as broadly defined) is unenforceable, as contrary to the public policy protecting employees‘ ‗concerted activities for . . . mutual aid or protection.‘ To the extent that the FAA requires giving effect to such an agreement, it would conflict with the Norris-LaGuardia Act. The Norris-LaGuardia Act, in turn— passed 7 years after the FAA,—repealed ‗[a]ll acts and parts of acts in conflict‘ with the later statute (Section 15).‖ (Horton I, supra, 357 NLRB No. 184, p. 12, fn. omitted [2012 WL 36274 at p. *16, fn. omitted].) 16  B. In Horton II, the Fifth Circuit disagreed with the Board‘s ruling that the class action waiver in the MAA was an unfair labor practice. The court recognized precedent holding that ― ‗the filing of a civil action by employees is protected activity . . . [and] by joining together to file the lawsuit [the employees] engaged in concerted activity.‘ 127 Rest. Corp., 331 NLRB 269, 275–76 (2000). ‗[A] lawsuit filed in good faith by a group of employees to achieve more favorable terms or conditions of employment is ―concerted activity‖ under Section 7‘ of the NLRA. Brady v. Nat’l Football League, 644 F.3d 661, 673 (8th Cir. 2011).‖ (Horton II, supra, 737 F.3d at p. 356.) However, the Fifth Circuit reasoned, ―The [FAA] has equal importance in our review. Caselaw under the FAA points us in a different direction than the course taken by the Board.‖ (Id. at p. 357.) Relying on Concepcion, the Fifth Circuit rejected the argument that the Board‘s rule fell within the savings clause of the FAA. A rule that is neutral on its face but is ―applied in a fashion that disfavors arbitration‖ is not a ground that exists ―for the revocation of any contract‖ within the meaning of the savings clause. (Concepcion, supra, 563 U.S. at p. __ [131 S.Ct. at p. 1747].) The Fifth Circuit concluded that the Board‘s rule, like the rule in Discover Bank, was not arbitration neutral. Rather, by substituting class proceedings for individual arbitration, the rule would significantly undermine arbitration‘s fundamental attributes by requiring procedural formality and complexity, and by creating greater risks to defendants. (Horton II, supra, 737 F.3d at p. 359, citing Concepcion, supra, 563 U.S. at pp. __–__ [131 S.Ct. at pp. 1750–1752].) The court then considered whether ―the FAA‘s mandate has been ‗overridden by a contrary congressional command.‘ ‖ (CompuCredit v. Greenwood (2012) 565 U.S. __, __ [132 S.Ct. 665, 669]; see Italian Colors, supra, 570 U.S. at p. __ [133 S.Ct. at p. 2309].) ―If such a command exists, it 17 ‗will be discoverable in the text,‘ the statute‘s ‗legislative history,‘ or ‗an ―inherent conflict‖ between arbitration and the [statute‘s] underlying purposes.‘ . . . ‗[T]he relevant inquiry [remains] whether Congress . . . precluded ―arbitration or other nonjudicial resolution‖ of claims.‘ ‖ (Horton II, supra, 737 F.3d at p. 360, quoting Gilmer, supra, 500 U.S. at pp. 26, 28.) The court found that neither the NLRA‘s language nor its legislative history showed any indication of prohibiting a class action waiver in an arbitration agreement. (Horton II, at pp. 360–361.) Next, the Fifth Circuit considered whether there is ―an inherent conflict‖ between the FAA and the NLRA. (Horton II, supra, 737 F.3d at p. 361.) It noted that NLRA policy itself ―favors arbitration‖ and permits unions to waive the right of employees to litigate statutory employment claims in favor of arbitration. (Ibid.) The court also noted that ―the right to proceed collectively cannot protect vindication of employees‘ statutory rights under the ADEA or FLSA because a substantive right to proceed collectively has been foreclosed by prior decisions.‖ (Ibid., citing Gilmer, supra, 500 U.S. at p. 32 and Carter v. Countrywide Credit Industries, Inc. (5th Cir. 2004) 362 F.3d 294, 298.) ―The right to collective action also cannot be successfully defended on the policy ground that it provides employees with greater bargaining power. ‗Mere inequality in bargaining power . . . is not a sufficient reason to hold that arbitration agreements are never enforceable in the employment context.‘ Gilmer, 500 U.S. at 33. The end result is that the Board‘s decision creates either a right that is hollow or one premised on an already-rejected justification.‖ (Horton II, at p. 361.) Further, the court observed that ―the NLRA was enacted and reenacted prior to the advent in 1966 of modern class action practice. [Citation.] We find limited force to the argument that there is an inherent conflict between the FAA and NLRA when the NLRA would have to be protecting a right of access to a procedure that did not exist when the NLRA was (re)enacted.‖ (Horton II, supra, 18 737 F.3d at p. 362, fn. omitted.) For the reasons above, the court held that the NLRA does not foreclose enforcement of a class action waiver in an arbitration agreement. (Horton II, at p. 363.) C. We agree with the Fifth Circuit that, in light of Concepcion, the Board‘s rule is not covered by the FAA‘s savings clause. Concepcion makes clear that even if a rule against class waivers applies equally to arbitration and nonarbitration agreements, it nonetheless interferes with fundamental attributes of arbitration and, for that reason, disfavors arbitration in practice. (Concepcion, supra, 563 U.S. at pp. __–__ [131 S.Ct. at pp. 1750–1752].) Thus, if the Board‘s rule is not precluded by the FAA, it must be because the NLRA conflicts with and takes precedence over the FAA with respect to the enforceability of class action waivers in employment arbitration agreements. As the Fifth Circuit explained, neither the NLRA‘s text nor its legislative history contains a congressional command prohibiting such waivers. (Horton II, supra, 737 F.3d at pp. 360–361.) We also agree that there is no inherent conflict between the FAA and the NLRA as that term is understood by the United States Supreme Court. It is significant that ―the NLRA was enacted and reenacted prior to the advent in 1966 of modern class action practice.‖ (Horton II, supra, 737 F.3d at p. 362.) To be sure, ―the task of defining the scope of § 7 ‗is for the Board to perform in the first instance as it considers the wide variety of cases that come before it‘ ‖ (NLRB v. City Disposal Systems Inc. (1984) 465 U.S. 822, 829), and the forms of concerted activity protected by the NLRA are not necessarily limited to those that existed when the NLRA was enacted in 1935 or reenacted in 1947. However, in Italian Colors, where the high court held that federal antitrust laws do not preclude enforcement of a class action waiver in an arbitration agreement, the high court found it significant that ―[t]he Sherman and Clayton Acts make no mention of 19 class actions. In fact, they were enacted decades before the advent of Federal Rule of Civil Procedure 23 . . . .‖ (Italian Colors, supra, 570 U.S. at p. __ [133 S.Ct. at p. 2309].) Here as well, like the Fifth Circuit, ―[w]e find limited force to the argument that there is an inherent conflict between the FAA and NLRA when the NLRA would have to be protecting a right of access to a procedure that did not exist when the NLRA was (re)enacted.‖ (Horton II, at p. 362, fn. omitted.) Furthermore, as the high court stated in Italian Colors: ―In Gilmer, supra, we had no qualms in enforcing a class waiver in an arbitration agreement even though the federal statute at issue, the Age Discrimination in Employment Act, expressly permitted collective actions. We said that statutory permission did ‗ ―not mean that individual attempts at conciliation were intended to be barred.‖ ‘ ‖ Italian Colors, supra, 570 U.S. at p. __ [133 S.Ct. at p. 2311].) Thus, the high court has held that the explicit authorization of class actions in the Age Discrimination in Employment Act (see 29 U.S.C. § 626(b), referencing, for purposes of enforcement 29 U.S.C. § 216 [providing for employee class actions as a remedy for Fair Labor Standard Act violations]) does not bar enforcement of a class waiver in an arbitration agreement. This holding reinforces our doubt that the NLRA‘s general protection of concerted activity, which makes no reference to class actions, may be construed as an implied bar to a class action waiver. We do not find persuasive the Board‘s attempt to distinguish its rule from Discover Bank on the basis that employment arbitration class actions tend to be smaller than consumer class actions and thus ―far less cumbersome and more akin to an individual arbitration proceeding.‖ (Horton I, supra, 357 NLRB No. 184, p. 12 [2012 WL 36274 at p. *15].) Nothing in Concepcion suggests that its rule upholding class action waivers, which relied significantly on the incompatibility between the formality of class proceedings and the informality of arbitration (Concepcion, supra, 563 U.S. at p. __ [131 S.Ct. at p. 1751]), depends on the size 20 of the class involved. Nor does the limitation of a class action waiver to disputes between employers and employees mitigate the conflict between the Board‘s rule and the FAA under the reasoning of Concepcion. We thus conclude, in light of the FAA‘s ― ‗liberal federal policy favoring arbitration‘ ‖ (Concepcion, supra, 563 U.S. at p.__ [131 S.Ct. at p. 1745]), that sections 7 and 8 the NLRA do not represent ―a contrary congressional command‖ ‘ overriding the FAA‘s mandate. (CompuCredit v. Greenwood, supra, 565 U.S. at p. __ [132 S.Ct. at p. 669.) This conclusion is consistent with the judgment of all the federal circuit courts and most of the federal district courts that have considered the issue. (See Sutherland v. Ernst & Young, LLP (2d Cir. 2013) 726 F.3d 290, 297 fn. 8; Owen v. Bristol Care, Inc. (8th Cir. 2013) 702 F.3d 1050, 1053–1055; Delock v. Securitas Sec. Servs. USA, Inc. (E.D.Ark. 2012) 883 F.Supp.2d 784, 789–790; Morvant v. P.F. Chang’s China Bistro, Inc. (N.D.Cal. 2012) 870 F.Supp.2d 831, 844–845; Jasso v. Money Mart Express, Inc. (N.D.Cal. 2012) 879 F.Supp.2d 1038, 1048–1049; but see Herrington v. Waterstone Mortg. Corp. (W.D.Wis. Mar. 16, 2012) No. 11-cv-779-bbc [2012 WL 1242318, at p. *5] [defendant advances no persuasive argument that the Board interpreted the NLRA incorrectly].) Our conclusion does not mean that the NLRA imposes no limits on the enforceability of arbitration agreements. Notably, while upholding the class waiver in Horton II, the Fifth Circuit affirmed the Board‘s determination that the arbitration agreement at issue violated section 8(a)(1) and (4) of the NLRA insofar as it contained language that would lead employees to reasonably believe they were prohibited from filing unfair labor practice charges with the Board. (Horton II, supra, 737 F.3d at pp. 363–364.) Moreover, the arbitration agreement in the present case, apart from the class waiver, still permits a broad range of collective activity to vindicate wage claims. CLS points out that the agreement here is less 21 restrictive than the one considered in Horton: The arbitration agreement does not prohibit employees from filing joint claims in arbitration, does not preclude the arbitrator from consolidating the claims of multiple employees, and does not prohibit the arbitrator from awarding relief to a group of employees. The agreement does not restrict the capacity of employees to ―discuss their claims with one another, pool their resources to hire a lawyer, seek advice and litigation support from a union, solicit support from other employees, and file similar or coordinated individual claims.‖ (Horton I, supra, 357 NLRB No. 184, p. 6 [2012 WL 36274 at p. *8]; cf. Italian Colors, supra, 570 U.S. at p. __, fn. 4 [133 S. Ct. at p. 2311, fn. 4 [making clear that its holding applies only to class action waivers and not to provisions barring ―other forms of cost sharing‖].) We have no occasion to decide whether an arbitration agreement that more broadly restricts collective activity would run afoul of section 7. IV. Code of Civil Procedure section 1281.2 provides that one ground for denying a petition to compel arbitration is that ―[t]he right to compel arbitration has been waived by the petitioner.‖ Iskanian contends that CLS waived its right to arbitration by failing to diligently pursue arbitration. We disagree. ―As our decisions explain, the term ‗waiver‘ has a number of meanings in statute and case law. [Citation.] While ‗waiver‘ generally denotes the voluntary relinquishment of a known right, it can also refer to the loss of a right as a result of a party‘s failure to perform an act it is required to perform, regardless of the party‘s intent to relinquish the right. [Citations.] In the arbitration context, ‗[t]he term ―waiver‖ has also been used as a shorthand statement for the conclusion that a contractual right to arbitration has been lost.‘ [Citation.]‖ (St. Agnes Medical 22 Center v. PacifiCare of California (2003) 31 Cal.4th 1187, 1195, fn. 4 (St. Agnes Medical Center).) ―California courts have found a waiver of the right to demand arbitration in a variety of contexts, ranging from situations in which the party seeking to compel arbitration has previously taken steps inconsistent with an intent to invoke arbitration [citations] to instances in which the petitioning party has unreasonably delayed in undertaking the procedure. [Citations.] The decisions likewise hold that the ‗bad faith‘ or ‗willful misconduct‘ of a party may constitute a waiver and thus justify a refusal to compel arbitration. [Citation.]‖ (Davis v. Blue Cross of Northern California (1979) 25 Cal.3d 418, 425–426.) The fact that the party petitioning for arbitration has participated in litigation, short of a determination on the merits, does not by itself constitute a waiver. (St. Agnes Medical Center, supra, 31 Cal.4th at p. 1203.) We have said the following factors are relevant to the waiver inquiry: ― ‗ ―(1) whether the party‘s actions are inconsistent with the right to arbitrate; (2) whether ‗the litigation machinery has been substantially invoked‘ and the parties ‗were well into preparation of a lawsuit‘ before the party notified the opposing party of an intent to arbitrate; (3) whether a party either requested arbitration enforcement close to the trial date or delayed for a long period before seeking a stay; (4) whether a defendant seeking arbitration filed a counterclaim without asking for a stay of the proceedings; (5) ‗whether important intervening steps [e.g., taking advantage of judicial discovery procedures not available in arbitration] had taken place‘; and (6) whether the delay ‗affected, misled, or prejudiced‘ the opposing party.‖ ‘ ‖ (St. Agnes Medical Center, supra, 31 Cal.4th at p. 1196.) In light of the policy in favor of arbitration, ―waivers are not to be lightly inferred and the party seeking to establish a waiver bears a heavy burden of 23 proof.‖ (St. Agnes Medical Center, supra, 31 Cal.4th at p. 1195.) ―Generally, the determination of waiver is a question of fact, and the trial court‘s finding, if supported by sufficient evidence, is binding on the appellate court. [Citation.] ‗When, however, the facts are undisputed and only one inference may reasonably be drawn, the issue is one of law and the reviewing court is not bound by the trial court‘s ruling.‘ ‖ (Id.at p. 1196.) In the present case, CLS initially filed a timely petition to compel arbitration in response to Iskanian‘s complaint, which included class action claims. After the trial court granted the petition, this court issued Gentry, which restricted the enforceability of class waivers, and the Court of Appeal remanded the matter to the trial court to determine whether Gentry affected the ruling. Rather than further litigate the petition to compel arbitration, CLS withdrew the petition and proceeded to litigate the claim and resist Iskanian‘s move to certify a class. The parties engaged in discovery, both as to the merits and on the class certification issue. In October of 2009, the trial court granted Iskanian‘s motion to certify the class. In May of 2011, shortly after the Supreme Court filed Concepcion, which cast Gentry into doubt, CLS renewed its petition to compel arbitration. The trial court granted the petition. CLS contends that it has never acted inconsistently with its right to arbitrate. It initially petitioned to compel arbitration and then abandoned arbitration only when Gentry made clear that further petition would be futile. It moved to compel arbitration again as soon as a change in the law made clear the motion had a chance of succeeding. In response, Iskanian contends that California law does not recognize futility as a legitimate ground for delaying the assertion of the right to arbitration and that even if there were such an exception, it should not apply here because even after Gentry, CLS‘s petition to compel arbitration had some chance of success. 24  This court has not explicitly recognized futility as a ground for delaying a petition to compel arbitration. (Compare Fisher v. A.G. Becker Paribas Inc. (9th Cir. 1986) 791 F.2d 691, 697 [delay in asserting arbitration rights excusable when prevailing ―intertwining doctrine‖ made such an assertion futile until Supreme Court rejected the doctrine].) But futility as grounds for delaying arbitration is implicit in the general waiver principles we have endorsed. A factor relevant to the waiver inquiry is whether the party asserting arbitration has acted inconsistently with the right to arbitrate (see St. Agnes Medical Center, supra, 31 Cal.4th at p. 1196) or whether a delay was ―unreasonable‖ (Lewis v. Fletcher Jones Motor Cars, Inc. (2012) 205 Cal.App.4th 436, 446 (Fletcher Jones)). The fact that a party initially successfully moved to compel arbitration and abandoned that motion only after a change in the law made the motion highly unlikely to succeed weighs in favor of finding that the party has not waived its right to arbitrate. Iskanian points out that Gentry did not purport to invalidate all class waivers in wage and hour cases, but only in those instances when a class action or arbitration ―is likely to be a significantly more effective practical means of vindicating the rights of the affected employees than individual litigation or arbitration.‖ (Gentry, supra, 42 Cal.4th at p. 463.) In this case, however, neither party has ever disputed that the class action waiver at issue would not have survived Gentry. This case is therefore distinguishable from cases finding unexcused delay where the party asserting arbitration had some real chance of succeeding in compelling individual arbitration under extant law applicable to class waivers. (See Fletcher Jones, supra, 205 Cal.App.4th at p. 448 [Discover Bank‘s holding that consumer class action waivers are prohibited in the case of small damages claims did not preclude class waiver where plaintiff sought $19,000 in damages].) 25  Iskanian contends that because he spent three years attempting to obtain class certification, including considerable effort and expense on discovery, waiver should be found on the ground that the delay in the start of arbitration prejudiced him. We have said that ―prejudice . . . is critical in waiver determinations.‖ (St. Agnes Medical Center, supra, 31 Cal.4th at p. 1203.) But ―[b]ecause merely participating in litigation, by itself, does not result in . . . waiver, courts will not find prejudice where the party opposing arbitration shows only that it incurred court costs and legal expenses.‖ (Ibid.) ―Prejudice typically is found only where the petitioning party‘s conduct has substantially undermined this important public policy or substantially impaired the other side‘s ability to take advantage of the benefits and efficiencies of arbitration. [¶] For example, courts have found prejudice where the petitioning party used the judicial discovery processes to gain information about the other side‘s case that could not have been gained in arbitration [citations]; where a party unduly delayed and waited until the eve of trial to seek arbitration [citation]; or where the lengthy nature of the delays associated with the petitioning party‘s attempts to litigate resulted in lost evidence [citation].‖ (Id. at p. 1204.) Some courts have interpreted St. Agnes Medical Center to allow consideration of the expenditure of time and money in determining prejudice where the delay is unreasonable. In Burton v. Cruise (2010) 190 Cal.App.4th 939, for example, the court reasoned that ―a petitioning party‘s conduct in stretching out the litigation process itself may cause prejudice by depriving the other party of the advantages of arbitration as an ‗expedient, efficient and cost-effective method to resolve disputes.‘ [Citation.] Arbitration loses much, if not all, of its value if undue time and money is lost in the litigation process preceding a last-minute petition to compel.‖ (Id. at p. 948.) Other courts have likewise found that unjustified delay, combined with substantial expenditure of time and money, 26 deprived the parties of the benefits of arbitration and was sufficiently prejudicial to support a finding of waiver to arbitrate. (See, e.g., Hoover v. American Income Life Ins. Co. (2012) 206 Cal.App.4th 1193, 1205; Roberts v. El Cajon Motors, Inc. (2011) 200 Cal.App.4th 832, 845–846; Adolph v. Coastal Auto Sales, Inc. (2010) 184 Cal.App.4th 1443, 1451; Guess? Inc. v. Superior Court (2000) 79 Cal.App.4th 553, 558; Sobremonte v. Superior Court (1998) 61 Cal.App.4th 980, 996; but see Groom v. Health Net (2000) 82 Cal.App.4th 1189, 1197 [excluding time and expense from the calculus of prejudice].) These cases, however, do not support Iskanian‘s position. In each of them, substantial expense and delay were caused by the unreasonable or unjustified conduct of the party seeking arbitration. In this case, the delay was reasonable in light of the state of the law at the time and Iskanian‘s own opposition to arbitration. Where, as here, a party promptly initiates arbitration and then abandons arbitration because it is resisted by the opposing party and foreclosed by existing law, the mere fact that the parties then proceed to engage in various forms of pretrial litigation does not compel the conclusion that the party has waived its right to arbitrate when a later change in the law permits arbitration. Moreover, the case before us is not one where ―the petitioning party used the judicial discovery processes to gain information about the other side‘s case that could not have been gained in arbitration‖ or ―where the lengthy nature of the delays associated with the petitioning party‘s attempts to litigate resulted in lost evidence.‖ (St. Agnes Medical Center, supra, 31 Cal.4th at p. 1204.) No such prejudice has been shown here. As CLS points out, without contradiction by Iskanian, the discovery it obtained while the case was in court consisted of Iskanian‘s deposition and 77 pages of documents pertaining to his individual wage claim. Because the arbitration agreement itself provides for ―reasonable discovery,‖ there is no indication that CLS obtained any material information 27 through pretrial discovery that it could not have obtained through arbitral discovery. In sum, Iskanian does not demonstrate that CLS‘s delay in pursuing arbitration was unreasonable or that pretrial proceedings have resulted in cognizable prejudice. We conclude that CLS has not waived its right to arbitrate. V. As noted, the arbitration agreement requires the waiver not only of class actions but of ―representative actions.‖ There is no dispute that the contract‘s term ―representative actions‖ covers representative actions brought under the Private Attorneys General Act. (Lab. Code, § 2968 et seq.; all subsequent undesignated statutory references are to this code.) We must decide whether such waivers are permissible under state law and, if not, whether the FAA preempts a state law rule prohibiting such waivers. A. Before enactment of the PAGA in 2004, several statutes provided civil penalties for violations of the Labor Code. The Labor Commissioner could bring an action to obtain such penalties, with the money going into the general fund or into a fund created by the Labor and Workforce Development Agency (Agency) for educating employers. (See § 210 [civil penalties for violating various statutes related to the timing and manner in which wages are to be paid]; § 225.5 [civil penalties for violating various statutes related to withholding wages due]; Stats. 1983, ch. 1096.) Some Labor Code violations were criminal misdemeanors. (See §§ 215, 216, 218.) The PAGA addressed two problems. First, the bill sponsors observed that ―many Labor Code provisions are unenforced because they are punishable only as criminal misdemeanors, with no civil penalty or other sanction attached. Since district attorneys tend to direct their resources to violent crimes and other public 28 priorities, Labor Code violations rarely result in criminal investigations and prosecutions.‖ (Sen. Judiciary Com., Analysis of Sen. Bill No. 796 (Reg. Sess. 2003–2004) as amended Apr. 22, 2003, p. 5.) The solution was to enact civil penalties for Labor Code violations ―significant enough to deter violations.‖ (Ibid.) For Labor Code violations for which no penalty is provided, the PAGA provides that the penalties are generally $100 for each aggrieved employee per pay period for the initial violation and $200 per pay period for each subsequent violation. (§ 2699, subd. (f)(2).) The second problem was that even when statutes specified civil penalties, there was a shortage of government resources to pursue enforcement. The legislative history discussed this problem at length. Evidence gathered by the Assembly Committee on Labor and Employment indicated that the Department of Industrial Relations (DIR) ―was failing to effectively enforce labor law violations. Estimates of the size of California‘s ‗underground economy‘ –– businesses operating outside the state‘s tax and licensing requirements –– ranged from 60 to 140 billion dollars a year, representing a tax loss to the state of three to six billion dollars annually. Further, a U.S. Department of Labor study of the garment industry in Los Angeles, which employs over 100,000 workers, estimated the existence of over 33,000 serious and ongoing wage violations by the city‘s garment industry employers, but that DIR was issuing fewer than 100 wage citations per year for all industries throughout the state. [¶] Moreover, evidence demonstrates that the resources dedicated to labor law enforcement have not kept pace with the growth of the economy in California.‖ (Assembly Com. on Labor and Employment, Analysis of Sen. Bill No. 796 (Reg. Sess. 2003–2004) as amended July 2, 2003, p. 4.) We summarized the Legislature‘s response to this problem in Arias v. Superior Court (2009) 46 Cal.4th 969, 980–981 (Arias): ―In September 2003, the 29 Legislature enacted the Labor Code Private Attorneys General Act of 2004 [citations]. The Legislature declared that adequate financing of labor law enforcement was necessary to achieve maximum compliance with state labor laws, that staffing levels for labor law enforcement agencies had declined and were unlikely to keep pace with the future growth of the labor market, and that it was therefore in the public interest to allow aggrieved employees, acting as private attorneys general, to recover civil penalties for Labor Code violations, with the understanding that labor law enforcement agencies were to retain primacy over private enforcement efforts. (Stats. 2003, ch. 906, § 1.) ―Under this legislation, an ‗aggrieved employee‘ may bring a civil action personally and on behalf of other current or former employees to recover civil penalties for Labor Code violations. (Lab. Code, § 2699, subd. (a).) Of the civil penalties recovered, 75 percent goes to the Labor and Workforce Development Agency, leaving the remaining 25 percent for the ‗aggrieved employees.‘ (Id., § 2699, subd. (i).) ―Before bringing a civil action for statutory penalties, an employee must comply with Labor Code section 2699.3. (Lab. Code, § 2699, subd. (a).) That statute requires the employee to give written notice of the alleged Labor Code violation to both the employer and the Labor and Workforce Development Agency, and the notice must describe facts and theories supporting the violation. (Id., § 2699.3, subd. (a).) If the agency notifies the employee and the employer that it does not intend to investigate . . . , or if the agency fails to respond within 33 days, the employee may then bring a civil action against the employer. (Id., § 2699.3, subd. (a)(2)(A).) If the agency decides to investigate, it then has 120 days to do so. If the agency decides not to issue a citation, or does not issue a citation within 158 days after the postmark date of the employee‘s notice, the 30 employee may commence a civil action. (Id., § 2699.3, subd. (a)(2)(B).)‖ (Arias, supra, 46 Cal.4th at pp. 980–981, fn. omitted.) In Arias, the defendants argued that if the PAGA were not ―construed as requiring representative actions under the act to be brought as class actions,‖ then a defendant could be subjected to lawsuits by multiple plaintiffs raising a common claim, none of whom would be bound by a prior judgment in the defendant‘s favor because they were not parties to a prior lawsuit. (Arias, supra, 46 Cal.4th at p. 985.) We rejected this due process concern on the ground that ―the judgment in [a PAGA representative] action is binding not only on the named employee plaintiff but also on government agencies and any aggrieved employee not a party to the proceeding.‖ (Ibid.) We reached this conclusion by elucidating the legal characteristics of a PAGA representative action: ―An employee plaintiff suing . . . under the [PAGA] does so as the proxy or agent of the state‘s labor law enforcement agencies. . . . In a lawsuit brought under the act, the employee plaintiff represents the same legal right and interest as state labor law enforcement agencies — namely, recovery of civil penalties that otherwise would have been assessed and collected by the Labor Workforce Development Agency. [Citations.] . . . . Because collateral estoppel applies not only against a party to the prior action in which the issue was determined, but also against those for whom the party acted as an agent or proxy [citations], a judgment in an employee‘s action under the act binds not only that employee but also the state labor law enforcement agencies. ―Because an aggrieved employee‘s action under the [PAGA] functions as a substitute for an action brought by the government itself, a judgment in that action binds all those, including nonparty aggrieved employees, who would be bound by a judgment in an action brought by the government. The act authorizes a representative action only for the purpose of seeking statutory penalties for Labor 31 Code violations (Lab. Code, § 2699, subds. (a), (g)), and an action to recover civil penalties ‗is fundamentally a law enforcement action designed to protect the public and not to benefit private parties‘ (People v. Pacific Land Research Co. (1977) 20 Cal.3d 10, 17). When a government agency is authorized to bring an action on behalf of an individual or in the public interest, and a private person lacks an independent legal right to bring the action, a person who is not a party but who is represented by the agency is bound by the judgment as though the person were a party. (Rest.2d Judgments, § 41, subd. (1)(d), com. d, p. 397.) Accordingly, with respect to the recovery of civil penalties, nonparty employees as well as the government are bound by the judgment in an action brought under the act, and therefore defendants‘ due process concerns are to that extent unfounded.‖ (Arias, supra, 46 Cal.4th at p. 986.) The civil penalties recovered on behalf of the state under the PAGA are distinct from the statutory damages to which employees may be entitled in their individual capacities. Case law has clarified the distinction ―between a request for statutory penalties provided by the Labor Code for employer wage-and-hour violations, which were recoverable directly by employees well before the [PAGA] became part of the Labor Code, and a demand for ‗civil penalties,‘ previously enforceable only by the state‘s labor law enforcement agencies. An example of the former is section 203, which obligates an employer that willfully fails to pay wages due an employee who is discharged or quits to pay the employee, in addition to the unpaid wages, a penalty equal to the employee‘s daily wages for each day, not exceeding 30 days, that the wages are unpaid. [Citation.] Examples of the latter are section 225.5, which provides, in addition to any other penalty that may be assessed, an employer that unlawfully withholds wages in violation of certain specified provisions of the Labor Code is subject to a civil penalty in an enforcement action initiated by the Labor Commissioner in the sum of $100 per 32 employee for the initial violation and $200 per employee for subsequent or willful violations, and section 256, which authorizes the Labor Commissioner to ‗impose a civil penalty in an amount not exceeding 30 days [sic] pay as waiting time under the terms of Section 203.‘ ‖ (Caliber Bodyworks, Inc. v. Superior Court (2005) 134 Cal.App.4th 365, 377–378, fns. omitted; see Murphy v. Kenneth Cole Productions, Inc. (2007) 40 Cal.4th 1094, 1114 [distinguishing premium pay under section 226.7 from a civil penalty in determining the applicable statute of limitations].) A PAGA representative action is therefore a type of qui tam action. ―Traditionally, the requirements for enforcement by a citizen in a qui tam action have been (1) that the statute exacts a penalty; (2) that part of the penalty be paid to the informer; and (3) that, in some way, the informer be authorized to bring suit to recover the penalty.‖ (Sanders v. Pacific Gas & Elec. Co. (1975) 53 Cal.App.3d 661, 671 (Sanders).) The PAGA conforms to these traditional criteria, except that a portion of the penalty goes not only to the citizen bringing the suit but to all employees affected by the Labor Code violation. The government entity on whose behalf the plaintiff files suit is always the real party in interest in the suit. (See In re Marriage of Biddle (1997) 52 Cal.App.4th 396, 399.) Although the PAGA was enacted relatively recently, the use of qui tam actions is venerable, dating back to colonial times, and several such statutes were enacted by the First Congress. (See Vermont Agency of Natural Resources v. United States ex rel. Stevens (2000) 529 U.S. 765, 776–777.) The Federal False Claims Act, allowing individuals to share the recovery achieved by the reporting of false claims, originated during the Civil War. (See United States ex rel. Marcus v. Hess (1943) 317 U.S. 537, 539–540; 31 U.S.C § 3730.) The qui tam plaintiff under the Federal False Claims Act has standing in federal court under article III of the United States Constitution, even though the plaintiff has suffered no injury 33 in fact, because that statute ―can reasonably be regarded as effecting a partial assignment of the Government‘s damages claim.‖ (Stevens, at p. 773.) California has more recently authorized qui tam actions for the recovery of false claims against the state treasury. (Gov. Code, § 12652, subd. (c), added by Stats. 1987, ch. 1420, § 1, p. 5239.) In addition, there are earlier examples of qui tam actions under California law. (See, e.g., Sanders, supra, 53 Cal.App.3d at p. 671 [noting qui tam provision in Political Reform Act of 1974].) B. With this background, we first examine whether an employee‘s right to bring a PAGA action is waivable. The unwaivability of certain statutory rights ―derives from two statutes that are themselves derived from public policy. First, Civil Code section 1668 states: ‗All contracts which have for their object, directly or indirectly, to exempt anyone from responsibility for his own fraud, or willful injury to the person or property of another, or violation of law, whether willful or negligent, are against the policy of the law.‘ ‗Agreements whose object, directly or indirectly, is to exempt [their] parties from violation of the law are against public policy and may not be enforced.‘ (In re Marriage of Fell (1997) 55 Cal.App.4th 1058, 1065.) Second, Civil Code section 3513 states, ‗Anyone may waive the advantage of a law intended solely for his benefit. But a law established for a public reason cannot be contravened by a private agreement.‘ ‖ (Armendariz v. Foundation Health Psychcare Services, Inc. (2000) 24 Cal.4th 83, 100 (Armendariz).) These statutes compel the conclusion that an employee‘s right to bring a PAGA action is unwaivable. Section 2699, subdivision (a) states: ―Notwithstanding any other provision of law, any provision of this code that provides for a civil penalty to be assessed and collected by the Labor and 34 Workforce Development Agency . . . for a violation of this code, may, as an alternative, be recovered through a civil action brought by an aggrieved employee on behalf of himself or herself and other current or former employees pursuant to the procedures specified in Section 2699.3.‖ As noted, the Legislature‘s purpose in enacting the PAGA was to augment the limited enforcement capability of the Labor and Workforce Development Agency by empowering employees to enforce the Labor Code as representatives of the Agency. Thus, an agreement by employees to waive their right to bring a PAGA action serves to disable one of the primary mechanisms for enforcing the Labor Code. Because such an agreement has as its ―object, . . . indirectly, to exempt [the employer] from responsibility for [its] own . . . violation of law,‖ it is against public policy and may not be enforced. (Civ. Code, § 1668.).) Such an agreement also violates Civil Code section 3513‘s injunction that ―a law established for a public reason cannot be contravened by a private agreement.‖ The PAGA was clearly established for a public reason, and agreements requiring the waiver of PAGA rights would harm the state‘s interests in enforcing the Labor Code and in receiving the proceeds of civil penalties used to deter violations. Of course, employees are free to choose whether or not to bring PAGA actions when they are aware of Labor Code violations. (See Armendariz, supra, 24 Cal.4th at p. 103, fn. 8 [waivers freely made after a dispute has arisen are not necessarily contrary to public policy].) But it is contrary to public policy for an employment agreement to eliminate this choice altogether by requiring employees to waive the right to bring a PAGA action before any dispute arises. CLS argues that the arbitration agreement at issue here prohibits only representative claims, not individual PAGA claims for Labor Code violations that an employee suffered. Iskanian contends that the PAGA, which authorizes an 35 aggrieved employee to file a claim ―on behalf of himself or herself and other current or former employees‖ (§ 2699, subd. (a), italics added), does not permit an employee to file an individual claim. (Compare Reyes v. Macy’s, Inc. (2011) 202 Cal.App.4th 1119, 1123–1124 [agreeing with Iskanian‘s position] with Quevedo v. Macy’s, Inc. (C.D.Cal. 2011) 798 F.Supp.2d 1122, 1141–1142 [an employee may bring an individual PAGA action and waive the right to bring it on behalf of other employees].) But whether or not an individual claim is permissible under the PAGA, a prohibition of representative claims frustrates the PAGA‘s objectives. As one Court of Appeal has observed: ―[A]ssuming it is authorized, a single- claimant arbitration under the PAGA for individual penalties will not result in the penalties contemplated under the PAGA to punish and deter employer practices that violate the rights of numerous employees under the Labor Code. That plaintiff and other employees might be able to bring individual claims for Labor Code violations in separate arbitrations does not serve the purpose of the PAGA, even if an individual claim has collateral estoppel effects. (Arias, supra, 46 Cal.4th at pp. 985–987.) Other employees would still have to assert their claims in individual proceedings.‖ (Brown v. Ralphs Grocery Co. (2011) 197 Cal.App.4th 489, 502, fn. omitted.) We conclude that where, as here, an employment agreement compels the waiver of representative claims under the PAGA, it is contrary to public policy and unenforceable as a matter of state law. C. Notwithstanding the analysis above, a state law rule, however laudable, may not be enforced if it is preempted by the FAA. As Concepcion made clear, a state law rule may be preempted when it ―stands as an obstacle to the accomplishment of the FAA‘s objectives.‖ (Concepcion, supra, 563 U.S. at p. __ [131 S.Ct. at p. 1748].) We conclude that the rule against PAGA waivers does not 36 frustrate the FAA‘s objectives because, as explained below, the FAA aims to ensure an efficient forum for the resolution of private disputes, whereas a PAGA action is a dispute between an employer and the state Labor and Workforce Development Agency. The FAA‘s focus on private disputes finds expression in the statute‘s text: ―A written provision in any maritime transaction or a contract evidencing a transaction involving commerce to settle by arbitration a controversy thereafter arising out of such contract or transaction . . . shall be valid, irrevocable, and enforceable, save upon such grounds as exist at law or in equity for the revocation of any contract.‖ (9 U.S.C. § 2, italics added.) Although the italicized language may be read to indicate that the FAA applies only to disputes about contractual rights, not statutory rights (see Friedman, The Lost Controversy Limitation of the Federal Arbitration Act (2012) 46 U.Rich. L.Rev. 1005, 1037–1045), the high court has found the FAA applicable to statutory claims between parties to an arbitration agreement (see, e.g., Mitsubishi Motors v. Soler Chrysler-Plymouth (1985) 473 U.S. 614, 635–637). Even so, however, the statutory phrase ―a controversy thereafter arising out of such contract or transaction‖ is most naturally read to mean a dispute about the respective rights and obligations of parties in a contractual relationship. The FAA‘s focus on private disputes is further revealed in its legislative history, which shows that the FAA‘s primary object was the settlement of ordinary commercial disputes. (See J. Hearings on Sen. Bill No. 1005 and H.Res. No. 646 before the Subcommittees of the Committees on the Judiciary, 68th Cong., 1st Sess., 15 (1924) at p. 29 [testimony of FAA drafter Julius Henry Cohen that the act will merely make enforceable the customs of trade associations to arbitrate disputes]; id. at p. 7 [testimony of Charles Bernheimer, Chairman of Com. on Arbitration, N.Y. State Chamber of Commerce, that FAA is designed to resolve 37 ―ordinary everyday trade disputes‖ between merchants].) There is no indication that the FAA was intended to govern disputes between the government in its law enforcement capacity and private individuals. Furthermore, although qui tam citizen actions on behalf of the government were well established at the time the FAA was enacted (see ante, at p. 33), there is no mention of such actions in the legislative history and no indication that the FAA was concerned with limiting their scope. (Compare Concepcion, supra, 563 U.S. at pp. __–__ [131 S.Ct. at pp. 1751–1752] [noting that class arbitration was not envisioned by the Congress that enacted the FAA].) Consistent with this understanding, the United States Supreme Court‘s FAA jurisprudence — with one exception discussed below — consists entirely of disputes involving the parties‘ own rights and obligations, not the rights of a public enforcement agency. (See, e.g., Italian Colors, supra, 570 U.S. at p. __ [133 S. Ct. at p. 2308] [class action by merchants for excessive credit card fees charged in violation of antitrust laws]; Marmet Health Care Center, Inc. v. Brown (2012) 565 U.S. __, __ [132 S.Ct. 1201, 1202–1203] [wrongful death action]; Concepcion, supra, 563 U.S. at p. __ [131 S.Ct. at p. 1744] [class action suit for damages over fraudulent practices]; Rent-A-Center West, Inc. v. Jackson (2010) 561 U.S. 63, __ [130 S.Ct. 2772, 2775] [employment discrimination suit]; Stolt-Nielsen S.A. v. AnimalFeeds International Corp. (2010) 559 U.S. 662, 667 [antitrust dispute involving price fixing and supracompetitive pricing]; Preston v. Ferrer (2008) 552 U.S. 346, 350 [action by attorney to recover fees from former client]; Buckeye Check Cashing, Inc. v. Cardegna (2006) 546 U.S. 440, 443 [class action by borrowers against lender for alleged usurious loans]; Green Tree Financial Corp. v. Bazzle (2003) 539 U.S. 444, 449 [class action damages suit by borrowers against lender for violations of South Carolina law]; Doctor’s Associates, Inc. v. Casarotto (1996) 517 U.S. 681, 683 [contract and fraud claims related to franchise 38 agreement]; Rodriguez de Quijas v. Shearson/Am. Exp. (1989) 490 U.S. 477, 478– 479 [various statutory causes of actions by investors against broker over investments ―turned sour‖]; Volt Information Sciences, Inc. v. Board of Trustees of Leland Stanford Junior Univ. (1989) 489 U.S. 468, 470–471 [action for fraud and breach of contract]; Perry v. Thomas (1987) 482 U.S. 483, 484–485 [suit for breach of contract, conversion, and breach of fiduciary duty arising from employment relationship]; Shearson/American Express Inc. v. McMahon (1987) 482 U.S. 220, 222–223 [suit against brokerage firm by clients alleging various statutory causes of action]; Mitsubishi Motors v. Soler Chrysler-Plymouth (1985) 473 U.S. 614, 619–620 [contract, defamation, and antitrust dispute between automobile companies]; Southland Corp. v. Keating (1984) 465 U.S. 1, 4 [class action suit for fraud, breach of contract, breach of fiduciary duty, and violation of state disclosure requirements related to franchise agreement]; Gilmer v. Interstate/Johnson Lane Corp. (1991) 500 U.S. 20, 23–24 [employment age discrimination suit]; Moses H. Cone Memorial Hospital v. Mercury Construction Corp. (1983) 460 U.S. 1, 6–7 [contract dispute].) The one case in which the high court has considered the enforcement of an arbitration agreement against the government does not support CLS‘s contention that the FAA preempts a PAGA action. In EEOC v. Waffle House, Inc. (2002) 534 U.S. 279 (Waffle House), the high court held that an employment arbitration agreement governed by the FAA does not prevent the Equal Employment Opportunity Commission (EEOC) from suing an employer on behalf of an employee bound by that agreement for victim-specific relief, such as reinstatement and back pay. The court based its conclusion primarily on the fact that the EEOC was not a party to the arbitration agreement. (Id. at pp. 288–289.) Waffle House further noted that the EEOC was not a proxy for the individual employee, that the EEOC could prosecute the action without the employee‘s consent, and that the 39 employee did not exercise control over the litigation. (Id. at p. 291.) Whereas Waffle House involved a suit by the government seeking to obtain victim-specific relief on behalf of an employee bound by the arbitration agreement, this case involves an employee bound by an arbitration agreement bringing suit on behalf of the government to obtain remedies other than victim-specific relief, i.e., civil penalties paid largely into the state treasury. Nothing in Waffle House suggests that the FAA preempts a rule prohibiting the waiver of this kind of qui tam action on behalf of the state for such remedies. Simply put, a PAGA claim lies outside the FAA‘s coverage because it is not a dispute between an employer and an employee arising out of their contractual relationship. It is a dispute between an employer and the state, which alleges directly or through its agents — either the Labor and Workforce Development Agency or aggrieved employees — that the employer has violated the Labor Code. Through his PAGA claim, Iskanian is seeking to recover civil penalties, 75 percent of which will go to the state‘s coffers. We emphasized in Arias that ―an action to recover civil penalties ‗is fundamentally a law enforcement action designed to protect the public and not to benefit private parties‘ ‖; that ―[i]n a lawsuit brought under the [PAGA], the employee plaintiff represents the same legal right and interest as state labor law enforcement agencies‖; and that ―an aggrieved employee‘s action under the [PAGA] functions as a substitute for an action brought by the government itself.‖ (Arias, supra, 46 Cal.4th at p. 986.) The fact that any judgment in a PAGA action is binding on the government confirms that the state is the real party in interest. (Ibid.) It is true that ―a person may not bring a PAGA action unless he or she is ‗an aggrieved employee‘ (§ 2699, subd. (a))‖ (conc. opn., post, at p. 6), but that does not change the character of the litigant or the dispute. As Justice Chin correctly observes, ―every PAGA action, whether seeking penalties for Labor Code violations as to 40 only one aggrieved employee — the plaintiff bringing the action — or as to other employees as well, is a representative action on behalf of the state.‖ (Id. at p. 4.) Of course, any employee is free to forgo the option of pursuing a PAGA action. But it is against public policy for an employment agreement to deprive employees of this option altogether, before any dispute arises. (Ante, at pp. 34– 36.) The question is whether this public policy contravenes the FAA. Nothing in the text or legislative history of the FAA nor in the Supreme Court‘s construction of the statute suggests that the FAA was intended to limit the ability of states to enhance their public enforcement capabilities by enlisting willing employees in qui tam actions. Representative actions under the PAGA, unlike class action suits for damages, do not displace the bilateral arbitration of private disputes between employers and employees over their respective rights and obligations toward each other. Instead, they directly enforce the state’s interest in penalizing and deterring employers who violate California‘s labor laws. In crafting the PAGA, the Legislature could have chosen to deputize citizens who were not employees of the defendant employer to prosecute qui tam actions. The Legislature instead chose to limit qui tam plaintiffs to willing employees who had been aggrieved by the employer in order to avoid ―private plaintiff abuse.‖ (Sen. Judiciary Comm., Analysis of Sen. Bill No. 796 (Reg. Sess. 2003–2004) as amended Apr. 22, 2003, p. 7.) This arrangement likewise does not interfere with the FAA‘s policy goal. Our opinion today would not permit a state to circumvent the FAA by, for example, deputizing employee A to bring a suit for the individual damages claims of employees B, C, and D. This pursuit of victim-specific relief by a party to an arbitration agreement on behalf of other parties to an arbitration agreement would be tantamount to a private class action, whatever the designation given by the Legislature. Under Concepcion, such an action could not be maintained in the face of a class waiver. Here, importantly, a PAGA litigant‘s status as ―the proxy 41 or agent‖ of the state (Arias, supra, 46 Cal.4th at p. 986) is not merely semantic; it reflects a PAGA litigant‘s substantive role in enforcing our labor laws on behalf of state law enforcement agencies. Our FAA holding applies specifically to a state law rule barring predispute waiver of an employee‘s right to bring an action that can only be brought by the state or its representatives, where any resulting judgment is binding on the state and any monetary penalties largely go to state coffers. Further, the high court has emphasized that ― ‗courts should assume that ―the historic police powers of the States‖ are not superseded ―unless that was the clear and manifest purpose of Congress.‖ ‘ (Arizona v. United States (2012) 567 U.S. __, __ [132 S.Ct. 2492, 2501]; see Chamber of Commerce v. Whiting (2011) 563 U.S. __, __ [131 S.Ct. 1968, 1985] [‗Our precedents ―establish that a high threshold must be met if a state law is to be preempted for conflicting with the purposes of a federal Act.‖ [Citation.]‘].)‖ (Sonic II, supra, 57 Cal.4th at p. 1154.) There is no question that the enactment and enforcement of laws concerning wages, hours, and other terms of employment is within the state‘s historic police power. (See Metropolitan Life Ins. Co. v. Massachusetts (1985) 471 U.S. 724, 756 [― ‗States possess broad authority under their police powers to regulate the employment relationship to protect workers within the State.‘ ‖]; Kerr’s Catering Service v. Dept. of Industrial Relations (1962) 57 Cal.2d 319, 326–327.) Moreover, how a state government chooses to structure its own law enforcement authority lies at the heart of state sovereignty. (See Printz v. United States (1997) 521 U.S. 898, 928 [―It is an essential attribute of the State‘s retained sovereignty that they remain independent and autonomous within their proper sphere of authority.‖].) We can discern in the FAA no purpose, much less a clear and manifest purpose, to curtail the ability of states to supplement their 42 enforcement capability by authorizing willing employees to seek civil penalties for Labor Code violations traditionally prosecuted by the state. In sum, the FAA aims to promote arbitration of claims belonging to the private parties to an arbitration agreement. It does not aim to promote arbitration of claims belonging to a government agency, and that is no less true when such a claim is brought by a statutorily designated proxy for the agency as when the claim is brought by the agency itself. The fundamental character of the claim as a public enforcement action is the same in both instances. We conclude that California‘s public policy prohibiting waiver of PAGA claims, whose sole purpose is to vindicate the Labor and Workforce Development Agency‘s interest in enforcing the Labor Code, does not interfere with the FAA‘s goal of promoting arbitration as a forum for private dispute resolution. D. CLS contends that the PAGA violates the principle of separation of powers under the California Constitution. Iskanian says this issue was not raised in CLS‘s answer to the petition for review and is not properly before us. Because the constitutionality of the PAGA is directly pertinent to the issue of whether a PAGA waiver is contrary to state public policy, and because the parties have had a reasonable opportunity to brief this issue, we will decide the merits of this question. (See Cal. Rules of Court, rule 8.516(b)(1), (2).) The basis of CLS‘s argument is found in County of Santa Clara v. Superior Court (2010) 50 Cal.4th 35 (County of Santa Clara). There we reconsidered our earlier holding in People ex rel. Clancy v. Superior Court (1985) 39 Cal.3d 740 (Clancy), which appeared to categorically bar public entities from hiring private counsel on a contingent fee basis to prosecute public nuisances. In the context of a disputed injunction to close an adult bookstore, this court reasoned that private counsel acting as a public prosecutor must be ―absolutely neutral‖ and must 43 engage in a ―delicate weighing of values‖ that would be upset if the prosecutor had a financial interest in the prosecution. (Id. at pp. 748–749.) In County of Santa Clara, we clarified that Clancy‘s ―absolute prohibition on contingent-fee arrangements‖ applies only to cases involving a constitutional ―liberty interest‖ or ―the right of an existing business to continue operation,‖ and not to all public nuisance cases. (County of Santa Clara, supra, 50 Cal.4th at p. 56.) We recognized, as we did in Clancy, that contingent fee representation was appropriate in ―ordinary civil cases‖ in which a government entity‘s own economic interests were at stake. (County of Santa Clara, at p. 50; see Clancy, supra, 39 Cal.3d at p. 748.) Whereas the suit in Clancy was akin to a criminal prosecution, with possible criminal penalties and severe civil penalties, we said the public nuisance suit at issue in County of Santa Clara, which involved abatement of lead paint, fell somewhere in between an ordinary civil case and a criminal prosecution. (County of Santa Clara, at p. 55.) We held that for such cases, the interest in prosecutorial neutrality is sufficiently protected when private counsel, although having a pecuniary interest in litigation, is ―subject to the supervision and control of government attorneys‖ so that ―the discretionary decisions vital to an impartial prosecution are made by neutral attorneys.‖ (Id. at p. 59.) CLS contends that the PAGA runs afoul of our holding in County of Santa Clara by authorizing financially interested private citizens to prosecute claims on the state‘s behalf without governmental supervision. CLS further contends that because County of Santa Clara dealt with regulation of the legal profession, which is the province of this court, the PAGA violates the principle of separation of powers under the California Constitution. (See Cal. Const., art. III, § 3; Merco Constr. Engineers, Inc. v. Municipal Court (1978) 21 Cal.3d 724, 731–732.) We disagree. 44  ―[T]he separation of powers doctrine does not create an absolute or rigid division of functions.‖ (Lockyer v. City and County of San Francisco (2004) 33 Cal.4th 1055, 1068.) Rather, ―[t]he substantial interrelatedness of the three branches‘ actions is apparent and commonplace: the judiciary passes upon the constitutional validity of legislative and executive actions, the Legislature enacts statutes that govern the procedures and evidentiary rules applicable in judicial and executive proceedings, and the Governor appoints judges and participates in the legislative process through the veto power. Such interrelationship, of course, lies at the heart of the constitutional theory of ‗checks and balances‘ that the separation of powers doctrine is intended to serve.‖ (Superior Court v. County of Mendocino (1996) 13 Cal.4th 45, 52–53.) In considering CLS‘s challenge, we note that it would apply not only to the PAGA but to all qui tam actions, including the California False Claims Act, which authorizes the prosecution of claims on behalf of government entities without government supervision. (See Gov. Code, § 12652, subd. (c).) No court has applied the rule in Clancy or County of Santa Clara to such actions, and our case law contains no indication that the enactment of qui tam statutes is anything but a legitimate exercise of legislative authority. The Legislature is charged with allocating scarce budgetary resources (see Professional Engineers in California Government v. Schwarzenegger (2010) 50 Cal.4th 989, 1010–1011), which includes the provision of resources to the state executive branch for prosecution and law enforcement. Qui tam actions enhance the state‘s ability to use such scarce resources by enlisting willing citizens in the task of civil enforcement. Indeed, the choice often confronting the Legislature is not between prosecution by a financially interested private citizen and prosecution by a neutral prosecutor, but between a private citizen suit and no suit at all. As noted, the lack of government resources to enforce the Labor Code led to a legislative choice to deputize and 45 incentivize employees uniquely positioned to detect and prosecute such violations through the PAGA. This legislative choice does not conflict with County of Santa Clara. Our holding in that case applies to circumstances in which a government entity retains a private law firm or attorney as outside counsel. A ―fundamental‖ reason to worry about neutrality in that context is that such an attorney, like an attorney directly employed by the government, ―has the vast power of the government available to him; he must refrain from abusing that power by failing to act evenhandedly.‖ (Clancy, supra, 39 Cal.3d at p. 746.) By contrast, a litigant who brings a qui tam action on behalf of the government generally does not have access to such power. The qui tam litigant has only his or her own resources and may incur significant cost if unsuccessful. The PAGA, by deputizing employee plaintiffs to enforce the Labor Code on behalf of the Labor and Workforce Development Agency, does not present the same risks of abuse as when a city or county hires outside counsel to do its bidding. Moreover, our rule in County of Santa Clara involves minimal if any interference with legislative or executive functions of state or local government. The rule simply requires government entities to supervise the attorneys they choose to hire to pursue public nuisance actions. By contrast, a rule disallowing qui tam actions would significantly interfere with a legitimate exercise of legislative authority aimed at accomplishing the important public purpose of augmenting scarce government resources for civil prosecutions. Because of these differences, Clancy and County of Santa Clara do not apply beyond the context of attorneys hired by government entities as independent contractors. There is no conflict between the rule in those cases and the PAGA. Accordingly, we reject CLS‘s argument that the PAGA violates the separation of powers principle under the California Constitution. 46  VI. Having concluded that CLS cannot compel the waiver of Iskanian‘s representative PAGA claim but that the agreement is otherwise enforceable according to its terms, we next consider how the parties will proceed. Although the arbitration agreement can be read as requiring arbitration of individual claims but not of representative PAGA claims, neither party contemplated such a bifurcation. Iskanian has sought to litigate all claims in court, while CLS has sought to arbitrate the individual claims while barring the PAGA representative claim altogether. In light of the principles above, neither party can get all that it wants. Iskanian must proceed with bilateral arbitration on his individual damages claims, and CLS must answer the representative PAGA claims in some forum. The arbitration agreement gives us no basis to assume that the parties would prefer to resolve a representative PAGA claim through arbitration. This raises a number of questions: (1) Will the parties agree on a single forum for resolving the PAGA claim and the other claims? (2) If not, is it appropriate to bifurcate the claims, with individual claims going to arbitration and the representative PAGA claim to litigation? (3) If such bifurcation occurs, should the arbitration be stayed pursuant to Code of Civil Procedure section 1281.2? (See Cronus Investments, Inc. v. Concierge Services (2005) 35 Cal.4th 376, 388–391 [California Arbitration Act rather than FAA procedures apply to arbitrations brought in California courts].) The parties have not addressed these questions and may do so on remand. The parties may also address CLS‘s contention that the 47 PAGA claims are time-barred, as well as Iskanian‘s response that CLS has forfeited this contention and cannot raise it on appeal. CONCLUSION Because the Court of Appeal held that the entire arbitration agreement, including the PAGA waiver, should be enforced, we reverse the judgment and remand the cause for proceedings consistent with this opinion. LIU, J. WE CONCUR: CANTIL-SAKAUYE, C. J. CORRIGAN, J. KENNARD, J.* ________________________ * Retired Associate Justice of the Supreme Court, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution. 48  CONCURRING OPINION BY CHIN, J. I agree that the rule of Gentry v. Superior Court (2007) 42 Cal.4th 443 (Gentry), which was announced by a bare four-to-three majority of this court, is inconsistent with and invalid under the decisions of the United States Supreme Court interpreting the Federal Arbitration Act (FAA) (9 U.S.C. § 1 et seq.). I also agree that the class action waiver in this case is not unlawful under the National Labor Relations Act, that defendant CLS Transportation Los Angeles, LLC, did not waive its right to arbitrate, that the arbitration agreement is invalid insofar as it purports to preclude plaintiff Arshavir Iskanian from bringing in any forum a representative action under the Private Attorneys General Act of 2004 (PAGA) (Lab. Code, § 2698 et seq.), and that this conclusion is not inconsistent with the FAA. However, as explained below, I do not endorse all of the majority‘s reasoning and discussion, including its endorsement of dicta in Sonic-Calabasas A, Inc. v. Moreno (2013) 57 Cal.4th 1109 (Sonic II). I therefore concur in the judgment. I. BOTH GENTRY’S RULE AND SONIC II’S DICTA ARE INVALID UNDER THE FAA. As noted above, I agree with the majority that Gentry‘s rule may not stand under the United States Supreme Court‘s construction of the FAA. Indeed, for that very reason, I joined Justice Baxter‘s well-reasoned dissent in Gentry, which explained that neither the FAA nor California law permits courts to ―elevate a mere judicial affinity for class actions as a beneficial device for implementing the wage laws above the policy expressed by both Congress and our own Legislature that voluntary individual agreements to arbitrate . . . should be enforced according to their terms.‖ (Gentry, supra, 42 Cal.4th at p. 477 (dis. opn. of Baxter, J.).) I do not agree, however, that the approach to unconscionability a majority of this court described in dicta in Sonic II may ―be squared‖ with the high court‘s FAA decisions. (Maj. opn., ante, at p. 10.) That approach, as my dissent in Sonic II explained, is preempted by the FAA as the high court construed that act in AT&T Mobility LLC v. Concepcion (2011) 563 U.S. __ [131 S.Ct. 1740] (Concepcion), American Express Co. v. Italian Colors Restaurant (2013) 570 U.S. __ [133 S.Ct. 2304] (Italian Colors), and several other decisions. (Sonic II, supra, 57 Cal.4th at pp. 1184-1192 (dis. opn. of Chin, J.).) Nothing has occurred since we issued Sonic II to change my view. Indeed, the majority‘s discussion in this case further reveals the invalidity under federal law of Sonic II‘s dicta. According to the majority, under that dicta, whether the arbitration procedure to which the parties have agreed is unconscionable turns not on whether it permits recovery, but on whether it is, in a court‘s view, less ―effective . . . for wage claimants‖ than a ―dispute resolution mechanism‖ that includes the procedures and protections ―the Berman statutes‖ prescribe. (Maj. opn., ante, at pp. 9-10.) However, the high court has established that the FAA does not permit courts to invalidate arbitration agreements based on the view that the procedures they set forth would ― ‗weaken[] the protections afforded in the substantive law to would-be complainants.‘ [Citation.]‖ (Green Tree Financial Corp.-Ala. v. Randolph (1990) 531 U.S. 79, 89-90.) Consistent with this principle, in Italian Colors, the court recently held that an arbitration agreement may be not invalidated based on proof that its waiver of a congressionally approved mechanism — the class action — would make pursuing 2 a federal antitrust claim prohibitively expensive. (Italian Colors, supra, 570 U.S. at pp. __ [133 S.Ct. at pp. 2310-2312].) A fortiori, an arbitration agreement may not be invalidated based on a court‘s subjective view that the agreement‘s waiver of the Berman procedures and protections would render arbitration less ―effective . . . for wage claimants‖ than a ―dispute resolution mechanism‖ that includes those procedures and protections. According to the high court, the FAA is ―a congressional declaration of a liberal federal policy favoring arbitration agreements, notwithstanding any state substantive or procedural policies to the contrary.‖ (Moses H. Cone Hospital v. Mercury Constr. Corp. (1983) 460 U.S. 1, 24, italics added.) To quote Justice Baxter‘s dissent in Gentry, it does not permit courts to ―elevate a mere judicial affinity for‖ the Berman dispute resolution mechanism ―as a beneficial device for implementing the wage laws above the policy expressed by . . . Congress . . . that voluntary individual agreements to arbitrate . . . should be enforced according to their terms.‖ (Gentry, supra, 42 Cal.4th at p. 477 (dis. opn. of Baxter, J.).) I therefore do not join the majority opinion insofar as it suggests that the approach to unconscionability described in Sonic II‘s dicta is valid under the FAA. II. THE PAGA WAIVER IS UNENFORCEABLE. Under PAGA, an ―aggrieved employee‖ — i.e., ―any person who was employed by‖ someone alleged to have violated the Labor Code ―and against whom one or more of the alleged violations was committed‖ — may bring a civil action against the alleged violator to recover civil penalties for Labor Code violations both as to himself or herself and as to ―other current or former employees.‖ (Lab. Code, § 2699, subds. (a), (c).)1 As we have explained, an 1 All further unlabeled statutory references are to the Labor Code. 3 aggrieved employee‘s PAGA action ― ‗is fundamentally a law enforcement action‘ ‖ that ―substitute[s] for an action brought by the government itself.‖ (Arias v. Superior Court (2009) 46 Cal.4th 969, 986.) The employee-plaintiff ―acts as the proxy or agent of state labor law enforcement agencies, representing the same legal right and interest as those agencies‖ and seeking statutory civil penalties ―that otherwise would be sought by‖ those agencies. (Amalgamated Transit Union, Local 1756, AFL-CIO v. Superior Court (2009) 46 Cal.4th 993, 1003.) By statute, 75 percent of the penalties ―recovered by aggrieved employees‖ under PAGA goes to the Labor and Workforce Development Agency, and only 25 percent goes to ―the aggrieved employees.‖ (§ 2699, subd. (i).) Accordingly, every PAGA action, whether seeking penalties for Labor Code violations as to only one aggrieved employee — the plaintiff bringing the action — or as to other employees as well, is a representative action on behalf of the state. As relevant, the arbitration agreement here provides: ―[E]xcept as otherwise required under applicable law, (1) EMPLOYEE and COMPANY expressly intend and agree that class action and representative action procedures shall not be asserted, nor will they apply, in any arbitration pursuant to this Policy/Agreement; (2) EMPLOYEE and COMPANY agree that each will not assert class action or representative action claims against the other in arbitration or otherwise; and (3) each of EMPLOYEE and COMPANY shall only submit their own, individual claims in arbitration and will not seek to represent the interests of any other person.‖ (Italics added.) Because, as explained above, all PAGA claims are representative actions, these provisions purport to preclude Iskanian from bringing a PAGA action in any forum. To this extent, the arbitration provision is, for reasons the majority states, invalid under California law. (Maj. opn., ante, at pp. 34-36.) 4  I agree with the majority that this conclusion is not inconsistent with the FAA, but my reasoning differs from the majority‘s. Although the FAA generally requires enforcement of arbitration agreements according to their terms, the high court has recognized an exception to this requirement for ―a provision in an arbitration agreement forbidding the assertion of certain statutory rights.‖ (Italian Colors, supra, 570 U.S. at p. __ [133 S.Ct. at p. 2310]; see Mitsubishi Motors v. Soler Chrysler–Plymouth (1985) 473 U.S. 614, 637 [―so long as the prospective litigant effectively may vindicate its statutory cause of action in the arbitral forum, the statute will continue to serve both its remedial and deterrent function‖].) Accordingly, the conclusion that the arbitration agreement here is invalid insofar as it forbids Iskanian from asserting his statutory right under PAGA in any forum does not run afoul of the FAA. The majority takes a different route in finding no preemption. It first correctly observes that the FAA applies by its terms only to provisions in contracts ― ‗to settle by arbitration a controversy thereafter arising out of such contract.‘ ‖ (Maj. opn., ante, at p. 37, quoting 9 U.S.C. § 2.) Based on this language, the majority then declares that a PAGA claim ―lies‖ completely ―outside the FAA‘s coverage because it is not a dispute between an employer and an employee arising out of their contractual relationship.‖ (Maj. opn., ante, at p. 40.) It is, instead, merely ―a dispute between an employer and the state, which alleges directly or through its agents — either the Labor and Workforce Development Agency or aggrieved employees — that the employer has violated the Labor Code.‖ (Maj. opn., ante, at p. 40.) For several reasons, I question the majority‘s analysis. First, I disagree that a PAGA claim is not ―a dispute between an employer and an employee arising out of their contractual relationship.‖ (Maj. opn., ante, at p. 40.) As noted above, a person may not bring a PAGA action unless he or she is ―an aggrieved employee‖ 5 (§ 2699, subd. (a)), i.e., a person ―who was employed by‖ the alleged Labor Code violator and ―against whom‖ at least one of the alleged violations ―was committed‖ (§ 2699, subd. (c)). In other words, as the majority explains, by statute, only ―employees who ha[ve] been aggrieved by the employer‖ may bring PAGA actions. (Maj. opn., ante, at p. 41.) Thus, although the scope of a PAGA action may extend beyond the contractual relationship between the plaintiff- employee and the employer — because the plaintiff may recover civil penalties for violations as to other employees — the dispute arises, first and fundamentally, out of that relationship. Second, to find no FAA preemption in this case, we need not adopt a novel theory, devoid of case law support, that renders the FAA completely inapplicable to PAGA claims. Under the majority‘s view that PAGA claims ―lie[] outside the FAA‘s coverage‖ because they are not disputes between employers and employees ―arising out of their contractual relationship‖ (maj. opn., ante, at p. 40), the state may, without constraint by the FAA, simply ban arbitration of PAGA claims and declare agreements to arbitrate such claims unenforceable. I do not subscribe to that view, for which the majority offers no case law support. By contrast, as explained above, there is case law support — from the high court itself — for the conclusion that the arbitration agreement here is unenforceable because it purports to preclude Iskanian from bringing a PAGA action in any forum. We should limit ourselves to an analysis firmly grounded in high court precedent, rather than needlessly adopt a novel theory that renders the FAA completely inapplicable. Third, contrary to the majority‘s assertion, EEOC v. Waffle House, Inc. (2002) 534 U.S. 279 (Waffle House), to the extent it is relevant, actually does ―suggest[] that the FAA preempts‖ the majority‘s rule. The question there was whether, under the FAA, an agreement between an employer and an employee to arbitrate employment-related disputes precluded the Equal Employment 6 Opportunity Commission (EEOC), which was not ―a party to‖ the arbitration agreement and had never ―agreed to arbitrate its claims,‖ from pursuing victim- specific relief in a judicial enforcement action. (Waffle House, supra, at p. 294.) The court said ―no,‖ explaining that nothing in the FAA ―place[s] any restriction on a nonparty‘s choice of a judicial forum‖ (Waffle House, supra, at p. 289) or requires a ―nonparty‖ to arbitrate claims it has not agreed to arbitrate (id. at p. 294). Because Iskanian is a party to the arbitration agreement in this case, this holding is inapposite. What is apposite in Waffle House is the court‘s statement that the FAA ―ensures the enforceability of private agreements to arbitrate.‖ (Waffle House, supra, 534 U.S. at p. 289.) This statement, which simply reiterates what the court has said ―on numerous occasions‖ (Stolt-Nielsen S.A. v. AnimalFeeds International Corp. (2010) 559 U.S. 662, 682), casts considerable doubt on the majority‘s view that the FAA permits either California or its courts to declare private agreements to arbitrate PAGA claims categorically unenforceable. Finally, under other high court precedent, there is good reason to doubt the majority‘s suggestion that the FAA places no limit on ―the ability of states to enhance their public enforcement capabilities by enlisting willing employees in qui tam actions.‖ (Maj. opn., ante, at p. 41.) When the high court recently held in Concepcion that the FAA prohibits courts from conditioning enforcement of arbitration agreements on the availability of classwide arbitration procedures, even if such procedures ―are necessary to prosecute small-dollar claims that might otherwise slip through the legal system,‖ it explained: ―States cannot require a procedure that is inconsistent with the FAA, even if it is desirable for unrelated reasons.‖ (Concepcion, supra, 563 U.S. at p. __ [131 S.Ct. at p. 1753].) In earlier decisions, the high court broadly explained that the FAA ―is a congressional declaration of a liberal federal policy favoring arbitration agreements, notwithstanding any state substantive or procedural policies to the contrary‖ 7 (Moses H. Cone Hospital v. Mercury Constr. Corp., supra, 460 U.S. at p. 24, italics added), which ―withdr[aws] the power of the states to require a judicial forum for the resolution of claims which the contracting parties agreed to resolve by arbitration‖ (Southland Corp. v. Keating (1984) 465 U.S. 1, 10). Thus, ―if contracting parties agree to include‖ certain claims ―within the issues to be arbitrated, the FAA ensures that their agreement will be enforced according to its terms even if a rule of state law would otherwise exclude such claims from arbitration.‖ (Mastrobuono v. Shearson Lehman Hutton, Inc. (1995) 514 U.S. 52, 58, italics added.) In other words, ―[w]hen state law prohibits outright the arbitration of a particular type of claim, the analysis is straightforward: The conflicting rule is displaced by the FAA.‖ (Concepcion, supra, 563 U.S. at p. __ [131 S.Ct. at p. 1747].) These binding pronouncements indicate that the FAA may, in fact, place a limit on the ability of a state, for policy reasons, to ―enhance‖ its public enforcement capabilities by authorizing employees who have contractually agreed to arbitrate their statutory PAGA claims to ignore that agreement and pursue those claims in court as the state‘s ―representatives.‖ (Maj. opn., ante, at p. 41.) However, as explained above, requiring an arbitration provision to preserve some forum for bringing PAGA actions does not exceed that limit. I therefore concur in the judgment. CHIN, J. I CONCUR: BAXTER, J. 8  CONCURRING AND DISSENTING OPINION BY WERDEGAR, J. I join the court‘s conclusions as to Arshavir Iskanian‘s Private Attorneys General Act claims, which are not foreclosed by his employment contract or the Federal Arbitration Act (FAA). I disagree with the separate holding that the mandatory class action and class arbitration waivers in Iskanian‘s employment contract are lawful. Eight decades ago, Congress made clear that employees have a right to engage in collective action and that contractual clauses purporting to strip them of those rights as a condition of employment are illegal. What was true then is true today. I would reverse the Court of Appeal‘s decision in its entirety. I. Employment contracts prohibiting collective action, first known as ― ‗ironclads,‘ ‖ date to the 19th century. (Ernst, The Yellow-dog Contract and Liberal Reform, 1917-1932 (1989) 30 Lab. Hist. 251, 252 (The Yellow-dog Contract).) Confronted with collective efforts by workers to agitate for better terms and conditions of employment, employers responded by conditioning employment on the promise not to join together with fellow workers in a union. (Lincoln Union v. Northwestern Co. (1949) 335 U.S. 525, 534; Silverstein, Collective Action, Property Rights and Law Reform: The Story of the Labor Injunction (1993) 11 Hofstra Lab. L.J. 97, 100.) This practice was ―so obnoxious to workers that they gave these required agreements the name of ‗yellow dog contracts.‘ ‖ (Lincoln Union, at p. 534.) ―Recognizing that such agreements in large part represent the superior economic position of the employer by virtue of which the theoretical freedom of an employee to refuse assent was illusory, and that such agreements therefore emptied of meaning the ‗right of collective bargaining,‘ ‖ state legislatures and Congress sought to stem the practice, enacting statutes that prohibited conditioning employment on a compulsory contractual promise not to unionize. (Frankfurter & Greene, The Labor Injunction (1930) p. 146.) These efforts were initially unsuccessful; first state courts, and then the Lochner-era1 Supreme Court, struck down the bans as an infringement on liberty of contract. (Coppage v. Kansas (1915) 236 U.S. 1, 9-14; Adair v. United States (1908) 208 U.S. 161, 172- 176; Frankfurter & Greene, at pp. 146-148; Ernst, The Yellow-dog Contract, supra, 30 Lab. Hist. at p. 252.) When the Supreme Court gave a clear imprimatur to yellow-dog contracts in Hitchman Coal & Coke Co. v. Mitchell (1917) 245 U.S. 229, upholding an injunction against collective organizing efforts on the ground that the contracts granted employers a property right secure from union interference, the use of contractual bans on collective action blossomed. (Frankfurter & Greene, at pp. 148-149; Ernst, at pp. 253-256.) Through the use of such terms, ―[a]ny employer willing to compel employee acquiescence could effectively foreclose all union organizational efforts directed at his business.‖ (Winter, Jr., Labor Injunctions and Judge-made Labor Law: The Contemporary Role of Norris-LaGuardia (1960) 70 Yale L.J. 70, 72, fn. 14.) 1 Lochner v. New York (1905) 198 U.S. 45. 2  In the 1930‘s, Congress tried again to outlaw contractual bans on collective action. A bill drafted by then-Professor Felix Frankfurter and others2 was swiftly and overwhelmingly approved in both houses and enacted as the Norris-LaGuardia Act of 1932. (Bremner, The Background of the Norris-La Guardia Act (1947) 9 The Historian 171, 174-175.) Section 2 of the act declared as the public policy of the United States employees‘ right to engage in collective activity, free from employer restraint or coercion: ―Whereas under prevailing economic conditions, developed with the aid of governmental authority for owners of property to organize in the corporate and other forms of ownership association, the individual unorganized worker is commonly helpless to exercise actual liberty of contract and to protect his freedom of labor, and thereby to obtain acceptable terms and conditions of employment, wherefore, . . . it is necessary that he have full freedom of association, self-organization, and designation of representatives of his own choosing, to negotiate the terms and conditions of his employment, and that he shall be free from the interference, restraint, or coercion of employers of labor, or their agents, in the designation of such representatives or in self-organization or in other concerted activities for the purpose of collective bargaining or other mutual aid or protection . . . .‖ (29 U.S.C. § 102, italics added.) Congress recognized the inability of a ―single laborer, standing alone, confronted with such far-reaching, overwhelming concentration of employer power‖ to ―negotiate or to exert any influence over the fixing of his wages or the hours and conditions of his labor,‖ the necessary corrective to be ―[t]he right of wage earners to organize and to act 2 See Frankfurter & Greene, The Labor Injunction, supra, page 226 and footnote 61; id. at pages 279-288 (draft bill); Fischl, Self, Others, and Section 7: Mutualism and Protected Protest Activities Under the National Labor Relations Act (1989) 89 Colum. L.Rev. 789, 846-849. 3 jointly in questions affecting wages [and the] conditions of labor,‖ and, as the solution, ―specific legislative action‖ to preserve workers‘ ―freedom in association to influence the fixing of wages and working conditions.‖ (Sen.Rep. No. 163, 72d Cong., 1st Sess., p. 9 (1932); see generally id., at pp. 9-14.) Arguing for passage, the act‘s cosponsor, Senator George Norris, explained the measure was needed to end a regime in which ―the laboring man . . . . must singly present any grievance he has.‖ (Remarks of Sen. Norris, Debate on Sen. No. 935, 72d Cong., 1st Sess., 75 Cong. Rec. 4504 (1932).) To that end, section 3 of the Norris-LaGuardia Act was ―designed to outlaw the so-called yellow-dog contract.‖ (H.R.Rep. No. 669, 72d Cong., 1st Sess., p. 6 (1932); accord, Sen.Rep. No. 163, supra, at pp. 15-16.) ―[T]he vice of such contracts, which are becoming alarmingly widespread,‖ was that they rendered collective action and unions effectively impossible; ―[i]ndeed, that is undoubtedly their purpose, and the purpose of the organizations of employers opposing‖ the Norris-LaGuardia Act. (H.R.Rep. No. 669, at p. 7.) If such contracts, requiring a waiver of workers‘ rights of free association, were given enforcement in the courts, ―collective action would be impossible so far as the employee is concerned by virtue of the necessity of signing the character of contract condemned, which prevents a man from joining with his fellows for collective action; and the statement . . . that ‗it has long been recognized that employees are entitled to organize for the purpose of securing the redress of grievances and to promote agreements with employers relating to rates of pay and conditions of work‘ would become an empty statement of historical fact.‖ (Ibid., quoting Texas & N. O. R. Co. v. Ry. Clerks (1930) 281 U.S. 548, 570.) Accordingly, the Norris-LaGuardia Act declared yellow dog contracts ―to be contrary to the public policy of the United States‖ and unenforceable in any court of the United States. (29 U.S.C. § 103.) 4  Three years later, Congress expanded on these proscriptions in the National Labor Relations Act (commonly known as the Wagner Act after its author, Sen. Robert F. Wagner). (Pub.L. No. 74-198 (July 5, 1935) 49 Stat. 449, codified as amended at 29 U.S.C. §§ 151-169.) The public policy underlying the act was the same as that motivating the Norris-LaGuardia Act: ―protecting the exercise by workers of full freedom of association, self-organization, and designation of representatives of their own choosing, for the purpose of negotiating the terms and conditions of their employment or other mutual aid or protection.‖ (29 U.S.C. § 151.) To ensure that end, the Wagner Act granted employees, inter alia, ―the right . . . to engage in . . . concerted activities for the purpose of collective bargaining or other mutual aid or protection . . . .‖ (29 U.S.C. § 157 (also known as section 7).)3 Employers were forbidden ―to interfere with, restrain, or coerce employees in the exercise of‖ their right to engage in concerted, collective activity. (29 U.S.C. § 158(a)(1).) Inter alia, these provisions were a ―logical and imperative extension of that section of the Norris-La Guardia Act which makes the yellow- dog contract unenforceable in the Federal courts.‖ (Nat. Labor Relations Act of 1935, Hearings before House Com. on Labor on H.R. No. 6288, 74th Cong., 1st Sess., at p. 14 (1935), statement of Sen. Wagner; accord, remarks of Sen. Wagner, Debate on Sen. No. 1958, 74th Cong., 1st Sess., 79 Cong. Rec. 7570 (daily ed. May 15, 1935); see H.R.Rep. No. 1147, 74th Cong., 1st Sess., supra, at p. 19.)4 3 Congress took to heart, as it had in the Norris-LaGuardia Act, Chief Justice Taft‘s admonition that because a ―single employee was helpless in dealing with an employer,‖ collective action ―was essential to give laborers [the] opportunity to deal on equality with their employer.‖ (Amer. Foundries v. Tri-City Council (1921) 257 U.S. 184, 209, quoted in H.R.Rep. No. 1147, 74th Cong., 1st Sess., p. 10 (1935) and H.R.Rep. No. 669, 72d Cong., 1st Sess., supra, at p. 7.) 4 Senator Wagner‘s ―intent was the intent of Congress, for unlike most other major legislation, this statute was the product of a single legislator. Although (footnote continued on next page) 5 Recognizing as clear ―the legality of collective action on the part of employees in order to safeguard their proper interests,‖ the post-Lochner Supreme Court now upheld against constitutional challenge Congress‘s ―safeguard‖ of this right. (Labor Board v. Jones & Laughlin (1937) 301 U.S. 1, 33-34.) In the years since the Wagner Act‘s passage, the Supreme Court, Courts of Appeals, and National Labor Relations Board have conclusively established that the right to engage in collective action includes the pursuit of actions in court. (Eastex, Inc. v. NLRB (1978) 437 U.S. 556, 565-566 [the Wagner Act‘s ― ‗mutual aid or protection‘ clause protects employees from retaliation by their employers when they seek to improve working conditions through resort to administrative and judicial forums‖]; Brady v. National Football League (8th Cir. 2011) 644 F.3d 661, 673 [―a lawsuit filed in good faith by a group of employees to achieve more favorable terms or conditions of employment is ‗concerted activity‘ under § 7‖ of the Wagner Act]; Mohave Electric Cooperative (1998) 327 NLRB 13, 18, enforced by Mohave Elec. Co-op., Inc. v. N.L.R.B. (D.C. Cir. 2000) 206 F.3d 1183, 1188-1189 [same]; Altex Ready Mixed Concrete Corp. (1976) 223 NLRB 696, 699-700, enforced by Altex Ready Mixed Concrete Corp. v. N.L.R.B. (5th Cir.) 542 F.2d 295, 297 [same]; Leviton Manufacturing Company, Inc. v. N.L.R.B. (1st Cir. 1973) 486 F.2d 686, 689 [same].) This right extends to the filing of wage and hour class actions (United Parcel Service, Inc. (1980) 252 NLRB 1015, 1018, enforced by N.L.R.B. v. United Parcel Service, Inc. (6th Cir. 1982) 677 F.2d 421), (footnote continued from previous page) Wagner received assistance from various sources, he fully controlled the bill‘s contents from introduction to final passage.‖ (Morris, Collective Rights as Human Rights: Fulfilling Senator Wagner’s Promise of Democracy in the Workplace— The Blue Eagle Can Fly Again (2005) 39 U.S.F. L.Rev. 701, 709.) 6 including wage class actions filed by former employees like Iskanian (see Harco Trucking, LLC (2005) 344 NLRB 478, 482). The Wagner Act thus prohibits, as an unfair labor practice, employer interference with the ability of current or former employees to join collectively in litigation. II. Today‘s class waivers are the descendants of last century‘s yellow dog contracts. (See D.R. Horton & Cuda (Jan. 3, 2012) 357 NLRB No. 184, p. 6.) CLS Transportation‘s adhesive form contract includes a clause prohibiting Iskanian, like all its employees, from pursuing class or representative suits or class arbitrations.5 Thus, Iskanian may not file collectively with fellow employees a suit or an arbitration claim challenging any of CLS‘s employment practices or policies. Patently, the effect of the clause is to prevent employees from making common cause to enforce rights to better wages and working conditions. In this, the clause is indistinguishable from the yellow dog contracts prohibited by the Norris-LaGuardia and Wagner Acts. Indeed, the whole point of protecting a right to collective action is to allow employees to do precisely what CLS Transportation‘s clause forbids—band together as a group to peaceably assert rights against their employer. 5 The clause provides: ―[E]xcept as otherwise required under applicable law, (1) EMPLOYEE and COMPANY expressly intend and agree that class action and representative action procedures shall not be asserted, nor will they apply, in any arbitration pursuant to this Policy/Agreement; (2) EMPLOYEE and COMPANY agree that each will not assert class action or representative action claims against the other in arbitration or otherwise; and (3) each of EMPLOYEE and COMPANY shall only submit their own, individual claims in arbitration and will not seek to represent the interests of any other person.‖ (―Proprietary Information and Arbitration Policy/Agreement,‖ ¶ 16(b) (Iskanian‘s contract).) 7  That the class waiver is without effect necessarily follows. An employer may not by contract require an employee to renounce rights guaranteed by the Wagner Act (Nat. Licorice Co. v. Labor Board (1940) 309 U.S. 350, 359-361; see id. at p. 364 [―employers cannot set at naught the National Labor Relations Act by inducing their workmen to agree not to demand performance of the duties which it imposes‖]), and this includes a contract clause requiring an employee to resolve disputes in individual, binding arbitration. Such a clause ―is the very antithesis of collective bargaining [and] . . . impose[s] a restraint upon collective action.‖ (National Labor Relations Board v. Stone (7th Cir. 1942) 125 F.2d 752, 756; see Barrow Utilities & Electric (1992) 308 NLRB 4, 11, fn. 5 [―The law has long been clear that all variations of the venerable ‗yellow dog contract‘ are invalid . . . .‖].) The restriction in Iskanian‘s contract thus directly contravenes federal statutory labor law and is invalid on its face. A contract clause that violates the Wagner Act is unenforceable. (Kaiser Steel Corp. v. Mullins (1982) 455 U.S. 72, 83-86; J. I. Case Co. v. Labor Board (1944) 321 U.S. 332, 337 [private contracts that conflict with the Wagner Act ―obviously must yield or the Act would be reduced to a futility‖].) Iskanian may not be prevented, on the basis of his contract, from proceeding with a putative class action. III. Notwithstanding this authority, CLS Transportation invokes the FAA as grounds for upholding the class waiver. In the early part of the 20th century, merchants faced judicial hostility to predispute arbitration agreements they entered with their fellow merchants; routinely, the courts declined to enforce such agreements, relying on the common law rule that specific enforcement of agreements to arbitrate was unavailable. (H.R.Rep. No. 96, 68th Cong., 1st Sess., pp. 1-2 (1924); Wasserman, Legal Process in a Box, or What Class Action Waivers Teach Us About Law-making 8 (2012) 44 Loy. U. Chi. L.J. 391, 395.) In 1925, Congress enacted the FAA in response. Its purpose was to have arbitration agreements ―placed upon the same footing as other contracts.‖ (H.R.Rep. No. 96, at p. 1) Section 2 of the FAA, its ―primary substantive provision‖ (Moses H. Cone Hospital v. Mercury Constr. Corp. (1983) 460 U.S. 1, 24), makes this point explicit: An arbitration agreement ―shall be valid, irrevocable, and enforceable, save upon such grounds as exist at law or in equity for the revocation of any contract‖ (9 U.S.C. § 2, italics added). Here, we deal with a provision—the waiver of the statutorily protected right to engage in collective action—that would be unenforceable in any contract, whether as part of an arbitration clause or otherwise. The FAA codifies a nondiscrimination principle; ―[a]s the ‗saving clause‘ in § 2 indicates, the purpose of Congress in 1925 was to make arbitration agreements as enforceable as other contracts, but not more so.‖ (Prima Paint v. Flood & Conklin (1967) 388 U.S. 395, 404, fn. 12.) That purpose is not upset by precluding, in arbitration clauses and employment contracts alike, mandatory class waivers forfeiting the right to engage in collective action, a right foreshadowed by section 3 of the Norris-LaGuardia Act and guaranteed by section 7 of the Wagner Act. Accordingly, there is no conflict between the FAA and the Norris-LaGuardia and Wagner Acts, nor is there anything in the FAA that would permit disregard of the substantive rights guaranteed by those later enactments. Were one to perceive a conflict, the express text of the Norris-LaGuardia Act would resolve it. The 1932 act supersedes prior law, including any contrary provisions in the 1925 FAA: ―All acts and parts of acts in conflict with the provisions of this chapter are repealed.‖ (29 U.S.C. § 115.) The effect of this provision, in combination with section 3 (29 U.S.C. § 103) banning yellow dog contracts and the FAA‘s section 2 (9 U.S.C. § 2), subjecting arbitration agreements to the same limits as other contracts, is to render equally 9 unenforceable contractual obligations to forswear collective action in regular employment agreements and in employment arbitration agreements. Brief reflection on the purposes underlying the Norris-LaGuardia Act and Wagner Act demonstrates why this must be so. A strike for better wages and working conditions is core protected activity. (Labor Board v. Erie Resistor Corp. (1963) 373 U.S. 221, 233-235; Automobile Workers v. O’Brien (1950) 339 U.S. 454, 456-457.) So too is a walkout. (Labor Bd. v. Washington Aluminum Co. (1962) 370 U.S. 9, 14-17; N.L.R.B. v. McEver Engineering, Inc. (5th Cir. 1986) 784 F.2d 634, 639; Vic Tanny Intern., Inc. v. N.L.R.B. (6th Cir. 1980) 622 F.2d 237, 240-241.) But the expressly declared fundamental purpose of the Wagner Act is to minimize industrial strife. (29 U.S.C. § 151 [―[P]rotection by law of the right of employees to organize and bargain‖ is necessary to ―promote[] the flow of commerce by removing certain recognized sources of industrial strife and unrest‖]; see Brooks v. Labor Board (1954) 348 U.S. 96, 103 [―The underlying purpose of [the Wagner Act] is industrial peace.‖]; Atleson, Values and Assumptions in American Labor Law (1983) p. 40 [―The most common argument in favor of the Wagner Act was that it would reduce industrial strife.‖].) The Wagner Act ―seeks, to borrow a phrase of the United States Supreme Court, ‗to make the appropriate collective action (of employees) an instrument of peace rather than of strife.‘ ‖ (H.R.Rep. No. 1147, 74th Cong., 1st Sess., supra, at p. 9.) If a class waiver provision in an arbitration agreement were deemed enforceable, Iskanian and other employees would be protected if they elected to protest through strikes or walkouts but precluded from resolving grievances through peaceable collective action—a result precisely opposite to the reduction in industrial strife at the heart of the Wagner Act‘s goals. Congress would not have favored less peaceable means over more peaceable ones. 10  Alternatively, if the device of inserting a collective action ban in an arbitration clause were enough to insulate the ban from the Norris-LaGuardia and Wagner Acts‘ proscriptions, employers could include in every adhesive employment contract a requirement that all disputes and controversies, not just wage and hour claims, be resolved through arbitration and thus effectively ban the full range of collective activities Congress intended those acts to protect. Such a purported harmonizing of the various acts would gut the labor laws; the right to ― ‗collective action would be a mockery.‘ ‖ (H.R.Rep. No. 669, 72d Cong., 1st Sess., supra, at p. 7.) When Congress invalidated yellow dog contracts and protected the right to engage in collective action, it could not have believed it was conveying rights enforceable only at the grace of employers, who could at their election erase them by the simple expedient of a compelled waiver inserted in an arbitration agreement. CLS Transportation argues AT&T Mobility LLC v. Concepcion (2011) 563 U.S. 321 [179 L.Ed.2d 742, 131 S.Ct. 1740] and CompuCredit Corp. v. Greenwood (2012) 565 U.S. ___ [181 L.Ed.2d. 586, 132 S.Ct. 665] save its class waiver. Neither does. Concepcion considered whether as a matter of obstacle preemption the FAA foreclosed a state-law unconscionability rule applicable to class waivers in consumer contracts. (AT&T Mobility LLC v. Concepcion, supra, 563 U.S. at p. ___ [131 S.Ct. at p. 1746].) It did not speak to the considerations entailed in reconciling the FAA with other coequal federal statutes. Nor did it address any of the particulars of Congress‘s subsequent labor legislation codifying employees‘ substantive rights to engage in collective action, rights not shared by consumers. CompuCredit Corp. v. Greenwood, supra, 565 U.S. ___ [132 S.Ct. 665] is similarly of no assistance. There, the Supreme Court reaffirmed that to determine whether the FAA‘s presumption in favor of enforcing arbitration clauses applies to 11 a given claim, one must ask whether the presumption has been ― ‗overridden by a contrary congressional command‘ ‖ in other federal law. (Id. at p. ___ [132 S.Ct. at p. 669].) The claims at issue there arose under a federal law that guaranteed consumers notice of a ― ‗ ―right to sue.‖ ‘ ‖ (Ibid., quoting 15 U.S.C. § 1679c(a).) Had Congress intended to preclude arbitration as a suitable forum under the applicable act, ―it would have done so in a manner less obtuse‖ than one offhand reference to a right to sue. (CompuCredit, at p. ___ [132 S.Ct. at p. 672].) In contrast, the Norris-LaGuardia Act and Wagner Act present no similar difficulties for discerning a contrary congressional command. Such a command may be evident from ―the text of the [other statute], its legislative history, or an ‗inherent conflict‘ between arbitration and the [other statute‘s] underlying purposes.‖ (Gilmer v. Interstate/Johnson Lane Corp. (1991) 500 U.S. 20, 26.) Each such source supplies support here: the conclusion that class waivers are foreclosed arises not from inferences gleaned from a lone phrase, as in CompuCredit, but from the explicit text, legislative history and core purpose of the acts, all establishing the right to collective action and the illegality of compelled contractual waivers of that right. (See ante, pts. I. & II.) Refusing to enforce a National Labor Relations Board order finding a class waiver violative of the Wagner Act, a divided Fifth Circuit reached a contrary conclusion. (D.R. Horton, Inc. v. N.L.R.B. (5th Cir. 2013) 737 F.3d 344 (Horton II), declining to enforce D.R. Horton & Cuda, supra, 357 NLRB No. 184.) The majority‘s analysis assumed a congressional command superseding the FAA could come only from ―the general thrust of the [Wagner Act]—how it operates, its goal of equalizing bargaining power‖ (Horton II, at p. 360) and the ―congressional intent to ‗level the playing field‘ between workers and employers‖ (id. at p. 361), sources the majority found insufficient. One need not look to such generalized and abstract indications. As discussed, the FAA subordinates arbitration 12 agreements to generally applicable bars against contract enforcement (9 U.S.C. § 2), and the Wagner Act by its text bars employers from contractually conditioning employment on waiver of the right to engage in collective action (29 U.S.C. §§ 157, 158(a)(1); see Nat. Licorice Co. v. Labor Board, supra, 309 U.S. at pp. 359-361). Horton II also took comfort in the fact rule 23 of the Federal Rules of Civil Procedure (28 U.S.C.), governing class actions, was not adopted until 1966. (Horton II, supra, 737 F.3d at p. 362.) But that the most prevalent current form of collective litigation is recent does not mean the Wagner Act at its inception did not shield from waiver the right to collective litigation in whatever manner available. Collective actions via the common law doctrine of virtual representation, based on equity principles, are of much older vintage than rule 23. (Arias v. Superior Court (2009) 46 Cal.4th 969, 988-989 (conc. opn. of Werdegar, J.).) ―The 74th Congress knew well enough that labor‘s cause often is advanced on fronts other than collective bargaining and grievance settlement within the immediate employment context. It recognized this fact by choosing, as the language of § 7 makes clear, to protect concerted activities for the somewhat broader purpose of ‗mutual aid or protection‘ as well as for the narrower purposes of ‗self-organization‘ and ‗collective bargaining.‘ ‖ (Eastex, Inc. v. NLRB, supra, 437 U.S. at p. 565.) The broad language of the Wagner Act shields concerted activity for mutual aid or protection by whatever means pursued, including through peaceable collective suits. In the end, CLS Transportation‘s argument rests on the notion that the FAA should be interpreted to operate as a super-statute, limiting the application of both past and future enactments in every particular. ―[M]en may construe things after their fashion/Clean from the purpose of the things themselves.‖ (Shakespeare, Julius Caesar, act I, scene 3, lines 34-35.) So it is with this view of the FAA. The 13 text and legislative history of the Norris-LaGuardia and Wagner Acts, passed by legislators far closer in time to the FAA than our current vantage point, show no such deference. The right of collective action they codify need not yield. I respectfully dissent. WERDEGAR, J. 14 See last page for addresses and telephone numbers for counsel who argued in Supreme Court. Name of Opinion Iskanian v. CLS Transportation Los Angeles, LLC __________________________________________________________________________________ Unpublished Opinion Original Appeal Original Proceeding Review Granted XXX 206 Cal.App.4th 949 Rehearing Granted __________________________________________________________________________________ Opinion No. S204032 Date Filed: June 23, 2014 __________________________________________________________________________________ Court: Superior County: Los Angeles Judge: Robert L. Hess __________________________________________________________________________________ Counsel: Initiative Legal Group, Raul Perez, Katherine W. Kehr; Capstone Law, Glenn A. Danas, Ryan H. Wu; Pubic Citizen Litigation Group and Scott L. Nelson for Plaintiff and Appellant. Julie L. Montgomery and Cynthia L. Rice for California Rural Legal Assistance Foundation as Amicus Curiae on behalf of Plaintiff and Appellant. Altshuler Berzon, Michael Rubin; McGuinn, Hillsman & Palefsky and Cliff Palefsky for Service Employees International Union and California Employment Lawyers Association as Amici Curiae on behalf of Plaintiff and Appellant. Rosen Law Firm and Glenn Rosen for California Association of Public Insurance Adjusters as Amicus Curiae on behalf of Plaintiff and Appellant. Amy Bach; The Bernheim Law Firm, Steven Jay Bernheim and Nazo S. Semerjian for United Policyholders as Amicus Curiae on behalf of Plaintiff and Appellant. Sanford Heisler, Janette Wipper, Felicia Medina, Chioma Chukwu; Barbara A. Jones; Melvin Radowitz; Della Barnet; and Jennifer Reisch for Timothy Sandquist, AARP, Equal Rights Advocates and The Impact Fund as Amici Curiae on behalf of Plaintiff and Appellant. Arbogast Bowen, David M. Arbogast and Chumahan B. Bowen for Consumer Attorneys of California as Amicus Curiae on behalf of Plaintiff and Appellant. Fox Rothschild, David F. Faustman, Yesenia M. Gallegos, Cristina Armstrong, Namal Tantula; Cole, Schotz, Meisel, Forman & Leonard and Leo V. Leyva for Defendant and Respondent. Jones Day, George S. Howard, Jr., and Mhairi L. Whitton for Retail Litigation Center, Inc., and California Retailers Association as Amici Curiae on behalf of Defendant and Respondent. Page 2 – S204032 – counsel continued Counsel: Deborah J. La Fetra for Pacific Legal Foundation as Amicus Curiae on behalf of Defendant and Respondent. Sheppard, Mullin, Richter & Hampton, Richard J. Simmons, Karin Dougan Vogel and Matthew M. Sonne for Employers Group as Amicus Curiae on behalf of Defendant and Respondent. Amar D. Sarwal, Evan P. Schultz and Allen C. Peters for Association of Corporate Counsel as Amicus Curiae on behalf of Defendant and Respondent. Littler Mendelson, Henry D. Lederman, Alexa L. Woerner, Robert Friedman and Edward Berbarie for The National Retail Federation and Rent-A-Center, Inc., as Amici Curiae on behalf of Defendant and Respondent. Erika C. Frank; and Fred J. Hiestand for The California Chamber of Commerce and The Civil Justice Association of California as Amici Curiae on behalf of Defendant and Respondent. Horvitz & Levy, Lisa Perrochet, John F. Querio and Felix Shafir for California New Car Dealers Association as Amicus Curiae on behalf of Defendant and Respondent. Mayer Brown, Andrew J. Pincus, Archis A. Parasharami, Scott M. Noveck and Donald M. Falk for The Chamber of Commerce of the United State of America as Amicus Curiae on behalf of Defendant and Respondent. 2 Counsel who argued in Supreme Court (not intended for publication with opinion): Glenn A. Danas Capstone Law 1840 Century Park East, Suite 450 Los Angeles, CA 90067 (310) 556-4811 David F. Faustman Fox Rothschild 1800 Century Park East, Suite 300 Los Angeles, CA 90067 (310) 598-4150 3 

2017 IL App (1st) 140893 SECOND DIVISION January 31, 2017 No. 1-14-0893 THE PEOPLE OF THE STATE OF ILLINOIS, ) Appeal from the ) Circuit Court of Plaintiff-Appellee, ) Cook County, Illinois. ) v. ) No. 09 CR 20467 ) RAUL SOTO, ) The Honorables ) Thaddeus L. Wilson and Defendant-Appellant. ) Erica L. Reddick, ) Judges Presiding. 1 JUSTICE MASON delivered the judgment of the court with opinion. Justice Pierce concurred in the judgment and opinion. Presiding Justice Hyman concurred in part and dissented in part, with opinion. OPINION ¶1 Following a jury trial, defendant Raul Soto was convicted of first-degree murder for the deadly beating of his roommate and sentenced to 27 years’ imprisonment. During the murder investigation, Soto voluntarily accompanied police to the police station and cooperated with the investigation. After spending two nights at the police station, Soto made three incriminating statements confessing to the murder of his roommate, Ventura Colin. 2 ¶2 Soto filed pretrial motions, seeking to quash his arrest, asserting that his voluntary presence at the police station transformed into an illegal arrest, and claiming that all three incriminating statements were inadmissible because they were (1) the fruit of an illegal arrest; (2) 1 Judge Wilson ruled on the parties’ pretrial motions and Judge Reddick presided over Soto’s trial. 2 The record identifies the victim as both “Ventura Colin” and “Colin Ventura.” We adopt “Ventura Colin” as the victim’s name.  No. 1-14-0893 the product of a deliberate “question first, warn later” interrogation technique; and (3) the result of an invalid waiver of his Miranda rights. After hearings on Soto’s pretrial motions, the trial court found that the police never unlawfully detained Soto. The trial court agreed with Soto that his first two incriminating statements were inadmissible mainly because, although the police had probable cause to arrest Soto for the murder, they failed to give him Miranda warnings before eliciting an incriminating statement and the taint from that statement rendered inadmissible his second statement given minutes after his first. But the trial court found that Soto’s third incriminating statement, given more than 24 hours later, was admissible based on the curative measures taken after the unwarned interrogation. The trial court also found that Soto voluntarily, knowingly, and intelligently waived his Miranda rights, despite his asserted cognitive defects and low intelligence level. ¶3 On appeal, Soto challenges the admissibility of his third incriminating statement. Finding no error in the trial court’s rulings, we affirm. ¶4 BACKGROUND ¶5 On October 4, 2009 around 7 p.m., Chicago police officer Gaspar and his partner responded to a 911 call near 2600 South Kedzie Avenue in Chicago. The officers arrived at a gas station and saw Soto and his friend, Alberto Alfaro. Soto spoke only Spanish and Officer Gaspar communicated with him in Spanish. Soto told Gaspar that his other friend (Colin) was dead. Soto entered the police vehicle and directed the officers to Soto’s home located at 3158 South Kedzie Avenue. Soto’s “home” at that address was an abandoned two-story house, filled with empty beer cans and other junk, with apparently no heat, electricity, or running water. The officers found Colin dead on a mattress in one of the bedrooms on the second floor. Soto told the officers that he found Colin dead after he entered the bedroom that morning at about 6 a.m. Detective -2-  No. 1-14-0893 Nickeas of the Chicago police department also arrived at the scene to investigate and directed the officers to ask Soto for his assistance. ¶6 Officer Gaspar asked Soto if he would accompany them to the Area 4 police station to assist the detectives with the investigation. Soto agreed, responding that he wanted to find out what happened to his friend. Officer Gaspar and his partner transported Soto to Area 4 in a marked police vehicle with Soto sitting in the back behind a cage separating him from the officers. Soto was not handcuffed. Officer Gaspar did not ask Soto if he wanted to find his own way to the police station. ¶7 After arriving at the station, Officer Gaspar took Soto to a small, windowless interview room. The interview room was not earmarked for use only by criminal suspects; instead, the room was used to interview witnesses and victims, as well as suspects. Officer Gaspar left Soto in the interview room with the door open and he was neither handcuffed nor arrested. Officer Gaspar spoke to Soto exclusively in Spanish. ¶8 Detective Nickeas returned to the police station after surveying the crime scene and spoke with Soto in the interview room with the aid of another detective, who served as a translator. When Detective Nickeas arrived at the interview room, the door was unlocked and open. Soto was not handcuffed, restrained, or shackled to anything. Two other detectives were also in the room. ¶9 Through the translator, Soto told the detectives that he had last seen Colin alive on October 3 before Soto went out for the night to a bar. The next morning at about 6 a.m., Soto went upstairs to wake Colin to go collect cans and found him dead. Soto tried to call 911 from a pay phone at a gas station near 28th and Kedzie, but was unable to make the telephone call. Soto -3-  No. 1-14-0893 looked for his and Colin’s mutual friend, El Moro, for advice on what to do, but could not find him. Soto later enlisted Alfaro to call 911 for him. ¶ 10 After the detectives spoke to Soto for about 5 or 10 minutes, Soto was told that he was free to leave the police station. But Soto did not leave and instead slept in the interview room, explaining that he had no place to go since his home was a crime scene. The detectives did not provide Soto with a pillow, blanket or mattress. There was a metal bench in the interview room on which Soto slept. Although the detectives did not arrange for alternative lodging, such as a homeless shelter, it was Soto’s decision to sleep at the station, and he never requested to leave. ¶ 11 Because the interview room was located near the desks of other detectives, who were working on cases, the area was considered a protected area, and all civilians, including Soto, were not allowed to freely walk around unescorted. Therefore, Soto had to ask an officer to escort him to the restroom. But Soto was not treated any differently than any other witness at the police station in an interview room. ¶ 12 Detective Roberto Garcia first met Soto the following morning—October 5—after Soto spent the night in the interview room. Soto was not handcuffed, and the interview room’s door was unlocked. Detective Garcia gave Soto some clothes because he smelled “really bad,” but he did not give Soto a paper jumpsuit to wear, which police typically provide when taking clothes for inventory purposes. Detective Garcia, who also spoke Spanish, thanked Soto for his cooperation and told him that he was free to leave at any time. Soto responded that he was glad to assist and would stay as long as necessary to help find who killed his roommate. Soto also indicated that he was homeless and had nowhere else to go. ¶ 13 After speaking with Soto, Detective Garcia went to the scene and found a receipt dated October 3 from United Metal Scrap Recycling Company and another one from a liquor store. He -4-  No. 1-14-0893 also saw the name “El Moro” painted on a wall in the first floor bedroom of the house. While in the area, Detective Garcia directed a search for pay phones because Soto had told the other detectives that he had attempted to call 911 from a pay phone earlier on October 4. The investigation revealed that no phone calls to 911 from pay phones in the area were made on October 4. ¶ 14 Meanwhile, Detective Nickeas went to the scrap recycling company to ask questions. A worker said he saw Soto there with two other Hispanic males on the morning of October 3. ¶ 15 Detective Garcia returned to the station and sometime after 5 p.m., asked Soto about his activities on October 3. Soto responded that he worked an 8 or 10 hour shift doing construction work with his friend, David Casarubias, and Casarubias’ father, until approximately 5 p.m. Soto then went home and last saw Colin alive at around 8 or 8:30 p.m. when Soto left to get beer. ¶ 16 Soto also provided Detective Garcia with names of people who might have relevant information, including El Moro and Casarubias. Soto further mentioned that he went to his cousin Herculano Morales’s house after finding Colin dead to get help and advice on what to do. ¶ 17 Around 8 p.m., Soto left the police station with Detective Garcia and his partner to show them where El Moro and the other individuals lived. Soto was not handcuffed. Soto and the detectives traveled in an unmarked vehicle and drove around the neighborhood with Soto pointing out different locations, including the residences of El Moro, Morales, and Casarubias. At that time, the detectives did not get out of the vehicle to approach the houses. The detectives transported Soto back to the police station and returned him to the same interview room. ¶ 18 Soto remained in the interview room while Detective Garcia left the police station to locate El Moro and Soto’s cousin at the houses that Soto pointed out, but the houses that the detective went to were not the correct ones. Detective Garcia returned to the station and told Soto -5-  No. 1-14-0893 that the houses he pointed out were incorrect. Soto said he could have made a mistake and offered to clarify and show him the houses again. But Detective Garcia had to start working on a different investigation and arranged with Soto to continue the investigation in the morning. Detective Garcia asked Soto if he would stay in the area and cooperate with the investigation, and he agreed. Soto spent a second night at the station again with no blanket, pillow or mattress. ¶ 19 The next morning—October 6—Detectives Roger Lara and Salvador Esparza continued to look for El Moro with Soto’s assistance. Soto traveled with the detectives in an unmarked police vehicle and again pointed out El Moro’s house, which was just one house away from the house that Detective Garcia went to the night before. The detectives approached the house, and an individual identified himself as Javier O’Campo, who had the nickname “El Moro.” El Moro agreed to go to the police station for questioning, and the police transported him to Area 4 in a different squad car. ¶ 20 At around 1 p.m., after El Moro arrived at the police station, Detectives Garcia and Lara interviewed him. According to El Moro, on the morning of October 3, he along with Colin and Soto sold some scrap metal that they had collected. After getting paid, they stopped at a liquor store to buy beer and picked up a prostitute. The three men and the prostitute went to the abandoned house where Soto and Colin lived, and Soto went upstairs with the prostitute while El Moro and Colin remained downstairs drinking beer. El Moro and Colin then dropped the prostitute off at her “working” place, and El Moro brought Colin back to the house. ¶ 21 Because of the discrepancies between El Moro’s and Soto’s story about what Soto had been doing during the day leading up to Colin’s death, Detectives Garcia and Lara decided to put them both in the same interview room so the detectives could question them together. The interview room was not locked and neither Soto nor El Moro was handcuffed. -6-  No. 1-14-0893 ¶ 22 Detective Garcia confronted Soto about the discrepancy between what he said he did on October 3 and what El Moro said about their activities. Soto admitted that he lied and explained that he was embarrassed about picking up the prostitute. The rest of Soto’s story was consistent with El Moro’s. ¶ 23 Soto remained at the station for the rest of the day. Around 7:30 p.m., Soto accompanied Detective Garcia and another detective to look for Morales, Soto’s cousin. Soto was not handcuffed and sat in the back seat of an unmarked squad car. When they arrived at Morales’ house, both Detective Garcia and Soto went to the door. Soto was still not handcuffed. Morales identified Soto as “Ramon Morales.” Detective Garcia then proceeded to interview Morales while Soto waited in the squad car. ¶ 24 Morales described Soto as a street person, who is usually intoxicated and in some type of trouble. Soto visited Morales around noon on October 4. Soto appeared troubled and told Morales that “he had beat somebody up” and wanted to talk to his sister. Detective Garcia’s conversation with Morales lasted about 10 minutes. Afterward, around 9 p.m., the detectives transported Soto back to Area 4. Once at the police station, Soto returned to the same interview room that he had slept in the previous two nights. Soto was not handcuffed, the interview room’s door was unlocked, he was not processed and he was not told that he was under arrest. ¶ 25 Around 9:30 p.m., Detective Garcia confronted Soto with the information he had learned from Morales. Soto clutched the bench that he was sitting on, shook his head acknowledging that he had not been truthful, paused for a second, lowered his head and said in Spanish “Okay. I killed him. I hit him.” At that point, Detective Garcia immediately stopped the interview because, according to Garcia, he now considered Soto a suspect. -7-  No. 1-14-0893 ¶ 26 During all prior interviews, the electronic recording interview system (ERI) was never activated because the detectives had not considered Soto a suspect. After Soto’s confession, Detective Garcia and his partner turned on the ERI in a different interview room. Within a few minutes of making his first statement, Soto was taken into that interview room. ¶ 27 Soto was then advised of his Miranda rights in Spanish and the detectives re-interviewed him beginning at 9:37 p.m. Detective Garcia did not tell Soto that his initial statement confessing to killing Colin would be inadmissible. Soto then revealed where other evidence could be found. Unlike before, Soto did not accompany detectives to locate the other evidence because he was now considered an offender who presented a flight and safety risk. ¶ 28 In his recorded statement, Soto elaborated that after he got home at around 10 p.m. on October 3, he went upstairs to Colin’s room and they were at first just drinking but then got into an argument over who got more money from scrapping that day. The argument turned into a physical fight. Soto threw Colin against the wall, grabbed a small stick and “lay some on one side and the other” and kicked him. After Soto stopped beating Colin, he did not know whether Colin was already dead, although Soto claimed that Colin was still talking when he left the room. The next day, Soto went to Morales’ house and told him that he beat someone. Soto left, eventually found Alfaro and gave him a quarter to call the police. Soto’s recorded statement concluded at 9:56 p.m. ¶ 29 According to Detective Garcia, before 9:30 p.m. on October 6, Soto was not (1) given Miranda warnings; (2) arrested; or (3) placed into custody because he was not considered a suspect. Detective Garcia did not consider Soto a suspect until he made his first incriminating statement on October 6 around 9:30 p.m. Soto was thereafter placed under arrest at 9:32 p.m. -8-  No. 1-14-0893 ¶ 30 The next day on October 7 at 10:02 p.m., Assistant State’s Attorney Ruth Gudino interviewed Soto in Detective Garcia’s presence in the same interview room that Soto gave his second incriminating statement. A different detective who had not been present for Soto’s earlier statements acted as the translator during this interview. Soto’s interview with the ASA was recorded. Soto was again given his Miranda rights, but the ASA did not advise Soto that his prior incriminating statements would be inadmissible. ASA Gudino questioned Soto about Colin’s death, and Soto made further incriminating statements. According to Soto, he and Colin got into an argument because Colin was upset that he and El Moro had to take the prostitute back, and Colin thought that Soto had sex with the prostitute on his mattress. The argument turned physical with Soto repeatedly hitting Colin mostly on the left side of his head with a bat. Soto checked on Colin the next morning and saw him covered in blood. Later in the day, Soto went to see his cousin and told him that he had beaten somebody up and wanted to call the police. ¶ 31 On November 9, 2009, Soto was charged with two counts of first degree murder. Soto filed a pretrial motion to quash arrest and suppress evidence, arguing, in relevant part, that his initial voluntary presence at the police station on October 4, 2009, transformed into an unlawful detention in violation of his constitutional rights under the fourth amendment. Soto also filed a separate pretrial motion to suppress evidence asserting his fifth amendment protection against self-incrimination was violated because detectives did not properly give him his Miranda warnings and he did not voluntarily, knowingly, and intelligently waive those rights. ¶ 32 The trial court held an evidentiary hearing, and the investigating detectives and responding officer testified regarding the investigation of Colin’s death detailed above. The trial -9-  No. 1-14-0893 court also held a separate hearing where experts testified regarding Soto’s capacity to voluntarily, knowingly, and intelligently waive his Miranda rights. ¶ 33 After the evidentiary hearing on the motion to quash and suppress, the trial court initially suppressed all of Soto’s incriminating statements, but refused to suppress any clothing or the names of individuals (El Moro and Morales) that Soto provided during the detectives’ investigation. The trial court, however, mistakenly believed that the issue presented by Soto’s motion related to the existence of probable cause to suspect that Soto killed Colin and not whether his presence at the police station was voluntary. ¶ 34 The State filed a motion to reconsider and clarify the ruling, asserting that the proper standard to determine whether an individual’s fourth amendment rights were violated was not whether officers suspected that Soto killed Colin, but whether a reasonable person would have believed he was not free to leave. The trial court clarified that after Detective Garcia’s conversation with Soto’s cousin on October 6, Soto’s presence at the police station was no longer voluntary, and he, instead, was lawfully seized upon his transport back to the police station because the detectives at that point had probable cause to suspect he killed Colin. But the trial court found unrebutted the detectives’ testimony about Soto’s voluntary participation in the investigation prior to Detective Garcia’s conversation with Morales. Accordingly, the trial court granted the State’s motion to reconsider and denied Soto’s motion to quash arrest and suppress on fourth amendment grounds. ¶ 35 The trial court also held a bifurcated hearing on Soto’s motion to suppress statements based on his contention that all of his statements while in police custody were obtained in violation of his fifth amendment right against self-incrimination because (1) detectives failed to properly advise him of his Miranda rights and (2) he lacked the capacity to understand the -10-  No. 1-14-0893 Miranda warnings when he waived those rights. Having found that the police had probable cause to arrest Soto after their conversation with Morales, the court proceeded to address in the first phase of the hearing whether any or all of Soto’s statements were obtained in violation of Miranda. ¶ 36 Regarding Soto’s claim that he was not properly advised of his rights, the trial court ruled that Soto’s unwarned and unrecorded first statement of “I did it. I hit him” was inadmissible because by that point police had probable cause to arrest Soto for Colin’s murder and they interrogated him without giving him Miranda warnings. The trial court also ruled that Soto’s second statement that was recorded after he was advised of his Miranda rights was likewise inadmissible because it was tainted by Soto’s first unwarned and unrecorded statement given minutes before. Finally, the trial court ruled that Soto’s third statement given to ASA Gudino more than 24 hours later was admissible with the exception of any portion of the third statement that repeated his initial confession (“I did it. I hit him”), which was ruled inadmissible. Soto filed a motion to reconsider, arguing mainly that his third incriminating statement was inadmissible under Missouri v. Seibert, 542 U.S. 600, 617 (2004), which invalidated the “question first, warn later” interrogation tactic and requires suppression of any statement that was given based on use of that tactic. The trial court disagreed and denied Soto’s motion. ¶ 37 Regarding Soto’s claim that he lacked the capacity to validly waive his Miranda rights, at a later hearing Soto presented expert testimony from Dr. Graciela Viale-Val and Dr. Raul Gonzalez to support his claim that he was incapable of voluntarily, knowingly, and intelligently waiving those rights when the police interrogated him. The State presented expert testimony from Dr. Fidel Echevarria and Dr. Nicholas Jasinski to support its claim that Soto’s Miranda waiver was valid. The testifying doctors specialized in the areas of psychiatry, psychology, or -11-  No. 1-14-0893 neuropsychology. In formulating their opinions, the doctors viewed Soto’s videotaped statements and reviewed pertinent medical records. The doctors also all recognized that Soto had alcohol dependence issues. ¶ 38 Dr. Viale-Val’s impression was that Soto suffered from cognitive deficits and experienced alcohol withdrawal symptoms at the time of his interrogation on October 6 and October 7. She noted that Soto had a history of delirium tremens (DT) and suffered from severe tremors and tactile and auditory hallucinations. Based on Soto’s behavior in the videotaped statements, Dr. Viale-Val believed Soto was suffering from DTs and having some sort of hallucination. According to Dr. Viale-Val, Soto also may have had a previous neurocysticercosis infection, which is a neurological disorder resulting from eating pork that has not undergone proper sanitary conditions. When an individual is infected with neurocysticercosis, the parasite living in the pork eventually enters the brain creating small cysts that often cause neurocognitive problems. ¶ 39 Dr. Viale-Val tested Soto’s intelligence and concluded that Soto fell within the lowest 1% level of intelligence and in the “extremely low” category. Given Soto’s lack of education, level of cognitive function, and mental state at the time of the interrogations, Dr. Viale-Val opined to a reasonable degree of scientific certainty that Soto did not understand the meaning of the words comprising the Miranda warnings. Dr. Viale-Val further believed that although at the time of his interview, Soto appeared to be able to understand such concepts, that understanding was the product of his repeated exposure to the warnings since his arrest, which thereby incorporated the warnings into Soto’s rote memory. ¶ 40 Dr. Gonzalez also believed Soto could have been suffering from neurocysticercosis at the time of his interviews. Dr. Gonzales diagnosed Soto with mild diffuse cerebral atrophy based on -12-  No. 1-14-0893 Soto’s “shrunken brain,” which was reflective of his history of alcoholism. Dr. Gonzales found Soto’s basic reading ability equivalent to about an 8 year-old and his written passage comprehension equivalent to a 7 year-old. Like Dr. Viale-Val, Dr. Gonzales noted that Soto had previously been hospitalized with very high blood alcohol levels and experienced alcohol withdrawal and DTs on those occasions. According to Dr. Gonzales, Soto could live independently, but he was at risk for making some very poor decisions due to neuropsychological impairments in the area of executive functioning. Dr. Gonzales did not conduct a forensic evaluation to determine whether Soto was capable of knowingly waiving his Miranda rights, because that assessment was outside the scope of his expertise. ¶ 41 The State’s expert, Dr. Echevarria, believed Soto demonstrated no symptoms of cognitive impairment. Like Soto’s experts, Dr. Echevarria also observed Soto engaging in certain behavior in the videotaped statements, such as picking at the wall or at himself, but noted that Soto’s behavior would stop the moment the detectives entered the interview room. Dr. Echevarria deemed this significant because if an individual suffers from hallucinations, the hallucinations persist independent of who is present or the surrounding environment. Thus, Dr. Echevarria disagreed that Soto suffered from DTs at the time of his interviews based on his behavior in the videos because DTs are not subtle and cannot be started and stopped at will. Dr. Echevarria opined that there was no evidence in the recorded statements that Soto did not understand the questions being asked of him because the lack of that mental capacity would have been evident. Dr. Echevarria believed to a reasonable degree of medical and psychiatric certainty that Soto understood his Miranda rights at the time of his arrest and interrogation. ¶ 42 The State’s other expert, Dr. Jasinski, opined to a reasonable degree of psychological and scientific certainty that Soto was capable of understanding the Miranda warnings at the time of -13-  No. 1-14-0893 his arrest. Dr. Jasinski also believed, based on the videotapes, that Soto was not suffering from DTs or having tactile hallucinations. Like Dr. Echevarria, Dr. Jasinki considered it significant that Soto did not engage in certain behavior, such as picking at the wall or his skin, while talking to detectives. In Dr. Jasinki’s opinion, it was highly unlikely that tactile hallucinations would stop in response to anything in the environment, such as detectives entering the interview room, but then return after they left the room. To a reasonable degree of psychological certainty, Dr. Jasinki believed that any alcohol withdrawal symptoms Soto was experiencing would not have affected his ability to understand Miranda warnings because the symptoms would have been mild. Dr. Jasinki elaborated that there was no indication of alcohol-related dementia or severe cognitive impairments that would have impacted Soto’s ability to understand the Miranda warnings. ¶ 43 At the conclusion of the hearing and based on its own review of the videotapes, the trial court ruled that Soto’s Miranda waiver was valid. The trial court found credible the State’s experts’ testimony that a person suffering from DTs and hallucinations would be incapable of suppressing them simply because others walked into the room. Thus, the trial court found that Soto’s physical condition at the time of his statements did not prevent him from understanding and waiving his Miranda rights. The trial court found incredible Dr. Viale-Val’s testimony that Soto had learned the Miranda warnings since his arrest and picked them up as though they were rote memory. The trial court believed Soto’s cognitive impairments and deficits did not mean that he lacked the capacity to understand and waive his Miranda rights, concluding it harbored “no doubt about [Soto’s] comprehension of the full panoply of Miranda rights and the potential consequences of the decision to relinquish them.” After denying Soto’s motion to suppress, the case proceeded to a jury trial. -14-  No. 1-14-0893 ¶ 44 Following trial, the jury found Soto guilty of first-degree murder. Soto timely appeals and limits his appeal to the trial court’s pretrial rulings on his motions to quash arrest and suppress evidence. ¶ 45 ANALYSIS ¶ 46 Soto challenges the admissibility of his third incriminating statement on the basis that the statement was (1) the fruit of an illegal arrest; (2) the product of a deliberate “question first, warn later” interrogation technique; and (3) the result of an invalid waiver of his Miranda rights. ¶ 47 Soto first claims that his initial voluntary presence at the police station evolved into an illegal arrest, warranting suppression of his third incriminating statement, as well as his other statements identifying El Moro and Morales and where they could be found for questioning, as fruit of that illegal arrest. Soto contends that he was unlawfully detained long before Detective Garcia’s interview with his cousin, which the trial court found provided probable cause to arrest Soto. Because there was no probable cause to detain Soto, at least not prior to the interview with his cousin, and he was not free to leave, Soto claims that his third incriminating statement was inadmissible. ¶ 48 A reviewing court applies a two-part standard of review to a trial court’s ruling on a motion to quash arrest and suppress evidence. People v. Hopkins, 235 Ill. 2d 453, 471 (2009). We defer to a trial court’s factual findings and will reverse those findings only if they are against the manifest weight of the evidence. Id. A finding is against the manifest weight of the evidence where the trial court’s ruling is “ ‘palpably erroneous and wholly unwarranted’ [citation] or ‘appears to be arbitrary, unreasonable, and not based upon the evidence.’ ” People v. Shelby, 221 Ill. App. 3d 1028, 1039 (1991) (quoting People v. Harris, 220 Ill. App. 3d 848, 860 (1991)). We -15-  No. 1-14-0893 review de novo the trial court’s ultimate legal ruling on a motion to suppress. People v. Luedemann, 222 Ill. 2d 530, 542 (2006). ¶ 49 Before determining whether Soto’s statement should be suppressed as the fruit of an illegal arrest, we must first determine if Soto was, in fact, illegally detained. An arrest or illegal detention without probable cause violates a citizen’s constitutional protections afforded under the fourth amendment against unreasonable searches and seizures. People v. Lopez, 229 Ill. 2d 322, 345-46 (2008) (citing U.S. Const., amends. V, XIV; Ill. Const. 1970, art. I, § 6); People v. Washington, 363 Ill. App. 3d 13, 24 (2006). A seizure occurs when a person’s freedom of movement is restrained either by physical force or a show of authority. Lopez, 229 Ill. 2d at 345- 46; People v. Melock, 149 Ill. 2d 423, 436 (1992). For fourth amendment purposes, a seizure is an arrest. Lopez, 229 Ill. 2d at 346. To determine whether an individual has been unlawfully seized, the relevant inquiry is whether a reasonable person, innocent of any crime, would conclude that he was not free to leave under the circumstances. Id.; Melock, 149 Ill. 2d at 437. An individual who voluntarily accompanies police officers for questioning has not been arrested or seized in the fourth amendment sense. People v. Gomez, 2011 IL App (1st) 092185, ¶ 58. ¶ 50 Courts consider the following factors to determine whether a voluntary interrogation turns custodial: “(1) the time, place, length, mood, and mode of the encounter between the defendant and the police; (2) the number of police officers present; (3) any indicia of formal arrest or restraint, such as the use of handcuffs or drawing of guns; (4) the intention of the officers; (5) the subjective belief or understanding of the defendant; (6) whether the defendant was told he could refuse to accompany the police; (7) whether the defendant was transported in a police car; (8) whether the defendant was told he was free to leave; (9) whether the defendant was told he was under arrest; and (10) the language used by officers.” Id. ¶ 59. No single factor -16-  No. 1-14-0893 is dispositive and courts consider all of the circumstances surrounding an individual’s detention. Washington, 363 Ill. App. 3d at 24. ¶ 51 Soto claims that he was illegally detained after the police confronted him about pointing out the wrong addresses and the discrepancy between his story and El Moro’s regarding their whereabouts on October 3 because, at that point, a reasonable person would not have felt free to leave. Soto also argues the police illegally seized him because he was (1) isolated from the public in an interview room for more than 48 hours; (2) transported to and from the station in the back of police vehicles; (3) escorted by police to use the restroom; and (4) left to sleep on a metal bench in the interview room for two successive nights. Soto contends that the police investigated his involvement in the murder in search of probable cause while illegally detaining him at the police station. ¶ 52 But none of the facts that Soto points to transformed his admittedly voluntary presence at the police station into an illegal arrest. Based on the totality of the circumstances surrounding Soto’s presence at the police station, it is evident that Soto’s presence was voluntary and became a custodial arrest only after there was probable cause to suspect Soto murdered Colin following Detective Garcia’s interview with Morales. ¶ 53 Under normal circumstances, we would likely infer that a person who slept two consecutive nights in a windowless room on a metal bench was detained. But that inference was rebutted here by the fact that Soto told police he was homeless, had no place else to go, considered the police station to be warm, and wanted to find out what happened to his friend. People v. Anderson, 395 Ill. App. 3d 241, 248 (2009) (spending a long time in an interview room does not conclusively establish that the authorities illegally detained a suspect). The detectives also fed Soto and gave him fresh clothes to wear while he was at the police station. Moreover, -17-  No. 1-14-0893 any restriction of Soto’s movements in the police station did not amount to an illegal seizure because the area outside of the interview room was considered a protected area due to the other ongoing investigations and Soto was not treated differently than any other member of the public. ¶ 54 Even though Soto remained in the interview room from October 4 to October 6 except when he left the station to assist in the investigation, the evidence in the record reveals that the door to the interview room was either open or, if closed, was unlocked. Notably, holding cells were located in the building, but the detectives did not place Soto in a cell at any time prior to his arrest. Likewise, there is no evidence in the record that, after Soto voluntarily accompanied the police officers to the station, he was (1) patted down, (2) handcuffed, (3) fingerprinted, (4) photographed, or (5) processed. Id. at 249. Indeed, when Soto voluntarily left the police station and accompanied the detectives to assist with the investigation, the detectives did not handcuff him, not even after the miscommunication regarding the wrong address for El Moro and the joint Soto and El Moro interrogation. Because Soto left the police station to assist the detectives with their investigation, his transportation in an unmarked police vehicle was reasonable and not an indication of a seizure. See People v. Montgomery, 302 Ill. App. 3d 1, 10 (1998) (police transporting an individual for questioning to the police station does not convert questioning into an arrest). Significantly, after Soto’s arrest, he was no longer permitted to leave the police station to further assist in the investigation—not even in the company of police personnel—which further supports the conclusion that Soto was not detained prior to the Morales interview. ¶ 55 Not only were there no indicia of a formal arrest, but, importantly, two different detectives told Soto that he was free to leave. See contra Washington, 363 Ill. App. 3d at 23, and People v. Young, 206 Ill. App. 3d 789, 800 (1990) (police failed to advise the suspect that he or she was free to leave). Although Soto did not testify at the suppression hearing, there is no -18-  No. 1-14-0893 indication in the record that he was no longer willing to cooperate with the police. Anderson, 395 Ill. App. 3d at 252. Soto’s statements to the detectives that he wanted to find out what happened to his friend also contradict his claim that he was detained. The unrebutted fact that Soto arranged for his friend to call 911 to report Colin’s death and waited at the gas station until the police arrived supports the conclusion that Soto indeed wanted to cooperate with the investigation if only in an effort to deflect attention from himself. In fact, Soto told Dr. Viale-Val both that he had lied to the police and that he wanted to find out what the police knew and how far they would go. Finally, given Dr. Jasinski’s testimony that any alcohol withdrawal symptoms experienced by Soto were mild, this factor does not support a finding that Soto did not voluntarily remain at the station. ¶ 56 Soto bore the burden of demonstrating that his continued presence at the police station, including two overnight stays, constituted an illegal seizure. Id. at 251. Under the circumstances, Soto did not meet that burden because a reasonable person who voluntarily agreed to cooperate with police in the investigation and was repeatedly told he was free to leave would have believed that he was, in fact, free to leave and his continued cooperation remained a matter of his own volition. Id. at 255. Accordingly, Soto’s fourth amendment rights were not violated because he (1) voluntarily remained at the police station and (2) was lawfully detained after the police had probable cause to arrest him following the interview with his cousin. Because Soto was not illegally detained, suppression of his statements given to the detectives during the course of their investigation on the basis that they were fruit of an illegal arrest was not warranted. See People v. Lovejoy, 235 Ill. 2d 97, 130 (2009) (evidence obtained as a result of an illegal arrest warrants suppression). -19-  No. 1-14-0893 ¶ 57 Soto next claims that the trial court should have suppressed his third incriminating statement because the detectives deliberately engaged in an illegal two-step “question first, warn later” interrogation tactic to elicit his incriminating statements. Soto also claims that the detectives failed to employ effective curative measures after advising Soto midstream of his Miranda rights and Soto was not told that his unwarned statements and previous confessions were inadmissible before questioning him further. ¶ 58 In the seminal case of Missouri v. Seibert, 542 U.S. 600, 617 (2004), the United States Supreme Court condemned the “question first, warn later” interrogation technique and mandated the suppression of statements that resulted from use of that tactic. Under the “question first, warn second” technique, an officer initially interrogates a suspect, obtains an incriminating statement, then provides the Miranda warnings, and repeats the question until the accused repeats the answer provided before the warnings. Id. at 606. The court reasoned that midstream Miranda warnings given after eliciting a confession would be ineffective in conveying to a defendant the nature of his rights, including the right to remain silent, and the consequences of abandoning those rights. Id. at 613-14. In his concurrence, Justice Kennedy advocated a narrower test finding the plurality’s test was too broad because it applied to both intentional and unintentional two-step interrogations. Id. at 621-22 (Kennedy, J., concurring). In contrast, Justice Kennedy’s test applied only in the infrequent cases where police deliberately employed a two-step interrogation in a calculated effort to undermine Miranda warnings. Id. at 622 (Kennedy, J., concurring). ¶ 59 In People v. Lopez, 229 Ill. 2d 322, 360 (2008), our supreme court adopted Justice Kennedy’s concurrence in Seibert as controlling authority in Illinois. Lopez reiterated that the relevant framework is to first determine if the police deliberately engaged in a “question first, warn later” technique during their interrogation of a defendant. Id. If there is no evidence -20-  No. 1-14-0893 supporting a finding of deliberate conduct, then the Seibert analysis ends. Id. On the other hand, if the evidence supports a finding of deliberateness, then a court must consider whether curative measures were taken before the accused made a postwarning statement. Id. at 360-61. Curative measures include a substantial break in time and circumstances between the unwarned statement and the postwarning statement to allow the accused to distinguish between the two contexts and alert the accused that the interrogation has taken a new turn. Id. at 361. ¶ 60 Importantly, the trial court found it ludicrous that the detectives did not consider Soto a suspect based on all of the information that the detectives had after the interview with Soto’s cousin. The trial court believed that the detectives deliberately confronted Soto about lying, including lying about his name, to see what would happen, and then they would be able to investigate further based on Soto’s response. The trial court’s statements make it clear that it considered the detective’s conduct in failing to immediately administer the Miranda warnings after the interview with Soto’s cousin to be deliberate. The record supports the trial court’s factual finding, given that by that time the detectives knew, in addition to the information they had already gathered, that Soto told his cousin that he beat somebody up. Accordingly, because the trial court’s finding that the detectives deliberately engaged in a “question first, warn later” technique is supported by the evidence, we must consider whether curative measures were taken before Soto’s third statement. ¶ 61 Here, adequate curative measures were taken before Soto’s third incriminating statement. Specifically, more than 24 hours elapsed between Soto’s tainted statements and his third statement, which was a sufficient period of time to disrupt any continuum between Soto’s first two statements and his third. Also, Detective Cortez, who acted as the interpreter during ASA Gudino’s questioning, was not present when Soto made his prior two incriminating statements, -21-  No. 1-14-0893 which further attenuates this line of questioning from Soto’s earlier statements. Moreover, unlike his prior two statements, Soto gave his third statement to an ASA and not to Detective Garcia. Although Detective Garcia was in the interrogation room when the ASA questioned Soto, Detective Garcia did not ask any questions. His mere presence in the same room was not enough to render Soto’s third statement inadmissible based on a continuity of police personnel or environment. Similarly, Detective Garcia’s correction and assistance with Soto’s recollection of certain facts toward the end of ASA Gudino’s questioning did not render the third interrogation inseparable from the first two interrogations. While Garcia’s absence would have precluded any credible argument regarding the lack of attenuation, his presence, primarily as an observer, does not compel the opposite result. ¶ 62 In Seibert, after discussing the type of curative measures that could attenuate the link between unwarned and warned statements, Justice Kennedy observed, “[a]lternatively, an additional warning that explains the likely inadmissibility of the prewarning custodial statement may be sufficient.” (Emphasis added.) Seibert, 542 U.S. at 622 (Kennedy, J., concurring). Thus, under the narrower interpretation of Seibert adopted in Illinois, advice to the accursed regarding the “likely inadmissibility” of an earlier statement may be enough, even in the absence of other curative measures, to offset “ask first/warn later” misconduct. ¶ 63 We do not view the law as requiring both curative measures and advice to the accused as to the admissibility of earlier statements. We further observe that a requirement that the accused be given what is essentially legal advice regarding the admissibility of earlier statements is problematic where, as here, the later questioner was not present for and thus has no personal knowledge of the circumstances under which the prior statement was made. ASA Gudino would have gotten her information about Soto’s initial statement from Detectives Garcia and Lara, who -22-  No. 1-14-0893 were present when Soto first confessed. They likely would have told Gudino what they told the court during the suppression hearing, i.e., that when they returned to the station after interviewing Soto’s cousin, they did not believe they had probable cause to arrest Soto and so did not administer Miranda warnings. ¶ 64 In the midst of a criminal investigation, it is asking the impossible for someone in Gudino’s position to assess facts of which she has no personal knowledge, predict how those facts will later be viewed by a trial judge, and give a criminal suspect what is essentially legal advice about the likelihood that his earlier statement may be used against him. The most that Gudino could have told Soto before his third statement was that there may be some issues regarding the admissibility of the earlier statement. The utility of such equivocal advice to inform a suspect’s decision to give a further statement appears negligible. But Gudino would have run the risk of providing incorrect legal advice to Soto had she affirmatively represented to Soto that his earlier statements were inadmissible. Such advice, if later determined to be inaccurate, could have called into question the admissibility of Soto’s third statement. See People v. Melock, 149 Ill. 2d 423, 450 (1992) (using deception to obtain a confession is a factor weighing against a finding that defendant’s confession was voluntary); People v. Ramirez, 402 Ill. App. 3d 638, 642, 644 (2010) (counsel provided ineffective assistance by erroneously advising defendant that there was no meritorious basis to pursue suppressing incriminating statements). In any event, because we believe the facts here demonstrate sufficient curative measures between Soto’s second and third statements, we view as unnecessary the alternative measure Justice Kennedy discussed in Seibert. ¶ 65 We also consider it significant that when Soto made further incriminating statements to the ASA, Soto had received Miranda warnings in Spanish twice and waived his rights both -23-  No. 1-14-0893 times. After receiving the Miranda warnings, Soto had a genuine choice of whether to expand upon his prior two statements and he made the decision to provide additional details regarding Colin’s death. People v. Montgomery, 375 Ill. App. 3d 1120, 1129 (2007); see People v. Wilson, 164 Ill. 2d 436, 452 (1994) (defendant who had been warned of his rights was free to decide whether to make additional statements). ¶ 66 In sum, because the curative measures taken between Soto’s second and third incriminating statements—the substantial lapse in time and change in personnel—clearly conveyed that the third interrogation was not part of a continuum but a new and distinct phase of the investigation, the Mirada warnings given prior to his third interrogation presented Soto with a genuine choice of whether he should proceed with the interrogation and make additional statements. Consequently, the trial court properly determined that Soto’s third incriminating statement was admissible. ¶ 67 Finally, Soto challenges the admissibility of his third incriminating statement, claiming that his significant cognitive deficits, “extremely low” IQ, and alcohol withdrawal symptoms prevented him from voluntarily, knowingly, and intelligently waving his Miranda rights, undermining the validity of his Miranda waiver. Soto also claims the trial court erred in relying on its own observations of Soto’s capabilities during pretrial proceedings, approximately four years after the murder, which was neither an accurate measure of his capabilities at the time of his investigation nor reflective of his level of understanding of the Miranda warnings. ¶ 68 In order to be valid, Miranda rights must be waived voluntarily, knowingly, and intelligently. People v. Braggs, 209 Ill. 2d 492, 515 (2003). More specifically, a valid waiver occurs where an accused’s decision to relinquish his rights is (1) voluntary and not the product of intimidation, coercion, or deception and (2) knowingly made with a full awareness of the nature -24-  No. 1-14-0893 of the rights being waived and the resulting consequences of waiving those rights. People v. Brown, 2012 IL App (1st) 091940, ¶ 25. A defendant’s statement to authorities should be suppressed unless he voluntarily, knowingly, and intelligently waived his Miranda rights. Braggs, 209 Ill. 2d at 514; People v. Tuson, 2016 IL App (3d) 130861, ¶ 22; People v. Walker, 2012 IL App (1st) 083655. ¶ 69 We also apply a bifurcated standard of review to a trial court’s ruling on the issue of waiver. As to the factual finding that the waiver was knowing and intelligent, we apply a manifest weight of the evidence standard. People v. Brown, 2012 IL App (1st) 091940, ¶ 26. We review de novo the ultimate question of whether a defendant’s waiver was voluntary. In re G.O., 191 Ill. 2d 37, 50 (2000). ¶ 70 During the hearing on Soto’s motion to suppress on fifth amendment grounds, Soto and the State offered conflicting expert testimony regarding Soto’s ability to understand and waive his Miranda rights. Based on that testimony, in addition to the trial court’s own interaction with Soto and its review of the videotapes, the trial court found that Soto voluntarily, knowingly, and intelligently waived his Miranda rights. Moreover, the trial court found no evidence of coercion or that Soto’s mental state interfered with his rational intellect and free will so as to render his waiver involuntary. ¶ 71 Fundamentally, the trier of fact determines the credibility and weight to be given to expert testimony. People v. Urdiales, 225 Ill. 2d 354, 431 (2007). A fact finder is not obligated to accept defendant’s expert witnesses’ opinions over the opinions offered by the State’s experts. Id. Here, the trial court found the State’s expert witnesses more credible, a finding supported by the evidence in the record. Although Dr. Viale-Val opined that Soto was incapable of knowingly and intelligently waiving his Miranda rights, that opinion was based primarily on observed -25-  No. 1-14-0893 cognitive deficits resulting from alcohol withdrawal and assessed symptoms that included DTs and hallucinations. But in evaluating the expert testimony, the trial court found more credible the State’s witnesses who opined that Soto did not manifest any symptoms of hallucinations or DTs at the time of his interrogation because Soto would have been incapable of suppressing those symptoms in the detectives’ presence. Likewise, the State’s expert witnesses testified that DT symptoms are not subtle and, had Soto been suffering from DTs, the symptoms would have been obvious to the doctors based on Soto’s behavior during the videotaped statements. The trial court also found that there was no proof, contrary to Soto’s experts’ testimony, that Soto suffered from neurocysticerosis. The trial court further discredited Soto’s expert’s opinion that Soto only appeared to understand the Miranda warnings because he learned the language of the warnings and assimilated it into rote memory following his arrest. It is undisputed that Soto had some level of alcohol dependency, but the trial court’s finding that Soto’s waiver of his Miranda rights was not affected by symptoms of alcohol deprivation is not against the manifest weight of the evidence. ¶ 72 In concluding that Soto’s Miranda waiver was valid, the record is clear that the trial court considered the totality of circumstances, including Soto’s background, experience, and conduct. Braggs, 209 Ill. 2d at 514. Although Soto’s diminished mental capacity was one relevant factor to consider, a court considers that factor in conjunction with other factors and circumstances. Id.; People v. Goins, 2013 IL App (1st) 113201, ¶ 50. Despite Soto’s low IQ, the trial court noted that Soto worked, sustained himself, and supported his “habits.” Indeed, the trial court had no doubt about Soto’s “comprehension of the full panoply of Miranda rights and the potential consequences of the decision to relinquish them.” Importantly, a defendant must have the ability -26-  No. 1-14-0893 to understand the words comprising the warnings, but need not have the ability to understand the far-reaching legal and strategic effects of waiving his rights. Id. ¶ 73 We too have reviewed the videotapes of Soto’s time in custody following his first incriminating statement. Soto can be observed, in no apparent physical distress, sleeping for long stretches of time, sitting calmly on the bench or one of the chairs in the room while awake, and responding coherently to the detectives’ and later, ASA Gudino’s questions. Thus, Soto’s contention that his condition at the time of his incriminating statement did not enable him to validly waive his Miranda rights must fail. ¶ 74 Soto also claims that the trial court erroneously relied on its own observations of Soto’s behavior during pretrial proceedings, years after his arrest. But the trial court explained that its observations were consistent with the experts’ opinions, and the trial court, as did the experts, observed Soto’s behavior in the recorded statements. Based on the record before us, the trial court’s finding that Soto’s Miranda waiver was knowingly and intelligently made is not contrary to the manifest weight of the evidence, and the court’s ultimate conclusion that Soto’s waiver was voluntary is likewise correct. Because Soto’s Miranda waiver was valid, his third incriminating statement was properly admitted into evidence. ¶ 75 Affirmed. ¶ 76 PRESIDING JUSTICE HYMAN, dissenting in part: ¶ 77 I agree with my colleagues that Soto was not illegally detained, that he was capable of waiving his Miranda rights, and that his first two statements were rightly suppressed by the trial court. But Soto’s third statement, obtained after police used the impermissible “question first, warn later” technique, also should have been suppressed because the police did not take adequate -27-  No. 1-14-0893 measures to cure this violation of Soto’s constitutional rights. Therefore, I dissent from that portion of the majority opinion. ¶ 78 The majority rightly concludes that the police used a deliberate “ask first, warn later” technique as described in Seibert. We part ways at the next step of the analysis: whether the police took enough curative measures between the second and third statements so that Soto would be able “ ‘to distinguish the two contexts and appreciate that the interrogation has taken a new turn.’ ” Lopez, 229 Ill. 2d at 360-61 (quoting Seibert, 542 U.S. at 622 (Kennedy, J., concurring)). The curative measures “should be designed to ensure that a reasonable person in the suspect’s situation would understand the import and effect of the Miranda warning and the Miranda waiver.” (Emphasis added.) Seibert¸ 542 U.S. at 622 (Kennedy, J., concurring). ¶ 79 Seibert suggests several factors in assessing whether the violation has been cured: (1) the passage of time between the two statements, (2) the location, (3) whether the same law enforcement officer questioned the defendant in both statements, (4) whether details obtained during the “unwarned” interrogation were also used in the subsequent “warned” statement, and (5) whether the police advised the suspect that the earlier statement was inadmissible. 542 U.S. at 616. The question comes to this: Would a reasonable suspect have considered the “unwarned” and “warned” interviews to be “parts of a continuum, in which it would have been unnatural to refuse to repeat at the second stage what had been said before.” Id. at 616-17. ¶ 80 The majority identifies two curative measures: the 24-hour time lapse between the second and third statements, and that the questioner in the third statement was ASA Gudino, not Detective Garcia. Further, the majority states that, because Soto was Mirandized before giving the third statement, the police “presented Soto with a genuine choice of whether he should -28-  No. 1-14-0893 proceed with the interrogation and make additional statements,” so it did not matter that no one told Soto his first and second statements would be inadmissible. ¶ 81 The 24-hour break between the second and third statements at first glance weighs in favor of admissibility. See People v. Hannah, 2013 IL App (1st) 111660, ¶ 49 (break of almost three hours between pre-Miranda questioning and subsequent statement was curative). But Seibert speaks of a change in “time and circumstances” between the statements (emphasis added) 542 U.S. at 622 (Kennedy, J., concurring)). Here, the circumstances did not change, so the passage of time is of no consequence. ¶ 82 According to Detective Garcia, Soto gave his first statement in Interview Room E; Garcia then took Soto into Interview Room A for the second statement (because the recording equipment in Room A was better). After this second statement, Soto apparently spent the night in Room A and gave his third statement in Room A. Soto’s physical environment itself did not change at all between the second and third statements. Unlike the defendant in Hannah, who was transported to the police station between the unwarned and warned statements, there was no change in Soto’s physical location that would signal to a reasonable person that “the investigation had taken a new turn.” (Internal quotation marks omitted.) 2013 IL App (1st) 111660, ¶ 49; see also Bobby v. Dixon, 565 U.S. ___, ___, 132 S. Ct. 26, 32 (2011) (per curiam) (“[t]hings had changed” between unwarned and warned interrogations where defendant had time to travel from police station to jail and back again, speak to lawyer, and learn that police were talking to accomplice and had found victim’s body). ¶ 83 This continuity of location counteracts the curative nature of the 24-hour lapse. Both our supreme court and other appellate courts have recognized the role and relevance of this factor. See Lopez, 229 Ill. 2d at 366 (use of same interview room for subsequent statement weighs -29-  No. 1-14-0893 against admissibility); People v. Little, 2016 IL App (3d) 140124, ¶ 57 (defendant “did not leave the police station and remained in custody at all times” after unwarned statement); People v. Alfaro, 386 Ill. App. 3d 271, 306 (2008) (defendant remained in same interview room during all questioning and statements); People v. Griffin, 385 Ill. App. 3d 202, 205 (2008) (all interviews took place in police interrogation room); People v. Montgomery, 375 Ill. App. 3d 1120, 1129, 1130 (2007) (all questioning took place in same room, so there was no “meaningful change in circumstances that might constitute a curative measure”). ¶ 84 The majority’s reliance on the identity of the questioner is flawed as well. Review of the transcript and videotapes reveals that, while ASA Gudino was asking the questions during Soto’s third statement, Detective Garcia was there in the interview room during the entire statement. Indeed, Gudino began the interrogation by reminding Soto that he had previously spoken to Detective Garcia. Detective Garcia also jumped in at the end of the interview (at Gudino’s invitation) to guide Gudino’s questions about other details that had been revealed during the initial statements. The presence of Detective Cortez (who translated for Gudino) did not counteract the inhibiting effect of Garcia’s presence. In this way, the third statement was little different than the second; Gudino and Cortez had been added, but of utmost significance, Garcia remained, his very presence in the small interrogation room an unmistakable reminder of all Soto’s earlier interactions with Garcia. ¶ 85 Thus, the consistency of Detective Garcia’s presence did not break the “continuum” between the second and third statements. Indeed, Garcia’s participation in the third statement did the opposite of the contention of the majority: it made the third statement seem part and parcel of the second. Substituting the questioner does not sufficiently change the circumstances as long as the original questioner is in the room, as our supreme court held in Lopez, 229 Ill. 2d at 365-66 -30-  No. 1-14-0893 (holding confession inadmissible where police detective who had obtained first, unwarned confession was present in room during warned confession taken by prosecutor); see also Alfaro, 386 Ill. App. 3d at 305-06 (police detective who obtained unwarned confession was present while different officer took warned confession); Montgomery, 375 Ill. App. 3d at 1129-30 (same). ¶ 86 A reasonable person, knowing that Detective Garcia was in the room and closely monitoring his or her responses to Gudino, would not be able to appreciate that the investigation had taken “a new turn.” In fact, a reasonable person would be more likely to simply repeat the statement already given before the warnings, knowing that Detective Garcia was already aware of the earlier statement’s contents and had used details from the earlier statements to further question in the third statement. With Detective Garcia sitting a few feet away, a reasonable person would not feel free to retract his or her earlier statement or change details. Detective Garcia would not need to use any of the interrogation tactics we generally view as “coercive” to ensure that Soto would stick to the same story he had previously given. Garica’s mere presence does this. In sum, Detective Garcia’s attendance precluded “a new turn” from taking place, regardless of the presence of Gudino and Cortez. ¶ 87 The majority downplays the importance of the failure to tell Soto that his first and second statements would be inadmissible, and surmises that this would not be required as long as other curative measures were taken. Regardless of what the majority poses as other curative measures (which I submit were inadequate), our courts have insisted that the failure to take this curative measure weighs against admissibility. See Lopez, 229 Ill. 2d at 366; Alfaro, 386 Ill. App. 3d at 306; Montgomery, 375 Ill. App. 3d at 1130. The majority questions whether it would be reasonable for the prosecution team to have realized that the first two statements were -31-  No. 1-14-0893 problematic, or wise for them to inform Soto that they were not admissible. Here, the State had 24 hours, and the assistance of at least two ASAs, to come to this determination before Soto’s third statement. As for the wisdom of the action, I can only reiterate that Seibert advises them to do so. The State would have been no worse off had the prosecution team taken this step: the first two statements would still have been excluded. But had the police, or an ASA, informed Soto that his first two statements would not be used against him, then there would be some confidence that Soto made the third statement because he had a genuine choice—as opposed to cooperating because he felt he had no other option. ¶ 88 The majority concludes that the Miranda warnings themselves were sufficiently curative. That ASA Gudino repeated the Miranda warnings before the third statement made them less, not more, meaningful to a reasonable person. Soto had already been Mirandized before his second statement; if those warnings were to have any impact at all, it would have been then. Repetition without explanation merely uses the warnings in a rote manner and does not distinguish between the second and third statements, such that a reasonable person would think the warnings were more important the second time around. ¶ 89 I therefore disagree that a reasonable person would think they had a “genuine choice” to participate in the third statement. ¶ 90 A Seibert violation is disturbing enough in the abstract, when it happens to the paradigmatic “reasonable person.” Even more so here. Raul Soto was particularly vulnerable to this type of police manipulation. Soto was a homeless, illiterate, chronic alcoholic who did not speak English (leaving him open to possible mistranslation by the police interpreter, or run-of- the-mill misunderstandings) and was apparently on bad terms with his family. He was singularly -32-  No. 1-14-0893 incapable of protecting himself from Seibert-style misconduct, and no one was looking out for him either. ¶ 91 As explained, the test is whether a “reasonable person” would have thought he or she had a choice whether to make the third statement. Soto is no one’s idea of a reasonable person; even if he had been, the third statement should have been suppressed because the curative measures were deficient. -33- 

17 Cal.App.3d 84 (1971) 94 Cal. Rptr. 449 VERTIS PATTERSON, Plaintiff and Appellant, v. THE MUNICIPAL COURT FOR THE FRESNO JUDICIAL DISTRICT OF FRESNO COUNTY, Defendant and Respondent; THE PEOPLE, Real Party in Interest and Respondent. Docket No. 1411. Court of Appeals of California, Fifth District. April 23, 1971. *86 COUNSEL Melvin W. Nitz, Public Defender, and Keith M. Raymond, Deputy Public Defender, for Plaintiff and Appellant. No appearance for Respondent. Evelle J. Younger, Attorney General, Edsel W. Haws and Gary Allon Larson, Deputy Attorneys General, for Real Party in Interest and Respondent. OPINION BROWN (G.A.), J. Vertis Patterson appeals from an order of the Superior Court of Fresno County denying her petition for a writ of prohibition wherein she seeks to stop the Municipal Court of Fresno Judicial District from proceeding in a criminal action pending against her in that court for alleged violations of Welfare and Institutions Code section 11482. In July 1968, a complaint was filed in the municipal court against appellant alleging violations of Penal Code section 488,[1] in three counts — the violations having taken place on January 15, April 15, and May 15, *87 1968. Each count is identical except for the date and, with that exception, each alleges: "Personally appeared before me, this ____ day of July 1968 REED K. CLEGG, DIRECTOR OF FRESNO COUNTY WELFARE DEPT. in the County of Fresno, who first being duly sworn, complains and accuses VERTIS PATTERSON of the crime of a misdemeanor, to wit: VIOLATION OF SECTION 488 OF THE PENAL CODE, PETTY THEFT "The said defendant, on or about the 15th day of January 1968 at and in the said County of Fresno, State of California, wilfully and unlawfully took the property of the COUNTY OF FRESNO, consisting of money in the amount of less than $200.00, lawful money of the United States." On February 16, 1970, an amended complaint was filed charging appellant with the same three counts in violation of Welfare and Institutions Code section 11482.[2] Each of the counts, except for the date, reads: "Personally appeared before me, this 16th day of February 1970 LEONARD DEAL of DISTRICT ATTORNEY'S OFFICE in the County of Fresno, who first being duly sworn, complains and accuses VERTIS PATTERSON of the crime of a misdemeanor, to wit: VIOLATION OF SECTION 11482 OF THE WELFARE AND INSTITUTIONS CODE "The said defendant, on or about the 15th day of January 1968 at and in the said County of Fresno, State of California, wilfully and knowingly, with intent to deceive, made false representation to Fresno County to obtain aid to which she was not entitled." Appellant contends that: (1) the filing of the amendment is equivalent to the filing of new charges and each count is, therefore, barred by the one-year statute of limitations (Pen. Code, § 801), and the court must dismiss the complaint, and (2) the lower court, by permitting the amendment and the trial to proceed, is violating appellant's constitutional right to a speedy trial. (1) Since 1927, an accusatory pleading has been sufficient if it is cast "in any words sufficient to give the accused notice of the offense of which he is accused" (Pen. Code, § 952); the particular details of the charged offense will be furnished at the preliminary hearing in the case of an information, and by way of a transcript of the testimony in the case of an *88 indictment. (People v. Crosby, 58 Cal.2d 713, 722-723 [25 Cal. Rptr. 847, 375 P.2d 839].) Penal Code section 1009 governing amendments to criminal pleadings provides in pertinent part as follows: "... The court in which an action is pending may order or permit ... the filing of an amended complaint for any defect or insufficiency, at any stage of the proceedings, ... A complaint cannot be amended to charge an offense not attempted to be charged by the original complaint, ..." (2) Under the case law interpreting section 1009, the test applied is whether or not the amendment changes the offense charged to one not shown by the evidence taken at the preliminary examination (People v. Valles, 197 Cal. App.2d 362, 371 [17 Cal. Rptr. 204]; People v. Crosby, supra, 58 Cal.2d 713, 723). The critical inquiry therefore is: was the amendment in the case at bench to correct the defect or insufficiency in the original complaint or was it an amendment to charge an offense not attempted to be charged by the original complaint? (3) If the amendment falls in the former category, it relates back to the date of the original filing of the information and has the effect of tolling the running of the statute of limitations from the date of the filing of the original information (In re Davis, 13 Cal. App.2d 109, 113 [56 P.2d 302]). If the amendment falls in the latter category, the one-year statute of limitations on the charges has run, the charges would be barred and the writ should issue. (4) An amendment to designate the proper code section is permissible and nonprejudicial if the accused is plainly informed of the nature of her offenses and the acts constituting the offenses. (People v. Janssen (1965) 237 Cal. App.2d 363 [46 Cal. Rptr. 866]; People v. Siegel (1961) 198 Cal. App.2d 676, 683 [18 Cal. Rptr. 268]; People v. Jackson (1961) 191 Cal. App.2d 296, 302-303 [12 Cal. Rptr. 748]; People v. Rivers (1961) 188 Cal. App.2d 189, 195 [10 Cal. Rptr. 309].) And the courts have permitted amendments to add omitted allegations of a substantive element of the offense sought to be charged without changing the offense. (People v. Crosby (1962) supra, 58 Cal.2d 713, 723.) In People v. Potter (1966) 240 Cal. App.2d 621 [49 Cal. Rptr. 892], the court permitted an amendment to add that the act charged was done "wilfully, unlawfully, feloniously, and fraudulently" holding that the defendant was aware of the general nature of the charge and the amendment did not change it. While the rule in civil actions may usually not be determinative in a criminal proceeding, the underlying philosophy as expressed in civil cases in permitting amendments after the statute of limitations has run appears *89 to be substantially identical to that expressed in Penal Code section 1009 and the above cited criminal cases interpreting that section. In civil matters the rule appears to be now well settled that an amendment to a complaint will be permitted after the running of the statute of limitations if recovery is sought in both pleadings on the same general set of facts, even though the amendment may be cast in the form of an additional cause of action or count. (Grudt v. City of Los Angeles (1970) 2 Cal.3d 575, 583 [86 Cal. Rptr. 465, 468 P.2d 825]; Austin v. Massachusetts Bonding & Insurance Co. (1961) 56 Cal.2d 596, 600-601 [15 Cal. Rptr. 817, 364 P.2d 681].) In People v. Gilbert (1969) 1 Cal.3d 475 [82 Cal. Rptr. 724, 462 P.2d 580], the court held that Welfare and Institutions Code section 11482 is a special statute which includes the same subject matter as the general Penal Code theft sections and that since it is a special statute any conduct which violates section 11482, which would also constitute a violation of the theft provisions of the Penal Code, must be prosecuted under section 11482. At page 479 of that opinion, the court states: "As we stated in In re Williamson (1954) 43 Cal.2d 651, 654 ..., `It is the general rule that where the general statute standing alone would include the same matter as the special act, and thus conflict with it, the special act will be considered as an exception to the general statute whether it was passed before or after such general enactment.'" And at page 481, the court further states: "Inasmuch as the clause as to false statements applies only to statements made in obtaining unauthorized assistance, it follows that any conduct which violated that clause would also constitute a violation of the theft provision of the Penal Code. This overlap of provisions carrying conflicting penalties typifies the kind of conflict which we envisioned in Williamson; it requires us to give effect to the special provision alone in the face of the dual applicability of the general provision of the Penal Code and the special provision of the Welfare and Institutions Code. (See People v. Silk, supra, 138 Cal. App.2d Supp. 899 [291 P.2d 1013].)" (5) It is true, as appellant contends that, under the holding in the Gilbert case, she could not be convicted under the Penal Code theft provisions. However, it does not follow that the information could not be amended to allege the proper Welfare and Institutions Code section based upon the same underlying facts. The Gilbert decision does not make the information or accusatory pleading void from the beginning but only defective and, therefore, amendable to cure "the defect or insufficiency" (Pen. Code, § 1009) by changing to the correct code section and by making other technical changes. The substance of the offenses are not different — only the code section under which they may be prosecuted is different. Though imperfectly stated in the original complaint, appellant was fully *90 aware of the substance and nature of the charges against her, the essence of which have not been changed by the amendments. She has shown no prejudice by the action of the court in permitting the amendment, and, as the gravamen of the accusatory pleading in each charge is the same, the statute of limitations has not run. (6) While there have been lengthy delays in the commencement of the trial, the record, without conflict, reflects that the appellant consented to each and every continuance and to the delays. She, therefore, cannot complain of being deprived of a speedy trial. (People v. Tahtinen, 50 Cal.2d 127 [323 P.2d 442]; Cody v. Justice Court, 238 Cal. App.2d 275 [47 Cal. Rptr. 716]; People v. Lohman, 6 Cal. App.3d 760, 769 [86 Cal. Rptr. 221].) The order denying the writ of prohibition is affirmed. Stone, P.J., and Gargano, J., concurred. NOTES [1] Penal Code section 488 reads as follows: "Theft in other cases is petty theft." Penal Code section 484, defining theft insofar as pertinent, reads as follows: "Every person who shall ... knowingly and designedly, by any false or fraudulent representation or pretense, defraud any other person of money, ..." [2] Welfare and Institutions Code section 11482 reads as follows: "Any person other than a needy child, who willfully and knowingly, with the intent to deceive, makes a false statement or representation or knowingly fails to disclose a material fact to obtain aid, or who, knowing he is not entitled thereto, attempts to obtain aid or to continue to receive aid to which he is not entitled, or a larger amount than that to which he is legally entitled, is guilty of a misdemeanor."

405 U.S. 1201 92 S.Ct. 752 30 L.Ed.2d 769 Curtis GRAVES et al.v.Ben BARNES et al. Diana REGESTER et al. v. Bob BULLOCK et al. Johnny MARIOTT et al. v. Preston SMITH et al. Van Henry ARCHER, Jr. v. Preston SMITH et al.No. A—795. Feb. 7, 1972. Mr. Justice POWELL, Circuit Justice. 1 This is an application for a stay of the judgment of a three-judge court sitting in the Western District of Texas. The court's decision covers issues raised in four consolidated actions. The principal issues were as follows: 2 1. In Graves v. Barnes, plaintiffs challenged the State's reapportionment plan for the senatorial districts in Harris County (Houston) on the ground that they were racially gerrymandered. 3 2. In Regester v. Bullock, the State's reapportionment plan for the Texas House of Representatives was challenged on the grounds of population deviations from the one-man, one-vote requirement, and on the impermissibility of use of multi-member districts in the metropolitan communities. 4 3. In Mariott v. Smith, the House plan provision calling for a multi-member district for Dallas County was challenged. 5 4. In Archer v. Smith, a generally similar attack was levelled against the use of multi-member districting in Bexar County (San Antonio). 6 The four cases were consolidated and tried by a single three-judge panel. After full pretrial discovery, during which over 2,000 pages of depositions were taken, the District Court heard testimony at a three-and-one-half day hearing. The extensive per curiam opinion, 343 F.Supp. 704, and the concurring and dissenting opinions, which were handed down after some three weeks of deliberation, reflect a careful and exhaustive consideration of the issues in light of the facts as developed. The court's conclusions, in substance, were as follows: 7 (a) The Senate redistricting plan, as promulgated by the Texas Legislative Redistricting Board, was approved. 8 (b) The House redistricting plan was held violative of the Equal Protection Clause because of population deviations from equality of representation. But, in an exercise of judicial restraint, the court suspended its decision in this respect for the purpose of affording the Legislature of Texas an opportunity to adopt a new and constitutional plan. Meanwhile, the forthcoming election may be held under the plan found to be deficient. 9 (c) The multi-member district plans for Dallas and Bexar Counties were found to be unconstitutional under the standard prescribed by this Court in Fortson v. Dorsey, 379 U.S. 433, 438 439, 86 S.Ct. 498, 501, 13 L.Ed.2d 401 (1965); Burns v. Richardson, 384 U.S. 73, 88, 86 S.Ct. 1286, 1294, 16 L.Ed.2d 376 (1966); and Whitcomb v. Chavis, 403 U.S. 124, 143, 91 S.Ct. 1858, 1869, 29 L.Ed.2d 363 (1971). The three-judge court found from the evidence that these multi-member district plans would operate to minimize or cancel out the voting strength of racial minority elements of the voting population, and ordered the implementation of a plan calling for single-member districts for Dallas and Bexar Counties. The State offered no plan for single-member districts for these counties, and the court was compelled to draft its own plan. To minimize the disruptive impact of its ruling, the court ordered that the State's requirement that candidates run from the district of their residence be abated for the forthcoming election. A candidate residing anywhere within the county, therefore, may run for election from any district in the county. 10 (d) The evidence with respect to nine other metropolitan multi-member districts was found insufficient to warrant treatment similar to that required for Dallas and Bexar Counties. 11 (e) Finally, the court's order stated that its judgment was final and that no stays would be granted. 12 In view of the foregoing holdings the only present necessity to consider a stay relates to the District Court's decision with respect to multi-member districts in Dallas and Bexar Counties. A number of principles have been recognized to govern a Circuit Justice's inchambers review of stay applications. Stays pending appeal to this Court are granted only in extraordinary circumstances. A lower court judgment, entered by a tribunal that was closer to the facts than the single Justice, is entitled to a presumption of validity. Any party seeking a stay of that judgment bears the burden of showing that the decision below was erroneous and that the implementation of the judgment pending appeal will lead to irreparable harm. 13 As a threshold consideration, Justices of this Court have consistently required there be a reasonable probability that four Members of the Court will consider the issue sufficiently meritorious to grant certiorari or to note probable jurisdiction. See Mahan v. Howell, 404 U.S. 1201, 1202, 92 S.Ct. 1, 2, 30 L.Ed.2d 5 (1971); Organized Village of Kake v. Egan, 80 S.Ct. 33, 4 L.Ed.2d 34 (1959). Of equal importance in cases presented on direct appeal—where we lack the discretionary power to refuse to decide the merits—is the related question whether five Justices are likely to conclude that the case was erroneously decided below. Justices have also weighed heavily the fact that the lower court refused to stay its order pending appeal, indicating that it was not sufficiently persuaded of the existence of potentially irreparable harm as a result of enforcement of its judgment in the interim. 14 In applying these considerations to the present case, I conclude that a stay should not be granted. The case received careful attention by the three-judge court, the members of which were 'on the scene' and more familiar with the situation than the Justices of this Court; and the opinions attest to a conscientious application of principles enunciated by this Court. Moreover, the order of the court was narrowly drawn to effectuate its decision with a minimum of interference with the State's legislative processes, and with a minimum of administrative confusion in the short run. 15 Following a practice utilized by other Justices in passing on applications raising serious constitutional questions (see Meredith v. Fair, 83 S.Ct. 10, 9 L.Ed.2d 43 (1962); McGee v. Eyman, 83 S.Ct. 230, 9 L.Ed.2d 267 (1963), I have consulted informally with each of my Brethren who was available* at this time during the recess. Although no other Justice has participated in the drafting of this opinion, I am authorized to say that each of them would vote to deny this application. My denial of a stay at this point, of course, may not be taken either as a statement of my own position on the merits of the difficult questions raised in this case, or as an indication of what may, in fact ultimately be the view of my Colleagues on the Court. 16 The application is denied. * All Justices, save two who were not available, have been consulted.

219 P.3d 128 (2009) 2009 WY 139 EXXON MOBIL CORPORATION, Appellant (Petitioner), v. The STATE of Wyoming, DEPARTMENT OF REVENUE, Appellee (Respondent). No. S-08-0098. Supreme Court of Wyoming. November 12, 2009. *131 Representing Appellant: Patrick R. Day and Walter F. Eggers, III, Holland & Hart, LLP, Cheyenne, Wyoming; Brent R. Kunz, Hathaway & Kunz, PC, Cheyenne, Wyoming. Argument by Mr. Day. Representing Appellee: Bruce A. Salzburg, Attorney General; Michael L. Hubbard, Deputy Attorney General; Martin L. Hardsocg, Senior Assistant Attorney General. Argument by Mr. Hardsocg. Before VOIGT, C.J., and GOLDEN, HILL, and BURKE, JJ., and KAUTZ, D.J. BURKE, Justice. [¶ 1] ExxonMobil Corporation's LaBarge Project in southwestern Wyoming has been "a prolific source of various valuable gasses," as well as "a prolific source of tax litigation." Wyoming Dep't of Revenue v. Exxon Mobil Corp., 2007 WY 112, ¶ 6, 162 P.3d 515, 519 (Wyo.2007). The current litigation brings before us ExxonMobil's dispute with the Wyoming Department of Revenue over the taxation of natural gas for production year 2005. The Board of Equalization first heard and decided the dispute. ExxonMobil appealed two key aspects of the Board's decision to the district court. Pursuant to W.R.A.P. 12.09(b), the district court certified the case directly to us for review. For the reasons set forth in this opinion, we will reverse the decision of the Board, and remand the case for further proceedings. ISSUES [¶ 2] ExxonMobil states these issues for our consideration: 1. The State Board of Equalization determined that ExxonMobil's Black Canyon facility is an "initial dehydrator" for point of valuation purposes under Wyo. Stat. Ann. § 39-14-203(b)(iv). Did the Board err in that conclusion? 2. In applying the proportionate profits statute, the Department of Revenue deducted ExxonMobil's post-processing transportation expenses from gross revenues rather than including those expenses in the denominator of the direct cost ratio as required by statute. Did the Board err when it affirmed the Department's creation of a direct cost ratio that is contrary to the one set forth in the proportionate profits statute? The Department raises essentially the same issues in different words: 1. Did the State Board of Equalization correctly determine that ExxonMobil's Black Canyon dehydration facility is the initial dehydrator and not a "processing *132 facility" pursuant to Wyo. Stat. Ann. § 39-14-203(b)(iv)? 2. Did the State Board of Equalization correctly affirm the Department of Revenue's method of deducting post-plant transportation costs and determination that post-plant transportation costs are not included in the direct cost ratio pursuant to Wyo. Stat. Ann. § 39-14-203(b)(vi)(D)? FACTS [¶ 3] Because the facts in this case are essentially undisputed, we will rely largely on paraphrases of and quotations from the Board's Findings of Fact.[1] The LaBarge Project includes eighteen natural gas wells in three federal gas units in the Bridger-Teton National Forest in Sublette County, Wyoming. The natural gas stream from these wells is composed of approximately 65% carbon dioxide, 22% methane, 7% nitrogen, 5% hydrogen sulfide, and 0.6% helium, with trace amounts of various other components. As described by the Board: The LaBarge gas, unlike most natural gas in Wyoming, is not flammable before processing. It is a unique gas stream, and may in fact be the lowest BTU gas produced in the world. The gas stream is lethal due to its high concentration (50,000 parts per million) of hydrogen sulfide. A concentration of 700 parts per million of H2S in a gas stream can be fatal. In addition, when in contact with water, both H2S and CO2 form corrosive acids which can destroy a carbon steel pipeline. In the view of the Department, ... no other natural gas stream in Wyoming is "remotely similar." [¶ 4] From the well fields, the raw natural gas stream is piped approximately five miles to the Black Canyon facility where the gas is dehydrated. From Black Canyon, it is piped another forty miles to the Shute Creek facility where it is processed and separated into marketable products. Ordinarily, sour natural gas[2] is not dehydrated before it is processed. At the other facilities in Wyoming where sour natural gas is processed, the raw gas stream is delivered directly from the wells into a processing facility, without any intervening dehydration. The unusual configuration of the LaBarge Project was necessary largely because of environmental constraints. [¶ 5] ExxonMobil had initially planned that all of the processing and dehydration would be done at Black Canyon, but because of the environmental sensitivity of that site, ExxonMobil was required to locate the main processing facilities approximately forty miles south at the Shute Creek site. Because of safety and operational constraints, however, the sour natural gas had to be dehydrated before it was sent on to Shute Creek. That is because this gas stream contains extremely high concentrations of hydrogen sulfide and carbon dioxide along with water vapor. Such concentrations of hydrogen sulfide and carbon dioxide, in contact with water, can form acids corrosive enough to destroy a carbon steel pipeline, along with hydrates that could plug the pipeline. To prevent this, ExxonMobil dehydrates the sour gas at Black Canyon, then sends the dehydrated gas to Shute Creek for further processing. Further complicating the arrangement, the Shute Creek processing system requires wet gas, so ExxonMobil must inject water back into the gas stream before processing it at Shute Creek. [¶ 6] Black Canyon is a notably large and complex facility. It is designed to handle as much as 720 million cubic feet of raw gas per day. It is more than 2 million square feet in area, with office space for more than thirty full-time employees, a warehouse, a maintenance garage, and two separate processing train buildings. As the Board noted, "dehydration *133 of sour gas is inherently challenging and complex." With its high concentrations of hydrogen sulfide, the gas is extremely lethal. The water removed from the gas stream is also extremely acidic, and must be closely managed for safe disposal. Air quality considerations prohibit ExxonMobil from emitting any hydrogen sulfide, or from burning it, which would create sulfur dioxide. ExxonMobil must therefore recover and manage all of the contaminants removed from the gas stream. [¶ 7] It is undisputed that the Black Canyon facility dehydrates the LaBarge Project gas stream. To do that, it sends the gas, in two separate streams, to dehydration towers. There, the gas rises while a triethylene glycol (TEG) solution "rains down" through the gas and absorbs water vapor. In addition to removing water vapor, the TEG solvent also removes a little of "every single component in a raw gas stream." Accordingly, the Black Canyon facility also removes hydrogen sulfide, carbon dioxide, and other components of the stream. In addition, after the LaBarge Project began operating, ExxonMobil discovered that the gas stream contained several unexpected naturally occurring contaminants, including dibenzothiophene and other heavy hydrocarbons. As will be discussed in more detail below, these heavy hydrocarbons began settling out of the gas stream and contaminating the equipment at Black Canyon, the pipeline to Shute Creek, and the processing equipment at Shute Creek. ExxonMobil was forced to develop a system for removing these heavy hydrocarbons from the gas stream, "otherwise the entire operation from Black Canyon through Shute Creek would eventually fail." [¶ 8] At the Shute Creek plant, the gas is rehydrated, then stripped of hydrogen sulfide. The hydrogen sulfide is taken to sulfur recovery units and is either processed into a marketable sulfur product or reinjected back into the earth. The Shute Creek plant next removes carbon dioxide from the gas stream. The carbon dioxide that can be sold is sent through compressors and pipelines for delivery to petroleum recovery operations located a substantial distance away. Some carbon dioxide that cannot be sold is vented to the atmosphere. Finally, the remaining gas stream is separated and processed into the principal products of the gas stream, which are methane, liquefied natural gas, and helium. For all of the products processed and separated at Shute Creek, particularly carbon dioxide, methane, and sulfur, ExxonMobil incurs additional costs in transporting the products from Shute Creek to their point of sale. [¶ 9] From 1986 through 2004, severance taxes for the LaBarge Project were calculated using an accounting methodology agreed to by the Department and ExxonMobil as part of a negotiated settlement of litigation. This settlement was necessary, at least in part, because of the unique chemical composition of the LaBarge gas stream and its attendant safety, transportation, and processing challenges. In May of 2004, the Department cancelled the settlement agreement, and directed that the 2005 taxes for ExxonMobil's LaBarge Project would be calculated using the proportionate profits valuation method set forth in Wyo. Stat. Ann. § 39-14-203(b)(vi)(D) (LexisNexis 2007). Disputes over the correct application of this valuation method generated this litigation between the Department and ExxonMobil. STANDARD OF REVIEW [¶ 10] Our review of an administrative agency's decision is governed by the Wyoming Administrative Procedure Act, which, in pertinent part, provides that the reviewing court shall: (ii) Hold unlawful and set aside agency action, findings and conclusions found to be: (A) Arbitrary, capricious, an abuse of discretion or otherwise not in accordance with law; (B) Contrary to constitutional right, power, privilege or immunity; (C) In excess of statutory jurisdiction, authority or limitations or lacking statutory right; (D) Without observance of procedure required by law; or (E) Unsupported by substantial evidence in a case reviewed on the record *134 of an agency hearing provided by statute. Wyo. Stat. Ann. § 16-3-114(c)(ii). We affirm an agency's findings of fact if they are supported by substantial evidence. Dale v. S & S Builders, LLC, 2008 WY 84, ¶ 22, 188 P.3d 554, 561 (Wyo.2008). In this case, however, ExxonMobil does not challenge the Board's findings of fact. Rather, it asserts that the Board incorrectly applied the law to those facts, so that the Board's conclusions are not in accordance with the law. "As always, we review an agency's conclusions of law de novo." Id., ¶ 26, 188 P.3d at 561. [¶ 11] The basic task before us is to interpret various provisions of Wyo. Stat. Ann. § 39-14-203 and determine whether the Board correctly applied this severance tax statute to the undisputed facts. Statutory interpretation presents a question of law which we review de novo. Qwest Corp. v. State ex rel. Dept. of Rev., 2006 WY 35, ¶ 8, 130 P.3d 507, 511 (Wyo.2006). When interpreting statutes, we follow an established set of guidelines. First, we determine if the statute is ambiguous or unambiguous. A statute is unambiguous if its wording is such that reasonable persons are able to agree as to its meaning with consistency and predictability. Unless another meaning is clearly intended, words and phrases shall be taken in their ordinary and usual sense. Conversely, a statute is ambiguous only if it is found to be vague or uncertain and subject to varying interpretations. BP America Prod. Co. v. Department of Revenue, 2006 WY 27, ¶ 20, 130 P.3d 438, 464 (Wyo.2006), quoting State Dept. of Revenue v. Powder River Coal Co., 2004 WY 54, ¶ 5, 90 P.3d 1158, 1160 (Wyo.2004). If a statute is clear and unambiguous, we give effect to the plain language of the statute. State ex rel. Wyo. Dept. of Revenue v. Union Pacific R.R. Co., 2003 WY 54, ¶ 12, 67 P.3d 1176, 1182 (Wyo.2003). To determine whether a statute is ambiguous, we are not limited to the words found in that single statutory provision, but may consider all parts of the statutes on the same subject. Mathewson v. City of Cheyenne, 2003 WY 10, ¶ 6, 61 P.3d 1229, 1232 (Wyo.2003). If a statute is ambiguous, we may resort to principles of statutory construction to determine the intent of the legislature. Qwest, ¶ 8, 130 P.3d at 511. DISCUSSION Issue I. Point of Valuation A. Severance Tax 1. Statutory Background [¶ 12] Pursuant to Wyo. Stat. Ann. § 39-14-203(a)(i), "There is levied a severance tax on the value of the gross product extracted for the privilege of severing or extracting crude oil, lease condensate or natural gas in the state." This tax is imposed on the value of the natural gas at the time "the production process is completed." Wyo. Stat. Ann. § 39-14-203(b)(ii). It is not always clear, however, just where the production process is completed and other operations, such as transportation, are begun. See, e.g., Union Pac. Resources Co. v. State, 839 P.2d 356, 361 (Wyo.1992) (The legislature, oil and gas producers, and agencies "have struggled over the years to determine when the mining or production process is complete."). [¶ 13] In 1990, the legislature made an effort to clarify the proper point of valuation. See Kennedy Oil v. Department of Revenue, 2008 WY 154, ¶ 22 n. 3, 205 P.3d 999, 1006 n. 3 (Wyo.2008). It enacted this statutory guidance: The production process for natural gas is completed after extracting from the well, gathering, separating, injecting and any other activity which occurs before the outlet of the initial dehydrator. When no dehydration is performed, other than within a processing facility, the production process is completed at the inlet to the initial transportation related compressor, custody transfer meter or processing facility, whichever occurs first. Wyo. Stat. Ann. § 39-14-203(b)(iv). Significantly, this statute provides only two alternatives: Black Canyon is either an "initial dehydrator" as set forth in the first sentence, or a "processing facility" as set forth in the second sentence. There is no third option. The Board concluded that Black Canyon is an initial dehydrator. On appeal, we must *135 determine whether that conclusion is based on correct interpretation and application of this statute. 2. Application of the Statute [¶ 14] As explained by an expert witness for ExxonMobil during the Board's hearing, dehydrators can be divided into three different types. The statute quoted above is relatively simple to apply to "Type 1" and "Type 2" dehydrators. It is more difficult to apply to "Type 3." [¶ 15] The Type 1 dehydrator is a relatively small piece of equipment located at or near the well. It is used to dehydrate sweet natural gas, and typically handles the gas stream from a single well or a small group of wells. The expert witness estimated that Type 1 dehydrators constitute approximately 97% of the dehydrators in use in the United States. After dehydration, much of Wyoming's sweet natural gas already meets commercial quality standards, and can be sent directly from the dehydrators to the pipelines without further processing. A Type 1 dehydrator appears to be precisely the sort of "initial dehydrator" referred to in the first sentence of Wyo. Stat. Ann. § 39-14-203(b)(iv): "The production process for natural gas is completed after extracting from the well, gathering, separating, injecting and any other activity which occurs before the outlet of the initial dehydrator." Applying this statutory provision, the severance tax is imposed at the outlet of the initial dehydrator. See, e.g., Williams Prod. RMT Co. v. Wyoming Dep't of Revenue, 2005 WY 28, ¶ 34, 107 P.3d 179, 189 (Wyo.2005) (The statute "is quite clear in pronouncing that the natural gas production process is completed, for severance tax purposes, at the outlet of the initial dehydrator."). [¶ 16] According to the expert witness, nearly all of the other dehydrators in use in the United States are Type 2 dehydrators. They are larger in capacity than Type 1 dehydrators, as they typically dehydrate gas gathered from a larger number of wells. Accordingly, they are generally located at a greater distance from the wells. Type 2 dehydrators are used on sour natural gas, and so are usually incorporated within a large and complex gas processing facility. Type 2 dehydrators fall under the second sentence of Wyo. Stat. Ann. § 39-14-203(b)(iv): "When no dehydration is performed, other than within a processing facility, the production process is completed at the inlet to the initial transportation related compressor, custody transfer meter or processing facility, whichever occurs first." An example of a Type 2 dehydrator in Wyoming is the Whitney Canyon processing plant. See Amoco Prod. Co. v. Department of Revenue, 2004 WY 89, ¶ 29, 94 P.3d 430, 442 (Wyo. 2004) ("The parties to this case agree that no dehydration occurs in the field, so the point of valuation is either the inlet to the initial transportation related compressor, custody transfer meter or processing facility, whichever comes first."). Other examples include the Lost Cabin plant, see RME Petroleum Co. v. Wyoming Dept. of Revenue, 2007 WY 16, ¶ 9, 150 P.3d 673, 677 (Wyo.2007); and the Carter Creek plant, see Chevron U.S.A., Inc., ¶ 1, 158 P.3d at 132. [¶ 17] There are only five Type 3 dehydrators in the world according to the expert witness, and the only one in Wyoming is ExxonMobil's Black Canyon facility. Unlike a typical Type 1 dehydrator, Black Canyon is a very large and complex facility, is used to dehydrate the gas gathered from several wells, and is located approximately five miles from the well fields. Like a Type 2 dehydrator, Black Canyon dehydrates sour natural gas, but unlike a typical Type 2 dehydrator, Black Canyon is a stand-alone unit, not part of the larger processing facility located at Shute Creek. As the Board recited in its findings of fact, "In Wyoming, there are no other facilities which dehydrate highly sour raw gas. At the other facilities in Wyoming where raw sour natural gas is processed, the raw gas stream is delivered directly from the wells into a processing facility, without an intervening ... process." These unique characteristics make it difficult to classify the Black Canyon facility as either an initial dehydrator or a processing facility, as those terms are used in the statute. This difficulty is at the heart of the dispute between ExxonMobil and the Department over the correct point of valuation for severance tax purposes. *136 B. Interpretation of the Statutory Terms 1. Interpretation in Williams [¶ 18] The terms "initial dehydrator" and "processing facility" are not defined in the statutes. However, we interpreted these terms in Williams Prod. RMT Co. v. Wyoming Dep't of Revenue, 2005 WY 28, ¶ 34, 107 P.3d 179 (Wyo.2005). That opinion provides guidance in our current efforts to interpret the statutory terms. a. Initial dehydrator [¶ 19] At issue in Williams was the proper point of valuation for coal bed methane[3] that was gathered from separate wellheads and sent through pipelines and compressors to a triethylene glycol (TEG) dehydrator, a fairly typical example of the Type 1 dehydrator discussed by ExxonMobil's expert witness. In Williams, the Department considered the TEG dehydrator to be the initial dehydrator and, under the first sentence of the statute, set the point of valuation at the dehydrator outlet. Williams disagreed, asserting that dehydration also occurred when the gas was gathered and compressed, long before the gas got to the TEG dehydrator. On that basis, Williams denied that the TEG dehydrator was the initial dehydrator, and contended that the correct point of valuation was at the gathering or compression stages where the gas was also dehydrated. Id., ¶ 12, 107 P.3d at 184. After a hearing, the Board affirmed the Department's position, and Williams appealed to this Court. [¶ 20] Because the statutes did not define the term "initial dehydrator," we turned to the statutory definition of "dehydrator," which is "a device which removes water vapor that is commonly associated with raw natural gas." Wyo. Stat. Ann. § 39-14-201(a)(vii) (LexisNexis 2003). Williams asserted that its gathering equipment and compressors removed water vapor from the raw natural gas, and therefore fell within the definition of a dehydrator. Because the gathering equipment and compressors were upstream of the TEG dehydrator, Williams contended that they constituted initial dehydrators. The Court rejected Williams's position and affirmed the Board's decision on this basis: Citing to numerous pieces of technical evidence in the record, the Board found that, unlike the incidental separation of water and CBM in headers and compressors, and in the pipeline, itself, the TEG dehydrator is a specialized dehydrator — a particular piece of equipment. The Board found this significant because of Wyo. Stat. Ann. § 39-14-203(b)(iv)'s location of the point of valuation at the outlet of the initial dehydrator — a piece of equipment — rather than at the initial place that any dehydration — a function — takes place. Once again, we find that the Board's interpretation of the statute to be consistent with legislative intent. Williams, ¶ 22, 107 P.3d at 186. In other words, the gathering equipment and compressors caused some separation of water from the gas, but that was only incidental to their intended functions of gathering and compressing the gas. The TEG dehydrator was the "initial dehydrator" specified in the statute, because it was the first particular piece of equipment with the specialized and intended purpose of dehydrating the raw natural gas. b. Processing facility [¶ 21] We also rejected Williams's contention that its TEG dehydrator was a "processing facility." The term "processing facility" is not defined by statute, but the term "processing" is: any activity occurring beyond the inlet to a natural gas processing facility that changes the well stream's physical or chemical characteristics, enhances the marketability of the stream, or enhances the value of the separate components of the stream. Processing includes, but is not limited to fractionation, absorption, adsorption, flashing, refrigeration, cryogenics, sweetening, dehydration within a processing facility, beneficiation, *137 stabilizing, compression (other than production compression such as reinjection, wellhead pressure regulation or the changing of pressures and temperatures in a reservoir) and separation which occurs within a processing facility. Wyo. Stat. Ann. § 39-14-201(a)(xviii). [¶ 22] Williams argued that the TEG dehydrator was a processing facility because it performed at least some of the functions (e.g. absorption) listed in this statutory definition. The Board rejected that argument: The Board also relied upon the testimony of witnesses ... as to characteristics of processing facilities and the lack of those characteristics in the [Williams] facilities. The "common understanding" of these witnesses was that there was "an identifiable universe of processing plants, such as Whitney Canyon, Painter, and Carter Creek." Clearly, within the industry, the term "processing facility" has a specialized meaning beyond a collection of disparate pieces of equipment. Williams, ¶ 17 n. 2, 107 P.3d at 185 n. 2. We affirmed the Board's decision. Like an initial dehydrator, a processing facility is a particular facility constructed for an intended and specialized purpose. The purpose of a processing facility, in simplified terms, is to remove components such as condensate, natural gas liquids, or sulfur from the gas stream, id., ¶ 19, 107 P.3d at 186, which changes the well stream's physical or chemical characteristics and enhances its marketability. Wyo. Stat. Ann. § 39-14-201(a)(xviii). The TEG dehydrator in Williams did separate some components from the gas stream, but that separation was only incidental to its intended function of dehydration. The TEG dehydrator was not a processing facility because it was not a particular facility with the intended and specialized purpose of removing these components from the gas stream. c. Application of the Williams interpretation to Black Canyon i. Initial dehydrator [¶ 23] As interpreted in Williams, the statutory term "initial dehydrator" is the first device or particular piece of equipment with the intended and specialized purpose of dehydrating natural gas. It is undisputed that the Black Canyon facility dehydrates natural gas, and is intended to do so. It is also undisputed that Black Canyon is the first such equipment in the LaBarge Project gas stream. For these reasons, the Department contends that Black Canyon is an initial dehydrator, falling within the first sentence of the statute. [¶ 24] While ExxonMobil acknowledges that Black Canyon is a dehydrator, it insists that the legislature intended the statutory term "initial dehydrator" to apply to facilities very different from Black Canyon. Because the legislature did not define the term, ExxonMobil contends that the legislature must have intended to use it in a common and familiar way so it would be readily understood by the petroleum companies that are required to calculate, report, and pay the severance taxes they owe. ExxonMobil further maintains that Type 1 dehydrators are so common and familiar that the legislature must have had Type 1 dehydrators in mind when it used the term initial dehydrator without defining it. ExxonMobil then compares Type 1 dehydrators to the Black Canyon facility, and contends that the contrasts are so significant that the legislature could not have intended the term "initial dehydrator" to include both types. [¶ 25] As the Board found, Type 1 dehydrators are "not significantly larger than a truck." The Black Canyon facility covers more than 2 million square feet, an area described by ExxonMobil's expert witness as equivalent to 30 football fields. Type 1 dehydrators are generally unstaffed, but checked periodically by field personnel. Black Canyon employs 35 full-time workers. Type 1 dehydrators are not individually designed, one-of-a-kind units, but can be ordered prepackaged and shipped to the site. Black Canyon is unique, a facility specifically designed and constructed to meet many unusual conditions encountered in the LaBarge Project. Type 1 dehydrators have historically vented their relatively small emissions directly into the atmosphere. At Black Canyon, both the air emissions and the water *138 outflow are highly toxic, and must be disposed of and managed carefully. Based on these striking differences between Type 1 dehydrators and Black Canyon, ExxonMobil asserts that the legislature could not reasonably have intended the statutory term "initial dehydrator" to encompass both Type 1 dehydrators and the Black Canyon facility. ExxonMobil therefore contends that Black Canyon is not an initial dehydrator. [¶ 26] We acknowledge that the differences are dramatic, but as a legal matter, it is difficult to say that these differences disqualify Black Canyon as an "initial dehydrator." Both Type 1 dehydrators and Black Canyon use a TEG process to remove water vapor from the raw gas stream. Black Canyon is much larger in scale and complexity, which led the Department to characterize Black Canyon as a "dehydrator on steroids." In ExxonMobil's favor, we agree that it is a stretch to include both Black Canyon and Type 1 dehydrators within the same statutory classification. Still, we find no support in the statutes or our case law for the proposition that an initial dehydrator becomes something different when it reaches a certain size or complexity. At this point in our analysis, based solely on the interpretation from Williams, we would be inclined to agree with the Board's conclusion that Black Canyon is an initial dehydrator, though we remain troubled by that conclusion because the Black Canyon facility is so significantly different from the Type 1 dehydrators commonly used in the petroleum industry. ii. Processing facility (A) Carbon dioxide and hydrogen sulfide [¶ 27] In addition to removing water vapor from the natural gas stream, the Black Canyon facility also removes carbon dioxide and hydrogen sulfide. This changes the gas stream's physical or chemical characteristics, satisfying that part of the statutory definition of processing. Wyo. Stat. Ann. § 39-14-201(a)(xviii) (LexisNexis 2007). On this basis, ExxonMobil contends that Black Canyon is a processing facility. ExxonMobil further points out that the Black Canyon facility removes approximately 5,000 tons of hydrogen sulfide and 17,000 tons of carbon dioxide on an annual basis. These amounts are so large that, according to ExxonMobil, their removal cannot be considered merely incidental to dehydration. [¶ 28] The Department counters that the quantities of hydrogen sulfide and carbon dioxide may be large, but they constitute only a tiny fraction — roughly 1% — of the hydrogen sulfide and carbon dioxide found in the raw gas stream. The remaining 99% of these components remain in the gas stream until they are removed at the Shute Creek facility. Based on these proportions, the Department asserts that Black Canyon is a dehydrator that also happens to perform some processing functions. [¶ 29] Given our interpretation of the term processing facility in Williams, however, the significant question is not the amount or the proportion of the components removed, but the intended and specialized purpose of the facility. If Black Canyon's removal of carbon dioxide and hydrogen sulfide from the gas stream is only incidental to its main function of dehydration, then Black Canyon may be an initial dehydrator. On the other hand, if Black Canyon has the intended and specialized function of removing the carbon dioxide and hydrogen sulfide, then it may be a processing facility. [¶ 30] At Black Canyon, the gas stream is sent to a dehydration absorber tower, where it passes through a TEG solution that absorbs water vapor out of the gas stream. The TEG does not absorb water vapor alone, however. It also absorbs small amounts of nearly every component in the gas stream. The TEG solution therefore absorbs hydrogen sulfide and carbon dioxide along with the water vapor, removing them all from the gas stream. This description of Black Canyon's functions indicates that the removal of hydrogen sulfide and carbon dioxide is an unavoidable side-effect of the TEG treatment, not an intended and specialized purpose. Further, Black Canyon does not permanently remove the hydrogen sulfide and carbon dioxide from the gas stream. Almost all of those components are reinjected into the gas stream before it leaves Black Canyon and is sent to the Shute Creek facility, where these components *139 are permanently removed. The fact that Black Canyon removes these components only temporarily, then puts them back in the gas stream, suggests that their removal is not the intended and specialized function of the Black Canyon facility. Based on Black Canyon's removal of hydrogen sulfide and carbon dioxide from the gas stream, Black Canyon does not appear to fit the definition of a processing facility as that term is used in the statute. (B) Heavy hydrocarbons [¶ 31] ExxonMobil also points out that the Black Canyon facility removes heavy hydrocarbons from the gas stream. When ExxonMobil began operating the Black Canyon facility, it learned that the raw gas contained unexpected concentrations of heavy hydrocarbons. These heavy hydrocarbons exit the wellhead in a gaseous phase, but later separate out as solids.[4] The solids began to foul and contaminate the equipment at Black Canyon, as well as the pipeline to Shute Creek and the processing equipment there. The accumulating heavy hydrocarbon solids threatened to render the entire project inoperable. [¶ 32] ExxonMobil began cleaning the heavy hydrocarbon deposits from the equipment by hand, but found that to be an unsatisfactory long-term solution to the problem. Later, ExxonMobil developed and installed an activated carbon filtration system that adsorbs the heavy hydrocarbons and removes them from the gas stream. In 2003, ExxonMobil designed and installed a larger, improved carbon filtration system employing two large tanks, each holding 10,000 pounds of activated carbon, to adsorb and capture the heavy hydrocarbons. After the heavy hydrocarbons are removed from the gas stream at Black Canyon, they are disposed of by burning. [¶ 33] ExxonMobil contends that the removal of heavy hydrocarbons at Black Canyon constitutes processing of the gas stream. The carbon filtration system performs the processing function of adsorption, and it changes the physical and chemical characteristics of the gas stream. All of these are elements of the statutory definition of processing. Wyo. Stat. Ann. § 39-14-201(a)(xviii). The removal of heavy hydrocarbons enhances the value and marketability of the gas stream, because failing to remove them from the gas stream could cause the entire LaBarge Project to fail and render the gas stream worthless. Most significantly, it appears that the removal of heavy hydrocarbons is an intended and specialized purpose of the facility. It is done with equipment separate and apart from the TEG dehydrator, employing specially designed equipment constructed for the very purpose of removing the heavy hydrocarbons permanently from the gas stream. All of these factors support ExxonMobil's contention that Black Canyon fits the definition of a processing facility as we interpreted that term in Williams. [¶ 34] The Department contends that the removal of heavy hydrocarbons does not constitute processing because the amount of heavy hydrocarbons removed is so small. But as we previously stated, the amount of carbon dioxide and hydrogen sulfide removed by the Black Canyon facility is not dispositive in determining whether it is a processing facility. Similarly, we conclude that the amount of heavy hydrocarbons removed at Black Canyon is not the determining factor. We note again that failure to remove the heavy hydrocarbons from the gas stream could force the LaBarge Project to shut down, which indicates that the removal of heavy hydrocarbons cannot be considered trivial or incidental. In sum, the removal of heavy hydrocarbons is a specialized and intended purpose of the Black Canyon facility, it changes the physical characteristics, and it enhances the value of the natural gas. Based on the Williams interpretation, Black Canyon appears to be a processing facility as that term is used in the second sentence of Wyo. Stat. Ann. § 39-14-203(b)(iv). *140 [¶ 35] The Department also contended, and the Board agreed, that processing occurs only when saleable products are removed from the gas stream. The heavy hydrocarbons removed at the Black Canyon facility are not sold as a product, but are disposed of by burning. On this basis, the Board found that Black Canyon does not remove any saleable materials from the gas stream, and concluded that Black Canyon is not a processing facility. [¶ 36] The Board inferred this "saleable products" test from our decision in Williams. In that case, as part of our effort to interpret the term processing facility, we considered the statutory definition of the term "natural gas," which for "the purposes of taxation ... includes products separated for sale or distribution during processing of the natural gas stream." Williams, ¶ 18, 107 P.3d at 185. We took this language to suggest "that the legislature understood processing would separate certain products from the natural gas stream." Id. The Board read this to mean that processing occurs only when a valuable or saleable product is removed from the gas stream. The heavy hydrocarbons removed at Black Canyon are not sold or distributed, and so applying the saleable products test, the Board determined that Black Canyon is not a processing facility. [¶ 37] We reject this reading of our decision in Williams. The statutory definition of processing refers to "enhanc[ing] the marketability of the stream, or enhanc[ing] the value of the separate components of the stream." Wyo. Stat. Ann § 39-14-201(a)(xviii). Removing the heavy hydrocarbons at Black Canyon clearly enhances the marketability and value of the gas stream. Otherwise, ExxonMobil would have no reason to remove the heavy hydrocarbons. While the statutory definition of "natural gas" does include "products separated for sale or distribution," that could as easily refer to the remaining gas stream, which is separated and sold or distributed, as to the heavy hydrocarbons. Neither the statutory definition nor our discussion in Williams provides support for the saleable products test applied by the Board. [¶ 38] Further, the Department has not previously applied the saleable products test as it did here. Prior to the hearing, one of the Department's witnesses was deposed, and asked to define a processing facility. He stated that there "has to be a deliberate attempt to remove components from the gas stream, either valuable or nonvaluable components, that are items of natural gas other than water vapor." If the heavy hydrocarbons are considered nonvaluable components of the gas stream, Black Canyon's deliberate removal of them would constitute processing under this definition. At the hearing, however, this same witness testified that at a processing facility, there "must be a deliberate attempt to change the physical, chemical characteristics to make ... the natural gas or the product more marketable and available for sale and distribution." With this change to its definition, the Department asserted that a processing facility must remove a saleable product from the gas stream. While we generally defer to an agency's interpretation of the statutes it administers, an agency's statutory interpretation is entitled to little deference when it is contrary to prior practice and precedent. RME, ¶ 44, 150 P.3d at 689. Moreover, Black Canyon qualifies as a processing facility even under the Department's second definition, because its removal of heavy hydrocarbons makes either "the natural gas or the product more marketable." Black Canyon is not disqualified as a processing facility just because the heavy hydrocarbons it removes are not sold. [¶ 39] We are also persuaded by ExxonMobil's argument that a saleable products test could lead to absurd results. At Shute Creek, ExxonMobil removes sulfur and carbon dioxide from the gas stream. Historically, there have been times when sulfur and carbon dioxide have had essentially no commercial value. During such times, ExxonMobil did not sell these components, but reinjected the sulfur back into the ground and vented the carbon dioxide to the atmosphere. See Amoco Prod. Co. v. State, 751 P.2d 379, 380 (Wyo.1988). Applying the saleable products test as the Board did here, the Department could treat Shute Creek as a processing facility when it is selling sulfur and carbon dioxide, but not when it is reinjecting *141 or venting those components. Shute Creek's classification as a processing facility should not fluctuate with the market, and for this additional reason, we reject the saleable products test used by the Board. d. Recap of Williams interpretations [¶ 40] Our review of the Board's decision in light of the interpretations discussed in Williams yields mixed results. It is a close question because of the significant differences between the Black Canyon facility and the typical Type 1 dehydrator, but we are inclined to agree with the Department that Black Canyon fits the definition of an initial dehydrator. We are not convinced that Black Canyon is a processing facility based on its temporary removal of carbon dioxide and hydrogen sulfide from the gas stream, and yet we are inclined to agree with ExxonMobil that Black Canyon fits the definition of a processing facility because of its deliberate removal of heavy hydrocarbons. These contradictions require us to continue with our analysis. 2. Interpretation based on industry usage [¶ 41] In Williams, the Board expressly relied on "customary usage in the industry" to help interpret the term processing facility, and less explicitly, to help define the term initial dehydrator. Williams, ¶ 17 n. 2, 107 P.3d at 185 n. 2. In this case, ExxonMobil presented expert witnesses who testified to the Board that, within the petroleum industry, Black Canyon would not be considered an initial dehydrator. They testified that the Black Canyon facility has all of the functional attributes of a natural gas processing facility "as understood in the industry," and would be considered a processing facility under customary usage. The Department presented no industry experts to counter or disagree with this testimony. [¶ 42] The Department asserted that ExxonMobil's expert testimony was not relevant. The Board agreed, ruling that "the exhibits and testimony presented by Dr. Enick and [Mr.] MacFarland might be appropriate if the question was how to characterize Black Canyon in a technical and engineering context, [but] such evidence does not shed any particular light on, nor significantly assist in the task at hand, which is to determine the Wyoming Legislature's intent in adopting ... the term `processing facility.'" This ruling by the Board contravenes well-established precedent. "[W]hen construing technical terms contained within statutes, we look to the meaning ascribed to those terms in the applicable field." Williams, ¶ 19, 107 P.3d at 185. Indeed, for technical terms, particular weight may be given to industry usage: If a word in a statute has a usual meaning and a technical meaning, the technical meaning is preferred as stated in § 8-1-103 W.S.1977, Cum.Supp.1987, which provides: (a) The construction of all statutes of this state shall be by the following rules, unless that construction is plainly contrary to the intent of the legislature: (i) Words and phrases shall be taken in their ordinary and usual sense, but technical words and phrases having a peculiar and appropriate meaning in law shall be understood according to their technical import. Amoco Prod. Co., 751 P.2d at 383 (emphasis supplied in original; some internal punctuation omitted). [¶ 43] The industry's characterization of Black Canyon as a processing facility, even if in the technical or engineering context, is highly relevant in determining what the legislature intended the terms initial dehydrator and processing facility to mean. The Board erred in refusing to consider this evidence. This error is especially troublesome because this evidence was essentially undisputed. The Department presented no industry expert to contest ExxonMobil's testimony that within the petroleum industry, Black Canyon would be considered a processing facility and not an initial dehydrator. [¶ 44] The Department did present evidence that ExxonMobil has historically referred to Black Canyon as a dehydrator and to Shute Creek as a processing facility. This has been done in internal planning documents, and in documents submitted to regulatory *142 agencies. We agree with the Department's contention that these historical references provide evidence that Black Canyon is a dehydrator. That evidence is of little use here, however, because it is undisputed that Black Canyon is a dehydrator. The question before the Board, and now before us, is whether Black Canyon is an initial dehydrator or a processing facility as those terms are used in Wyo. Stat. Ann. § 39-14-203(b)(iv). [¶ 45] Administrative agencies have broad discretion in deciding to admit or exclude evidence. Sinclair Oil Corp. v. Wyoming Public Service Comm'n, 2003 WY 22, ¶ 41, 63 P.3d 887, 901 (Wyo.2003). In this case, however, the Board admitted the expert testimony into evidence, and used it as the basis for detailed findings of fact. It then ruled that the evidence was irrelevant and could be ignored. This was not a discretionary decision to admit or exclude evidence, but a legal decision about how the evidence could be used. We review this legal question de novo, and have an obligation to correct the Board's legal error. Dale, ¶ 26, 188 P.3d at 561. [¶ 46] Evidence that the industry would consider Black Canyon a processing facility rather than an initial dehydrator is a strong factor in ExxonMobil's favor. Still, we are left with various plausible interpretations of the statutory language. Black Canyon seems to fit the definition of an initial dehydrator as interpreted in Williams, but it is not an initial dehydrator as that term is understood in the petroleum industry. Black Canyon may not be a processing facility because it removes carbon dioxide and hydrogen sulfide from the gas stream, but it may be because it removes heavy hydrocarbons. A statute is ambiguous if it is vague or uncertain and subject to varying interpretations. Allied-Signal v. Wyoming State Bd. of Equalization, 813 P.2d 214, 219-220 (Wyo. 1991). At this point in our analysis, we must conclude that the statutory terms initial dehydrator and processing facility, as used in Wyo. Stat. Ann. § 39-14-203(b)(iv), are ambiguous. This same conclusion has previously been suggested by the Board. Williams, ¶ 34, 107 P.3d at 189. C. Construction of the Severance Tax Statutes [¶ 47] Because the statute is ambiguous, we rely upon principles of statutory construction in order to ascertain the legislative intent. Qwest, ¶ 8, 130 P.3d at 511. Two principles of statutory construction are particularly useful in this case. First is a principle of construction applicable to taxation statutes: "Tax statutes are to be construed in favor of the taxpayer and are not to be extended absent clear intent of the legislature." Chevron U.S.A., Inc. [v. State], 918 P.2d [980,] 985 [(Wyo.1996)]. In the interpretation of statutes levying taxes it is the established rule not to extend their provisions, by implication, beyond the clear import of the language used, or to enlarge their operations so as to embrace matters not specifically pointed out. In case of doubt they are construed most strongly against the government and in favor of the citizen. Amoco Production Co. v. Dept. of Revenue, 2004 WY 89, ¶ 18, 94 P.3d 430, 438 (Wyo.2004). Thus, taxes may not be imposed by any means other than a clear, definite and unambiguous statement of legislative authority. Chevron U.S.A., Inc., 918 P.2d at 984; Amoco Production Co., ¶ 18[, 94 P.3d at 438-39]. See also Wyo. Const. art. 15, § 13 (stating "no tax shall be levied, except in pursuance of law, and every law imposing a tax shall state distinctly the object of the same, to which only it shall be applied."). Qwest, ¶ 9, 130 P.3d at 511-12 (paragraph breaks omitted). Construing the statute in favor of the taxpayer inclines us toward ExxonMobil's position that Black Canyon is not an initial dehydrator, but is a processing facility, as those terms are used in Wyo. Stat. Ann. § 39-14-203(b)(iv). [¶ 48] The second useful principle of statutory construction is this: In ascertaining the legislative intent in enacting a statute ... the court ... must look to the mischief the act was intended to cure, the historical setting surrounding its enactment, the public policy of the *143 state, the conditions of the law and all other prior and contemporaneous facts and circumstances that would enable the court intelligently to determine the intention of the lawmaking body. Qwest, ¶ 8, 130 P.3d at 511, quoting Petroleum Inc. v. State Bd. of Equalization, 983 P.2d 1237, 1240 (Wyo.1999). In the case before us now, the statute's historical setting and the general public policy regarding severance taxes provide helpful insight into what the legislature intended when it enacted the statute at issue. [¶ 49] The severance tax is imposed at the point where "the production process is completed." Wyo. Stat. Ann. § 39-14-203(b)(ii). Historically, the term "production" refers to the severance of minerals from the ground. State v. Pennzoil Co., 752 P.2d 975, 979 (Wyo.1988). Accordingly, the severance tax was traditionally imposed on the value of the mineral at the point where it is severed from the ground. Petra Energy, Inc. v. Department of Revenue, 6 P.3d 1267, 1271 (Wyo.2000). For natural gas, severance is generally considered to occur at the wellhead. See Union Pac. Resources Co., 839 P.2d at 360-61. Accordingly, it has been said that the "basic concept" of the severance tax "is valuation at the wellhead." J. Ray McDermott & Co. v. Hudson, 370 P.2d 364, 367 (Wyo.1962). The legislature may choose to adjust or clarify the precise point of valuation, and over the years it has enacted legislation to do that. But unless the statute includes a clear expression of legislative intent to shift the point of valuation away from the wellhead, the statutory language should be construed to conform as nearly as possible to the basic severance tax concept of valuation at the wellhead. [¶ 50] The Black Canyon facility is separated, physically and functionally, from the wellheads of the LaBarge Project. It does not play a part in removing the gas from the ground, but instead in handling the gas after it has been removed from the ground and gathered at the Black Canyon facility. On this basis, it seems inappropriate to consider Black Canyon, as the Department urges, as part of the production process like a typical, small, Type 1 dehydrator. It seems more appropriate to consider Black Canyon, as ExxonMobil urges, to be part of the post-production operations, more akin to the larger and more complex Type 2 dehydrators. ExxonMobil's position in this litigation places the point of valuation closer to the wellheads, while the Department's position pushes it further downstream. Absent a clear expression of legislative intent to depart from the basic severance tax concept of valuation at the wellhead, we must construe the statute in harmony with that concept. Based on these considerations, our construction of Wyo. Stat. Ann. § 39-14-203(b)(iv) must be that the legislature's intent was not to classify Black Canyon as an initial dehydrator as that term is used in the first sentence, but rather to consider Black Canyon a processing facility as that term is used in the second sentence of the statute. [¶ 51] Based on both of these principles of statutory construction, we are ultimately persuaded that Wyo. Stat. Ann. § 39-14-203(b)(iv) must be construed as urged by ExxonMobil. We therefore determine that ExxonMobil's Black Canyon is not an "initial dehydrator," as that term is used in the first sentence of Wyo. Stat. Ann. § 39-14-203(b)(iv), and the correct point of valuation for severance taxes is not the outlet of the Black Canyon facility. Black Canyon is instead a "processing facility" as that term is used in the second sentence of the statute, and the proper point of valuation is "at the inlet to the initial transportation related compressor, custody transfer meter or processing facility, whichever occurs first." [¶ 52] ExxonMobil urges us to choose among these three options. It asserts that there is a custody transfer meter located at each wellhead, so the proper point of valuation is at the inlet to these custody transfer meters. The record before us, however, does not establish with sufficient certainty whether those meters are custody transfer meters or volume meters. If they are volume meters, they are not the proper points of valuation. See Amoco Prod. Co., ¶ 31, 94 P.3d at 443. We are unable to resolve this issue based on the record before us, and will remand this case to the Board to *144 determine the correct point of valuation in accordance with this opinion. Issue II. Proportionate Profits Method [¶ 53] As discussed above, severance taxes are levied on the value of the natural gas at the point where "the production process is completed." Wyo. Stat. Ann. § 39-14-203(b)(ii). The gas from the LaBarge Project is not sold at that point. Instead, ExxonMobil sells it after the gas has been processed and separated into products including methane, carbon dioxide, and sulfur. The amount ExxonMobil actually receives when it sells those products represents their higher value after processing and separation. An accounting method must be used to reduce the amount ExxonMobil actually receives for the products to reflect the lower value at the point where the production process is completed. [¶ 54] The method chosen by the Department for calculating the value of ExxonMobil's 2005 production is the proportionate profits method set forth in Wyo. Stat. Ann. § 39-14-203(b)(vi)(D): Proportionate profits — The fair market value is: (I) The total amount received from the sale of the minerals minus exempt royalties, nonexempt royalties and production taxes times the quotient of the direct cost of producing the minerals divided by the direct cost of producing, processing and transporting the minerals; plus (II) Nonexempt royalties and production taxes. A much-simplified example can illustrate how the proportionate profits method works. A company sells its natural gas for $100, which is, in the words of the statute, the "total amount received from the sale of the minerals." The "direct cost of producing the minerals" is $30. The "direct cost of producing, processing and transporting the minerals" is $50. Applying the statutory formula, the "fair market value" is calculated as follows: $100 x ($30 ÷ $50) = $60. This establishes the value of the natural gas at the time production was completed as $60, and the severance tax would be levied on this amount. [¶ 55] In its order, the Board provided this broad explanation of how the proportionate profits method applies to ExxonMobil: Under Wyoming law, the fair market value of natural gas production is determined at the point when the production process has been completed. Wyo. Stat. [Ann. § ] 39-2-208(a). The LaBarge raw gas stream, however, must undergo extensive processing in order to have marketable products. For this reason the amount received from the sale of the products from the raw gas stream reflects the value of those products after both production and processing. In order to determine the value of the products after production only, it is necessary to deduct from the total amount received from the sale an amount reflecting the value added to the products by processing. The purpose of the direct cost ratio in the proportionate profits methodology is to allocate "a portion of a taxpayer's revenue to non-taxable functions, i.e. processing and transporting." RME Petroleum Company v. Wyoming Department of Revenue, 2007 WY 16, ¶ 51, 150 P.3d 673, 691 (Wyo.2007). [¶ 56] The dispute between the Department and ExxonMobil concerns the costs ExxonMobil incurs in transporting methane, carbon dioxide, and sulfur products to their respective points of sale after they have been processed and separated from the natural gas stream. The parties agree that post-processing transportation costs must be factored into the calculation, but disagree about how that should be done. The Department subtracted the post-processing transportation costs from the "total amount received from the sale of the minerals." ExxonMobil contends that this is contrary to the statutory formula, and that post-processing transportation costs must instead be included in the denominator of the direct cost ratio. [¶ 57] The Department maintains that the result of including the post-processing transportation costs in the direct cost ratio is a compelling reason to reject ExxonMobil's position. The post-processing transportation costs are particularly high for carbon dioxide, because it must be compressed and sent long distances through pipelines to the eventual *145 points of sale. The Department points out that including the post-processing transportation costs for carbon dioxide "reduced taxable value for the gas stream to such an extent that not taxing [carbon dioxide] at all generated a higher taxable value in the remaining minerals taxed." (Emphasis supplied by the Department.) The Department claims that this is an absurd result that should be avoided when interpreting the statute. See Chevron U.S.A., Inc. v. Department of Revenue, 2007 WY 43, ¶ 18, 154 P.3d 331, 337 (Wyo.2007). [¶ 58] We disagree that this result is absurd. Severance taxes are levied on the "fair market value" of the mineral "after the production process is completed." Wyo. Stat. Ann. § 39-14-203(b)(ii). If it is unusually expensive to transport a mineral from the point of production to the point of sale, then that mineral has a lower fair market value at the point of production. More specifically, if the carbon dioxide component of the LaBarge raw gas stream is extremely expensive to transport, then the value of the carbon dioxide at the point of production is correspondingly low. If the value of the carbon dioxide is low, that reduces the value of the entire gas stream at the point of production. In fact, as we have previously observed, when natural gas prices are particularly low, the LaBarge gas stream may have "zero taxable value" under some accounting methods. See Wyoming Dep't of Revenue v. Exxon Mobil Corp., 2007 WY 21, ¶ 3, 150 P.3d 1216, 1218 (Wyo.2007). [¶ 59] The statutory formula for the proportionate profits method explicitly includes the "direct cost of producing, processing and transporting the minerals" in the denominator of the direct cost ratio. Wyo. Stat. Ann. § 39-14-203(b)(vi)(D). The use of the plural, "minerals," indicates that the transportation costs for all components of the raw gas stream must be included in the formula. The statute does not allow the Department to include the direct costs of some minerals and exclude the direct costs of others. While the Department may be correct that including the high costs of post-processing transportation for carbon dioxide results in a lower taxable value for the entire gas stream, that result is not absurd but rather a reflection of the true market value of the LaBarge gas stream at the point of production. The result is entirely consistent with the mandate of the Wyoming Constitution that "the product of all mines shall be taxed in proportion to the value thereof." Wyo. Const. art. 15, § 3. [¶ 60] The Department asserts that post-processing transportation costs are not included in the direct cost ratio because they are incurred to transport the separate products of the gas stream rather than the collective gas stream. The Board agreed with this contention: When individual mineral products are separated through processing as defined by statute, the producer may incur post-plant costs for transporting that particular mineral product to the point of sale. Those costs do not proportionately enhance the value of the other mineral products. Post-plant transportation costs thus bear no relevance to the value added by processing, and, therefore, do not belong in the direct cost ratio. [¶ 61] However, Wyo. Stat. Ann. § 39-14-201(a)(xv) explicitly provides that, "For the purposes of taxation, the term natural gas includes products separated for sale or distribution during processing of the natural gas stream including, but not limited to plant condensate, natural gas liquids and sulfur." Methane, carbon dioxide, and sulfur are all products separated from the LaBarge Project natural gas stream, and all are included within the definition of natural gas for purposes of taxation. Because the Department levies taxes on the value of each individual product, it must also consider the costs of transporting each individual product. [¶ 62] The key to resolving this dispute, we believe, is to determine whether post-processing transportation costs are part of the "direct cost of producing, processing and transporting the minerals." If so, then Wyo. Stat. Ann. § 39-14-203(b)(vi)(D) directs that they be included in the denominator of the direct cost ratio. This is the position taken by ExxonMobil. The position taken by the Department, though never expressly stated this way, is that post-processing transportation *146 costs are indirect costs. The Department's regulations provide this definition of direct costs: "Direct costs of producing, processing and transporting" includes the direct cost of producing ... plus transportation and processing plant or facility labor whose primary purpose is transporting or processing crude oil, plant condensate, natural gas and other mineral products removed from the production stream; materials and supplies used for transporting and processing; depreciation expense for equipment used for transportation and processing; fuel, power and other utilities used for transportation and processing and maintenance of the transporting and processing plant or facilities; transportation from the point of valuation to the processing plant or facility to the extent included in the price and provided by the producer; ad valorem taxes on the transporting equipment and processing plant or facility; and any other direct costs incurred that are specifically attributable to the transporting or processing of mineral products contained in the production stream. Department of Revenue Rules, ch. 6, § 4b(x). The Department contends that because the definition of direct costs expressly includes the costs of "transportation from the point of valuation to the processing plant or facility," it impliedly excludes costs incurred after the processing plant or facility. [¶ 63] The Department has overlooked another phrase in this regulation, which states that direct costs include "any other direct costs incurred that are specifically attributable to the transporting or processing of mineral products contained in the production stream." Post-processing transportation costs are specifically attributable to transporting the methane, carbon dioxide, and sulfur products contained in the gas stream. This provision of the regulation substantially undermines the Department's position that post-processing transportation costs are not direct costs. [¶ 64] The statutes and regulations provide no definition of the term "indirect costs" as applied to natural gas. As applied to coal, however, indirect costs are defined to include "allocations of corporate overhead, data processing costs, accounting, legal and clerical costs, and other general and administrative costs which cannot be specifically attributed to an operational function without allocation." Wyo. Stat. Ann. § 39-14-103(b)(vii)(D). Applying this statutory definition, we have observed that, for example, the costs of mining permits and environmental impact statements are indirect costs because they benefit the entire operation and cannot be specifically attributed to any coal mining or processing function. Powder River Coal Co. v. Wyoming State Bd. of Equalization, 2002 WY 5, ¶ 22, 38 P.3d 423, 430 (Wyo.2002). Although this statutory definition applies directly to coal, we also find it helpful in defining indirect costs of producing natural gas. [¶ 65] The post-processing transportation costs for methane, carbon dioxide, and sulfur are not general administrative costs that benefit the entire project. They are directly attributable to the function of transporting those mineral products. Reading this statutory definition of indirect costs together with the regulatory definition of direct costs, we must conclude that post-processing transportation costs are not indirect costs, but direct costs. Accordingly, post-processing transportation costs must be included in the denominator of the statutory formula for calculating the fair market value of the minerals using the proportionate profits method. [¶ 66] Even if these post-processing transportation costs were indirect costs, however, the Department has provided no case law support for the approach of subtracting them from total sales. In Powder River, ¶ 18, 38 P.3d at 429, we explained that "The proportionate profits method adopted by the legislature recognizes that indirect costs occur proportionately over all functions, production, processing, and transportation, in the same ratio as direct costs." Accordingly, Wyo. Stat. Ann. § 39-14-203(b)(vi)(D) requires a calculation of the ratio of direct costs of production to the direct costs of production, processing, and transportation. It does not require a calculation of indirect costs in this formula, but instead presumes that indirect costs occur in the same ratio as direct costs. The statutory *147 formula, as interpreted in Powder River, does not mention indirect costs, and therefore cannot be interpreted to authorize the Department's approach of subtracting indirect costs from total sales. [¶ 67] The Department has cited no statutory or regulatory authority for its approach of subtracting post-processing transportation costs directly from the amount received in sales. The applicable statute, Wyo. Stat. Ann. § 39-14-203(b)(vi)(D), is explicit about what is included in this step of the formula: "The total amount received from the sale of the minerals minus exempt royalties, nonexempt royalties and production taxes." It does not indicate, in any way, that post-processing transportation costs are also subtracted from the sales amount. [¶ 68] For all of these reasons, we conclude that Wyo. Stat. Ann. § 39-14-203(b)(vi)(D) is unambiguous on the correct way to account for post-processing transportation costs. Post-processing transportation costs are "direct cost[s] of producing, processing and transporting the minerals." They must therefore be included in the denominator of the direct cost ratio under the proportionate profits method. CONCLUSION [¶ 69] On both issues in this appeal, we reverse the Board's decisions, and remand to the district court for further proceedings consistent with this opinion. HILL, Justice, dissenting. [¶ 70] I respectfully dissent because I conclude that the majority opinion accords neither the Department of Revenue (DOR) nor the Board of Equalization (BOE) the full benefit of the applicable standards of review. Neither does it apply a complete statement of the applicable principles of statutory construction for revenue statutes such as those at issue here. [¶ 71] It is my view that the heart of this controversy is best understood if the following circumstances are noted at the commencement of our discussion. The fair market value of natural gas for severance and ad valorem tax purposes is determined "after the production process is completed." Wyo. Stat. Ann. § 39-14-203(b)(ii) (LexisNexis 2009). Wyo. Stat. Ann. § 39-14-203(b)(iv) provides: The production process for natural gas is completed after extracting from the well, gathering, separating, injecting and any other activity which occurs before the outlet of the initial dehydrator. When no dehydration is performed, other than within a processing facility, the production process is completed at the inlet to the initial transportation related compressor, custody transfer meter or processing facility, whichever occurs first[.] [Emphasis added.] [¶ 72] Determining the point of valuation is of particular significance because "expenses incurred by the producer prior to the point of valuation are not deductible in determining the fair market value of the [natural gas]." Wyo. Stat. Ann. § 39-14-203(b)(ii). Thus, because certain expenses "downstream" of the point of valuation are deductible, it is to the producer's benefit to have the point of valuation determined "upstream" as far as possible. That is the instant case in a nutshell. Here Exxon seeks an "upstream" point of valuation instead of the "downstream" point of valuation determined by the DOR and confirmed by the BOE. See Williams Production RMT Co. v. State Dept. of Revenue, 2005 WY 28, ¶¶ 9-10, 107 P.3d 179, 183-84 (Wyo.2005). [¶ 73] The majority concludes that these words in § 39-14-203(b)(iv) are ambiguous: § 39-14-203. Imposition. . . . . (b) Basis of tax. The following shall apply: . . . . (iv) The production process for natural gas is completed after extracting from the well, gathering, separating, injecting and any other activity which occurs before the outlet of the initial dehydrator. When no dehydration is performed, other than within a processing facility, the production process is completed at the inlet to the initial transportation related compressor, *148 custody transfer meter or processing facility, whichever occurs first; [¶ 74] The majority begins its analysis by reciting the standard of review we apply in matters adjudicated under the Administrative Procedures Act. See Wyo. Stat. Ann. § 16-3-114(c) (LexisNexis 2009) and Dale v. S & S Builders, 2008 WY 84, ¶ 22, 188 P.3d 554, 561 (Wyo.2008). I include the entire statement of that standard of review because that cited by the majority is incomplete and, perhaps, just a bit misleading: Thus, in the interests of simplifying the process of identifying the correct standard of review and bringing our approach closer to the original use of the two standards, we hold that henceforth the substantial evidence standard will be applied any time we review an evidentiary ruling. When the burdened party prevailed before the agency, we will determine if substantial evidence exists to support the finding for that party by considering whether there is relevant evidence in the entire record which a reasonable mind might accept in support of the agency's conclusions. If the hearing examiner determines that the burdened party failed to meet his burden of proof, we will decide whether there is substantial evidence to support the agency's decision to reject the evidence offered by the burdened party by considering whether that conclusion was contrary to the overwhelming weight of the evidence in the record as a whole. See, Wyo. Consumer Group v. Public Serv. Comm'n of Wyo., 882 P.2d 858, 860-61 (Wyo.1994); Spiegel, 549 P.2d at 1178 (discussing the definition of substantial evidence as "contrary to the overwhelming weight of the evidence"). If, in the course of its decision making process, the agency disregards certain evidence and explains its reasons for doing so based upon determinations of credibility or other factors contained in the record, its decision will be sustainable under the substantial evidence test. Importantly, our review of any particular decision turns not on whether we agree with the outcome, but on whether the agency could reasonably conclude as it did, based on all the evidence before it. [Emphasis added.] Questions of law are reviewed de novo. Id. at ¶ 26, 188 P.3d 561-62. The majority bypasses the substantial evidence part of this standard of review by characterizing the issue here as one of "statutory construction" and, thus, a pure question of law. The core of my dissent, in this regard, centers on the circumstance that we historically have applied a much more complex standard of review when addressing decisions made by the BOE. This is so because it exercises a unique role under the Wyoming Constitution and statutes. Wyo. Const. art. 15, § 10; Wyo. Stat. Ann. § 39-11-102.1 (LexisNexis 2009). The responsibilities assigned to the BOE include: § 39-11-102.1. Administration; state board of equalization. . . . . (iv) Decide all questions that arise with reference to the construction of any statute affecting the assessment, levy and collection of taxes, in accordance with the rules, regulations, orders and instructions prescribed by the department [of revenue]: (A) Upon application of any person adversely affected; or (B) In performing its responsibilities to equalize values, including with respect to the suitability of the system prescribed by the department for establishing fair market value. Wyo. Stat. Ann. § 39-11-102.1(c)(iv). [¶ 75] The following constitutes one of the expanded standards of review we have applied when considering decisions rendered by the DOR and/or the BOE: With regard specifically to valuations of property by DOR for purposes of taxation, we have recently noted: The Department's valuations for state-assessed property are presumed valid, accurate, and correct. This presumption can only be overcome by credible evidence to the contrary. In the absence of evidence to the contrary, we presume that the officials charged with establishing value exercised honest judgment in accordance with the applicable rules, regulations, and other directives that have passed public scrutiny, either *149 through legislative enactment or agency rule-making, or both. The petitioner has the initial burden to present sufficient credible evidence to overcome the presumption, and a mere difference of opinion as to value is not sufficient. If the petitioner successfully overcomes the presumption, then the Board is required to equally weigh the evidence of all parties and measure it against the appropriate burden of proof. Once the presumption is successfully overcome, the burden of going forward shifts to the DOR to defend its valuation. The petitioner, however, by challenging the valuation, bears the ultimate burden of persuasion to prove by a preponderance of the evidence that the valuation was not derived in accordance with the required constitutional and statutory requirements for valuing state-assessed property. Moreover, in examining the propriety of the valuation method, our task is not to determine which of the various appraisal methods is best or most accurately estimates fair market value; rather, it is to determine whether substantial evidence exists to support usage of the chosen method of appraisal. Colorado Interstate Gas Company v. Wyoming Department of Revenue, 2001 WY 34, ¶¶ 9-11, 20 P.3d 528, ¶¶ 9-11 (Wyo. 2001) (citations omitted). Airtouch Communications, Inc. v. Department of Revenue, State of Wyo., 2003 WY 114, ¶ 12, 76 P.3d 342, 348 (Wyo.2003); Amoco Production Co. v. Dept. of Revenue, 2004 WY 89, ¶¶ 7-8, 94 P.3d 430, 435-36 (Wyo. 2004). [¶ 76] I accept and acknowledge that when it comes to the construction of statutes this Court has the last word. Ordinarily, however, we defer to the construction espoused by the DOR and BOE unless it is contrary to the words of the governing statutes at issue: In determining whether these statutes are ambiguous it is helpful to note the construction the Department placed on the statutes which it is charged with administering. This Court has previously held that an agency's interpretation of the statutory language which the agency normally implements is entitled to deference, unless clearly erroneous. Buehner Block Co. v. Wyo. Dep't of Revenue, 2006 WY 90, ¶ 11, 139 P.3d 1150, 1153 (Wyo.2006). Moreover, this Court generally defers to the construction placed on a statute by the agency that is charged with its execution, provided that construction does not conflict with the legislature's intent. Qwest, ¶ 8, 130 P.3d at 511; see also Loberg v. State ex rel. Wyo. Workers' Safety & Comp. Div., 2004 WY 48, ¶ 9, 88 P.3d 1045, 1049 (Wyo.2004) (one measure of a statute's meaning is the interpretation placed on it by the agency charged with its administration); State ex rel. Sublette County Bd. of County Comm'rs v. State, 2001 WY 91, ¶ 16, 33 P.3d 107, 113 (Wyo.2001). Wyoming Dept. of Revenue v. Exxon Mobil Corp., 2007 WY 112, ¶ 31, 162 P.3d 515, 526 (Wyo.2007). Many jurisdictions afford much greater deference to constructions placed on statutes by administrative bodies, especially in matters involving revenue and taxation. As a general rule, because of the complexity of taxation issues, significant deference is given to a body such as the BOE. 3A Norman J. Singer, Statutes and Statutory Construction, § 66:4 (Effect of administrative interpretation) (6th ed. 2003); and see Airtouch Communications, ¶ 13, 76 P.3d at 348 ("Further, in part because of the complex nature of taxation, we have found there is a presumption the assessment was done correctly by DOR acting in its official capacity."); also see State v. Hanover Compression, LP, 2008 WY 138, ¶¶ 8-15, 196 P.3d 781, 784-87 (Wyo.2008). I reject the majority's conclusion that because the industry and the DOR have different views as to what an "initial dehydrator" and a "processing facility" are that the statute is, therefore, ambiguous and this Court is at liberty to resolve the difference of opinion between DOR and Exxon. My examination of the findings of the BOE, especially ¶¶ 77-85, convinces me that the DOR correctly identified the Black Canyon facility as an "initial dehydrator," even though it may also perform some other miscellaneous functions. *150 [¶ 77] The majority also employs a very general rule to the effect that revenue statutes must be strictly construed in favor of the taxpayer. We have applied this general principle frequently over the years, but seldom has our analysis exceeded the most simplistic application of that aphorism. See 3A Norman J. Singer, Statutes and Statutory Construction, supra, § 66:1 (Strict construction of statutes creating taxes). However, the continuation of that commonly cited rule is this: But the revenue legislation must also be reasonably construed so that their underlying purpose is not destroyed. Where an interpretation places undue importance on words subordinate to the plainly apparent objective of a statute in order to reward persons who resort to some unusual or not reasonably to be expected procedure, the court should not accept that interpretation. It should be remembered that when a tax statute is clear and unambiguous there is no necessity to apply the rules of strict construction. [¶ 78] 3A Norman J. Singer, Statutes and Statutory Construction, supra, § 66:2 (Reasonable construction of revenue laws) posits this more temperate view of the construction of revenue statutes: The long range objective of all tax measures is to promote a stable social order by providing financial support to cover the expenses of the government and its programs. Although different forms of taxation may sometimes produce individual hardships, an overly biased interpretation of tax laws for the benefit of the taxpayer may result in the loss of revenue at the expense of the government and operate to the disadvantage of others contributing to its support. Furthermore, no other field of legislation receives as much attention. There are frequent amendments and revisions that afford assurance that the statutes cover the subject fully and with precision. This means that courts do not spend as much time interpreting tax legislation as one might anticipate. Because of this, a reasonable construction of tax statutes, i.e., a construction so conditioned by an a priori bias against collectibility of the tax has sometimes been preferred. As stated by one court: "The better rule, and the one we adopt, is that statutes imposing taxes and providing means for the collection of the same should be construed strictly in so far as they may operate to deprive the citizen of his property by summary proceedings or to impose penalties or forfeitures upon him; but otherwise tax laws ought to be given a reasonable construction, without bias or prejudice against either the taxpayer or the state, in order to carry out the intention of the legislature and further the important public interests which such statutes subserve." [¶ 79] I am unable to agree that, in the light of modern views of revenue laws, the somewhat antiquated principle of construing tax legislation strictly in favor of the taxpayer plays a significant role in circumstances such as these. Exxon is easily one of the most sophisticated taxpayers on Earth and Wyoming is likely one of the very smallest revenue collectors that Exxon has to deal with in its efforts to avoid taxation. [¶ 80] Finally, I do not agree with the majority's conclusion that the DOR and the BOE applied the proportionate profits method incorrectly. In this regard, I rely on the findings of the BOE order, ¶¶ 141-147 and 187-210. [¶ 81] For the reasons set out above, I would affirm the BOE's order. NOTES [1] Although we will reverse the Board's decision, we commend the Board for the "Findings of Fact, Conclusions of Law, and Order" it issued in this case. This document is thorough, well-written, and well-organized. Without it, our review of these complex issues and this voluminous record would have been far more difficult. [2] "Sour" gas has high levels of hydrogen sulfide, while "sweet" gas does not. See Chevron U.S.A., Inc. v. Department of Revenue, 2007 WY 79, ¶ 4, 158 P.3d 131, 133 (Wyo.2007). See also Wyo. Stat. Ann. § 39-14-201(a)(xxv), which defines "sweetening" as "any activity that removes acid gases, such as hydrogen sulfide and carbon dioxide, from the well stream." [3] While Williams involved the taxation of coal bed methane rather than conventional natural gas, both types of natural gas are subject to the same severance tax statutes, and the distinction makes no difference in our current analysis. [4] Other natural gas streams contain heavy hydrocarbons, but they also contain liquid hydrocarbons that dissolve the heavy hydrocarbon solids and prevent their build-up on the equipment. The LaBarge gas stream contains no liquid hydrocarbons, so the heavy hydrocarbons are not dissolved, but instead separate out from the raw gas stream as solids.

ACCEPTED 13-15-00169-CR THIRTEENTH COURT OF APPEALS CORPUS CHRISTI, TEXAS 10/1/2015 3:34:22 PM Dorian E. Ramirez CLERK NO. 13-15-00169-CR FILED- IN - IN THE THIRTEENTH COURT OF13th COURT APPEALS - - ----- OF APPEALS CORPUS CHRISTI/EDINBURG, --- TEXAS - - ---- ss ------ 10/1/2015 - ID ---3:34:22 PM - - ---- VO TEXAS CORPUS CHRISTI AND EDINBURG, -- DORIAN- - - ---- E. RAMIREZ - ---- Clerk THE STATE OF TEXAS RECEIVED IN 13th COURT OF APPEALS Appellant CORPUS CHRISTI/EDINBURG, TEXAS 10/1/2015 3:34:22 PM V. DORIAN E. RAMIREZ Clerk MICHAEL MAURER Appellee APPELLEE'S SECOND AMENDED BRIEF JOHN C. CONNOLLY 1004 Congress, 3 rct Floor Houston, TX 77002 (713) 807-1800 (832) 575-3350 Fax State Bar No. 04702000 johnconnolly@ymail.com NO ORAL ARGUMENT REQUESTED  IDENTITY OF PARTIES AND COUNSEL APPELLEE: Michael Maurer, represented by Trial and Appellate Counsel: John C. Connolly 1004 Congress, 3rct Floor Houston, TX 77002 APPELLANT: The State of Texas, by the District Attorney for Nueces County, represented by Appellate Counsel: A. Cliff Gordon, Asst. Dist. Atty. 901 Leopard St., Room 206 Corpus Christi, TX 7840 1 Trial and Appellate Counsel: Mark Skurka, District Attorney Dulce Salazar Valle, Asst. Dist. Atty. 901 Leopard St., Room 206 Corpus Christi, TX 78401 .. 11  TABLE OF CONTENTS IDENTITY OF PARTIES AND COUNSEL ............................... .ii INDEX OF AUTHORITIES .................................................. .iv STATEMENT OF THE CASE ................................................ v ISSUE PRESENTED ............................................................ vi STATEMENT OF FACTS ...................................................... l SUMMARY OF THE ARGUMENT .......................................... 2 ARGUMENT ....................................................................... 3 PRAYER ............................................................................ 4 CERTIFICATE OF CO~LIANCE ............................................ ~ CERTIFICATE OF SERVICE ................................................... 5 111  INDEX OF AUTHORITIES CASES: State v. Jolly, 446 S.W. 3rd 613 (Tex. App. Amarillo 2014, no.pet) lV  1. STATEMENT OF THE CASE Defendant concurs with the State's STATEMENT OF THE CASE. v  ISSUE PRESENTED Defendant concurs with the State's ISSUE PRESENTED Vl  STATEMENT OF FACTS Defendant generally concurs with the State's STATEMENT OF FACTS. However, the State fails to note that the Defendant's Motion to Dismiss was filed subsequent to the setting of the case for trial by the COURT. 1  SUMMARY OF THE ARGUMENT The case was set for trial by the trial court. There is no evidence in the record that the District Attorney's Office had any involvement in the case being set for trial. It is therefore safe to assume that but for the action of the trial court, this case would remain in an inactive status indefinitely into the distant future. The State initiated the prosecution, and the State has not only the burden of proof, but the burden to move forward with the evidence. The State failed to meet its burden, but yet now asks the Court of Appeals to reward this behavior over 8 years after initiating this prosecution. The Defendant urges this Court to reject the rationale and holding in State v. Jolly, 446 S.W. 3rd 613 (Tex. App. Amarillo 2014, no.pet) and affirm the trial court's order dismissing the charges. 2.  ARGUMENT The trial court correctly dismissed the charges against Defendant on speedy trial grounds. Two (2) factual matters differentiate State v. Jolly, 446 S.W. 3rd 613 (Tex. App. Amarillo 2014, no.pet) from the case at hand: 1. Defendant offered sworn, unrebutted testimony regarding the prejudicial results of the 8 year delay. No such testimony was offered in Jolly. 2. In Jolly, the State , apparently recognizing its negligence in the delay of prosecution, was responsible for setting the case on the trial docket. In the case at hand, no such evidence exists. But for the trial court's initiative in setting the case for trial, this case would remain in judicial limbo. 3.  PRAYER For these reasons, Defendant urges this Court to reject the rationale and holding m State v. Jolly, 446 S.W. 3rd 613 (Tex. App. Amarillo 2014, no.pet) and affirm the trial court's order dismissing the charges. JOHN C. CONNOLLY 1004 Congress, 3 rct Floo Houston, TX 77002 (713) 807-1800 (832) 575-3350 Fax State Bar No. 04 702000 johnconnolly@ymail.com Counsel for Appellee CERTIFICATE OF COMPLIANCE According to the word count of the computer program used to prepare this document, it contains 621 words. 4.  CERTIFICATE OF SERVICE I certify that on September 29, 2015, I faxed a true copy of this Amended Briefto the following counsel: A. Cliff Gordan, (361) 888-0399. Attorney for Appellee 5. 

613 F.2d 762 UNITED STATES of America, Plaintiff-Appellee,v.John Jay BEATTIE, Defendant-Appellant. No. 78-2381. United States Court of Appeals,Ninth Circuit. Feb. 4, 1980. Alexander Anolik, San Francisco, Cal., for defendant-appellant. Jo-Lynne Q. Lee, Asst. U. S. Atty., San Francisco, Cal., for plaintiff-appellee. Appeal from the United States District Court for the Northern District of California. Before BROWNING and WALLACE, Circuit Judges, and CURTIS,* District Judge. WALLACE, Circuit Judge: 1 A jury found Beattie guilty on five counts of mail fraud, 18 U.S.C. § 1341, and one count of conspiracy to commit mail fraud, 18 U.S.C. § 371. Beattie appeals his conviction claiming that the trial judge erred when he instructed the jury, Sua sponte, in a manner similar to that approved in Allen v. United States, 164 U.S. 492, 17 S.Ct. 154, 41 L.Ed. 528 (1896). That instruction, Beattie claims, coercively produced the guilty verdict and deprived him of a fair trial. We reject his claim and affirm the conviction. 2 The jury began deliberating at 3:40 p. m. on May 30, 1978, following four days of prosecution and defense presentations, including the testimony of more than 20 witnesses and the introduction of numerous exhibits. After deliberating for one hour the jury recessed for the night. Deliberations continued throughout the day on May 31, with the jury returning to the court once to be reinstructed on the elements of mail fraud, and once to hear the testimony of a prosecution witness read from the record. The following morning, after two hours of deliberation, the jury submitted four questions to the district judge concerning substantive elements of the offense charged and proper procedures for reaching a verdict. After responding to these questions, the district judge asked the jury if they were in agreement on any count of the indictment. When the foreman indicated that they were not, the judge made the following statement to the jury: 3 Just a word or two about approaching your task. 4 It frequently develops that a jury may be evenly divided where half of you think there's reasonable doubt, the other half see no reasonable doubt. I'd suggest in a case like that, if half or almost half of you have doubts about the proof, that those who have no doubts would wonder if they were right to be as certain as they are when a substantial number of other jurors seem to find doubts about the sufficiency of the evidence. 5 Conversely, it would seem to me that if only one or two had doubts, that they should reappraise those doubts and consider the views of the fellow jurors and decide whether those doubts are reasonable when so many of their fellow jurors don't see them as reasonable doubt. 6 This is simply a method of re-examining your views about the case and it is without any intention of the Court to suggest that anyone should give up an honestly held conviction about the weight and sufficiency of the evidence. But you will recall I did tell you that it would be desirable, from time to time, to reappraise your views, to consider the impact on your views and the views of your fellow jurors and to change your views from time to time if you thought it appropriate to do so. 7 But always remember that it is your conscientious view about the evidence that must control and you don't give up a conscientiously held view solely for purposes of arriving at a verdict, although, as I say, it is highly desirable that there be a verdict on all or substantially all of the counts or at very least on some of the counts. 8 Any other questions that you wanted to raise now? All right. You will resume your deliberations. We will be at your call. 9 Five hours later, following a one and one-half hour lunch break and three and one-half hours of deliberation, the jury returned a guilty verdict. 10 The primary reason for judicial disfavor of an Allen charge such as that delivered in this case is its potentially coercive effect upon those members of a jury holding to a minority position at the time of the instruction. United States v. Fioravanti, 412 F.2d 407, 416-17 (3d Cir.), Cert. denied, 396 U.S. 837, 90 S.Ct. 97, 24 L.Ed.2d 88 (1969); Note, Due Process, Judicial Economy and the Hung Jury: A Reexamination of the Allen Charge 53 Va.L.Rev. 123, 126 (1967). It is contended that the Allen charge persuades minority jury members to alter their individually held views not on the basis of evidence and law, but on the basis of majority opinion. 11 We have in countless cases approved an Allen charge, E. g., United States v. Guglielmini, 598 F.2d 1149 (9th Cir. 1979); United States v. Handy, 454 F.2d 885 (9th Cir. 1971), Cert. denied, 409 U.S. 846, 93 S.Ct. 49, 34 L.Ed.2d 86 (1972); United States v. Moore, 429 F.2d 1305 (9th Cir. 1970); Sullivan v. United States, 414 F.2d 714 (9th Cir. 1969); Dearinger v. United States, 378 F.2d 346 (9th Cir.), Cert. denied, 389 U.S. 885, 88 S.Ct. 156, 19 L.Ed.2d 183 (1967), and thus do not join other circuits which have held such an instruction to be error per se. See cases cited, United States v. Contreras, 463 F.2d 773, 774 n. 2 (9th Cir. 1972). Rather, our approach has been to determine if the instruction, when challenged, improperly affected the jury verdict. Thus, to determine the propriety of the trial court's use of an Allen Charge in this case, we must examine the instruction "in its context and under all the circumstances" to see if it had a coercive effect upon the jury. Jenkins v. United States, 380 U.S. 445, 446, 85 S.Ct. 1059, 13 L.Ed.2d 957 (1965); United States v. Seawell, 583 F.2d 416, 418 (9th Cir.), Cert. denied, 439 U.S. 991, 99 S.Ct. 591, 58 L.Ed.2d 666 (1978); Marsh v. Cupp, 536 F.2d 1287, 1290 (9th Cir.), Cert. denied, 429 U.S. 981, 97 S.Ct. 494, 50 L.Ed.2d 590 (1976). 12 Beattie contends that our decision is controlled by United States v. Contreras, supra, 463 F.2d 773. There, the trial court gave the jury an Allen charge after eight hours of deliberation and prior to any specific indication in the record that they were unable to reach a verdict. We held that the charge was premature and coercive. Id. at 774. Here, the jury had also deliberated for eight hours before receiving the charge and had not stated to the trial judge that they were deadlocked. The similarity of these facts to those of Contreras would suggest that here, as there, an Allen charge was premature. We have observed, however, that jury difficulty in reaching a verdict, sufficient to warrant an Allen charge, may be shown other than by specific statements from the jury. For example, a jury deliberating eight hours on a very simple factual issue may in itself show such difficulty. See Sullivan v. United States, supra, 414 F.2d at 716 (Allen instruction "should be given only when it is apparent To the district judge from the jury's conduct or The length of its deliberations that it is clearly warranted") (emphasis added). 13 Thus, while the Contreras decision does not focus on the factors that led it to the determination that an Allen charge was premature there, we could conclude that the district judge here did not err in apparently concluding that the jury was sufficiently "deadlocked," based on the time of deliberation and the fact that they had returned to the court three times for further instructions and rehearing of testimony. We need not, however, reach that question because even if it were premature, we would not reverse unless the charge was also coercive. United States v. Scruggs, 583 F.2d 238, 241 (5th Cir. 1978); United States v. Smith, 521 F.2d 374, 376-77 (10th Cir. 1975); United States v. Martinez, 446 F.2d 118, 119-20 (2d Cir.), Cert. denied, 404 U.S. 994, 92 S.Ct. 297, 30 L.Ed. 259 (1971). Indeed, in Contreras we stated both that the Allen charge given there was premature, and that we had "a profound feeling that it was coercive upon the jury." United States v. Contreras, supra, 463 F.2d at 774. This suggests that we did examine the charge "in its context and under all the circumstances" as required by Jenkins v. United States, supra, 380 U.S. at 446, 85 S.Ct. at 1060, although we did not directly say so. The brief per curiam opinion in Contreras does not reflect the factual basis of the "profound feeling that it was coercive upon the jury." The Allen instruction given in Contreras and the one given here are different, but we do not find that difference dispositive. We conclude that Contreras does not require reversal because, for the reasons set forth below, we hold that under all the circumstances the Allen charge given in this case, even if premature, was not coercive. 14 First, the charge given by the trial judge in this case contained all of the elements of the charge initially sanctioned by the Supreme Court in Allen.1 Instructions admonishing jurors to reconsider their positions have "been consistently approved in the Ninth Circuit when (they are) in a form not more coercive than that in Allen." United States v. Handy, supra, 454 F.2d at 889. E. g., United States v. Moore, supra, 429 F.2d at 1306-07; Sullivan v. United States, supra, 414 F.2d at 717; Dearinger v. United States, supra, 378 F.2d at 348. We conclude that the instruction given here 15 sufficiently reminded each of the jurors of his obligation to give ultimate controlling weight to his own conscientiously held opinion. There was nothing express or implied in that instruction which was more coercive in tendency than the language in the instruction approved by the Supreme Court in Allen. 16 Sullivan v. United States, supra, 414 F.2d at 718-19. 17 Second, the period of deliberation following the Allen Charge was sufficiently long to permit jury members to reach a reasoned decision, based upon their individual perception of the evidence and the law. Here, no suspicion of coercion was raised by an immediate post-charge guilty verdict. We have considered the length of deliberation following an Allen charge as a significant factor in detecting coercion, United States v. Moore, supra, 429 F.2d at 1307, as have other circuits, E. g., United States v. Robinson, 560 F.2d 507, 517-18 (2d Cir. 1977) (en banc), Cert. denied, 435 U.S. 905, 98 S.Ct. 1451, 55 L.Ed.2d 496 (1978); United States v. DeStefano, 476 F.2d 324, 337 (7th Cir. 1973); United States v. Pope, 415 F.2d 685, 690-91 (8th Cir. 1969), Cert. denied, 397 U.S. 950, 90 S.Ct. 973, 25 L.Ed.2d 132 (1970). While the time elapsed between charge and verdict is significant, it is not dispositive of the issue. It is but one of the total circumstances to be considered. The jury in this case, however, deliberated for three and one-half hours after the Allen charge before reaching a guilty verdict. By contrast, the jury in Contreras, where coercion was found, took only 35 minutes to find the defendant guilty after receiving its Allen charge. 18 Third, we cannot say that the total time of jury deliberation, approximately twelve hours, was so disproportionate to the task before the jury as to raise an inference that the Allen charge coercively produced the result. The time needed to reach a verdict is "best left to a trial judge," United States v. Goldstein, 479 F.2d 1061, 1069 (2d Cir.), Cert. denied, 414 U.S. 873, 94 S.Ct. 151, 38 L.Ed.2d 113 (1973), and he apparently found it to be adequate. 19 Finally, neither Beattie nor the record reveals any indicia of coerciveness or pressure upon the jury. The instruction was not rendered in an atmosphere of judge and jury frustration over the jury's inability to break a deadlock among its members, nor was the judge aware of how the jury stood so as to suggest to the minority position jurors that he was speaking directly to them. 20 Thus, an examination of the instruction under all the circumstances reveals no coercion. Any prematurity of the instruction, therefore, could not be sufficient to warrant reversal. It is the rule of this circuit that the necessity, extent, and character of supplemental jury instructions is left to the sound discretion of the trial judge. United States v. Miller, 546 F.2d 320, 324 (9th Cir. 1976); Wilson v. United States, 422 F.2d 1303, 1304 (9th Cir. 1970) (per curiam). That discretion was not abused. 21 AFFIRMED. BROWNING, Circuit Judge, concurring: 22 The court adequately distinguishes our decision in United States v. Contreras, 463 F.2d 773 (1972), and I therefore concur. 23 However, to my mind, the instruction in this case approaches the limits of acceptability under the law of this circuit. A barely acceptable instruction, once sanctioned, tends to become the new norm. By this process an instruction of dubious merit continues to deteriorate. 24 The paramount problem is the threat of coercion a threat present even where, as here, the charge is found uncoercive "in its context and under all the circumstances" under Jenkins v. United States, 380 U.S. 445, 446, 85 S.Ct. 1059, 1060, 13 L.Ed.2d 957 (1965). The line between admonishing the jury "simply . . . to keep trying," Walsh v. United States, 371 F.2d 135, 136 (9th Cir. 1967), and encouraging jurors to surrender their beliefs is extremely fine. If the charge is truly effective, it must follow that it is also truly dangerous. As Judge Goldberg has said, "The charge is used precisely because it works, because it can blast a verdict out of a jury otherwise unable to agree that a person is guilty," United States v. Bailey, 468 F.2d 652, 666 (5th Cir. 1972). 25 The Allen instruction has been disapproved by three circuits. See United States v. Silvern, 484 F.2d 879 (7th Cir. 1973) (en banc); United States v. Thomas, 146 U.S.App.D.C. 101, 449 F.2d 1177 (D.C.Cir.1971); United States v. Fioravanti, 412 F.2d 407 (3rd Cir. 1969). Many State courts, too, have abolished it or restricted its use. See, e. g., People v. Gainer, 19 Cal.3d 835, 139 Cal.Rptr. 861, 566 P.2d 997 (1977), and cases cited at n. 8. For a recent resurvey of the objections to the charge, see Marcus, The Allen Instruction in Criminal Cases: Is the Dynamite Charge About to be Permanently Defused?, 43 Mo.L.Rev. 613 (1978). 26 If the charge is to be given, care should be taken that it be stated in the least objectionable form. The American Bar Association has suggested a form, to be given before the jury retires and repeated later if necessary, preferable to that used in this case: 27 The verdict must represent the considered judgment of each juror. In order to return a verdict, it is necessary that each juror agree thereto. Your verdict must be unanimous. 28 It is your duty, as jurors, to consult with one another and to deliberate with a view to reaching an agreement, if you can do so without violence to individual judgment. Each of you must decide the case for yourself, but do so only after an impartial consideration of the evidence with your fellow jurors. In the course of your deliberations, do not hesitate to reexamine your own views and change your opinion if convinced it is erroneous. But do not surrender your honest conviction as to the weight or effect of evidence solely because of the opinion of your fellow jurors, or for the mere purpose of returning a verdict. 29 You are not partisans. You are judges judges of the facts. Your sole interest is to ascertain the truth from the evidence in the case. 30 American Bar Association Project on Minimum Standards for Criminal Justice, Standards Relating to Trial by Jury, Commentary to § 5.4 (1968). This form has been adopted in two Circuits,1 approved in substantially the same form in four others,2 and in my opinion would well be employed in the Ninth. * Honorable Jesse W. Curtis, United States District Judge, Central District of California, sitting by designation 1 The Supreme Court approved instructions stating that in a large proportion of cases absolute certainty could not be expected; that, although the verdict must be the verdict of each individual juror, and not a mere acquiescence in the conclusion of his fellows, yet they should examine the question submitted with candor and with a proper regard and deference to the opinions of each other; that it was their duty to decide the case if they could conscientiously do so; that they should listen, with a disposition to be convinced, to each other's arguments; that, if much the larger number were for conviction, a dissenting juror should consider whether his doubt was a reasonable one which made no impression upon the minds of so many men, equally honest, equally intelligent with himself. If, upon the other hand, the majority was for acquittal, the minority ought to ask themselves whether they might not reasonably doubt the correctness of a judgment which was not concurred in by the majority. Allen v. United States, supra, 164 U.S. at 501, 17 S.Ct. at 157. 1 United States v. Silvern, 484 F.2d 879, 883 (7th Cir. 1973) (en banc); United States v. Thomas, 449 F.2d 1177 (D.C.Cir.1971) 2 United States v. Angiulo, 485 F.2d 37 (1st Cir. 1973); United States v. Skillman, 442 F.2d 542 (8th Cir. 1971); United States v. Fioravanti, 412 F.2d 407 (3d Cir. 1969); Webb v. United States, 398 F.2d 727 (5th Cir. 1968)

996 A.2d 18 (2010) COM. v. ROURTHA WILLIAMS. No. 379 EDA 2009. Superior Court of Pennsylvania. February 5, 2010. Affirmed.

ACCEPTED 01-15-00010-CV FIRST COURT OF APPEALS HOUSTON, TEXAS 5/1/2015 11:40:26 AM CHRISTOPHER PRINE CLERK No. 01–15–00010–CV IN THE FILED IN 1st COURT OF APPEALS FIRST COURT OF APPEALS HOUSTON, TEXAS 5/1/2015 11:40:26 AM AT HOUSTON CHRISTOPHER A. PRINE Clerk ________________________ Mark THOMPSON, SR., Appellant, v. Karen SMITH, Appellee. ________________________ On Appeal from the 246th District Court of Harris County, Texas Trial Court Cause No. 2013–03434 MOTION TO EXTEND TIME TO FILE APPELLEE’S BRIEF TO THE HONORABLE JUDGES OF THE FIRST COURT OF APPEALS: NOW COMES Appellee, Karen Smith (“Smith”), and files this Motion to Extend Time to File Appellee’s Brief pursuant to Rules 10.5(b) and 38.6(d) of the Texas Rules of Appellate Procedure. Smith respectfully requests that this Court grant her additional time to file her brief, and would show in support of her request the following:  ARGUMENT AND AUTHORITY 1. There is no specific deadline to file this motion to extend. See Tex. R. App. P. 38.6 (d). 2. The Court has the authority under Tex. R. App. P. 38.6(d) to extend the time to file a brief. 3. Smith’s brief is currently due on May 8, 2015. 4. Smith requests an additional 31 days to file her brief, extending the time until June 8, 2015. 5. Smith needs additional time to file her brief because counsel for Smith has had several matters to prepare for and try between the time Appellant brief was filed and Smith’s current deadline. This, in conjunction with the routine matters that counsel for Smith attends to on a daily basis, is preventing counsel for Smith from being able to fully prepare Appellee’s brief by the May 8, 2015 deadline. 6. This extension is not sought for delay but so that justice may be done. Smith seeks this extension so that she may prepare a thorough and well-developed brief to aid this Court in its analysis of the issue. 7. This is Smith’s first request for extension of time to file her brief.  PRAYER For these reasons, Smith prays that this Court grant her request for an extension of time to file her brief until June 8, 2015. Respectfully Submitted, BUTEL & PICKETT, PLLC ________________________ G. Troy Pickett Texas Bar No. 24072757 William A. Scheel Texas Bar No. 24075025 2222 Bissonnet, Ste. 203 Houston, Texas 77005 Tel.: 713–589–7140 Fax: 713–589–7141 email: gtpservice@butelpickett.com ATTORNEY FOR APPELLEE  CERTIFICATE OF SERVICE I certify that a true copy of the foregoing was served in accordance with rule 9.5 of the Texas Rules of Appellate Procedure on each party or that party's lead counsel via e-service on May 1, 2015: Party: Mark Thompson, Sr. Lead attorney: Nida C. Wood Address of service: 1330 Post Oak Boulevard, Suite 1800 Houston, Texas 77056 _____________________ G. Troy Pickett Attorney for Appellee 

798 F.2d 1408Unpublished Disposition NOTICE: Fourth Circuit I.O.P. 36.6 states that citation of unpublished dispositions is disfavored except for establishing res judicata, estoppel, or the law of the case and requires service of copies of cited unpublished dispositions of the Fourth Circuit.Elizabeth M.R. GILLIS, Plaintiff-Appellant,v.Kate I. SMITH; United States Naval Regional Medical Center;Donald J. Fullam; Louis H. Buehl; John Lehman, Secretaryof the Navy; John D. Marriott; B.C. Hines, ClaudetteClunan; J. Henninger; Katherine E. Campen; Edwin Meese,Attorney General of the U.S.; Charles Brown; Hong Y.Chung; Wayne B. Venters; Johnny L. Williams; Noel B.Rogers; C. Landis Hackney; Hosea Horne, Jr.; Jim F.Sharpe; Doris Gaskin; Donald Erny; U.S. Attorney,Defendants-Appellees. No. 86-1106. United States Court of Appeals, Fourth Circuit. Submitted July 29, 1986.Decided Aug. 26, 1986. Elizabeth M.R. Gillis, appellant pro se. Harold Robert Showers, Office of the U.S. Atty.; Samuel G. Thompson, Smith, Anderson, Blount, Dorsett, Mitchell & Jernigan, for appellees. E.D.N.C. DISMISSED. Before RUSSELL, ERVIN and CHAPMAN, Circuit Judge. PER CURIAM: 1 Elizabeth Gillis seeks to appeal the district court's dismissal of her suit filed pursuant to the Federal Tort Claims Act, 28 U.S.C. 5 1346(b). Before us is appellees' motion to dismiss the appeal. 2 The district court, adopting the recommendation of the magistrate, entered its judgment on December 17, 1985. Gillis filed a notice of appeal on April 13, 1986, far in excess of the 0ixty-day time limit for noting an appeal in a suit to which the United States is a party. Fed. R. App. P. 4(a). Gillis did not file, within thirty days after the expiration of the appeal period, a motion for extension of the filing period. Fed. R. App. P. 4(a) (5); Shah v. Hutto, 722 F.2d 1167 (4th Cir. 1983) (en banc), cert. denied, 466 U.S. 975 (1984). In the absence of a timely notice of appeal or a timely motion for extension of the filing period, we are without jurisdiction to review the case. Hensle v. Chesapeake & Ohio Railway Co., 651 F.2d 226, 228 (4th Cir. 1981). We therefore grant the motion and dismiss the appeal.

Dismissed and Memorandum Opinion filed August 20, 2013. In The Fourteenth Court of Appeals NO. 14-13-00545-CR LUIS MIGUEL GONZALES, Appellant V. THE STATE OF TEXAS, Appellee On Appeal from the 185th District Court Harris County, Texas Trial Court Cause No. 1374444 MEMORANDUM OPINION Appellant entered a guilty plea to burglary of a habitation. In accordance with the terms of a plea bargain agreement with the State, the trial court sentenced appellant to confinement for eight years in the Institutional Division of the Texas Department of Criminal Justice. Appellant filed a pro se notice of appeal. We dismiss the appeal.  The trial court entered a certification of the defendant’s right to appeal in which the court certified that this is a plea bargain case, and the defendant has no right of appeal. See Tex. R. App. P. 25.2(a)(2). The trial court’s certification is included in the record on appeal. See Tex. R. App. P. 25.2(d). The record supports the trial court’s certification. See Dears v. State, 154 S.W.3d 610, 615 (Tex. Crim. App. 2005). Accordingly, we dismiss the appeal. PER CURIAM Panel consists of Chief Justice Hedges and Justices McCally and Busby. Do Not Publish — TEX. R. APP. P. 47.2(b) 2 

IN THE COURT OF CRIMINAL APPEALS OF TEXAS NO. WR-86,138-01 EX PARTE CARLOS HERNANDEZ, Applicant ON APPLICATION FOR A WRIT OF HABEAS CORPUS CAUSE NO. 20160D01804-384-1 IN THE 384TH DISTRICT COURT FROM EL PASO COUNTY Per curiam. ORDER Pursuant to the provisions of Article 11.07 of the Texas Code of Criminal Procedure, the clerk of the trial court transmitted to this Court this application for a writ of habeas corpus. Ex parte Young, 418 S.W.2d 824, 826 (Tex. Crim. App. 1967). Applicant was convicted of driving while intoxicated with a prior intoxication manslaughter conviction and sentenced to four years’ imprisonment. He did not appeal his conviction. Petitioner, Y. Hernandez, has submitted this habeas application on Applicant’s behalf. Applicant claims that his guilty plea was involuntary. He says trial counsel failed to communicate with him the repercussions of pleading guilty. Rather, he says counsel advised him that pleading guilty without a plea recommendation “was the best option considering the circumstances” and that  2 Applicant “would not face jail time.” Applicant, however, received a sentence of incarceration. There is no affidavit in response from trial counsel or findings from the trial court in the habeas record provided to this Court. See Strickland v. Washington, 466 U.S. 668 (1984); Ex parte Morrow, 952 S.W.2d 530 (Tex. Crim. App. 1997). Applicant has alleged facts that, if true, might entitle him to relief. In these circumstances, additional facts are needed. As we held in Ex parte Rodriguez, 334 S.W.2d 294, 294 (Tex. Crim. App. 1960), the trial court is the appropriate forum for findings of fact. The trial court shall order trial counsel to respond to Applicant’s claim and shall resolve the disputed factual issues. The trial court may use any means set out in TEX . CODE CRIM . PROC. art. 11.07, § 3(d). In the appropriate case, the trial court may rely on its personal recollection. Id. If the trial court elects to hold a hearing, it shall determine whether Applicant is indigent. If Applicant is indigent and wishes to be represented by counsel, the trial court shall appoint an attorney to represent Applicant at the hearing. TEX . CODE CRIM . PROC. art. 26.04. The trial court shall make findings of fact and conclusions of law in regard to Applicant’s claim that his plea was involuntary, and the trial court shall make a finding regarding whether Applicant has authorized petitioner to submit this habeas application on his behalf. The trial court shall also make any other findings of fact and conclusions of law that it deems relevant and appropriate to the disposition of Applicant’s claim for habeas corpus relief. This application will be held in abeyance until the trial court has resolved the fact issues. The issues shall be resolved within 90 days of this order. A supplemental transcript containing all affidavits and interrogatories or the transcription of the court reporter’s notes from any hearing or deposition, along with the trial court’s supplemental findings of fact and conclusions of law, shall  3 be forwarded to this Court within 120 days of the date of this order. Any extensions of time must be requested by the trial court and shall be obtained from this Court. Filed: February 1, 2017 Do not publish 

995 F.2d 217 Horace Mann Insurance Companyv.Feld (Allen, Toby Brandt, Amy) NO. 92-7566 United States Court of Appeals,Third Circuit. May 06, 1993 1 Appeal From: M.D.Pa. 2 AFFIRMED.

162 F.3d 1172 98 CJ C.A.R. 5690 NOTICE: Although citation of unpublished opinions remains unfavored, unpublished opinions may now be cited if the opinion has persuasive value on a material issue, and a copy is attached to the citing document or, if cited in oral argument, copies are furnished to the Court and all parties. See General Order of November 29, 1993, suspending 10th Cir. Rule 36.3 until December 31, 1995, or further order. Steven AYALA, Petitioner--Appellant,v.ZAVARAS, Executive Director; Gail Norton, Attorney Generalof the State of Colorado, Respondents--Appellees. No. 98-1192. United States Court of Appeals, Tenth Circuit. Nov. 5, 1998. 1 Before PORFILIO, KELLY, and HENRY, CJ.** 2 ORDER AND JUDGMENT* 3 Petitioner-Appellant Steven Ayala, a pro se litigant, seeks to appeal the district court's dismissal without prejudice of his petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254(b)(1). He has filed a motion for leave to proceed on appeal without prepayment of costs or fees and an application for a certificate of appealability. He has also requested court-apppointed counsel and seeks to supplement his pleadings. 4 We agree with the district court that Mr. Ayala has not demonstrated that he has exhausted state court remedies regarding his claims. See 28 U.S.C. § 2254(b)(1)(A); see also Demarest v. Price, 130 F.3d 922, 932 (10th Cir.1997). Nor has he demonstrated futility. See 28 U.S.C. § 2254(b)(1)(B)(i) & (ii); see also Wallace v. Cody, 951 F.2d 1170, 1171 (10th Cir.1991). Accordingly, all pending requests for relief, including his motion to proceed in forma pauperis and his request for court-appointed counsel are DENIED, and the appeal is DISMISSED. ** After examining the briefs and the appellate record, this three-judge panel has determined unanimously that oral argument would not be of material assistance in the determination of this appeal. See Fed. R.App. P. 34(a); 10th Cir. R. 34.1.9. The cause is therefore ordered submitted without oral argument * This order and judgment is not binding precedent, except under the doctrines of law of the case, res judicata, and collateral estoppel. This court generally disfavors the citation of orders and judgments; nevertheless, an order and judgment may be cited under the terms and conditions of 10th Cir. R. 36.3

238 S.W.2d 537 (1951) SWIDAN v. STATE. No. 25200. Court of Criminal Appeals of Texas. March 7, 1951. Rehearing Denied April 25, 1951. *538 Oscar B. Jones, Longview, for appellant. R. L. Whitehead, Crim. Dist. Atty., Paul Painter, Asst. Crim, Dist. Atty., David C. Moore, Asst. Crim. Dist. Atty., all of Longview, George P. Blackburn, State's Atty., of Austin, for the State. MORRISON, Judge. The offense is murder with malice; the punishment, twenty-five years in the penitentiary. At the inception of the trial appellant moved Judge Erisman to recuse himself in the cause, alleging that he had been counsel in the case. His refusal to do so is the only complaint raised on this appeal. The bill bringing this matter forward was qualified by the trial court, and such qualification was expected to by appellant. The Court then prepared his own bill, and the appellant prepared his by-standers bill. The State urges this Court not to consider the by-standers bill because two of the affiants were witnesses in the cause, one of whom was also a surety on appellant's appearance bond. Appellant, in turn, urges us not to consider the Court's Bill of Exception or his controverting affidavit because there is incorporated therein certain matters known to the judge and not presented as evidence at the hearing on the motion. This state of the record requires this Court to begin with a consideration of the by-standers bill. Without passing on the question of the affiant's qualification to make the bill, we move on to its effect. The only purpose this bill could serve would be to bind this Court to the proposition that the argument leading up to the fatal difficulty was over the same trouble about which Attorney Erisman's advice had been sought. Such a pronouncement could be nothing more than a conclusion of the affiant's based upon what they heard at the hearing on the motion. Surely, this Court should not be bound by their conclusion when the record of the hearing on the motion is before us. An examination of such record shows that in March 1949 the defendant went to Judge Erisman, then a practicing attorney, and asked his advice about signing an agreement relating to his then existing partnership with deceased. The agreement had been prepared by another attorney and provided in effect that if appellant should in the future take a drink of beer while engaged in the partnership business, that he would by such act forfeit his interest in the partnership. Attorney Erisman advised appellant against signing such an agreement and suggested that if appellant would bring in his partner, he would prepare a workable partnership agreement for them and further advised appellant to place a certain Bill of Sale on record. This was the extent of the legal advice given. *539 On May 2, 1950 appellant and his partner had a fight, and his partner was killed. This was the case on trial when the motion to recuse was filed. Without a showing that the killing arose directly out of an argument over the subject matter of the advice received from Attorney Erisman, this Court would not be inclined to hold Judge Erisman disqualified. We do not feel that such a showing has been made. This case is not to be confused with those where the issues advised upon were the same as those before the trial court who was sought to be recused. Attorney Erisman gave advice on a contract and sat in trial on a murder some fourteen months later. It may be noted that Judge Erisman, just as appellant, is bound by the evidence adduced on the hearing on the motion. If he had thought other matters should have been in the record, he should have testified to the same. Finding no error, the judgment of the trial court is affired. On Motion For Rehearing DAVIDSON, Commissioner. Appellant insists that the bill of exception as prepared by the trial court should not be considered. In disposing of this case originally, we did not do so upon the trial court's bill of exception but rather upon the matters shown in the appellant's bill of exception as presented by the bystanders' bill of exception. In doing so, we reached the conclusion that the mere fact that a trial judge, while a practicing attorney, had advised the appellant and deceased relative to a partnership contract between them did not constitute a disqualification such as would preclude the attorney after becoming a judge, to sit as the trial judge in the trial of a murder case when one of the parties to the contract was charged with killing the other and there was no showing in the case that the killing arose or resulted out of that contract or advice given. Ex parte Largent, 144 Tex.Cr.R. 592, 162 S.W.2d 419-426. We note that in passing sentence upon the appellant the trial court failed to apply the provisions of the indeterminate sentence law, Art. 775, C.C.P., Vernon's Ann.C.C.P. art. 775. Tucker v. State, 136 Tex.Cr.R. 586, 127 S.W.2d 300. Accordingly, the sentence is now reformed so as to fix appellant's punishment at not less than two nor more than twenty-five years' confinement in the penitentiary. We remain convinced that, under the facts here presented, Judge Erisman was not disqualified to it as the trial judge. The motion for rehearing is overruled. Opinion approved by the court.

COURT OF APPEALS SECOND DISTRICT OF TEXAS FORT WORTH NO. 02-12-00105-CR Derrick T. Cavitt § From the 396th District Court § of Tarrant County (1194940D) v. § December 21, 2012 § Per Curiam The State of Texas § (nfp) JUDGMENT This court has considered the record on appeal in this case and holds that there was no error in the trial court’s judgment. It is ordered that the judgment of the trial court is affirmed. SECOND DISTRICT COURT OF APPEALS PER CURIAM  COURT OF APPEALS SECOND DISTRICT OF TEXAS FORT WORTH NO. 02-12-00105-CR DERRICK T. CAVITT APPELLANT V. THE STATE OF TEXAS STATE ---------- FROM THE 396TH DISTRICT COURT OF TARRANT COUNTY ---------- MEMORANDUM OPINION1 ---------- I. Introduction In two points, Appellant Derrick T. Cavitt appeals his conviction for aggravated assault of a public servant. We affirm. II. Factual and Procedural Background When Fort Worth Police Officer Kaare Martin responded to a domestic disturbance call around 3:50 a.m.,2 he found Cavitt standing in the driveway at 1 See Tex. R. App. P. 47.4. 2 the call’s location and asked him what was going on. Cavitt told him that he had not done anything but moved away as the uniformed officer approached him. A foot chase ensued, with Cavitt continuing to run despite the officer’s orders to stop. Cavitt subsequently engaged in a struggle with Officer Martin and Officer Jimmy Hewett Jr., who arrived as backup. They ordered Cavitt to stop resisting four or five times, but Cavitt would not comply. At one point, Officer Hewett lost control of his flashlight, and Cavitt grabbed it and swung it, striking Officer Martin in the head. Cavitt continued to struggle after the police sprayed him with pepper spray. Officer Christopher Britt arrived as backup and helped the two other officers take Cavitt into custody. Cavitt struggled and yelled as they placed him in the police vehicle, and the police placed him in a ―spit sock‖ because he had been spitting and kicking inside the patrol car. During the defense’s case, Cavitt’s neighbor Katrina Davis testified that the altercation occurred in her front yard and that she saw flashes of electric light and assumed that Cavitt had been tased. DeBoise, Cavitt’s grandmother, testified that she had called 9-1-1 because Cavitt was a paranoid schizophrenic and was 2 Cavitt’s grandmother, Barbara DeBoise, had called 9-1-1 to report that Cavitt was out of control: screaming, slamming doors, and causing trouble. DeBoise testified that when she called the police, she told them that Cavitt ―was acting funny‖ and that she ―didn’t know whether he was full of drugs or what, but he needed help.‖ DeBoise admitted during cross-examination that she did not tell the 9-1-1 operator that Cavitt needed to go to the hospital or that Cavitt was a paranoid schizophrenic. 3 bipolar, had run out of his medication, and needed to go to the hospital and that she told the police that Cavitt needed to go to the hospital but they did not respond to her. During cross-examination, DeBoise said that she did not recall saying that Cavitt had been at a drug house earlier that day but admitted that she might have said that she was concerned that he had overdosed that day. A jury convicted Cavitt of aggravated assault against a public servant, and the trial court entered judgment on this verdict and sentenced him to thirty years’ confinement. This appeal followed. III. Sufficiency of the Evidence In his first point, Cavitt asserts that the evidence is insufficient to convict him of aggravated assault of a public servant because there was no evidence of his intent to strike the officer. The State charged Cavitt with intentionally or knowingly causing bodily injury to Officer Martin by striking him with the flashlight. See Byrd v. State, 336 S.W.3d 242, 246 (Tex. Crim. App. 2011); see also Tex. Penal Code Ann. §§ 22.01(a)(1), 22.02(a)(2), (b)(2)(B) (West 2011). A person acts intentionally, or with intent, with respect to the nature of his conduct or to a result of his conduct when it is his conscious objective or desire to engage in the conduct or cause the result. Tex. Penal Code Ann. § 6.03(a) (West 2011). A person acts knowingly, or with knowledge, with respect to the nature of his conduct or to circumstances surrounding his conduct when he is aware of the nature of his conduct or that the circumstances exist, and he acts knowingly, or with knowledge, with respect to a 4 result of his conduct when he is aware that his conduct is reasonably certain to cause the result. Id. § 6.03(b). In our due-process review of the sufficiency of the evidence to support a conviction, we view all of the evidence in the light most favorable to the verdict to determine whether any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 319, 99 S. Ct. 2781, 2789 (1979); Wise v. State, 364 S.W.3d 900, 903 (Tex. Crim. App. 2012). We must review circumstantial evidence of intent with the same scrutiny as other elements of an offense. Laster v. State, 275 S.W.3d 512, 519–21 (Tex. Crim. App. 2009) (overruling Margraves v. State, 34 S.W.3d 912, 919 (Tex. Crim. App. 2000)); see Kutzner v. State, 994 S.W.2d 180, 184 (Tex. Crim. App. 1999) (―Circumstantial evidence, by itself, may be enough to support the jury’s verdict.‖). The record reflects that during his struggle with Officer Martin, Cavitt grabbed the flashlight, swung it in Officer Martin’s direction, and hit Officer Martin in the face with it as he struggled to get away from the officers: Officer Hewett testified that he lost control of the flashlight when he entered the on-going struggle between Cavitt and Officer Martin and that Cavitt, who was resisting the officers’ commands, grabbed it and ―started swinging it around.‖ Officer Hewett testified that Cavitt, who was laying on his back, swung the flashlight at least twice; on the second swing, he struck Officer Martin with a hard blow. Officer 5 Hewett said that it appeared to him that Cavitt swung the flashlight toward him and Officer Martin. Officer Martin testified that he was hit with a very hard object and then felt a ―sharp pain in the right side of [his] face. [He] immediately saw stars, and [he] felt wet running down [his] face,‖ which turned out to be blood from the cut under his eye.3 The flashlight in question was a thirteen-inch-long metal Maglite with around a two-inch diameter, containing a battery pack the equivalent of three D batteries. According to Officer Hewett, ―If you hit someone in the right spot [with it], it could easily kill them.‖ Based on this evidence, as well as evidence in the record of Cavitt’s resistance to the police before and after they took him into custody, a rational trier of fact could have found the essential elements of aggravated assault against a public servant beyond a reasonable doubt, particularly with respect to Cavitt’s intent and knowledge. Therefore, we overrule Cavitt’s first point. IV. Speculation In his second point, Cavitt asserts that the trial court erred by overruling his objection to speculation by Officer Hewett. Specifically, he asserts that Officer Hewett ―speculated or presumed‖ that Cavitt intended to strike Officer Martin with the flashlight. The State responds that Cavitt waived this point because his objection was untimely, referring to the following portion of the record: 3 Officer Martin testified that his injury was not caused by jumping through bushes while pursuing Cavitt. 6  Q. Was the Defendant just kind of flailing around with it or did it look like he was deliberately trying to strike somebody? A. I would—seems to me that he was trying to strike since he actually hit Officer Martin. Q. Was it moving in one direction then, basically? A. Yeah, it was— [Cavitt’s counsel]: Pardon me. Calls for speculation, Judge. THE COURT: Overruled. The timing of Cavitt’s objection appears to be to the question about the movement of the flashlight, not to the question of Cavitt’s intent to strike the officer. If, in fact, the objection was to the movement of the flashlight, the trial court properly overruled the objection to speculation because the question calls for a factual observation of Officer Hewett—the direction of movement of the flashlight—and does not call for any speculation on his part. Further, Cavitt did not object to the question concerning his intent in swinging the flashlight, and nothing in the language used points out to the trial court that the speculation objection was actually made to anything prior to the question about the movement of the flashlight. Rule of appellate procedure 33.1 requires in part that, as a prerequisite to presenting a complaint for appellate review, the record show that the complaint was made to the trial court by a timely objection that states the grounds for the ruling sought with sufficient specificity to make the trial court aware of the complaint, unless the specific grounds are apparent from the context. Tex. R. App. P. 33.1(a)(1). On the 7 record here, the trial court properly ruled on the objection made to the question that preceded it, and if the objection was to a prior question, Cavitt failed to preserve it for our review.4 We overrule Cavitt’s second point. V. Conclusion Having overruled both of Cavitt’s points, we affirm the trial court’s judgment. PER CURIAM PANEL: MCCOY, J.; LIVINGSTON, C.J.; and GABRIEL, J. DO NOT PUBLISH Tex. R. App. P. 47.2(b) DELIVERED: December 21, 2012 4 Likewise, Cavitt failed to object when Officer Hewett subsequently testified that in his opinion, Cavitt intentionally struck Officer Martin with the flashlight. See Geuder v. State, 115 S.W.3d 11, 13 (Tex. Crim. App. 2003) (noting that generally, to preserve error, a party must continue to object each time the objectionable evidence is offered). A trial court’s erroneous admission of evidence will not require reversal when other such evidence was received without objection, either before or after the complained-of ruling. Estrada v. State, 313 S.W.3d 274, 302 n.29 (Tex. Crim. App. 2010), cert. denied, 131 S. Ct. 905 (2011). 8 

106 F.3d 278 97 Cal. Daily Op. Serv. 2889, 97 Cal. DailyOp. Serv. 828,97 Daily Journal D.A.R. 1188,97 Daily Journal D.A.R. 5077UNITED STATES of America, Plaintiff-Respondent,v.Donald LORENTSEN, Defendant-Petitioner. No. 96-80324. United States Court of Appeals,Ninth Circuit. Argued and Submitted Jan. 15, 1997.Decided Feb. 4, 1997.As Amended April 21, 1997. Robert W. Rainwater, Assistant Federal Defender, Fresno, CA, for defendant-petitioner. Thomas E. Flynn, Assistant United States Attorney, Sacramento, CA, for plaintiff-respondent. Appeal from the United States District Court for the Eastern District of California, Robert E. Coyle, Chief District Judge, Presiding. D.C. No. CR-91-00028-REC. Before: LAY,* GOODWIN and SCHROEDER, Circuit Judges. ORDER 1 Donald Lorentsen has moved this court for certification of his successive motion to vacate his sentence under 28 U.S.C. § 2255 as required by the Antiterrorism and Effective Death Penalty Act of 1996, Pub.L. 104-132, tit. I, § 105, 110 Stat. 1214, 1220 (the "Act") (codified in relevant part at 28 U.S.C. § 2255). For the reasons stated below, we deny Lorentsen's motion. 2 Under the Act, before a successive § 2255 motion may be considered, it must be certified by a three-judge panel of the court of appeals to contain either newly discovered evidence demonstrating innocence, or "a new rule of constitutional law, made retroactive to cases on collateral review by the Supreme Court, that was previously unavailable." 28 U.S.C. § 2255 (as amended). The parties agree that no new evidence is involved in this case; the sole question is whether Lorentsen's motion contains a new rule of constitutional law made retroactive by the Supreme Court to cases on collateral review. 3 In his successive § 2255 motion, Lorentsen seeks to challenge his conviction for using or carrying a firearm in violation of 18 U.S.C. § 924(c)(1). Lorentsen relies on the Supreme Court's interpretation of § 924(c)(1) in Bailey v. United States, --- U.S. ----, 116 S.Ct. 501, 133 L.Ed.2d 472 (1995). As several circuits have pointed out, however, Bailey announced only a new statutory interpretation, not a new rule of constitutional law. See In re Blackshire, 98 F.3d 1293, 1294 (11th Cir.1996) (denying certification of successive § 2255 motion); Nunez v. United States, 96 F.3d 990, 992 (7th Cir.1996) (same); see also Hohn v. United States, 99 F.3d 892, 893 (8th Cir.1996) (denying certificate of appealability under 28 U.S.C. § 2253(c)). Moreover, although some courts have made Bailey retroactive to cases on collateral review, see, e.g., United States v. Barnhardt, 93 F.3d 706, 708-09 (10th Cir.1996), that decision has not yet been made by the Supreme Court, as required by the amended section 2255. Nunez, 96 F.3d at 992. 4 Lorentsen argues that notwithstanding his failure to meet the statutory criteria, the certification should be granted because failure to certify his § 2255 motion would deny him a judicial remedy and thereby raise constitutional concerns. This contention is premature, as Lorentsen has not sought other judicial remedies which may be available to him. Specifically, Lorentsen has not sought a writ of habeas corpus under 28 U.S.C. § 2241. Although recent decisions hold that state prisoners may not use § 2241 to circumvent the restrictions of 28 U.S.C. § 2254, see Felker v. Turpin, 116 S.Ct. 2333, 2339 (1996); Greenawalt v. Stewart, 105 F.3d 1287, 1287 (1997), Lorentsen is a federal prisoner. Section 2255 expressly provides that a federal prisoner may seek habeas relief if it "appears that the remedy by motion is inadequate or ineffective to test the legality of his detention." 28 U.S.C. § 2255; accord United States v. Hayman, 342 U.S. 205, 223 (1952) ("In a case where the Section 2255 procedure is shown to be 'inadequate or ineffective,' the Section provides that the habeas corpus remedy shall remain open to afford the necessary hearing."). 5 A request for habeas corpus is not properly before us. If it is available, Lorentsen should seek it first in the district court. 6 The requested certification is DENIED. 7 Petitioner has filed a petition for rehearing and a suggestion for rehearing en banc. Under the Anti-Terrorism Act, "[t]he grant or denial of an authorization by a court of appeals to file a second or successive application shall not be appealable and shall not be the subject of a petition for rehearing or for a writ of certiorari." 28 U.S.C. § 2244(b)(3)(E) (as amended). We therefore dismiss the petition for rehearing and suggestion for rehearing en banc as unauthorized. * The Honorable Donald P. Lay, Senior United States Circuit Judge for the Eighth Circuit Court of Appeals, sitting by designation

Court of Appeals of the State of Georgia ATLANTA, August 09, 2017 The Court of Appeals hereby passes the following order A18D0011. BARBARA CIESZEWSKI v. CHRIS JANUSZ CIESZEWSKI. Upon consideration of the Application for Discretionary Appeal, it is ordered that it be hereby DENIED. LC NUMBERS: SU13CV1074 Court of Appeals of the State of Georgia Clerk's Office, Atlanta, August 09, 2017. I certify that the above is a true extract from the minutes of the Court of Appeals of Georgia. Witness my signature and the seal of said court hereto affixed the day and year last above written. , Clerk. 

Morris v City of New York (2016 NY Slip Op 06478) Morris v City of New York 2016 NY Slip Op 06478 Decided on October 5, 2016 Appellate Division, Second Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and subject to revision before publication in the Official Reports. Decided on October 5, 2016 SUPREME COURT OF THE STATE OF NEW YORK Appellate Division, Second Judicial Department MARK C. DILLON, J.P. JEFFREY A. COHEN ROBERT J. MILLER VALERIE BRATHWAITE NELSON, JJ. 2014-05345 (Index No. 11800/05) [*1]Larry Morris, plaintiff-respondent, vCity of New York, defendant-respondent, Keyspan Energy Delivery New York, et al., appellants-respondents, Joseph L. Balkan, Inc., respondent-appellant, et al., defendants (and a third-party action). Cullen and Dykman, LLP, New York, NY (Margaret Mazlin of counsel), for appellants-respondents Keyspan Energy Delivery New York and The Hallen Construction Co., Inc. Leon Kowalski, Brooklyn, NY (McGaw, Alventosa & Zajac [Joseph Horowitz] of counsel), for appellant-respondent Tri-Messine Construction Co. David M. Santoro, New York, NY (Stephen T. Brewi of counsel), for appellant-respondent Consolidated Edison Company of New York, Inc. Smith Mazure Director Wilkins Young & Yagerman, P.C., New York, NY (Stephen J. Molinelli of counsel), for respondent-appellant. Robert J. Berkowitz & Associates, P.C., New York, NY (Andrew D. Weitz of counsel), for plaintiff-respondent. Zachary W. Carter, Corporation Counsel, New York, NY (Pamela Seider Dolgow and Marta Ross of counsel), for defendant-respondent. DECISION & ORDER In an action to recover damages for personal injuries, the defendants Keyspan Energy Delivery New York and The Hallen Construction Co., Inc., the defendant Consolidated Edison Company of New York, Inc., and the defendant Tri-Messine Construction Co. separately appeal, as limited by their respective briefs, from so much of an order of the Supreme Court, Kings County (Landicino, J.), dated December 4, 2013, as denied those branches of their respective motions which were for summary judgment dismissing the complaint and all cross claims insofar as asserted against each of them, and the defendant Joseph Balkan, Inc., cross-appeals, as limited by its brief, from so much of the same order as denied its motion for summary judgment dismissing the complaint and all cross claims insofar as asserted against it. ORDERED that the order is affirmed insofar as appealed and cross-appealed from, with one bill of costs to the plaintiff and the defendant City of New York, payable by the defendants Keyspan Energy Delivery New York, The Hallen Construction Co., Inc., Consolidated Edison Company of New York, Inc., Tri-Messine Construction Co., and Joseph Balkan, Inc., appearing [*2]separately and filing separate briefs. The plaintiff allegedly was injured on May 7, 2004, when his bicycle struck a hole in the roadway in front of 1509 Park Place in Brooklyn. The plaintiff commenced this action against, among others, the City of New York; a sewer contractor, Joseph Balkan, Inc. (hereinafter Balkan); Keyspan Energy Delivery New York and its excavation contractor The Hallen Construction Co., Inc. (hereinafter together the Keyspan defendants); Consolidated Edison Company of New York, Inc. (hereinafter Con Ed); and Con Ed's paving contractor, Tri-Messine Construction Co. (hereinafter Tri-Messine). The Keyspan defendants, Con Ed, Balkan, and Tri-Messine (hereinafter collectively the moving defendants) separately moved, inter alia, for summary judgment dismissing the complaint and all cross claims insofar as asserted against each of them. The plaintiff and the City opposed the motions, and Balkan opposed the motion by the Keyspan defendants. By order dated December 4, 2013, the Supreme Court, inter alia, denied each of the motions. A contractor may be liable for an affirmative act of negligence which results in the creation of a dangerous condition upon a public street (see Brown v Welsbach Corp., 301 NY 202, 205; Sand v City of New York, 83 AD3d 923, 925; Cohen v Schachter, 51 AD3d 847, 848; Cino v City of New York, 49 AD3d 796, 797; Losito v City of New York, 38 AD3d 854, 855). Thus, in this case, each of the moving defendants had the burden of establishing that it did not perform any work on the portion of the roadway where the accident occurred or that it did not create the allegedly defective condition that caused the plaintiff's injuries (see Sand v City of New York, 83 AD3d at 925; Hayes v DeMicco Bros., Inc., 34 AD3d 641, 642; Ingles v City of New York, 309 AD2d 835, 836). Here, none of the moving defendants satisfied its prima facie burden of demonstrating that it did not perform any work where the accident occurred or create the allegedly dangerous condition that caused the plaintiff's accident (see Pallotta v City of New York, 121 AD3d 656, 657; Terrell v City of New York, 74 AD3d 787, 788; Bocanegra v Verizon New York, Inc., 68 AD3d 698, 699; Lavaud v City of New York, 45 AD3d 536; Losito v City of New York, 38 AD3d at 855; Hayes v DeMicco Bros., Inc., 34 AD3d at 642; Johnston v City of New York, 18 AD3d 712, 713; King v County of Nassau, 262 AD2d 533; Finegold v Brooklyn Union Gas Co., 202 AD2d 469, 470). In addition, the Keyspan defendants failed to establish, prima facie, that the condition that caused the plaintiff's accident was open and obvious and not inherently dangerous (see Casiano v St. Mary's Church, 135 AD3d 685; Lazic v Trump Vil. Section 3, Inc., 134 AD3d 776; Barris v One Beard St., LLC, 126 AD3d 831; Baron v 305-323 E. Shore Rd. Corp., 121 AD3d 826; Bloomfield v Jericho Union Free School Dist., 80 AD3d 637). Accordingly, none of the moving defendants was entitled to summary judgment dismissing the complaint and all cross claims insofar as asserted against it, regardless of the sufficiency of the opposing papers (see Winegrad v New York Univ. Med. Ctr., 64 NY2d 851, 853). DILLON, J.P., COHEN, MILLER and BRATHWAITE NELSON, JJ., concur. ENTER: Aprilanne Agostino Clerk of the Court

424 B.R. 368 (2009) In re GLUTH BROS. CONSTRUCTION, INC., Debtor. Charles Dixon and Charles Graeber, Jr., not in their individual capacities but solely as Trustees of the Gluth Bros. Construction, Inc. Creditor Trust, Plaintiff, v. Charles W. Ruth; Alliance Contractors, Inc.; Ruth Development Company, Inc.; Cheers Holdings, LLC; and Alliance Contractors, Inc and Gluth Bros. Construction, Inc. Joint Venture, Defendants. Bankruptcy No. 07-B-71375. Adversary No. 09-A-96133. United States Bankruptcy Court, N.D. Illinois, Western Division. November 19, 2009. *371 Aaron L. Hammer, Shira R. Isenberg, Freeborn & Peters LLP, Chicago, IL, for Plaintiffs. Bradley T. Koch, Holmstrom & Kennedy P.C., Rockford, IL, for Defendants. MEMORANDUM OPINION MANUEL BARBOSA, Bankruptcy Judge. This matter comes before the Court on Defendants' Motion to Dismiss Adversary Complaint. For the reasons set forth herein, the Court will grant the Defendants' motion to dismiss each of the counts of the Adversary Complaint. However, the Court will grant leave for the Plaintiff to file an amended adversary complaint, if it desires, within thirty days consistent with this opinion. JURISDICTION AND PROCEDURE The Court has jurisdiction to decide this matter pursuant to 28 U.S.C. § 1334 and Internal Operating Procedure 15(a) of the United States District Court for the Northern District of Illinois. It is a core proceeding pursuant to 28 U.S.C. § 157(b)(2)(A), (E), (H) and (O). FACTS AND BACKGROUND The following facts and procedural history are taken from Plaintiffs adversary complaint and opposition to Defendants' motion to dismiss, as well as the Defendants' motion to dismiss and strike, memorandum in support of motion to dismiss and strike, and reply to Plaintiffs opposition *372 (collectively, the "pleadings"), and from all attachments to the pleadings referred to and incorporated therein. Because the matter is before the Court on a motion to dismiss, the Court accepts as true all of the factual allegations contained in the adversary complaint. See, e.g., Erickson v. Pardus, 551 U.S. 89, 93-94, 127 S.Ct. 2197, 167 L.Ed.2d 1081 (2007); Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555-56, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007). The Debtor filed a voluntary petition for relief under chapter 11 of the Bankruptcy Code with this Court on June 5, 2007. On March 4, 2009, the Court entered an order confirming the Plan of Liquidation Dated January 27, 2009 (the "Plan"). Pursuant to the Plan, and the Gluth Bros. Construction, Inc. Creditor Trust Agreement, entered into among the Debtor, the Official Committee of Unsecured Creditors and the Creditor Trustees, all remaining property of the Debtor's estate, including causes of action, were vested in the Creditor Trust, and the Creditor Trustees were granted the authority to commence actions. The Defendants are Charles Ruth ("Ruth"), an individual, and several entities he is affiliated with: Alliance Contractors, Inc. ("Alliance"), of which Ruth is president, Cheers Holdings, LLC ("Cheers"), of which Ruth is sole owner and manager, Ruth Development Company, Inc. ("Ruth Development"), of which Ruth is president, and a joint venture ("Joint Venture"), which was originally between the Debtor and Alliance, but for which the Debtor has sold its interest to Ruth Development. The Transfer of the Joint Venture Interest The Joint Venture was formed by an agreement entered into between the Debtor and Alliance on July 27, 1984, pursuant to which the Debtor and Alliance agreed they would bid and work on projects together and then share in their proceeds. The Debtor and Alliance also each agreed to rent to the Joint Venture equipment needed for the performance of necessary Joint Venture work. The Joint Venture had at least two banking accounts (the "JV Checking Account" and the "JV Savings Account"). On May 14, 2007, the Debtor sold its entire interest in the Joint Venture to Ruth Development in exchange for $30,921.90. At the time of sale, the JV Savings Account had a balance of over $89,000. On May 29, 2007, the State of Illinois transferred $230,054.01 into the JV Checking Account for fees earned by the Joint Venture prior to the sale date on a construction project. On June 1, 2007, Alliance withdrew $199,132.11 from the JV Checking Account, and Ruth Development withdrew $30,921.90 from the JV Checking Account. On September 17, 2008, the $89,467.20 balance in the JV Savings Account was transferred to the JV Checking Account. On September 19, 2008, Ruth withdrew all funds in the JV Checking Account, totaling $91,476.39, and closed the account. The Real Estate Transaction The Complaint also spends a number of paragraphs discussing a real estate transaction that the Plaintiff admits never closed. The Debtor's business sits on five parcels of real estate, of which three are owned by Mr. Gluth individually, one is owned by the Debtor, and one is owned by a land trust of which Mr. Gluth claims he is the beneficiary, but the Plaintiff alleges the Debtor is the beneficiary. The Plaintiff alleges that Mr. Gluth and Mr. Ruth entered into a sale agreement before the petition date to sell all five parcels of land to Mr. Ruth for $3.6 million. However, the Plaintiff admits that the sale did not close before the petition date. The Plaintiff also alleges that in October 2007, Mr. Gluth purported to grant a right of first *373 refusal in all five parcels of land to Cheers in exchange for $1,000. The Plaintiff alleges that in October 2007, after the petition date, Ruth paid Mr. Gluth $2.8 million, purportedly in exchange for 40,000 shares of bank stock unrelated to the real estate that Mr. Gluth sold to Mr. Ruth. However, the Plaintiff alleges that Mr. Gluth had only 5,000 shares of bank stock at the time. From this, the Plaintiff contends the money was not for a sale of unrelated stock, but rather was intended as a purchase price for the real estate. But, while the Plaintiff alleges that Ruth intended the $2.8 million to be a payment for the real estate, the Plaintiff does not allege that the real estate was in fact sold or that Mr. Gluth even had the power to sell any real estate that was owned by the Debtor. DISCUSSION Standard under 12(b)(6), Rule 8 and Rule 9(b) A motion to dismiss under Fed.R.Civ.P. 12(b)(6), made applicable by Fed. R. Bankr.P. 7012,[1] tests the sufficiency of the complaint, rather than the merits of the case. In re Irmen, 379 B.R. 299, 307 (Bankr.N.D.Ill.2007) (citing Gibson v. City of Chicago, 910 F.2d 1510, 1520 (7th Cir. 1990)). Under Rule 12(b)(6), a court must take as true all facts alleged in the complaint and construe all reasonable inferences in favor of the plaintiff. See Murphy v. Walker, 51 F.3d 714, 717 (7th Cir. 1995); Neiman v. Irmen (In re Irmen), 379 B.R. 299, 307 (Bankr.N.D.Ill.2007). The Defendants argue that the Plaintiffs Complaint does not adequately plead the claims for relief under Rule 8, or meet the higher pleading standards for fraud under Rule 9(b), and should therefore be dismissed under Rule 12(b)(6). Under Rule 8(a), a pleading for a claim for relief must contain "a short and plain statement of the claim showing that the pleader is entitled to relief." Fed.R.Civ.P. 8. The "Rule reflects a liberal notice pleading regime, which is intended to focus litigation on the merits of a claim rather than on technicalities that might keep plaintiffs out of court." Brooks v. Ross, 578 F.3d 574, 580 (7th Cir. Aug.20, 2009) (citing Swierkiewicz v. Sorema N.A., 534 U.S. 506, 514, 122 S.Ct. 992, 152 L.Ed.2d 1 (2002)). The focus of the Rule is to "give the defendant fair notice of what ... the claim is and the grounds upon which it rests." Brooks, 578 F.3d at 581 (citing Erickson v. Pardus, 551 U.S. 89, 93, 127 S.Ct. 2197, 167 L.Ed.2d 1081 (2007)). While this does not require "detailed factual allegations," a "formulaic recitation of the elements of a cause of action will not do." Ashcroft v. Iqbal, ___ U.S. ___, ___, 129 S.Ct. 1937, 1949, 173 L.Ed.2d 868 (May 18, 2009). Instead, the complaint must contain "enough facts to state a claim to relief that is plausible on its face." Twombly, 550 U.S. at 570, 127 S.Ct. 1955. The plausibility standard is not a "probability standard," but it is higher than mere possibility, so the well-pleaded facts cannot be "merely consistent with a defendant's liability," but must demonstrate a plausible "entitlement to relief." Iqbal, 129 S.Ct. at 1949 (citing Twombly, 550 U.S. at 556-57, 127 S.Ct. 1955). As the Seventh Circuit has recently stated, "courts must accept a plaintiffs factual allegations as true, but some factual allegations will be so sketchy or implausible that they fail to provide sufficient notice to defendants of the plaintiffs claim." Brooks, 578 F.3d at 581. *374 Where fraud is alleged, a more rigorous pleading standard comes into play. In re Jacobs, 403 B.R. 565, 573 (Bankr.N.D.Ill. Apr.9, 2009). "In alleging fraud or mistake, a party must state with particularity the circumstances constituting fraud or mistake." Id. (quoting Fed. R.Civ.P. 9(b)). Thus, a plaintiff must state the "`who, what, when, and where' of the alleged fraud." Id. (quoting Uni*Quality, Inc. v. Infotronx, Inc., 974 F.2d 918, 923 (7th Cir.1992)). An adversary complaint should not merely assert allegations that "are conclusory or based on `information and belief.'" Irmen, 379 B.R. at 310; see also John Deere Co. v. Broholm (In re Broholm), 310 B.R. 864, 875 (Bankr. N.D.Ill.2004) (citing Veal v. First Am. Sav. Bank, 914 F.2d 909, 913 (7th Cir.1990)). If Rule 9(b) has not been satisfied, the Court may grant leave for movant to file an amended adversary complaint. Kaye v. City of Milwaukee, 258 Fed.Appx. 17, 18 (7th Cir.2007). I. Avoidance of Debtor's Transfers— 11 U.S.C. §§ 544(b)(1), 548 Pursuant to 11 U.S.C. § 544(b)(1), the trustee can avoid any transaction of the debtor that would be voidable by any actual unsecured creditor under state law. In re Image Worldwide, Ltd., 139 F.3d 574, 576-77 (7th Cir.1998); Grochocinski v. Zeigler (In re Zeigler), 320 B.R. 362, 371 (Bankr.N.D.Ill.2005). Section 544(b)(1) provides, in pertinent part: [T]he trustee may avoid any transfer of an interest of the debtor in property or any obligation incurred by the debtor that is voidable under applicable law by a creditor holding an unsecured claim that is allowable under section 502 of this title or that is not allowable only under section 502(e) of this title. 11 U.S.C. § 544(b)(1) (West 2009). The residence or main place of business of both the Debtor and each of the Defendants is in Illinois, and all of the purported transactions took place in Illinois. The Plaintiff claims that certain prepetition transfers of the Debtor's property, including the sale of its interest in the Joint Venture, were fraudulent transfers in violation of the Illinois Uniform Fraudulent Transfer Act ("UFTA"), 740 Ill. Comp. Stat. 160/5(a)(1) and 160/5(a)(2) and fraudulent transfers under 11 U.S.C. § 548(a)(1). "Because the provisions of the UFTA parallel § 548 of the Bankruptcy Code, findings made under the Bankruptcy Code are applicable to actions under the UFTA." Zeigler, 320 B.R. at 372 (citing Levit v. Spatz (In re Spatz), 222 B.R. 157, 164 (N.D.Ill.1998); In re Image Worldwide, Ltd., 139 F.3d at 577). A. 740 Ill. Comp. Stat. 160/5(a)(1) ("Fraud-in-fact"); 740 Ill. Comp. Stat. 160/5(b) ("Badges of Fraud"); 11 U.S.C. § 548(a)(1)(A) Standards 740 Ill. Comp. Stat. 160/5(a)(1) provides that: (a) A transfer made or obligation incurred by a debtor is fraudulent as to a creditor, whether the creditor's claim arose before or after the transfer was made or the obligation was incurred, if the debtor made the transfer or incurred the obligation: (1) with actual intent to hinder, delay, or defraud any creditor of the debtor[.] 740 Ill. Comp. Stat. 160/5(a)(1) (West 2009). § 5(a)(1) of the UFTA applies to "fraud in fact" or actual fraud, and the moving party must prove that there was a specific intent to hinder, delay or defraud. Zeigler, 320 B.R. at 372 (citing Lindholm v. Holtz, 221 Ill.App.3d 330, 163 Ill.Dec. 706, 581 N.E.2d 860, 863 (1991)). The *375 UFTA sets forth several factors under 740 Ill. Comp. Stat. 160/5(b)(1)-(11), known as the "badges of fraud," from which an inference of fraudulent intent may be drawn. Id. at 373. Specifically, the Illinois UFTA sets forth eleven "badges of fraud," under 740 Ill. Comp. Stat. 160/5(b)(1)-(11), which provides: (b) In determining actual intent under paragraph (1) of subsection (a), consideration may be given, among other factors, to whether: (1) the transfer or obligation was to an insider; (2) the debtor retained possession or control of the property transferred after the transfer; (3) the transfer or obligation was disclosed or concealed; (4) before the transfer was made or obligation was incurred, the debtor had been sued or threatened with suit; (5) the transfer was of substantially all the debtor's assets; (6) the debtor absconded; (7) the debtor removed or concealed assets; (8) the value of the consideration received by the debtor was reasonably equivalent to the value of the asset transferred or the amount of the obligation incurred; (9) the debtor was insolvent or became insolvent shortly after the transfer was made or the obligation was incurred; (10) the transfer occurred shortly before or shortly after a substantial debt was incurred; and (11) the debtor transferred the essential assets of the business to a lienor who transferred the assets to an insider of the debtor. 740 Ill. Comp. Stat. 160/5(b)(1)-(11) (West 2009). When these "badges of fraud" are present in sufficient number, they may give rise to an inference or presumption of fraud. Zeigler, 320 B.R. at 373 (citing Steel Co. v. Morgan Marshall Indus., Inc., 278 Ill.App.3d 241, 214 Ill.Dec. 1029, 662 N.E.2d 595, 602 (1996)). Under the Federal Rules of Evidence, "a presumption imposes on the party against whom it is directed the burden of going forward with evidence to rebut or meet the presumption, but does not shift to such party the burden of proof in the sense of the risk of nonpersuasion, which remains throughout the trial upon the party on whom it was originally cast." Id. (quoting Fed.R.Evid. 301). The presence of seven badges of fraud has been held sufficient to raise a presumption of fraudulent intent. Id. (citing Berland v. Mussa (In re Mussa), 215 B.R. 158, 170 (Bankr.N.D.Ill.1997)). B. 740 Ill. Comp. Stat. 160/5(a)(2) ("Fraud-in-law"); 11 U.S.C. § 548(a)(1)(A) Standards 740 Ill. Comp. Stat. 160/5(a)(2) provides that: (a) A transfer made or obligation incurred by a debtor is fraudulent as to a creditor, whether the creditor's claim arose before or after the transfer was made or the obligation was incurred, if the debtor made the transfer or incurred the obligation: . . . . (2) without receiving a reasonably equivalent value in exchange for the transfer or obligation, and the debtor: (A) was engaged or was about to engage in a business or a transaction for which the remaining assets of the debtor were unreasonably small in relation to the business or transaction; or (B) intended to incur, or believed or reasonably should have believed that he would incur, debts beyond *376 his ability to pay as they became due. 740 Ill. Comp. Stat. 160/5(a)(2) (West 2009). § 5(a)(1) of the UFTA applies to constructive fraud, or "fraud in law," and does not require proof of actual intent to defraud. Wachovia Securities, LLC v. Jahelka, 586 F.Supp.2d 972, 1015 (N.D.Ill. 2008) (citing Gen. Elec. Capital Corp. v. Lease Resolution Corp., 128 F.3d 1074, 1079 (7th Cir.1997); Scholes v. Lehmann, 56 F.3d 750, 757 (7th Cir.1995)). Instead, transfers made for less than reasonably equivalent value, leaving a debtor unable to meet its obligations, are deemed or presumed to be fraudulent. Id. (citing Zeigler, 320 B.R. at 374). Whether "reasonably equivalent value" has been given is generally a question of fact. Id. In order for the movant to establish that a conveyance is fraudulent in law, four elements must be present: (1) the debtor made voluntary transfers; (2) at the time of the transfers, the debtor had incurred obligations elsewhere; (3) the debtor made the transfers without receiving a reasonably equivalent value in exchange for the transfers; and (4) after the transfers, the debtor failed to retain sufficient property to pay their indebtedness. In re Zeigler, 320 B.R. at 374 (citing Lease Resolution Corp., 128 F.3d at 1079). To determine whether reasonably equivalent value is received under the UFTA, courts consider how that phrase has been construed under the Bankruptcy Code. Wachovia, 586 F.Supp.2d at 1015 (citing Zeigler, 320 B.R. at 374-75; In re Image Worldwide, Ltd., 139 F.3d 574, 577 (7th Cir.1998)). The Seventh Circuit has recognized that there is no fixed formula for determining reasonable equivalence. Barber v. Golden Seed Co., 129 F.3d 382, 387 (7th Cir.1997). That determination will depend on all the facts of each case. Id. Several factors utilized to determine reasonably equivalent value include: (1) whether the value of what was transferred is equal to the value of what was received; (2) the market value of what was transferred and received; (3) whether the transaction took place at arm's length; and (4) the good faith of the transferee. Wachovia, 586 F.Supp.2d at 1015 (citing Zeigler, 320 B.R. at 374-75; Grigsby v. Carmell (In re Apex Auto. Warehouse, L.P.), 238 B.R. 758, 773 (Bankr.N.D.Ill.1999)). "Reasonably equivalent value is measured at the time of the transfer." Id. (citing Zeigler, 320 B.R. at 374-75). Nominal consideration is inadequate to satisfy the reasonably equivalent value standard. Id. (citing Zeigler, 320 B.R. at 374-75). C. Application The Plaintiff alleges that the Debtor made a fraudulent transfer by selling its interest in the Joint Venture to Ruth Development for less than a reasonably equivalent value.[2] The Plaintiff alleges that the Debtor sold its interest in the Joint Venture to Ruth Development on May 14, 2007 for $30,921.90. However, the Plaintiff alleges that the value of the Joint *377 Venture was worth at least $320,000 at that time, meaning that the Debtor's interest was worth at least 5 times what Ruth Development paid. The Plaintiff points to the fact that there was over $89,000 in the Joint Venture's savings account at the time of sale and the Joint Venture had a right to payment of over $230,000 in fees from the State of Illinois, which were deposited into the Joint Venture's checking account two weeks after the sale. While the assets of a company alone do not necessarily represent its value, since any liabilities would decrease that value, for purposes of a motion to dismiss the Plaintiff has sufficiently pled facts to support the allegation that the sale of the Joint Venture interest was for less than a reasonably equivalent value. However, the Plaintiff has offered no factual allegations to support its claim that the Debtor was insolvent at the time of the transfer or became insolvent because of the transfer. Instead, the complaint merely gives a formulaic recitation of the element, stating that "Upon information and belief, the Debtor was insolvent, became insolvent, and/or had unreasonably small capital in relation to its business at the time, or as a result, of the Fraudulent Transfers." (Compl.¶ 58). As the creditor trustee, the Plaintiff should have enough access to information on the Debtor's finances to be able to allege at least some minimal factual support for its allegation. But, under the standard set forth in Iqbal, the Plaintiff has failed to plead this element, and therefore has not sufficiently pled a complaint under the constructive fraud or "fraud in law" sections of the UFTA and 11 U.S.C. § 548(a)(1)(B). Similarly, the Plaintiff has not sufficiently pled any facts to support a claim for fraudulent transfer under the actual fraud or "fraud in fact" sections of the UFTA or 11 U.S.C. § 548(a)(1)(B). Other than stating that the transfers were made "with knowledge that the transfer would hinder, delay, or defraud the creditors' recovery," the Plaintiff has alleged no facts to support an allegation of actual fraud. This statement is simply a recitation of an element of the claim, which is not sufficient under the standard set forth in Iqbal, and certainly not sufficient for the heightened pleading standards of Rule 9(b). Nor has the Plaintiff alleged facts to support any "badges of fraud" other than insufficient consideration. While the Plaintiff alleges that there was secrecy surrounding the attempted real estate transaction, that transaction was unconnected to the transfer of the Joint Venture interest and therefore irrelevant. Therefore, the Plaintiff has failed to state a claim under the actual fraud or "fraud in fact" sections of the UFTA and 11 U.S.C. § 548(a)(1)(A). Because the Plaintiff has failed to sufficiently plead a claim under § 160/5(a)(1) or (2) of the UFTA or 11 U.S.C. § 548(a)(1), it has also failed to plead a claim under Section 550 for the recovery of such transfers. II. Avoidance of Post-Petition Date Transfers 11 U.S.C. § 549(a) gives the trustee the power to avoid a transfer of property of the estate that occurs after the commencement of the case and not authorized by the Bankruptcy Code or the Court. However, none of the purported post-petition date transfers were transfers of property of the estate. The Plaintiff has not argued for, or alleged facts to support an argument for, piercing the corporate veil or treating the Debtor as merely the alter ego of Mr. Gluth. The Plaintiff alleges that Mr. Gluth purported to grant to Cheers a "right of first refusal" on a group of five pieces of real estate property, at *378 least three of which he owned. Even assuming a right of first refusal is a "property interest," it could only be a property interest to the extent that it is valid and enforceable. But, to the extent that Mr. Gluth did not own the real estate he could not grant a right of first refusal in it, and there is no allegation that Mr. Gluth validly acted on behalf of the Debtor or even had the power to do so. On the other hand, to the extent Mr. Gluth did own the real estate, then, since he is separate from the Debtor, a grant of a right of first refusal would not be a transfer of property of the estate. The withdrawals from the Joint Venture bank accounts were also not transfers of property of the estate, since the Debtor no longer owned an interest in the Joint Venture at the time of the withdrawals. The Plaintiff has not alleged that the sale of the Joint Venture was not effective, but merely seeks to avoid the transfer as fraudulent. As noted before, if the Plaintiff were able to avoid the transfer of the Joint Venture interest as a fraudulent conveyance it might be able to seek the funds under Section 550(a), but the funds were not property of the estate at the time in question and so their withdrawal was not a post-petition transfer of property of the estate. Finally, the payment of $2.8 million from Mr. Ruth to Mr. Gluth was not a transfer of property of the debtor—it was a transfer of property of Mr. Ruth. Presumably, the Plaintiff means to say that the $2.8 million are proceeds of the sale of the real estate, at least some of which was the Debtor's property. But, the Plaintiff has admitted in its pleadings that the sale of the real estate never closed, and has not alleged that title to the real estate was ever transferred to Ruth, so the money could not constitute proceeds of a sale that never happened. Therefore, the Plaintiff has failed to state a cause of action under Section 549. III. Turnover of Estate Property 11 U.S.C. § 542(a) requires an entity in possession of property that the trustee may use, sell or lease, or that the debtor may exempt, to deliver such property of the estate to the trustee. However, the Plaintiff has failed to give any factual support for its allegation that the Joint Venture is in possession of property of the estate. The Plaintiff merely alleges that the Debtor might have leased vehicles or equipment to the Joint Venture, and if so, the Joint Venture might have failed to return them. While a detailed description is not necessary for purposes of pleading, the Plaintiff must give enough of a description to demonstrate a plausible entitlement to relief and to give notice of what property it alleges is property of the estate. The vague description in the Adversary Complaint gives no such notice. Therefore, the Plaintiffs claim under Section 542(a) fails to state a claim for relief. IV. Motion to Strike Upon timely motion by a party, a "court may strike from a pleading ... any redundant, immaterial, impertinent, or scandalous matter." Fed.R.Civ.P. 12(f)(2). The Defendant has asked that paragraphs 20-23 and 25-28 of the Plaintiffs complaint be stricken. Since the motion to dismiss is being granted on all counts in the Adversary Complaint, the motion to strike becomes moot. CONCLUSION For the foregoing reasons, the Court will GRANT the Defendant's motion to dismiss each of the counts of the Adversary Complaint. However, the Court will grant leave for the Plaintiff to file an amended adversary complaint, if it desires, *379 within thirty days consistent with this opinion. THEREFORE, IT IS ORDERED that A separate order shall be entered pursuant to Fed. R. Bankr.P. 9021 giving effect to the determinations reached herein. NOTES [1] Unless otherwise noted, references to Rules herein shall be references to the Federal Rules of Civil Procedure, as incorporated by the relevant Federal Rule of Bankruptcy Procedure. [2] The Plaintiff also argues that the withdrawals of funds from the Joint Venture's bank accounts were fraudulent transfers. However, at the time of the withdrawals, the Debtor did not own the Joint Venture, and therefore did not even have a beneficial interest in the accounts. For this reason, the withdrawals were not fraudulent transfers of the Debtor. To the extent that the funds represent either part of the Debtor's original interest in the Joint Venture or proceeds of such interest in the Joint Venture, however, and to the extent the Plaintiff is successful in avoiding the transfer of the Joint Venture interest as a fraudulent transfer, the Debtor may be able to seek to recover the funds from subsequent transferees under 11 U.S.C. § 550(a).

Affirmed and Opinion Filed July 21, 2017 S In The Court of Appeals Fifth District of Texas at Dallas No. 05-16-00823-CR No. 05-16-00824-CR CORIN DEON ROBINSON, Appellant V. THE STATE OF TEXAS, Appellee On Appeal from the Criminal District Court No. 1 Dallas County, Texas Trial Court Cause Nos. F15-75527-H, F16-00440-H MEMORANDUM OPINION Before Chief Justice Wright, Justice Myers, and Justice Brown Opinion by Chief Justice Wright Corin Deon Robinson appeals his convictions for two aggravated robbery with a deadly weapon offenses. Appellant initially pleaded not guilty before a jury. While the jury deliberated during the guilt/innocence phase of the trial, appellant changed his pleas to guilty and pleaded true to one enhancement paragraph included in each indictment in exchange for the trial court capping the punishment at no more than twenty-five years in prison. At the end of the punishment phase, the trial court found appellant guilty and assessed punishment at twenty years’ imprisonment in each case. On appeal, appellant’s attorney filed a brief in which she concludes the appeals are wholly frivolous and without merit. The brief meets the requirements of Anders v. California, 386 U.S. 738 (1967). The brief presents a professional evaluation of the record showing why, in effect, there are no arguable grounds to advance. See High v. State, 573 S.W.2d 807, 811–12 (Tex. Crim. App. [Panel Op.] 1978). Counsel delivered a copy of the brief to appellant. We advised appellant of his right to file a pro se response, but he did not file a pro se response. See Kelly v. State, 436 S.W.3d 313, 319–21 (Tex. Crim. App. 2014) (noting appellant has right to file pro se response to Anders brief filed by counsel). We have reviewed the record and counsel’s brief. See Bledsoe v. State, 178 S.W.3d 824, 826–27 (Tex. Crim. App. 2005) (explaining appellate court’s duty in Anders cases). We agree the appeals are frivolous and without merit. We find nothing in the record that might arguably support the appeals. We affirm the trial court’s judgments. /Carolyn Wright/ CAROLYN WRIGHT CHIEF JUSTICE Do Not Publish TEX. R. APP. P. 47 160823F.U05 –2–  S Court of Appeals Fifth District of Texas at Dallas JUDGMENT CORIN DEON ROBINSON, Appellant On Appeal from the Criminal District Court No. 1, Dallas County, Texas No. 05-16-00823-CR V. Trial Court Cause No. F15-75527-H. Opinion delivered by Chief Justice Wright. THE STATE OF TEXAS, Appellee Justices Myers and Brown participating. Based on the Court’s opinion of this date, the judgment of the trial court is AFFIRMED. Judgment entered July 21, 2017. –3–  S Court of Appeals Fifth District of Texas at Dallas JUDGMENT CORIN DEON ROBINSON, Appellant On Appeal from the Criminal District Court No. 1, Dallas County, Texas No. 05-16-00824-CR V. Trial Court Cause No. F16-00440-H. Opinion delivered by Chief Justice Wright. THE STATE OF TEXAS, Appellee Justices Myers and Brown participating. Based on the Court’s opinion of this date, the judgment of the trial court is AFFIRMED. Judgment entered July 21, 2017. –4– 

388 F.2d 874 David B. SOLOVE and Ethel G. Solove, Appellants,v.CHASE MANHATTAN BANK et al., Appellees. No. 24607. United States Court of Appeals Fifth Circuit. Jan. 25, 1968. Joe N. Unger, Miami, Fla., Smith & Mandler, Miami Beach, Fla., for appellants. Joseph G. Weiss, R. M. MacArthur, Emanuel Levenson, Miami, Fla., for appellees. Before JONES, WISDOM and DYER, Circuit Judges. WISDOM, Circuit Judge: 1 The question this appeal presents is whether a proposed amended petition to revoke a bankrupt's discharge, filed over one year after the discharge and containing a substantially new ground for revocation, was timely filed through relation back of the amendment to the original petition. The original petition was filed within one year after the order of discharge. We hold that the amendment was not timely filed, and reverse the order of the district court. 2 The facts are undisputed. The referee in bankruptcy entered an order discharging David and Ethel Solove on June 18, 1965. June 16, 1966, as allowed by Section 15 of the Bankruptcy Act, 11 U.S.C. 33, Chase Manhattan Bank and other creditors of the bankrupts filed a Petition of Creditor To Revoke Discharge Obtained by Fraud. Section 15 reads as follows: 3 15. Discharges, When Revoked. The Court may, upon the application of parties in interest who have not been guilty of undue laches, filed at any time within one year after a discharge shall have been granted, revoke it if it shall be made to appear that it was obtained through the fraud of the bankrupt, that the knowledge of the fraud has come to the petitioners since the granting of the discharge and that the actual facts did not warrant the discharge. 4 The creditors alleged as a basis for this petition: (1) that David Solove falsely 'testified under oath that he was not going into the wig business whereas * * * he was then actively engaged in the wig business as an agent, employee or principal of either or both Pembrooke Investing Co., Inc. and Patrons, Inc.' (corporations engaged in the wig business); (2) that Mrs. Solove 'knowingly and fraudulently omitted to list in her schedules stock owned by her in Patrons, Inc.'1 5 August 22, 1966-- well over one year after discharge-- the creditors filed a Motion To Amend Petition To Revoke Discharge Obtained by Fraud. The proposed amended petition alleged (1) that Solove 'fraudulently testified he was not currently employed, whereas, in truth and in fact, he was then currently employed'; (2) that David and Ethel Solove fraudulently omitted from their schedules of assets a debt in the amount of $10,000 owed Solove by Paul De Serio, who owned 98 per cent of the stock in Patrons, Inc. and Pembrooke Investing Company, Inc. The creditors also alleged that knowledge of the aforesaid fraud came to them after the granting of the discharge. The referee denied the creditors' motion to amend on the ground that it reflected on its face that it was not filed within one year from the date of the order of discharge.2 6 On review of the referee's order, the district court held that the proposed amendment included further specifications of the alleged fraud of David Solove. It therefore related back to the filing of the original petition pursuant to Rule 15(c), Federal Rules of Civil Procedure, and was a permissible amendment under F.R.Civ.P. 15. I. 7 Rule 15(a) of the Federal Rules of Civil Procedure provides that 'leave (to amend) shall be freely given when justice so requires'. Rule 15(c) provides that an amendment relates back to the date of the original filing: 8 Whenever the claim or defense asserted in the amended pleading arose out of the conduct, transaction, or occurrence set forth or attempted to be set forth in the original pleading, the amendment relates back to the date of the original pleading. 9 Although Rule 81 makes the Rules inapplicable to proceedings in bankruptcy except insofar as they are made applicable by the Supreme Court of the United States, the Court's General Order 37, which follows the Bankruptcy Act, 11 U.S.C. 53, provides that in proceedings under the Act the Rules of Civil Procedure 'shall, in so far as they are not inconsistent with the Act * * * be followed as nearly as may be.'3 We adhere to the interpretation of this General Order set out in In re Totem Lodge & Country Club, S.D.N.Y.1955, 134 F.Supp. 158, 160: 10 The Federal Rules of Civil Procedure were not intended to modify the provisions of the Bankruptcy Act. The Federal Rules of Civil Procedure are applicable to bankruptcy proceedings only when they are not inconsistent with the Bankruptcy Act or when their application will help effectuate the purposes of that Act. Consequently, the cases relied upon by the witness are limited to the practice under the Federal Rules of Civil Procedure and would be applicable to bankruptcy only if they were consonant with the provisions of the Bankruptcy Act. 11 We thus turn our inquiry to the purposes of the Bankruptcy Act, including the policy behind the discharge provisions of the Act, to discern whether application of Rule 15 in this case in consonant with the provisions of the Act. 12 A. The Supreme Court, in Katchen v. Landy, 1966, 382 U.S. 323, 328-329, 86 S.Ct. 467, 472, 15 L.Ed.2d 391, spelled out the function of bankruptcy legislation: 13 This court has long recognized that a chief purpose of the bankruptcy laws is 'to secure a prompt and effectual administration and settlement of the estate of all bankrupts within a limited period.' Ex Parte Christy, 3 How. 292, 312, 11 L.Ed. 603. 14 In bankruptcy disputes, 'effective and expeditious disposition' is 'remarkably important' to both litigants and the public. California Airmotive Corp. v. Bass, 9 Cir. 1965, 354 F.2d 453, 455; Kheel v. Bethlehem Steel Co., 9 Cir. 1965, 355 F.2d 187. 'If the bankruptcy law is to effectively serve its dual prupose of protecting both debtor and creditors * * * there must come a time when a discharge in bankruptcy is irrevocably a discharge.' In re Early, E.D.Pa.1940, 34 F.Supp. 774, 776. 15 'The discharge itself is the primary objective of practically all voluntary bankrupts.' Collier, Bankruptcy Manual P14.00, at 176 (1964). Since revocation renders the discharge a nullity, id. at P15.14, we must view narrowly the procedure for obtaining such revocation. In this regard, Cowans has observed: 16 The attorney for the bankrupt would be justified in insisting in behalf of his client that the policy of relief to debtors under the Act damands that each of the conditions or limitations of the section be narrowly construed so as to effectuate the policy. * * * The applicant must not have been guilty of undue laches and the application must have been filed within one year of the date of discharge. This double limitation plus the procedure under Section 14 of the Act requiring a relatively early filing of objections to discharge, evidence a legislative effort to exert pressure on those who would deny the bankrupt his discharge to move promptly * * *Procedural considerations in connection with revocation are generally favorable to the bankrupt. The courts have put great stress upon the obligation of an applicant to do a complete procedural job. The applicant must plead all the essential elements of the section and this requirement has been viewed strictly. * * * Cowans, Bankruptcy Law & Practice 936, at 518, 519, 521 (1963). 17 The filing of the proposed amendment would effectively 'deny to the bankrupt the benefit of the (one year) limitation.' In re Sims, N.D.Ohio 1881, 9 F. 440, 441. It would prevent the bankrupt from obtaining that fresh start the bankruptcy laws encourage and would endanger the new obligations incurred in the interim upon the security and strength of the discharge. We conclude that to permit the untimely filing of an amendment stating a new ground for vevocation of the discharge would be contrary to the central purpose of the bankruptcy law application of Rule 15. 18 B. We have found no cases dealing with the precise issue presented here that were decided after introduction of the Federal Rules in 1934. However, two early district court decisions refused to allow proposed amendments to petitions to revoke discharge which were filed after the statutory time had elapsed from the date of discharge. In re Howard, N.D.W.Va.1913, 201 F. 577; In re Wright, W.D.N.Y.1910, 177 F. 578. 19 We find particularly apposite the approach utilized in the Howard case: 20 It will be perceived that to revoke a discharge in bankruptcy involves an exercise of judicial discretion and power far more reaching in effect than the suspension for fraud of a statute of limitation barring the recovery of a debt or single demand of a single creditor; further, that it is in direct opposition to the whole spirit and intent of the bankruptcy act. That purpose and intent clearly is to give the bankrupt's creditors his property and to him complete relief from further claims upon him so that he may start over again. * * * To revoke his discharge not alone effects his interest but also all these new obligations that he has incurred to others upon the security and strength of such discharge. * * * The limitation here is directly upon the court's power, not upon 'the cause of action'. * * * To allow these petitioners under the guise of amendment to file new and possibly sufficient, possibly insufficient, petitions would be exercising judicial power on my part after, by express enactment, my right to exercise such power had ceased.4 21 See also In re Early, E.D.Pa.1940, 34 F.Supp. 774, 776;5 Alexander H. Mall & Co. v. Ullrich, N.D.Ohio 1888, 37 F. 653.6 Both Howard and Wright are cited with approval by all of the commentators who have discussed this issue. See Collier, Bankruptcy Manual P15.03 (1964) ('an amendment setting up a new ground for revocation should not be permitted after the expiration of a year from the date of the discharge'); 1 Collier on Bankruptcy P15.13, at 1508 (14th ed. 1966) (same); Cowans, Bankruptcy Law and Practice P936, at 520 (1963) (an amendment 'offered after the expiration of the statutory year which adds a new cause of action for revocation will not be permitted'); 8 Remington on Bankruptcy 3395, at 283 (1955) ('an amendment cannot be sanctioned, after expiration of such time, which would set up a new and different ground'). 22 Before condification of the bankruptcy statutes the bankruptcy sections of the Revised Code, title 61, chapter 5, contained a provision relating to application by a creditor to annul discharge. Section 5120 read: 23 Any creditor of a bankrupt, whose debt was proved or provable against the estate in bankruptcy, who desires to contest the validity of the discharge on the ground that it was fraudulently obtained, may, at any time within two years after the date thereof, apply to the court which granted it to annul the same. The application shall be in writing, and shall specify which, in particular, of the several acts mentioned in section fifty-one hundred and ten it is intended to prove against the bankrupt, and set forth grounds of avoidance; and no evidence shall be admitted as to any other of such acts; but the application shall be subject to amendment at the discretion of the court. 24 The phrase referring to amendment at the discretion of the court was omitted in the 1898 codification; legislative history does not tell us why. One would imagine that courts would allow amendments under section 5120 more readily than under the present section 33, since section 5120 expressly provides for amendment. But the narrow view of discharge revocation procedure taken in Wright and Howard, a view we take today, was likewise adhered to even under section 5120. Interpreting that section, the court in In re Sims, N.D.Ohio 1881, 9 F. 440, observed: 25 What are we to understand by the term 'subject to amendment,' used in the section? Does it mean that other and different causes specified in section 5110 may be added, as they may be discovered from time to time, after the lapse of two years, and while the matter is still panding? An amendment is the correction of errors committed in the progress of a cause. It may be in the statement of the cause of action, in its form, and it is allowed to make more definite and certain a defectively-pleaded cause of action. It is not allowed to make an entirely new case. A new case is not to be regarded as an amendment. This amendment, it seems to me, was only intended to be allowed to make some of the causes named in the section, and such as may have been defectively set out in the application, more definite and certain, and not new grounds named in the statute. The limitation was fixed that after that time the bankrupt could not be compelled to again contest his discharge, otherwise it could be done at the pleasure of the creditor. There are 10 grounds for opposition to discharge named in section 5110. If the construction be as claimed by the applicant, to annul the discharge, he could within two years allege one ground, and, by way of amendment, from time to time afterwards, add one at a time until all were named, if the court, in the exercise of its discretion, would allow it, and thus practically deny to the bankrupt the benefit of the limitation. It was evidently intended that the creditor should, in his application to be made within two years, set out all his grounds for annulling the discharge, and to confine the hearing to them; but, if defectively set out, the court may allow amendment to make them more certain. To allow the amendment would be to entirely annul the limitation of the statute, and thereby judicially to repeal it. 26 Wright and Howard are district court cases from other circuits. They are pre-Federal Rules cases. But the rationale supporting these decisions is fresh and compelling today. We agree with the position taken in Wright and Howard, substantially supported as it is by the purpose of section 33. The creditors' proposed amendment alleging new and additional grounds for vevocation of the bankrupt's discharge 'is in direct opposition to the whole spirit and intent of the bankruptcy act.' In re Howard, supra, 201 F. at 578.7 II. 27 We disagree with the district court's holding that the allegations of fraud in the amended petition were 'further specifications' of the fraud originally alleged.8 We regard these allegations as 'new and additional' grounds gor revocation of the bankrupt's discharge. The creditors themselves, in their motion to amend, characterized their allegations of fraud as newly 'discovered additional and more substantive grounds upon which to ground the said petition'. 28 Section 15 of the Bankruptcy Act provides for revocation only 'if it shall be made to appear that (the discharge) was obtained through the fraud of the bankrupt'. Thus the term 'new and additional grounds' seems to contemplate a different factual basis. If this were not so, once fraud is alleged originally there could never exist a 'new' ground for revocation. 29 There is no doubt that the allegations in the amended petition stating that the bankrupt omitted listing a debt of $10,000 due and owing him is an entirely new and additional ground. This ground is not referred to in the original petition expressly or by implication. 30 In the original petition the creditors alleged that Solove testified that he 'was not going into the wig business'-- whereas he was 'active as a principal in one or more corporations engaged in the wig business'.9 In the amended petition the creditors alleged that Solove testified that he 'was not currently employed'-- whereas 'he was then currently employed by one or more corporations'.10 Although both statements sound in fraud, we consider that there is a sufficiently different factual basis set out in the amendment to constitute a new and additional ground-- different from that set out in the original petition. 31 We reverse the order of the district court. We remand the case for disposition consistent with this opinion. 1 The relevant allegations in the petition are discussed in part II of this opinion 2 The referee further granted the motion of the bankrupts to strike the creditors' original petition insofar as it concerned Ethel Solove and set a hearing on the original petition as it concerned David Solove. The creditors' Petition To Review challenged not only the referee's denial of their Motion To Amend but also his striking the original petition as to Ethel G. Solove. The district court permitted the proposed amendment, since the court viewed it as including 'further specifications of the alleged fraud of the Bankrupt, DAVID B. SOLOVE', but the court gave no intimation of its position regarding Ethel Solove. We are unable to review whether the original petition as to Ethel Solove still stands, but we do observe that if it does, under our present holding the amendment to the creditors' petition, as it relates to Ethel Solove, is not itmely and cannot be allowed for the same reasoning that we apply to the amendment as it relates to David Solove 3 The General Orders are not merely advisory but have the force and effect of law. See 2 Collier, Bankruptcy P30.02, at 1287 (1966) and the authorities cited therein at n. 5 4 There appears to be some difference of opinion on whether section 15 of the Bankruptcy Act is limitation on the power of the court to hear a motion to set aside an order of discharge or is merely a statute of limitations. Compare In re Howard, N.D.W.Va.1913, 201 F. 577, 580-581, and authorities cited in 1 Collier on Bankruptcy P15.07, at 1500 n. 1 (1966), with Ginsberg v. Thomas, 10 Cir. 1948, 170 F.2d 1, 4, and authorities cited therein. We need not resolve this conflict, finding as we do that the same reasoning woud be applicable in either case. We observe, however, in view of the many cases suggesting liberal application of statutes of limitations, that we find section 15 less concerned with notice-- a traditional concern of statutes of limitations-- and more concerned with finality of adjudication 5 'An interested person cannot stand by and allow the administration of the estate to proceed until he considers that it will be to his advantage to void the adjudication. He must move against it promptly if at all * * *.' 34 F.Supp. at 776 6 'Section 5120 (the forerunner to 15 of the Bankruptcy Act) of the Revised Statutes (bankrupt law) provided an absolute bar, where the petition was not filed within two years from the date of the discharge.' 37 F. at 653 7 We find no need to expound on the nature of and purpose behind Rule 15. For General Order 37 does not call for application of the Rules in bankruptcy as would be consistent with the nature of the Rules; it calls for their application as would be consistent with the Bankruptcy Act. As we here hold, to allow an amendment after one year from discharge which sets forth any new ground for revocation would be contrary to the spirit of the Bankruptcy Act and the purpose of discharge 8 We note here the general rule that the grounds on which an application to revoke an order of discharge rests must be strictly pleaded. See In re Cuthbertson, D.S.D.1912, 202 F. 266, 270, and authorities cited at p. 270 9 Those sections relating to the fraud of Ethel Solove are not here considered relevant. See note 2 above 10 Compare the amended petition with a hypothetical amendment stating that Solove 'testified that he was not going into the wig business, whereas he was vice-president and principal stockholder in the Pembrooke Investing Co., Inc., a corporation whose entire portfolio consisted of stock in the High Hair Company, which latter company was engaged solely in the manufacture and distribution of men's and women's hairpieces.' The hypothetical amendment would constitute a further specification or clarfication of the act of fraud alleged in the original petition; it would not present a new and additional ground for revocation of the discharge

IN THE SUPREME COURT OF TEXAS ════════════ No. 02-0946 ════════════ Southwest Bank, Petitioner v. Information Support Concepts, Inc., Respondent ════════════════════════════════════════════════════ On Petition for Review from the Court of Appeals for the Second District of Texas ════════════════════════════════════════════════════ Argued November 5, 2003               Chief Justice Jefferson delivered the opinion of the Court.             In this case, we must determine whether Chapter 33 of the Texas Civil Practice and Remedies Code applies to a conversion action brought under Texas Business and Commerce Code section 3.420. The trial court granted Information Support Concept’s summary judgment motion, which asserted that Southwest Bank was liable for conversion and could not join a responsible third party to the action, and the court of appeals affirmed. Because we agree that Chapter 33 does not govern a UCC-based conversion claim, we affirm the court of appeals’ judgment. I Background             An Information Support Concepts (“ISC”) employee, Kelly Rasco, stole multiple checks, payable to ISC, over an eighteen-month period. She then deposited the checks – approximately 183 of them, totaling more than $300,000 – into her personal account at Southwest Bank. Although ISC did not have an account with Southwest Bank, and the checks did not bear an ISC endorsement or signature, Southwest Bank nevertheless accepted the deposits for Rasco’s personal account and secured payment on those checks.             Pursuant to Texas Business and Commerce Code section 3.420, ISC brought a conversion action against Southwest Bank. Southwest Bank answered and sought leave to join Rasco, her husband, and ISC’s chief financial officer as responsible third parties pursuant to Texas Civil Practice and Remedies Code Chapter 33. The trial court denied Southwest Bank’s motion on the ground that the bank was not entitled to apportion responsibility. ISC then moved for summary judgment on liability for conversion and actual damages. The trial court granted ISC’s motion and entered a final judgment against Southwest Bank for actual damages ($328,252) plus prejudgment interest ($38,291.20).             Southwest Bank appealed, complaining that the trial court erred by refusing to allow joinder of Rasco as a responsible third party. 85 S.W.3d 462, 464. While Southwest Bank did not deny that it converted the checks stolen by Rasco, it contended that Rasco shared responsibility for the conversion and should be held proportionately liable. Id. at 466. The court of appeals rejected Southwest Bank’s arguments and affirmed the trial court’s judgment. Id. at 463. The court of appeals noted that under the Uniform Commercial Code (“UCC”), it was the depositary bank’s obligation to verify an endorsement. Id. at 465. The court held that when two statutes conflict, courts must give effect to the specific (here, the UCC) over the general (Chapter 33). Id. at 467 (citing Tex. Gov’t Code § 311.026). Additionally, the court noted that recent UCC amendments demonstrated a discrete legislative fault scheme uniquely applicable to banks. Id. Thus, the court of appeals concluded “that the proportionate responsibility statute set forth in chapter 33 of the civil practice and remedies code does not apply to a UCC section 3.420 claim for conversion.” Id. at 468.             Southwest Bank presents a single issue for our review: whether a bank, facing a conversion claim resulting from the theft of an employer’s checks by an employee who deposited those checks in the bank, is entitled to join the thief as a responsible third party in the conversion action. II A UCC Revised Article 3             In an effort to accommodate modern technologies and practices in payment systems and with respect to negotiable instruments, the American Law Institute (“ALI”) and the National Conference of Commissioners on Uniform State Laws (the “Commissioners”) drafted a revised version of UCC Article 3 (“Revised Article 3"), with corresponding amendments to Articles 1 and 4. See Uniform Commercial Code, 2004 Official Text and Comments, prefatory note to Revised Article 3. In 1990, the ALI and the Commissioners approved the new text of Revised Article 3 with miscellaneous and conforming amendments to Articles 1 and 4. 4 William D. Hawkland & Lary Lawrence, Uniform Commercial Code Series § 3-101:1 (1999). The American Bar Association approved the Official Text in 1991. Daryl B. Robertson, Report of the Commercial Code Committee of the Section of Business Law of the State Bar of Texas on Revised UCC Articles 3 and 4, 47 Baylor L. Rev. 425, 429 (1995).             The Business Law Section of the State Bar of Texas formed a Commercial Code Committee in 1988 for the purpose of studying and making recommendations with respect to new and revised Articles to the UCC. Id. at 428. Over the course of several years and numerous meetings, that committee analyzed Revised Articles 3 and 4, with the goal of making a recommendation to the Legislature in conjunction with the 1995 Texas legislative session. Id. at 430. The committee recommendation included a complete deletion of existing Chapter 3 and adoption of a new revised Chapter 3; revisions of selected sections in Chapter 4; and conforming amendments to Chapters 1 and 9 of the Business and Commerce Code. Id. at 433. Representative Grusendorf introduced as House Bill 1728 the committee’s recommended revisions to Chapters 3 and 4. Tex. H.B. 1728, 74th Leg., R.S. (1995), 1995 Tex. Gen. Laws 4582. The bill, with some amendments, was passed by the House and Senate, signed by the Governor, and became effective January 1, 1996. Act of May 29, 1995, 74th Leg., R.S., ch. 921, § 1, 1995 Tex. Gen. Laws 4582.             Revised Article 3 included UCC section 3-420, adopted verbatim by the Texas Legislature. See Tex. Bus. & Com. Code § 3.420. That section, entitled “Conversion of Instrument,” provides that “[a]n instrument is . . . converted if it is taken by transfer, other than a negotiation, from a person not entitled to enforce the instrument or a bank makes or obtains payment with respect to the instrument for a person not entitled to enforce the instrument or receive payment.” Id. § 3.420(a). Section 3.420 limits a plaintiff’s recovery to the amount of the plaintiff’s interest in the instrument. Id. § 3.420(b). Section 3.420, like its predecessor section 3.419, reflects the rationale that the first bank in the collection chain is usually in the best position to ensure that endorsements are authentic. See Ames v. Great S. Bank, 672 S.W.2d 447, 450 (Tex. 1984). B Responsible Third Parties             In the same legislative session that it adopted Revised Article 3, the Legislature amended the Civil Practice and Remedies Code, permitting joinder of responsible third parties in certain cases and providing for the inclusion of a responsible third party in the jury’s determination of percentages of responsibility. See Tex. Civ. Prac. & Rem. Code §§ 33.003, 33.004, 33.011. By its terms, Chapter 33 applies to “any cause of action based on tort in which a defendant, settling person, or responsible third party is found responsible for a percentage of the harm for which relief is sought,” but does not apply to actions to collect workers’ compensation benefits or certain claims for exemplary damages. Id. § 33.002(a), (c). Chapter 33 does not explicitly address its applicability in UCC cases. III Statutory Analysis                We must decide then whether, in a UCC-based conversion action, a defendant may join a responsible third party as set forth in the Civil Practice and Remedies Code. The UCC contains a comprehensive and carefully considered allocation of responsibility among parties to banking relationships. For example, a bank that mistakenly pays a thief who presents a stolen check may sue that thief for breach of the transfer warranty. See Tex. Bus. & Com. Code § 3.416; see also 6 William D. Hawkland & Lary Lawrence, Uniform Commercial Code Series § 3-416:2 (1999) (noting that “a thief gives the transferor’s warranties when he transfers the instrument even though he has no right to possess the instrument”). Moreover, Revised Article 3 now includes its own comparative negligence provisions that apply to some, but not all, conversion claims. See, e.g., Tex. Bus. & Com. Code §§ 3.405, 3.406, 4.406; see also id. § 3.406 cmt. 4 (“Subsection (b) differs from former Section 3-406 in that it adopts a concept of comparative negligence.”). If a thief steals a check made payable to his or her employer and forges an indorsement, the employer’s negligence, if any, may bar its claim against the payor bank. See, e.g., 6 Hawkland and Lawrence, Uniform Commercial Code Series § 3-420:6 (“When a payee (or indorsee) whose indorsement has been forged sues the payor for conversion, the payor may defend the action by proving that the payee’s negligence substantially contributed to the making of the forged indorsement. Upon such proof, the payee is precluded under Section 3-406 from asserting the forgery. When the payee brings an action for conversion against a depositary bank, the payee’s negligence is also available as a defense. In both of these cases, the failure of the payor or depositary bank to exercise ordinary care in paying or taking the instrument will result in allocating of the loss between the bank and the payee to the extent to which each party’s failure contributed to the loss.”).             Thus, for example, under section 3.405, an employer who entrusts an employee with “responsibility” with respect to an instrument may be barred from recovery against the bank. Tex. Bus. & Com. Code § 3.405. This section is “based on the belief that the employer is in a far better position to avoid the loss by care in choosing employees, in supervising them, and in adopting other measures to prevent forged indorsements on instruments payable to the employer or fraud in the issuance of instruments in the name of the employer.” Id. cmt. 1.             These provisions evince a shift away from strict liability for banks that convert checks to a fault-based system. As White and Summers have noted: Subsection 3-406(b) is an invitation for a plaintiff to roll the dice with the jury. . . .   . . . .   The arguments about what constitutes negligent behavior and what does not will likely be little changed by [Revised Article 3]. What has changed are the consequences of proving that the bank was negligent. Under the old Code, proof that the bank was negligent generally meant that the entire loss fell on the bank, not the depositor, regardless of the depositor’s negligence. Now, the depositor will seldom be able to cast the entire loss on the bank; the loss will be shared. James J. White & Robert S. Summers, Uniform Commercial Code § 19-3 (4th ed. 1995). The loss allocation provisions essentially “make an initial identification of the party upon whom loss generally should be imposed, based upon the particular type of factual circumstances, but then allow that party to shift at least part of that loss to other parties who contributed to that loss by their failure to exercise ordinary care.” Donald J. Rapson, Loss Allocation in Forgery and Fraud Cases: Significant Changes Under Revised Articles 3 and 4, 42 Ala. L. Rev. 435, 473 (1991).             Applying Chapter 33's proportionate responsibility framework to claims involving Revised Article 3, therefore, could disrupt the UCC’s carefully allocated liability scheme. Amici urge that, in those situations in which the UCC’s comparative negligence provisions do not apply, Chapter 33 should. That is, they assert that Revised Article 3 provides its own comparative negligence scheme in the case of forged endorsements but is silent on missing endorsements, such as the one in this case. Accordingly, amici contend that chapter 33 is uniquely applicable to missing endorsement cases. If that were the case, however, the thief’s liability would be submitted to the jury in a missing endorsement case but not in a forged endorsement case. Certainly, a bank should bear more culpability in the former situation than the latter, but under the result proposed by amici, the opposite would be true. A bank that paid a check bearing absolutely no endorsement could escape liability if the jury determined the thief was at fault, while a bank that paid on a forged but seemingly genuine endorsement would not be able to submit the thief’s liability to the jury. A more reasonable construction is that the Texas Legislature and the UCC drafters considered and rejected comparative fault in missing endorsement cases, but elected to permit it in forged endorsement ones. See Tex. Gov’t Code § 311.021(3) (“In enacting a statute, it is presumed that . . . a just and reasonable result is intended . . . .”). We should not disturb that decision by applying Chapter 33 to those UCC-based conversion claims for which the drafters and the Legislature chose not to apportion responsibility. This accords with our mandate to construe the UCC as “carefully integrated and intended as a uniform codification of permanent character covering an entire ‘field’ of law.” Tex. Bus. & Com. Code § 1.104 cmt. 1.             Although there are no Texas cases directly addressing whether Chapter 33 governs a UCC-based conversion claim, the Sixth Circuit Court of Appeals recently considered whether to apply Michigan’s Tort Reform Act, Michigan Compiled Laws section 600.2957(1), to such a claim. See John Hancock Fin. Servs., Inc. v. Old Kent Bank, 346 F.3d 727, 731 (6th Cir. 2003). In that case, John Hancock Financial Services sued Old Kent Bank to recover check proceeds converted by Old Kent and paid to one of John Hancock’s agents, Patrick Sherman. Id. at 729. The court examined UCC section 3-406's comparative fault scheme and noted that it involved allocating the loss between two negligent – but innocent – parties. That is, the UCC comparative fault principles did not involve allocating liability to the thief. The court concluded that “[t]he fact that UCC § 3-406 does not allocate fault to the wrongdoer – as opposed to the negligent parties – is significant in determining whether Michigan’s Tort Reform Act applies in this case.” 346 F.3d at 732. The court noted that the Michigan Tort Reform Act required the trier of fact to assess “the fault of each person, regardless of whether the person is, or could have been, named as a party to the action.” Id. (quoting Mich. Comp. Laws § 600.2957(1)). The court concluded that the tension between the two statutes “must be resolved in favor of not applying Michigan’s Tort Reform Act to UCC conversion actions. Because the UCC more specifically relates to the allocation of fault with respect to the conversion of instruments than does the Tort Reform Act, the UCC controls.” Id.             The Sixth Circuit’s interpretation echoes an earlier decision from the Court of Appeals of New York, the highest court in that state. See Putnam Rolling Ladder Co. v. Manufs. Hanover Trust Co., 546 N.E.2d 904, 908 (N.Y. 1989). Although Putnam involved former Article 3, its reasoning is instructive. Emphasizing the need for certainty in commercial transactions, the court refused to apply that state’s comparative negligence provisions to UCC sections 3-406 and 4-406 (governing liability for forged instruments): [T]he UCC serves an important objective not shared by the law of torts. Unlike tort law, the UCC has the objective of promoting certainty and predictability in commercial transactions. By prospectively establishing rules of liability that are generally based not on actual fault but on allocating responsibility to the party best able to prevent the loss by the exercise of care, the UCC not only guides commercial behavior but also increases certainty in the marketplace and efficiency in dispute resolution. These ends would not be furthered by the introduction of the sort of fact inquiries necessitated by comparative negligence. Id. (citation omitted); see also Fed. Ins. Co. v. NCNB Nat’l Bank, 958 F.2d 1544, 1551-52 (11th Cir. 1992) (concluding that state comparative negligence principles were inapplicable under the UCC); Govoni & Sons Constr. Co. v. Mechanics Bank, 742 N.E.2d 1094, 1105-06 (Mass. App. Ct. 2001) (holding that the UCC displaced the provisions of the Massachusetts comparative negligence statute, and refusing to apply that statute to a UCC-based claim for wrongful debit).             In this case, the Texas Legislature adopted Revised Article 3 in the same session in which it amended Chapter 33. As in John Hancock, there is a tension between these two statutes. It is unreasonable to assume that the Legislature intended to adopt the UCC’s comprehensive liability scheme while simultaneously undoing that framework by mandating the application of Chapter 33 to UCC-based conversion claims.             We recently decided F.F.P. Operating Partners v. Duenez, __ S.W.3d __, __ (Tex. 2004), in which we reaffirmed that Chapter 33 applied to a cause of action arising under the Dram Shop Act, Texas Alcoholic Beverage Code Chapter 2. We noted that "[i]t is clear from Chapter 33's language that the Legislature intended all causes of action based on tort, unless expressly excluded, to be subject to apportionment." Duenez, __ S.W.3d at __. We also noted, however, that "the nature of the liability that the Dram Shop Act imposes on a provider does not render the proportionate responsibility statute meaningless, nor does Chapter 33's application undermine the Dram Shop Act's effect."             That is not the situation here. In this case, we are faced with a conflict between a uniform code adopted by the Texas Legislature and Chapter 33. As outlined above, applying Chapter 33 to a UCC-based conversion claim would "undermine the [UCC’s] effect." Id. at __. While we cannot say that the UCC’s comparative negligence scheme renders the proportionate responsibility statute meaningless, we cannot reconcile the two without doing violence to the UCC.             The UCC, a uniform code, must be “liberally construed and applied to promote its underlying purposes and policies.” Tex. Bus. & Com. Code § 1.103(a). Those underlying purposes and policies are: “(1) to simplify, clarify and modernize the law governing commercial transactions; (2) to permit the continued expansion of commercial practices through custom, usage and agreement of the parties; and (3) to make uniform the law among the various jurisdictions.” Id. § 1.103(a) (emphasis added); see also Tex. Gov’t Code § 311.028 (“A uniform act included in a code shall be construed to effect its general purpose to make uniform the law of those states that enact it.”). At the time Texas adopted Revised Article 3, thirty-three states had adopted it; today, it is the law in forty-eight states, the District of Columbia, and the Virgin Islands. Uniform Commercial Code Prec. § 3-101, 2 U.L.A. 4-6 (Supp. 2004); Daryl B. Robertson, Report of the Commercial Code Committee of the Section of Business Law of the State Bar of Texas on Revised UCC Articles 3 and 4, 47 Baylor L. Rev. 425, 431 (1995). Were we to impose Texas’s proportionate responsibility scheme on Revised Article 3, parties litigating UCC-based conversion claims in Texas would face a unique liability scheme, overriding the UCC’s express purpose of furthering uniformity among the states.             Additionally, the UCC is “carefully integrated and intended as a uniform codification of permanent character covering an entire ‘field’ of law, [and] is to be regarded as particularly resistant to implied repeal.” Tex. Bus. & Com. Code § 1.104 cmt. 1; see also Lary Lawrence, Lawrence’s Anderson on the Uniform Commercial Code § 1-104:3 (3d ed. 2003) (“In view of the considered and deliberate manner of preparing and adopting the UCC, it is obvious that a repeal of any of its provisions is not to be lightly assumed to have been intended by the legislature.”). Given this express goal, we must be careful not to interpret any statute that does not explicitly amend or modify the UCC as doing so impliedly. By adhering to this discipline, we preserve the UCC’s purposes and policies. See Tex. Bus. & Com. Code § 1.103(a).             Finally, Revised Article 3 is more specific than Chapter 33. See Columbia Hosp. Corp. v. Moore, 92 S.W.3d 470, 473 (Tex. 2002). Revised Article 3 contains its own loss allocation scheme uniquely applicable to conversion claims involving negotiable instruments. That scheme includes proportionate responsibility principles and specific causes of action against the thief and the depositary bank, as contrasted with Chapter 33's general proportionate responsibility scheme. Accordingly, Revised Article 3's terms govern. IV Conclusion             UCC Revised Article 3, as adopted in Texas, represents a comprehensive legislative fault scheme singularly applicable to claims involving negotiable instruments. Its provisions are more specific than Chapter 33, and they were adopted by the same Legislature that amended Chapter 33 to provide for responsible third party liability. We conclude that the Legislature did not intend to upset the UCC’s carefully balanced liability provisions by applying Chapter 33 to a UCC-based conversion claim. To hold otherwise would ignore the UCC itself and thwart its underlying purpose. Accordingly, we affirm the court of appeals’ judgment. In light of our holding, we do not reach ISC’s conditional cross-petition regarding the availability of exemplary damages if Chapter 33 applies to its conversion claim. ______________________________Wallace B. Jefferson Chief Justice   OPINION DELIVERED:    October 22, 2004 

[Cite as Rieger v. Giant Eagle, Inc., 2018-Ohio-1837.] Court of Appeals of Ohio EIGHTH APPELLATE DISTRICT COUNTY OF CUYAHOGA JOURNAL ENTRY AND OPINION No. 105714 BARBARA RIEGER PLAINTIFF-APPELLEE vs. GIANT EAGLE, INC. DEFENDANT-APPELLANT JUDGMENT: AFFIRMED IN PART; MODIFIED IN PART AND REMANDED Civil Appeal from the Cuyahoga County Court of Common Pleas Case No. CV-14-821297 BEFORE: Kilbane, P.J., Celebrezze, J., and Jones, J. RELEASED AND JOURNALIZED: May 10, 2018 ATTORNEYS FOR APPELLANT Roger H. Williams Christina N. Williams Williams, Moliterno & Scully Co., L.P.A. 2 Summit Park Drive - Suite 235 Cleveland, Ohio 44131 Scott D. Livingston Marcus & Shapira, L.L.P. One Oxford Centre 301 Grant Street - 35th Floor Pittsburgh, Pennsylvania 15219-6401 ATTORNEYS FOR APPELLEE John J. Wargo, Jr. Thomas M. Wilson Wargo and Wargo Co., L.P.A. 30 Park Drive Berea, Ohio 44017 MARY EILEEN KILBANE, P.J.: {¶1} Defendant-appellant, Giant Eagle, Inc. (“Giant Eagle”), appeals from the trial court’s order entering the jury verdict in favor of plaintiff-appellee, Barbara Rieger (“Rieger”), and awarding Rieger $121,000 in compensatory damages and $1,198,000 in punitive damages. For the reasons set forth below, we affirm the compensatory damages award and modify the $1,198,000 punitive damages award by remanding to the trial court to enter an order setting the total amount of punitive damages awarded to $242,000. {¶2} This appeal arises from injuries Rieger sustained as a result of a December 2012 accident in a Giant Eagle store with Ruth Kurka (“Kurka”). Both Rieger and Kurka were shopping at Giant Eagle at the time. Rieger was standing in front of the bakery counter with her shopping cart when her shopping cart was hit by a Giant Eagle motorized cart driven by Kurka. This collision caused Rieger’s shopping cart to hit Rieger who then was knocked to the ground. {¶3} In February 2014, Rieger filed a negligence action against Giant Eagle and John Doe. Rieger amended her complaint in May 2014. In her amended complaint, she alleges causes of action for negligence and negligent entrustment against Giant Eagle. She also alleges a negligence cause of action against Kurka, who passed away during the litigation. In June 2015, a suggestion of death was filed, and the Kurka Estate settled with Rieger for $8,500. Rieger dismissed Kurka from the lawsuit in April 2016. {¶4} The matter then proceeded to a jury trial against Giant Eagle. The following evidence was adduced at trial.  {¶5} On the date of the accident, Rieger and Kurka and her husband, George Kurka (“George”), went grocery shopping at Giant Eagle. George helped his wife into a motorized cart and then parked his car. When he arrived at the bakery section, he observed his wife on the motorized cart and Rieger on the floor. He asked Kurka what happened, but she said she did not know. Rieger testified that she was standing in front of the bakery counter with her shopping cart when she was knocked to the ground. She was hit by her shopping cart, which was hit by a Giant Eagle motorized cart driven by Kurka. Rieger was not able to stand after the accident, and was taken to the hospital by ambulance. {¶6} According to George, Kurka had never been trained on how to operate the Giant Eagle motorized cart and Kurka had been diagnosed with dementia prior to the December 2012 accident. A Giant Eagle corporate representative testified that the safety warnings placed on Giant Eagle motorized carts were for the safety of the driver. {¶7} Rieger presented evidence of 179 incidents involving motorized shopping carts at Giant Eagle stores. These incidents occurred between February 2004 and November 2015 (which was three years after Rieger’s incident). Of the 179 incidents, 117 of them occurred prior to the December 2012 incident involving Rieger. {¶8} At the close of Rieger’s case, Giant Eagle moved for directed verdict on the issues of negligence, negligent entrustment, and punitive damages, which the trial court denied.  {¶9} After the conclusion of the trial, the jury awarded Rieger $121,000 in compensatory damages and $1,198,000 in punitive damages. Rieger then filed a combined brief in support of her proposed journal entry on the jury verdict and a brief in support of her motion to determine R.C. 2315.21 unconstitutional as applied. Rieger noted the parties stipulated that any compensatory judgment awarded to Rieger would be offset by the prior Kurka settlement of $8,500. As a result, Rieger was entitled to $112,500 in compensatory damages from Giant Eagle. Rieger further noted that under R.C. 2315.21, her punitive damages award was limited to two times the compensatory damages award, which is $242,000. However, Rieger argued that R.C. 2315.21 is unconstitutional as applied to her case and the punitive damages of $1,198,000, as awarded by the jury to Rieger, should not be reduced. The trial court conducted a hearing on the pending motions. {¶10} Following the hearing, the trial court granted Rieger’s motion to find R.C. 2315.21 unconstitutional as applied. The court found that “the [j]ury’s punitive damage award of $1,198,000.00 is within a constitutionally acceptable range and is not excessive; and, is within the confines of the legislative purpose of punitive damages which is to deter and punish.” The trial court then entered a judgment awarding Rieger $112,500 in compensatory damages and $1,198,000 in punitive damages. {¶11} Giant Eagle now appeals, raising the following five assignments of error, which shall be discussed together where appropriate: Assignment of Error One  The trial court erred by failing to grant [Giant Eagle’s] motion for directed verdict on [Rieger’s] claim for punitive damages. Assignment of Error Two The trial court erred by finding that R.C. 2315.21, which limits punitive damages to twice the award for compensatory damages, was unconstitutional as applied in this case. Assignment of Error Three The trial court erred by failing to grant Giant Eagle’s motion for a directed verdict on [Rieger’s] claim alleging that Giant Eagle negligently provided motorized shopping carts to its customers. Assignment of Error Four The trial court erred by failing to grant Giant Eagle’s motion for a directed verdict on [Rieger’s] claim alleging that Giant Eagle negligently entrusted [Kurka], a customer, with one of its motorized carts. Assignment of Error Five The trial court erred by admitting 179 incidents involving a motorized shopping cart at a Giant Eagle store between 2004 and 2015 without any showing of similarity or other indicia of relevancy between these incidents and the accident in this case. Directed Verdict {¶12} In the first, third, and fourth assignments of error, Giant Eagle challenges the trial court’s denial of its motion for directed verdict regarding Rieger’s claims for punitive damages, negligence, and negligent entrustment. {¶13} Civ.R. 50(A) governs motions for directed verdict and reads as follows:  When a motion for a directed verdict has been properly made, and the trial court, after construing the evidence most strongly in favor of the party against whom the motion is directed, finds that upon any determinative issue reasonable minds could come to but one conclusion upon the evidence submitted and that conclusion is adverse to such party, the court shall sustain the motion and direct a verdict for the moving party as to that issue. Id. at (A)(4). {¶14} A trial court’s decision on a motion for directed verdict presents a question of law, which an appellate court reviews de novo. C4 Polymers, Inc. v. Huntington Natl. Bank, 2015-Ohio-3475, 41 N.E.3d 788, ¶ 28 (8th Dist.), citing Groob v. Keybank, 108 Ohio St.3d 348, 2006-Ohio-1189, 843 N.E.2d 1170, ¶ 14. A directed verdict is appropriate where a plaintiff fails to present evidence from which reasonable minds could find in the plaintiff’s favor. Id., citing Hargrove v. Tanner, 66 Ohio App.3d 693, 695, 586 N.E.2d 141 (9th Dist.1990). It is the duty of the trial court to submit an essential issue to the jury when there is sufficient evidence relating to that issue to permit reasonable minds to reach different conclusions on that issue. O’Day v. Webb, 29 Ohio St.2d 215, 220, 280 N.E.2d 896 (1972). {¶15} With regard to punitive damages, when a plaintiff fails to present sufficient evidence of malice on the part of a defendant, the court may properly direct a verdict in favor of that defendant on the issue of punitive damages. McCullough v. Spitzer Motor Ctr., 108 Ohio App.3d 530, 536, 671 N.E.2d 306 (8th Dist.1995).  {¶16} Relevant to the instant case, “punitive * * * damages are not recoverable from a defendant * * * in a tort action unless * * * [t]he actions or omissions of that defendant demonstrate malice[.]” R.C. 2315.21(C)(1). The Ohio Supreme Court has defined malice as “a conscious disregard for the rights and safety of other persons that has a great probability of causing substantial harm.” Preston v. Murty, 32 Ohio St.3d 334, 512 N.E.2d 1174 (1987), syllabus. The “conscious disregard” concept “requires the party to possess knowledge of the harm that might be caused by his behavior.” Id. at 335. Inherent in the award of punitive damages is that something more than mere negligence is required. Id., citing Leichtamer v. Am. Motors Corp., 67 Ohio St.2d 456, 472, 424 N.E.2d 568 (1981); Detling v. Chockley, 70 Ohio St.2d 134, 436 N.E.2d 208 (1982). This concept is reflected in the use of such terms as “outrageous,” “flagrant,” and “criminal.” The concept requires a finding that the probability of harm occurring is great and that the harm will be substantial. A possibility or even probability is not enough as that requirement would place the act in the realm of negligence. A requirement of substantial harm would also better reflect the element of outrage required to find actual malice. Id. at 335-336. {¶17} Giant Eagle argues that permitting customers to use motorized shopping carts is not conduct that has a great probability of causing substantial harm. The issue in this case, however, is not whether Giant Eagle is obligated to provide motorized carts to disabled customers. Rather, it is Giant Eagle’s obligation to protect its customers. Giant Eagle had actual knowledge of a nine-year history of 117 prior motorized cart accidents. {¶18} Rieger presented evidence that, even though Giant Eagle had the corporate knowledge of these accidents, the injuries sustained by its customers, and the mechanism in which its customers were injured, Giant Eagle did not train its customers on the use of its motorized carts, had no policy on training its customers on how to drive its motorized carts, and did not have any policy to determine the criteria required for a customer to operate a motorized cart. {¶19} The purpose of punitive damages “‘is not to compensate a plaintiff but to punish the guilty, deter future misconduct, and to demonstrate society’s disapproval.’” Sivit v. Village Green of Beachwood, L.P., 2016-Ohio-2940, 65 N.E.2d 163, ¶ 53 (8th Dist.), quoting Dardinger v. Anthem Blue Cross & Blue Shield, 98 Ohio St.3d 77, 2002-Ohio-7113, 781 N.E.2d 121, ¶ 187. “‘At the punitive-damages level, it is the societal element that is most important. The plaintiff remains a party, but the de facto party is our society, and the jury is determining to what extent we, as a society, should punish the defendant.” Id. {¶20} Based on the foregoing, we cannot say that Rieger failed to present evidence from which reasonable minds could find in her favor. {¶21} With regard to Rieger’s negligence claim, Giant Eagle argues she failed to establish that it breached its duty of care owed to her and that such breach caused Rieger’s injuries. Giant Eagle claims that any danger posed by the motorized shopping carts was open and obvious and she failed to present evidence on causation. Even if it was required to provide additional safety instructions and training, Giant Eagle contends that these safety fixes would not have made a difference unless the accident occurred because Kurka either did not know how to drive the motorized cart or she suffered from some infirmity that prevented her from being able to drive safely. {¶22} In order to prevail on her negligence claim, Rieger had to present evidence demonstrating the existence of a duty, a breach of that duty by Giant Eagle, and that Rieger’s injuries were proximately caused by Giant Eagle’s breach of duty to Rieger as a business invitee. Menifee v. Ohio Welding Prods., Inc., 15 Ohio St.3d 75, 77, 472 N.E.2d 707 (1984), citing Di Gildo v. Caponi, 18 Ohio St.2d 125, 247 N.E.2d 732 (1969); Feldman v. Howard, 10 Ohio St.2d 189, 226 N.E.2d 564 (1967).1 The Menifee Court stated that [t]he existence of a duty depends on the foreseeability of the injury. Ford Motor Co. v. Tomlinson (C.A. 6, 1956), 229 F. 2d 873 [59 O. O. 345]; Gedeon v. East Ohio Gas Co. (1934), 128 Ohio St. 335. The test for foreseeability is whether a reasonably prudent person would have anticipated that an injury was likely to result from the performance or nonperformance of an act. Freeman v. United States (C.A. 6, 1975), 509 F. 2d 626; Thompson v. Ohio Fuel Gas Co. (1967), 9 Ohio St.2d 116 [38 O.O.2d 294]; Mudrich v. Standard Oil Co. (1950), 153 Ohio St. 31 [41 O.O. 117]. The foreseeability of harm usually depends on the defendant’s knowledge. Thompson, supra. Id. at 77. 1A review of the record reflects the parties stipulated that Rieger was an invitee of Giant Eagle.  {¶23} We note that an occupier of premises for business purposes may be subject to liability for harm caused to such a business invitee by the conduct of third persons that endangers the safety of such invitee, just as such occupier may be subject to liability for harm caused to such invitee by any dangerous condition of those premises. Holdshoe v. Whinery, 14 Ohio St.2d 134, 138, 237 N.E. 2d 127 (1969); Restatement of the Law, Torts 2d, Section 344. However, an occupier of premises for business is not liable when the occupier does not, and could not in the exercise of ordinary care, know of a danger that causes injury to its business invitee. Id. {¶24} Here, Rieger demonstrated that prior to her incident in December 2012, Giant Eagle had knowledge concerning the injuries sustained by Giant Eagle customers from motorized carts driven by other Giant Eagle customers. This prior knowledge is reasonably sufficient to establish the duty owed by Giant Eagle to its customers. This evidence is sufficient evidence from which reasonable minds could find that Giant Eagle was negligent. {¶25} With regard to negligent entrustment, Giant Eagle argues Rieger failed to establish that Kurka was “an incompetent motorized cart driver.” {¶26} A negligent entrustment claim arises when the owner of a motor vehicle knowingly, either through actual knowledge or through knowledge implied from known facts and circumstances, entrusts its operation to an inexperienced or incompetent driver. Gulla v. Straus, 154 Ohio St. 193, 93 N.E.2d 662 (1950), paragraph three of the syllabus.  {¶27} In the instant case, Giant Eagle stipulated that it was the owner of the motorized cart and that Kurka operated the cart. George testified that his wife was diagnosed with dementia before December 2012. He further testified that she never received any training on how to drive the Giant Eagle motorized cart. Giant Eagle representatives testified that it does not provide any instructions or training to customers for the motorized carts. In light of the foregoing, Rieger presented sufficient evidence to permit reasonable minds to reach different conclusions on that issue. {¶28} Upon consideration of the foregoing, we find that the trial court did not err by denying Giant Eagle’s motion for a directed verdict. Rieger presented evidence from which reasonable minds could find in her favor. {¶29} Thus, the first, third, and fourth assignments of error are overruled. Punitive Damages Award {¶30} In the second assignment of error, Giant Eagle argues the trial court erred by finding R.C. 2315.21 unconstitutional, as applied, and awarding Rieger $1,198,000, which is more than twice the statutory limit of the compensatory damages award. We agree. {¶31} In Arbino v. Johnson & Johnson, 116 Ohio St.3d 468, 2007-Ohio-6948, 880 N.E.2d 420, the Ohio Supreme Court left open “as applied” challenges to the constitutionality of R.C. 2315.21. {¶32} R.C. 2315.21(D) provides in relevant part:  (1) In a tort action, the trier of fact shall determine the liability of any defendant for punitive or exemplary damages and the amount of those damages. (2) Except as provided in division (D)(6) of this section, all of the following apply regarding any award of punitive or exemplary damages in a tort action: (a) The court shall not enter judgment for punitive or exemplary damages in excess of two times the amount of the compensatory damages awarded to the plaintiff from that defendant, as determined pursuant to division (B)(2) or (3) of this section. (Emphasis added.) {¶33} The Arbino Court noted that “[a] party raising an as-applied constitutional challenge must prove by clear and convincing evidence that the statute is unconstitutional when applied to an existing set of facts. Groch v. Gen. Motors Corp., 117 Ohio St.3d 192, 2008-Ohio-546, 883 N.E.2d 377, ¶ 181.” Simpkins v. Grace Brethren Church of Delaware, 149 Ohio St.3d 307, 2016-Ohio-8118, 75 N.E.3d 122, ¶ 22. {¶34} In the instant case, Rieger argued that R.C. 2315.21 is unconstitutional, as applied, and the punitive damages of $1,198,000, as awarded by the jury, should not be reduced. The trial court agreed, finding R.C. 2315.21 unconstitutional as applied. The court stated that “the [j]ury’s punitive damage award of $1,198,000.00 is within a constitutionally acceptable range and is not excessive; and, is within the confines of the legislative purpose of punitive damages which is to deter and punish.” {¶35} We note that the limits on the punitive damages set forth in R.C. 2315.21(D)(2) were based on guidance provided by the United States Supreme Court in State Farm Mut. Auto. Ins. Co. v. Campbell, 538 U.S. 408, 123 S.Ct. 1513, 155 L.Ed.2d 585 (2003). See Section 3(A)(4)(c) of the legislative history of R.C. 2315.21. In State Farm, the United States Supreme Court determined whether a $145,000,000 award of punitive damages was appropriate. In doing so, the Court referred to the three guideposts for punitive damages articulated in BMW of N.Am. v. Gore, 517 U.S. 599, 116 S.Ct. 1589, 134 L.Ed.2d 809 (1996): (1) the degree of reprehensibility of the defendant’s misconduct; (2) the disparity between the actual or potential harm suffered by the plaintiff and the punitive damages award; and (3) the difference between the punitive damages awarded by the jury and the civil penalties authorized or imposed in comparable cases. State Farm at 418, citing Gore. “According to the United States Supreme Court, ‘few awards exceeding a single digit ratio between punitive damages and compensatory damages * * * will satisfy due process.’” Section 3(A)(4)(c) of Legislative history of R.C. 2315.21, quoting State Farm at 605-606. {¶36} In Barnes v. Univ. Hosps. of Cleveland, 119 Ohio St.3d 173, 2008-Ohio-3344, 893 N.E.2d 142, ¶ 40, the Ohio Supreme Court instructed lower courts to apply the Gore principles when reviewing punitive damage awards alleged to be unconstitutionally excessive. The Barnes Court stated: The first guidepost, the degree of reprehensibility of the defendant’s conduct, is “the most important indicium of the reasonableness of a punitive damages award.” Id. A review of reprehensibility includes consideration of whether (1) “the harm caused was physical as opposed to economic,” (2) “the tortious conduct evinced an indifference to or a reckless disregard of the health or safety of others,” (3) “the target of the conduct had financial vulnerability,” (4) “the conduct involved repeated actions or was an isolated incident,” and (5) “the harm was the result of intentional malice, trickery, or deceit, or mere accident.” State Farm, 538 U.S. at 419, 123 S.Ct. 1513, 155 L.Ed.2d 585.  *** The second guidepost and the “most commonly cited indicium of an unreasonable or excessive punitive damages award is its ratio to the actual harm inflicted on the plaintiff.” Gore, 517 U.S. at 580, 116 S.Ct. 1589, 134 L.Ed.2d 809. But the United States Supreme Court, like this court, has consistently rejected the notion of a bright-line mathematical formula for assessing the reasonableness of punitive damage awards. The court recognized that “low awards of compensatory damages may properly support a higher ratio than high compensatory awards, if, for example, a particularly egregious act has resulted in only a small amount of economic damages.” Id. at 582, 116 S.Ct. 1589, 134 L.Ed.2d 809. This court has allowed a 6,250-to-one damages ratio to stand, but we have also invalidated a 20-to-one ratio. See Wightman v. Consol. Rail Corp. (1999), 86 Ohio St.3d 431, 1999-Ohio-119, 715 N.E.2d 546; Dardinger v. Anthem Blue Cross & Blue Shield, 98 Ohio St.3d 77, 2002-Ohio-7113, 781 N.E.2d 121 (invalidating the award under Ohio’s Due Process Clause). The court in Gore referred to the 500-to-one ratio in that case as “breathtaking.” 517 U.S. at 583, 116 S.Ct. 1589, 134 L.Ed.2d 809. *** The third indicium of excessiveness set forth in Gore involves “[c]omparing the punitive damages award and the civil or criminal penalties that could be imposed for comparable misconduct.” 517 U.S. at 583, 116 S.Ct. 1589, 134 L.Ed.2d 809. In announcing this guidepost, the court stated that a “reviewing court engaged in determining whether an award of punitive damages is excessive should ‘accord “substantial deference” to legislative judgment concerning appropriate sanctions for the conduct at issue.’” Id. at 575, 116 S.Ct. 1589, 134 L.Ed.2d 809, quoting Browning-Ferris Industries of Vermont, Inc. v. Kelco Disposal, Inc. (1989), 492 U.S. 257, 301, 109 S.Ct. 2909, 106 L.Ed.2d 219 (O’Connor, J., concurring in part and dissenting in part). Id. at ¶ 33-34, 36. {¶37} The Barnes Court cautioned that the Gore principles “must be implemented with care to ensure both reasonableness and proportionality” and that the court reviewing an award of punitive damages for excessiveness “must independently analyze” the Gore factors. Id. at ¶ 40, citing State Farm. {¶38} We begin by reviewing the degree of reprehensibility of Giant Eagle’s conduct. Here, Rieger was physically injured when a Giant Eagle motorized shopping cart driven by Kurka struck into her shopping cart. Rieger sustained physical injuries as a result of this accident. While Giant Eagle knew of the history of motorized cart accidents at its grocery stores, Giant Eagle does provide the benefit of the use of motorized shopping carts to its disabled customers, and Rieger did not make any reference as to what Giant Eagle could have done differently to prevent future incidents. Therefore, we do not find Rieger proved by clear and convincing evidence that Giant Eagle’s conduct was so reprehensible that the application of the punitive damages cap to the instant case is unconstitutional. {¶39} Having found that Rieger did not satisfy the first Gore factor, we need not address the remaining factors. {¶40} We are mindful that there is no magic formula for determining the proper amount of punitive damages. Rather, the amount that should be awarded is the amount that best accomplishes the twin aims of punishment and deterrence as to that defendant. We do not require, or invite, financial ruination of a defendant that is liable for punitive damages. While certainly a higher award will always yield a greater punishment and greater deterrent, the punitive damages award should not go beyond what is necessary to achieve its goals. The law requires an effective punishment, not a draconian one. Dardinger, 2002-Ohio-7113, 98 Ohio St.3d 77, 781 N.E.2d 121, at ¶ 178.  {¶41} In light of the foregoing, we find that the $1,198,000 punitive damages award is unconstitutionally excessive. As a result, the punitive damages cap of R.C. 2315.21 is constitutional as applied to the instant case. {¶42} Accordingly, the second assignment of error is sustained. Prior Incidents Evidence {¶43} In the fifth assignment of error, Giant Eagle argues the trial court erred by admitting the 179 incidents involving a motorized shopping cart at Giant Eagle stores. Giant Eagle contends the jury was tainted when the trial court admitted all 179 incidents “en masse” without any showing of substantial similarity to the accident in this case. {¶44} Here, Giant Eagle objected to the introduction of all the 179 incident reports, renewing its arguments previously set out in its motion in limine. Giant Eagle also argued in the alternative that if the court chooses to admit the reports, the reports should be limited to the 117 prior incidents and the 62 post-2012 incidents should be excluded. {¶45} We note that a “trial court has broad discretion in determining whether to admit or exclude evidence. Absent an abuse of discretion that materially prejudices a party, the trial court’s decision will stand.” Krischbaum v. Dillon, 58 Ohio St.3d 58, 66, 567 N.E.2d 1291 (1991), citing State v. Withers, 44 Ohio St.2d 53, 337 N.E. 2d 780 (1975), citing State v. Hymore, 9 Ohio St.2d 122, 224 N.E.2d 126 (1967). To constitute a reversible abuse of discretion, the trial court’s ruling “must be so palpably and grossly violative of fact or logic that it evidences not the exercise of will but the perversity of will, not the exercise of judgment but the defiance of judgment, not the exercise of reason but instead passion or bias.” Nakoff v. Fairview Gen. Hosp., 75 Ohio St.3d 254, 256, 1996-Ohio-159, 662 N.E.2d 1, citing State v. Jenkins, 15 Ohio St.3d 164, 222, 473 N.E.2d 264 (1984). {¶46} Relevant evidence is defined in Evid.R. 401 as “[e]vidence having any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence.” Relevant evidence “may be excluded if its probative value is substantially outweighed by considerations of undue delay, or needless presentation of cumulative evidence.” Evid.R. 403(B). {¶47} Rieger’s negligence theory at trial was that Giant Eagle was liable for the injuries she sustained while shopping, when Kurka, who was driving the Giant Eagle motorized cart, ran into Rieger’s shopping cart and pushed Rieger onto the floor. Rieger theorized that the existence of a duty owed by Giant Eagle is linked to Giant Eagle’s foreseeability of the injury. The existence of 117 prior incidents involving incidents where a Giant Eagle customer was struck by a motorized cart at a Giant Eagle store demonstrates Giant Eagle’s knowledge of these types of incidents. {¶48} The standard utilized to determine the admissibility of prior incidents was enunciated by the Ohio Supreme Court in Renfro v. Black, 52 Ohio St.3d 27, 556 N.E.2d 150 (1990), where the court stated: The law in the area of admissibility of “prior accidents” or occurrence evidence was succinctly stated in McKinnon v. Skil Corp. (C.A.1, 1981),  638 F.2d 270. There, the court considered admissibility of prior accident evidence in a products liability action concerning an alleged defective Skil saw. The plaintiff attempted to introduce answers to interrogatories regarding prior personal injury accidents involving the Skil saw. The answers did not indicate how the injuries occurred or whether they resulted from defective lower blade guards. Plaintiff contended that the interrogatory answers were admissible on Skil’s knowledge of prior accidents relevant to the duty to warn, to establish evidence of the existence of defect, causation, and negligent design, and to attack the credibility of the defendant’s expert witness. The court held that “[evidence] of prior accidents is admissible on the first four issues only if the proponent of the evidence shows that the accidents occurred under circumstances substantially similar to those at issue in the case at bar. * * *” Id. at 277. (Internal citations omitted.) Id. at 31. {¶49} In reviewing the record, we find no abuse by the trial court in admitting evidence regarding the prior 117 incidents. The 117 prior incident reports all document similar accidents that occurred to a Giant Eagle customer who was injured after being struck by a Giant Eagle motorized cart while shopping. We find, however, that the admission of the 62 post-2012 incidents was harmless error that did not materially prejudice Giant Eagle. {¶50} At trial, the deposition testimony of a Giant Eagle corporate representative was presented to the jury without objection by Giant Eagle. In his testimony, the corporate representative testified about the 179 electronic files related to incidents involving motorized carts at Giant Eagle grocery stores. Other than this testimony, Rieger did not reference the 179 total motorized cart incidents. Her argument referenced the 117 incidents involving motorized carts that occurred prior to Rieger’s December 2012 accident. Whereas, Giant Eagle discussed the 179 motorized cart incidents during its closing argument. As a result, we find the admission of the post-2012 incidents harmless. {¶51} Therefore, the fifth assignment of error is overruled. {¶52} Accordingly, judgment is affirmed in part, modified in part, and remanded. The compensatory damages award is affirmed, the $1,198,000 punitive damages award is modified, and the matter is remand for the trial court to enter an order setting the total amount of punitive damages awarded to $242,000. It is ordered that appellee and appellant share the costs herein taxed. The court finds there were reasonable grounds for this appeal. It is ordered that a special mandate issue out of this court directing the common pleas court to carry this judgment into execution. A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of the Rules of Appellate Procedure. MARY EILEEN KILBANE, PRESIDING JUDGE FRANK D. CELEBREZZE, JR., J., and LARRY A. JONES, SR., J., CONCUR 

UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT UNITED STATES OF AMERICA, Plaintiff-Appellee, v. No. 98-4188 JERRY WAYNE GODFREY, Defendant-Appellant. Appeal from the United States District Court for the Eastern District of North Carolina, at Raleigh. Terrence W. Boyle, Chief District Judge. (CR-94-5-BO) Submitted: September 30, 1998 Decided: October 22, 1998 Before LUTTIG, MICHAEL, and MOTZ, Circuit Judges. _________________________________________________________________ Affirmed by unpublished per curiam opinion. _________________________________________________________________ COUNSEL William Arthur Webb, Federal Public Defender, Edwin C. Walker, Assistant Federal Public Defender, Raleigh, North Carolina, for Appellant. Jane J. Jackson, Assistant United States Attorney, Raleigh, North Carolina, for Appellee. _________________________________________________________________ Unpublished opinions are not binding precedent in this circuit. See Local Rule 36(c). OPINION PER CURIAM: Jerry Wayne Godfrey appeals his six-month sentence imposed for violation of his supervised release. Godfrey noted a timely appeal and his attorney filed a brief pursuant to Anders v. California, 386 U.S. 738 (1967), in which he represents that there are no arguable issues of merit in this appeal. Nonetheless, Godfrey's counsel suggested that the district court imposed an unreasonable sentence because the vic- tim of the assault that formed the basis of Godfrey's violation of supervised release had "no real interest in [Godfrey] being incarcer- ated." The time for filing a supplemental brief has passed and God- frey has not responded. Because we find the district court's imposition of the sentence reasonable under the circumstances and can discern no other error on this record, we affirm. Godfrey was convicted of uttering a counterfeit federal reserve note in violation of 18 U.S.C. § 472 (1994), and sentenced to a term of imprisonment of forty-six months to be followed by a thirty-six month term of supervised release. Godfrey's supervised release began on September 6, 1996. On January 28, 1998, the Government filed a motion to revoke Godfrey's supervised release. In the motion, the probation officer reported that the Hope Mills, North Carolina Police Department had arrested Godfrey the previous day and charged him with an assault on his wife. The probation officer noted that God- frey's conduct violated the terms of his supervised release. Godfrey pled no contest to the charges in the revocation motion. On Godfrey's plea, the district court found that Godfrey had violated his supervised release. Before sentencing Godfrey, the district court recited Godfrey's considerable history of violence against women. The district court rejected defense counsel's suggestion that Godfrey be sentenced to a half-way house. The court revoked Godfrey's release and sentenced him to a six month term of imprisonment at the low end of the range suggested by the U.S. Sentencing Guidelines Manual § 7B1.4, p. 5. (Nov. 1993). Godfrey does not contest that he violated his supervised release. Rather, his attorney argues only that the sentence is unreasonable 2 because Godfrey's wife, the victim of his assault, did not wish God- frey be reincarcerated. As counsel correctly notes§ 7B1.4, providing imprisonment ranges for revocation of supervised release is advisory in nature. See United States v. Davis, 53 F.3d 638, 640 n.6 (4th Cir. 1995). Thus, because the district court's sentence does not exceed the maximum limit of two years established for violation of the terms of release in Class C felonies under 18 U.S.C. § 3583(e) (1994), this court reviews Godfrey's sentence only to determine if it is plainly unreasonable. See 18 U.S.C. § 3742(a)(4) (1994). Given the facts of this case and the reprehensible nature of Godfrey's conduct, we can- not say that the six-month sentence imposed by the district court was plainly unreasonable, notwithstanding the victim's position on God- frey's incarceration. Pursuant to Anders, this court has reviewed the record for potential error and has found none. Therefore, we affirm Godfrey's sentence. This court requires that counsel inform his client, in writing, of his right to petition the Supreme Court of the United States for further review. If the client requests that a petition be filed, but counsel believes that such a petition would be frivolous, then counsel may move this court for leave to withdraw from representation. Counsel's motion must state that a copy thereof was served on the client. We dispense with oral argument because the facts and legal contentions are adequately presented in the materials before the court and argu- ment would not aid the decisional process. AFFIRMED 3 

[DO NOT PUBLISH] IN THE UNITED STATES COURT OF APPEALS FOR THE ELEVENTH CIRCUIT FILED ________________________ U.S. COURT OF APPEALS ELEVENTH CIRCUIT No. 11-13396 FEBRUARY 8, 2012 Non-Argument Calendar JOHN LEY ________________________ CLERK Agency No. A077-485-955 DOROTHY EBOT TAMBI, llllllllllllllllllllllllllllllllllllllll Petitioner, versus U.S. ATTORNEY GENERAL, llllllllllllllllllllllllllllllllllllllll Respondent. ________________________ Petition for Review of a Decision of the Board of Immigration Appeals ________________________ (February 8, 2012) Before BARKETT, HULL and BLACK, Circuit Judges. PER CURIAM: Dorothy Ebot Tambi, a native and citizen of Cameroon, seeks review of the Board of Immigration Appeals’s (“BIA”) denial of her second motion to reopen the Immigration Judge’s (“IJ”) previous denial of asylum, withholding of removal, and relief under the United Nations Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment. Tambi filed her second motion to reopen,1 seeking the reopening of her prior application for asylum on the basis of changed country conditions and on the basis that she received ineffective assistance of counsel. This motion was filed with the BIA over ten years after the original IJ decision denying her asylum application. Generally, an alien may file only one motion to reopen before the BIA and such motion must be filed within ninety days of the final removal order. 8 U.S.C. § 1229a(c)(7)(A), (C)(i); 8 C.F.R. § 1003.2(c)(2). It is not disputed that Tambi’s second motion to reopen fails to meet either of these requirements. There are, however, several exceptions to the one motion and ninety days time limit. See generally 8 U.S.C. § 1229a(b)(5)(C), (c)(7)(C); 8 C.F.R. § 1003.2(a), (c)(3). Pertinent to this appeal, an alien may seek reopening at any time and without regard to any prior motions to reopen, if she can demonstrate “changed country conditions arising in the country of nationality or the country to 1 Tambi filed her first motion to reopen several years earlier on the basis of her marriage to a United States citizen, which was eventually denied by the BIA, and is not at issue in this petition for review. 2 which removal has been ordered, if such evidence is material and was not available and would not have been discovered or presented at the previous proceeding.” 8 U.S.C. § 1229a(c)(7)(C)(ii); see also 8 C.F.R. § 1003.2(c)(3)(ii). Tambi sought reopening of her previous asylum application claiming that the conditions in her home country of Cameroon had worsened. She also sought reopening on the basis of her previous attorney’s ineffective assistance. We review the BIA’s denial of a motion to reopen for abuse of discretion. Abdi v. U.S. Att’y Gen., 430 F.3d 1148, 1149 (11th Cir. 2005); see also Kucana v. Holder, 130 S. Ct. 827, 838–39 (2010). When reviewing the denial of discretionary relief, we consider whether there has been an exercise of discretion and whether that exercise was “arbitrary or capricious.” Abdi, 430 F.3d at 1149. The BIA provided several reasons for denying reopening, which Tambi challenges in this petition for review as follows. Tambi first argues that the BIA improperly penalized her for not filing a subsequent asylum application with her second motion to reopen. Although the BIA mentioned that Tambi failed to submit a new asylum application with her motion to reopen, this was not the BIA’s basis for denying her motion to reopen. Instead the BIA listed all of the evidence that Tambi submitted and determined that it either had been available at the time of her first hearing or did not demonstrate that conditions in Cameroon had 3 materially worsened since her original hearing. Tambi does not challenge any of these conclusions of the BIA in this petition. Accordingly, we find no abuse of discretion in the BIA’s mention that Tambi did not submit a new asylum application with her second motion.2 Next, Tambi argues that the BIA gave undue weight to the IJ’s adverse- credibility decision made during her original asylum proceedings. As already mentioned, in denying Tambi’s second motion to reopen, the BIA discussed Tambi’s evidence regarding changed country conditions and concluded that Tambi failed to establish that conditions in Cameroon were worse than when she first sought asylum nearly ten years earlier. Although the BIA took into consideration the IJ’s adverse credibility determination at the earlier hearing, the BIA ultimately denied the motion to reopen based on the lack of evidence to support changed country conditions. Third, Tambi argues that due process requires reopening of her asylum 2 Although the governing regulations provide that an application for relief must accompany the motion to the extent that the motion to reopen is seeking to submit an application for relief, see 8 C.F.R. § 1003.2(c)(1), the statute only requires that the motion to reopen be supported by affidavits and other evidence, see 8 U.S.C. § 1229a(c)(7)(B). Here, we would be inclined to agree with Tambi that because the purpose of her motion to reopen was to supplement an existing asylum application based on changed country conditions, she would not be required to submit an entirely new asylum application. The BIA, however, did not deny her request to reopen because she did not include a new asylum application with her motion, but instead because it concluded that she failed to meet the requirements for reopening based on changed country conditions. 4 application because her previous attorneys provided ineffective assistance of counsel. The BIA declined to reopen her application on this basis, concluding that she failed to meet the threshold requirements for such a claim as established in Matter of Lozada, 19 I.&N. Dec. 637, 639 (BIA 1988).3 Tambi does not challenge the BIA’s conclusion regarding her failure to meet the requirements of Matter of Lozada and we cannot say that the BIA abused its discretion in refusing to reopen her asylum application on this basis.4 Finally, Tambi asserts that she has a strong case for the exercise of prosecutorial discretion under guidelines established by a new a working group of the Department of Homeland Security and the Department of Justice. Tambi has 3 When filing a motion based on ineffective assistance, the BIA has established the following procedural requirements: (1) the claim should be supported by an affidavit that sets forth in detail the agreement with counsel regarding the actions to be taken, and any representations made by counsel with regard to those actions; (2) former counsel must be informed of the allegations and permitted an opportunity to respond; and (3) the motion should reflect whether a grievance was filed against counsel, and if not, why not. Matter of Lozada, 19 I.&N. Dec. at 639. Our circuit has held that the Lozada procedural requirements are reasonable, and that, at a minimum, “substantial, if not exact, compliance” with Lozada is required. Dakane v. U.S. Att’y Gen., 371 F.3d 771, 775 (11th Cir. 2004). 4 Tambi urges us to reconsider our decision in Abdi v. U.S. Att’y Gen., 430 F.3d 1148, 1149–50 (11th Cir. 2005), to the extent that we stated that the ninety day motion to reopen period is “mandatory and jurisdictional,” and thus not subject to equitable tolling. Although the BIA cited to Abdi in denying Tambi’s request to reopen based on ineffective assistance of counsel, the BIA primarily and properly noted that Tambi failed to comply with the requirements of Matter of Lozada, which we cannot say is an abuse of discretion. We, therefore, need not address whether the statement in Abdi that the ninety day motion to reopen is “mandatory and jurisdictional” is dicta or binding circuit precedent. 5 provided no authority, nor are we aware of any, that would permit a court of appeals to grant such relief. PETITION DENIED. 6 

787 F.2d 588 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.LAWRENCE E. BROWN, Petitioner,v.NORTH AMERICAN COAL CORPORATION, Employer-Respondent,DIRECTOR, OFFICE OF WORKERS' COMPENSATION PROGRAMS, UNITEDSTATES DEPARTMENT OF LABOR, Respondent. 85-3310 United States Court of Appeals, Sixth Circuit. 3/26/86 AFFIRMED Ben.Rev.Bd. ON APPEAL FROM THE BENEFITS REVIEW BOARD BEFORE: MERRITT and WELLFORD, Circuit Judges, and PECK, Senior Circuit Judge. PER CURIAM. 1 This action involves a miner's claim for black lung benefits under Title IV of the Federal Coal Mine Health and Safety Act of 1969, as amended, 30 U.S.C. Secs. 901-945 (the Act). The miner petitioner, Lawrence E. Brown, filed a claim for black lung benefits on February 20, 1976. 2 In a decision and order issued over five years later, an ALJ found that the miner had satisfied one of the four alternative methods for raising the regulatory 'interim presumption' of total disability due to coal workers' pneumoconiosis, by establishing the presence of pneumoconiosis by chest x-ray, as provided in 20 C.F.R. Sec. 727.203(a)(1). The ALJ also found that the employer, North American Coal Corporation (North American), had failed to rebut the interim presumption. 3 On appeal, the Benefits Review Board reversed the ALJ, holding that, under the applicable law, knowledge of the exertional requirements of a miner's usual coal mine work is not necessary to rebut the interim presumption if the substantial weight of the evidence shows, as in this case, that the miner does not suffer from any respiratory or pulmonary impairment within the meaning of the Act. Since the medical evidence to that effect in this case was uncontradicted, the Board found that North American had rebutted the interim presumption under 20 C.F.R. Sec. 727.203(b)(2) as a matter of law, thus making a remand unecessary. 4 Brown is a 71-year old former coal miner who retired in October 1975 after approximately forty-three years of coal mine employment. He apparently retired as a direct result of a leg injury.1 Petitioner testified that had he not been injured, he would have continued to work until he was eligible for social security retirement at age sixty-two. 5 While in the mines, Brown worked a variety of jobs including that of loader, duckbill operator and timberman. During his last ten years in the mines, he also worked as a bratticeman. 6 The miner was examined for the Department of Labor on April 13, 1976, by Dr. Miklos Paal, whose examination revealed that the miner's breath sounds were normal with no rales or wheezing. Based upon his physical examination, the normal pulmonary studies, and the chest x-ray, Dr. Paal concluded the miner had a mild degree of pneumoconiosis, which was not disabling. Dr. Paal added the miner was 'fit for coal miners work' from a cardiopulmonary standpoint. 7 Dr. David G. Gillespie, a pulmonary specialist, then examined the miner at North American's request on June 22, 1979. Dr. Gillespie performed a complete examination, including a history, physical examination, chest x-ray, electro-cardiogram and a variety of pulmonary function studies. On the basis of his entire examination, which included normal breathing tests and normal oxygen tension on gas exchange testing, Dr. Gillespie was of the opinion that Brown had no impairment arising from coal workers' pneumoconiosis. The doctor concluded that from a pulmonary or respiratory standpoint, the miner has no impairment from the performance of any level of physical activity. 8 The opinions expressed by Drs. Paal and Gillespie are corroborated by petitioner's hospital records from a hospitalization shortly after he left the mines. He was admitted on December 11, 1975 because of problems with his knee. Reports in these records, signed by the petitioner's family physician, Dr. A. J. Antalis, show the petitioner's lungs to be 'clear to percussion and ausculation throughout' on physical examination. 9 In Director, Office of Workers' Comp. Programs v. Rowe, 710 F.2d 251, 254-55 (6th Cir. 1983), this court addressed the standard of review applicable to a decision of the Benefits Review Board. The court stated: 10 This court's review of a decision of the Benefits Review Board is limited. 'The court of appeals scrutinizes Board decisions for errors of law and for adherence to the statutory standard governing the Board's review of the administrative law judge's factual determinations.' Bumble Bee Seafoods v. Director, OWCP, 629 F.2d 1327, 1329 (9th Cir. 1980). Accord Miller v. Central Dispatch, Inc., 673 F.2d 773, 778-79 (5th Cir. 1982); Janusziewicz v. Sun Shipbuilding & Dry Dock Co., 677 F.2d 286, 290 (3d Cir. 1982). The Board's function is similarly limited. It is not empowered to engage in a de novo review but rather is limited to reviewing the ALJ's decision for errors of law and to determine whether the factual findings are supported by substantial evidence in the record viewed as a whole. 33 U.S.C. Sec. 921(b)(3); 20 C.F.R. Sec. 802.301. We hold that that the Board failed to adhere to its limited statutory function.2 11 Id. at 254. 12 The role of this court is to determine whether the Board's decision that substantial evidence does not support the ALJ's factual findings is correct. See Presley v. Tinsley Maintenance Service, 529 F.2d 433, 435 (5th Cir. 1976). Thus, this court's focus is on whether substantial evidence supports the findings of the ALJ.3 13 The defendant concedes that the petitioner established an interim presumption of total disability due to pneumoconiosis under 20 C.F.R. Sec. 727.203(a)(1). The defendant argues, on the other hand, that it rebutted this presumption under 20 C.F.R. Sec. 727.203(b)(2), which states that the presumption shall be rebutted if: 14 In light of all relevant evidence it is established that the individual is able to do his usual coal mine work or comparable and gainful work . . .. 15 The ALJ concluded that Drs. Paal and Gillespie did not have an 'adequate understanding of the claimant's work in the mines to render an opinion that the claimant is not totally disabled as a coal miner.' He based this conclusion on Dr. Gillespie's apparent mistake that in his final years at the mine petitioner worked as a 'continuous miner' instead of a bratticeman. Dr. Gillespie testified that a 'continuous miner' was not 'a strenuous physical job.' The ALJ determined that the job of bratticeman was more strenuous than that of continuous miner and thus rejected Dr. Gillespie's conclusion that petitioner was not impaired from any level of physical activity because the doctor failed to explain to what degree petitioner's ability to walk, climb, or lift was impaired.4 16 The Board held that substantial evidence does not support the ALJ's ruling in this respect. The Board disagreed with the ALJ's conclusion that the doctors could not make an adequate nondisability determination if mistaken about the petitioner's usual coal mine work. The Board concluded that '[k]nowledge of the exertional requirements of a claimant's usual coal mine work is not necessary for a physician to form an opinion that claimant suffers no respiratory or pulmonary impairment and is therefore not impaired from performing any level of physical activity.' (Emphasis added). Thus, the Board held that the medical opinions of Drs. Paal and Gillespie were sufficient to establish defendant's rebuttal that petitioner was not disabled because of pulmonary or respiratory impairment. 17 We find the decision of the ALJ not supported by substantial evidence. The only medical testimony in the record is that petitioner has no pulmonary or respiratory disability. The ALJ's rejection of a doctor's conclusion because he failed to explain the degree of petitioner's ability to walk, climb or lift was unjustified. The Board's conclusion is sound that no explanation of petitioner's exertional abilities is needed if the effect of all the medical evidence is that no impairment to work exists. 18 We therefore AFFIRM the Board's decision rejecting petitioner's claim. 1 Petitioner also claims in his brief that he also retired because of pulmonary problems 2 The statute and regulation state: The Board shall be authorized to hear and determine appeals raising substantial questions of law or fact taken by any party in interest from decisions with respect to claims of employees under this chapter and the extensions thereof. The Board's orders shall be based upon the hearing record. The findings of fact in the decision under review by the Board shall be conclusive in supported by substantial evidence in the record considered as a whole. The payment of the amounts required by an award shall not be stayed pending final decision in any such proceeding unless ordered by the Board. No stay shall be issued unless irreparable injury would otherwise ensue to the employer or carrier. 33 U.S.C. A. Sec. 921(B)(3) (1986); Sec. 802.301 Scope of Review. The Benefits Review Board is not empowered to engage in a de novo proceeding or unrestricted review of a case brought before it. The Board is authorized to review the findings of fact and conclusions of law on which the decision or order appealed from was based. Such findings of fact and conclusions of law may be set aside only if they are not, in the judgment of the Board, supported by substantial evidence in the record considered as a whole or in accordance with law. 20 C.F.R. Sec. 802.301 (1985) 3 Rowe emphasized the limited nature of the Board's reviewing powers and distinguished these powers from the reviewing powers of the Appeals Council in social security cases. 710 F.2d at 254, 255 n.5 4 The defendant does not challenge the ALJ's finding that the evidence of petitioner's smoking is insufficient to rebut the presumption of disability

354 N.W.2d 625 (1984) 218 Neb. 258 Robert PETERSON and William Peterson, doing business as Peterson Brothers, Appellees and Cross-Appellants, v. NORTH AMERICAN PLANT BREEDERS, doing business as Migro Seed Company, a corporation, Appellant and Cross-Appellee. No. 83-374. Supreme Court of Nebraska. August 10, 1984. *628 Avery Gurnsey, Bassett, and Charles L. House and Larry Norton of House, Norton & Mattix, Kansas City, Mo., for appellant and cross-appellee. David A. Domina and Jeffrey L. Hrouda of Domina Law Firm, P.C., Norfolk, for appellees and cross-appellants. KRIVOSHA, C.J., BOSLAUGH, WHITE, HASTINGS, SHANAHAN, and GRANT, JJ., and COLWELL, District Judge, Retired. COLWELL, District Judge, Retired. This is a suit for breach of express warranty and implied warranty of merchantability in the sale of seed corn. North American Plant Breeders, doing business as Migro Seed Company, defendant, appeals from an adverse $76,519.08 jury verdict and judgment in favor of plaintiffs, Robert Peterson and William Peterson, doing business as Peterson Brothers. Plaintiffs are extensive farmers in the Rock County, Nebraska, area, where much of the land is sandy soil, sometimes called the Sandhills. The Peterson land here was irrigated from wells and four center pivots. The irrigation equipment revolved around each pivot, and all plantings were in circles. Defendant's headquarters is in Mission, Kansas. It produces hybrid seeds, including the Migro SPX-8 variety. Hybrid seed corn is a product of scientific genetic cross-breeding of corn to produce a seed having desirable germination, growing, and production qualities intended by the producer. In the spring of 1981 plaintiffs seeded four circles, alternating multiple rows of Migro SPX-8 with other seed varieties produced by four other companies. Plaintiffs regularly kept and maintained records of the several plantings reflecting germination, cultivation, irrigation, fertilizer and herbicide applied, production, and expenses. The corn crop progressed normally until July 23, 1981, when plaintiffs discovered that 65 to 70 percent of the Migro variety corn plants had broken off around the ear level. The rest of the corn crop of other varieties had minimal damage. The night before this discovery, there had been a thunderstorm which apparently was within the ordinary range of severity. The crop damage was promptly reported to the dealer, who notified defendant, according to his business custom. Plaintiffs continued to irrigate and otherwise uniformly nurture their total crop, including the Migro plants. The Migro variety corn plants continued to suffer stalk breakage, and by the time of harvest the Migro variety corn plants yielded only 19½ bushels of corn per acre. The other varieties of corn on the same farmland yielded 113¾ bushels per acre. Plaintiffs purchased the Migro seed corn from John Sandall (dealer), a neighboring farmer who acted as a Migro dealer and a dealer for other seed companies. Plaintiffs paid the dealer by offsetting the purchase price against an account Sandall owed to a fertilizer company owned by plaintiffs and their father. Prior to buying the seed, Robert Peterson studied advertising literature published by defendant, which, among other things, described Migro SPX-8 to have excellent stalk quality. Plaintiffs *629 picked up the seed at Sandall's warehouse as they needed it for planting. Plaintiffs bought 102 bags, planted 77 bags on their farm, and the rest were planted on their father's farm. The bags came sealed with disclaimer tags attached, as follows: "LIMITED WARRANTY AND LIMITATION OF REMEDY. This product is sold by product description only. THERE ARE NO WARRANTIES, EXPRESSED OR IMPLIED, AND WARRANTIES OF MERCHANTABILITY AND FITNESS ARE EXPRESSLY DISCLAIMED AND EXCLUDED." Plaintiffs' expert witness, an agronomist, testified that the cause of the breakage was the poor translocation of silica in the plant. Silica, being in heavy concentration in the Sandhills, is absorbed by the roots of the plant and distributed throughout the plant; the damaged Migro plants had an overabundance of silica deposits at the ear level of the stalk in comparison to the silica level in the leaves. This gathering of silica in the stalk weakened the plants and contributed to their breakage. His opinion was that Migro SPX-8 was unsuitable for planting in the Sandhills. Defendant's expert, a professor of plant breeding, said that corn plants reach a stage in their growth, about 8 weeks after planting, when, due to rapid growth, the plant stalks are brittle for a 3- to 4-day period. Different varieties of corn, even though planted on the same day, reach this stage at different times, thus explaining the confinement of the damage to one variety of hybrid and relating the damage to the storm. Defendant assigns seven errors. Error 1—Express Warranties Plaintiffs claimed that defendant had made and breached these express warranties that appeared in its sales literature furnished to them by Sandall: a. A hybrid specially bred for superb performance and tested throughout the corn belt ... under a broad range of growing conditions. b. A hybrid with excellent stalk standability, outstanding heat and drought tolerance, good disease and insect resistance and a superior grain quality. c. An attractive looking, top yielding single-cross with proven consistency in a maturity range of 105—108 days, and exhibiting excellent stalk and root quality. d. A hybrid that would out-yield many longer season hybrids. e. A hybrid with very good emergence, excellent root strength and stalk quality, very good dry-down rapidity and excellent ear retention. At the end of plaintiffs' case in chief, defendant moved for a directed verdict on the ground, among others, that plaintiffs had not shown that the literature contained any warranties; rather, it was merely seller's talk, or puffing. In considering whether a directed verdict motion should be granted, the party against whom such a motion is aimed is entitled to have all controverted facts resolved in his favor and to have the benefit of every reasonable inference from the evidence. May v. Hall Co. L'stock Improvement Ass'n, 216 Neb. 476, 344 N.W.2d 629 (1984). The problem with defendant's contention is that the question of the existence and scope of an express warranty is one of fact. Neb.U.C.C. § 2-313, comment 3 (Reissue 1980); Lovington Cattle Feeders v. Abbott Lab., 97 N.M. 564, 642 P.2d 167 (1982); Overstreet v. Norden Laboratories, Inc., 669 F.2d 1286 (6th Cir.1982). Neb.U.C.C. § 2-313 (Reissue 1980) provides in part: (1) Express warranties by the seller are created as follows: (a) 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. (b) Any description of the goods which is made part of the basis of the bargain creates an express warranty that the goods shall conform to the description. *630 .... (2) It is not necessary to the creation of an express warranty that the seller use formal words such as "warrant" or "guarantee" or that he have a specific intention to make a warranty, but an affirmation merely of the value of the goods or a statement purporting to be merely the seller's opinion or commendation of the goods does not create a warranty. The question becomes whether the statements made by defendant are expressions of opinion or commendations of the goods or affirmations of fact. The test adopted by many courts is well stated in Overstreet v. Norden Laboratories, Inc., supra: The existence of an express warranty depends upon the particular circumstances in which the language is used and read....A catalog description or advertisement may create an express warranty in appropriate circumstances.... The trier of fact must determine whether the circumstances necessary to create an express warranty are present in a given case.... The test is "whether the seller assumes to assert a fact of which the buyer is ignorant, or whether he merely states an opinion or expresses a judgment about a thing as to which they may each be expected to have an opinion and exercise a judgment." (Emphasis supplied.) Id. at 1290-91. In connection with the fact question here, the sale of hybrid seed corn is unusual in that it is delivered to the ultimate buyer-user in sealed bags, inspection of the seed by the buyer will generally not reveal any of its growing qualities, and the first notice of the seed's worth and performance is after planting and well into the growing season. Consequently, in the absence of a prior planting experience or other reliable information, the buyer may be justified to rely on the claims of the producers as more than puffing; it is a fact question. Here, plaintiffs had no prior knowledge of or planting experience with Migro SPX-8. The express warranty issue was properly submitted to the jury. Error 2—Implied Warranty of Merchantability and the Requirement of Privity of Contract Error 6—John Sandall Was an Independent Dealer These two errors are discussed together. Neb.U.C.C. § 2-314 (Reissue 1980) provides in part: (1) Unless excluded or modified (Section 2-316), a warranty that the goods shall be merchantable is implied in a contract for their sale if the seller is a merchant with respect to goods of that kind.... (2) Goods to be merchantable must be at least such as (a) pass without objection in the trade under the contract description; and (b) in the case of fungible goods, are of fair average quality within the description; and (c) are fit for the ordinary purposes for which such goods are used; and (d) run, within the variations permitted by the agreement, of even kind, quality and quantity within each unit and among all units involved; and (e) are adequately contained, packaged, and labeled as the agreement may require; and (f) conform to the promises or affirmations of fact made on the container or label if any. (3) Unless excluded or modified (Section 2-316) other implied warranties may arise from course of dealing or usage of trade. Sandall testified that he purchased the Migro seed from defendant, stored it in his warehouse in the original container bags, and then resold it to plaintiffs and other customers. The trial court denied defendant's proffered evidence that Sandall was an independent dealer and that disclaimers existed between them. Defendant contends that privity of contract is an essential requirement between *631 defendant seed producer and the ultimate buyer-user where a breach of warranty of merchantability is claimed and there is a claim of consequential damages for economic loss. We have not previously ruled on this issue. We have held that an implied warranty that food products are wholesome may be asserted for personal injury against a remote manufacturer if the products are shown to have reached the consumer in the same condition in which they left the manufacturer. Asher v. Coca Cola Bottling Co., 172 Neb. 855, 112 N.W.2d 252 (1961). Privity of contract has also been removed as a barrier to asserting an express warranty claim based upon statements made in advertising and other printed matters prepared by the manufacturer. Koperski v. Husker Dodge, Inc., 208 Neb. 29, 302 N.W.2d 655 (1981); Hawkins Constr. Co. v. Matthews Co., Inc., 190 Neb. 546, 209 N.W.2d 643 (1973). There is a split of authority on the question here presented. State ex rel. Western Seed v. Campbell, 250 Or. 262, 442 P.2d 215 (1968), follows the traditional rule requiring privity of contract. Hiles Co. v. Johnston Pump Co., 93 Nev. 73, 79, 560 P.2d 154, 157 (1977), represents the contrary rule: We perceive no reason to distinguish between recovery for personal and property injury, on the one hand, and economic loss on the other. Cf. Santor v. A & M Karagheusian, Inc. [44 N.J. 52], 207 A.2d 305 (N.J.1965); Randy Knitwear, Inc. v. American Cyanamid Company [11 N.Y.2d 5], 181 N.E.2d 399 [226 N.Y. S.2d 363] (N.Y.1962). Instead, we believe that lack of privity between the buyer and manufacturer does not preclude an action against the manufacturer for the recovery of economic losses caused by breach of warranties. See: Cova v. Harley Davidson Motor Company [26 Mich.App. 602], 182 N.W.2d 800 (Mich.App.1970); Kassab v. Central Soya [432 Pa. 217], 246 A.2d 848 (Pa.1968); Lang v. General Motors Corporation, 136 N.W.2d 805 (N.D.1965); Spence v. Three Rivers Builders & Masonry Supply [353 Mich. 120], 90 N.W.2d 873 (Mich.1958); Hoskins v. Jackson Grain Co., 63 So.2d 514 (Fla.1953); see also, Schwartz, The Demise of Vertical Privity: Economic Loss under the Uniform Commercial Code, 2 Hofstra L.Rev. 749 (1974); Zammit, Manufacturers' Responsibility for Economic Loss Damages in Products Liability Cases, 20 N.Y.L.F. 81 (1974). See, also, Cameo Curtains, Inc. v. Philip Carey Corp., 11 Mass.App. 423, 416 N.E.2d 995 (1981); Whitaker v. Farmhand, Inc., 173 Mont. 345, 567 P.2d 916 (1977); Nobility Homes of Texas, Inc. v. Shivers, 557 S.W.2d 77 (Tex.1977); Cova v. Harley Davidson Mtr. Co., 26 Mich.App. 602, 182 N.W.2d 800 (1970). We are persuaded that the latter Hiles Co. rule applies to the facts here. Our Legislature has already addressed the scope of warranty recovery for horizontal nonprivity plaintiffs, Neb.U.C.C. § 2-318 (Reissue 1980), but it has remained silent as to vertical nonprivity plaintiffs seeking recovery such as presented here. Historically, the privity of contract requirement in suits by an injured ultimate purchaser of a product was seen as necessary to prevent "absurd and outrageous consequences" involving unlimited exposure of manufacturers to liability. Prosser, The Assault Upon the Citadel (Strict Liability to the Consumer), 69 Yale L.J. 1099 (1960). Such has not been the result in the history of strict liability for defective products litigation for which privity is not required. The defendant argues that the privity requirement is necessary to prevent it from being exposed to unknown and excessive damages. Recovery for breach of implied warranty is limited to those damages reasonably contemplated by the parties and proximately caused by the breach. Neb.U. C.C. § 2-715 (Reissue 1980). The defendant also argues that if its implied warranty of merchantability is extended to those it expects to ultimately use its seed, and not *632 just to its dealers, then it will in effect be an insurer of its customers' crops. Nothing in this opinion is intended either to suggest such a result or to include buyers dissatisfied with the seed performance that was less or other than expected without regard for all Uniform Commercial Code requirements, § 2-314, and the standard of proof required, § 2-715. The liability arises and that warranty extends to reasonable damages proximately caused by its placing an unmerchantable product in the marketplace. Also, there is no reason that the defendant cannot disclaim its warranty liability by policing its dealers and making sure that its disclaimer reaches the ultimate user of its product during the negotiations for the product's sale. We therefore hold that when a producer of seed places sealed bags of hybrid seed corn in its chain of distribution, it carries with it, unless effectively excluded or modified, an implied warranty of merchantability that protects the ultimate buyer-user in that chain. Error 3—The Giving of Instruction No. 9 Instruction No. 9 states: Defendant, in its affirmative defense, claims as follows: An express limited warranty and limitation of remedy has been created with respect to the Migro SPX-8 seed corn as set out on tag attached to Exhibit No. 9. This limitation of warranty and limitation of remedy, if made on or after delivery of the goods is ineffectual unless the buyer assents or is charged with knowledge as to the transaction. The burden of proof is upon the Defendant to establish each of the above elements by a preponderance of the evidence then your verdict shall be for Defendant. Defendant claims error on two grounds. First, the instruction should have quoted the language of the limited warranty and remedy. This was not necessary; exhibit 9 is the seed bag, and it is a part of the evidence considered by the jury. Second, the instruction is ambiguous and forces defendant to prove that the tag was known to the plaintiffs at the time of the sale. This was not advanced by defendant at the jury instruction conference, and in the absence of plain error, it will not now be considered. Enyeart v. Swartz, 213 Neb. 732, 331 N.W.2d 513 (1983). We find no prejudicial error in instruction No. 9. Error 4—Discovery Sanctions Imposed After the trial plaintiffs asked that discovery sanctions be imposed against defendant on two grounds. First, one of defendant's employees testified about the testing of Migro SPX-8, and during cross-examination a document containing test results came to light. A copy of this document had not been supplied to plaintiffs even though an order to produce all test results had been made by the court. The trial court struck the evidence as to those tests. The second ground was in connection with a deposition taken on the first day of trial. It appears that plaintiffs' expert witness was not available for a deposition at the time convenient to defendant, even though it was at a time when plaintiffs represented that the witness could be deposed. On the opening day of trial the trial court refused defendant's motion to exclude the witness and ordered his deposition taken during trial. It also appears that the deposition of one of defendant's experts was taken by the plaintiffs at the same time. At the sanction hearing, a $200 attorney fee was assessed against defendant for the costs in taking the deposition. Neb.Ct.R. 37 (Rev.1983) of the Nebraska Discovery Rules allows the assessment of attorney fees caused by failure to abide by a discovery order. There is confusion in the record concerning the basis for the sanction; however, the trial court based the sanction on the taking of depositions. It was within the trial court's discretion, and we cannot say that it was an abuse of discretion. Error 5—Amendment of Pretrial Order On January 10, 1983, 2 months prior to trial, defendant filed a motion to amend the pretrial witness list to allow the testimony of certain employees of defendant, expert witnesses, and 11 Nebraska farmers who had planted Migro SPX-8. The trial court granted the order in part, allowing the *633 employees and the expert witnesses to testify, but only one of the farmers. Defendant made an offer of proof at trial that the other farmers would testify that they had success with Migro SPX-8 seed produced from the same lot as that sold to plaintiffs. Defendant contends that such testimony was relevant to its defense of implied warranty to show Migro SPX-8 was "fit for the ordinary purposes for which such goods are used." § 2-314(2)(c). One farmer and the dealer, who was also a farmer, did so testify for defendant. The admission of evidence is in the sound discretion of the trial court, and evidence may be denied even though it may be relevant. Neb.Rev.Stat. § 27-403 (Reissue 1979). The standard of review for denial of a motion to amend a pretrial order is whether there was an abuse of discretion. Mousel v. Ten Bensel, 195 Neb. 456, 238 N.W.2d 632 (1976). See, also, Pretrial Procedure, Neb.Ct.R. at 10.1 (Rev.1983). The action of the trial court was neither an abuse of discretion nor prejudicial to defendant. Error 7—Proof of Damages—Crop Loss Defendant claims that plaintiffs failed in their proof of crop loss damages, in that the evidence does not meet the established standard of Hopper v. Elkhorn Valley Drainage District, 108 Neb. 550, 188 N.W. 239 (1922), restated in Gable v. Pathfinder Irr. Dist., 159 Neb. 778, 787, 68 N.W.2d 500, 506 (1955): The measure where a crop is injured but not rendered entirely worthless as a result of the acts or omissions of another is the difference between the value at maturity of the probable crop if there had been no injury and the value of the actual crop at the time injured less the expense of fitting for market that portion of the probable crop which was prevented from maturing. Neb.U.C.C. § 2-714 (Reissue 1980) provides in part: (1) Where the buyer has accepted goods ... he may recover as damages for any nonconformity of tender the loss resulting in the ordinary course of events from the seller's breach as determined in any manner which is reasonable. .... (3) In a proper case any incidental and consequential damages under the next section may also be recovered. Section 2-715 provides in part: (2) Consequential damages resulting from the seller's breach include (a) any loss resulting from general or particular requirements and needs of which the seller at the time of contracting had reason to know and which could not reasonably be prevented by cover or otherwise; and (b) injury to person or property proximately resulting from any breach of warranty. In Shotkoski v. Standard Chemical Manuf. Co., 195 Neb. 22, 28-29, 237 N.W.2d 92, 97 (1975), we stated: Damages need not be proved with mathematical certainty, but the evidence must be sufficient to enable the trier of fact, in this case the jury, to estimate with a reasonable degree of certainty and exactness the actual damages.... It is the duty of the District Court to refrain from submitting to the jury the issue of damages where the evidence is such that it cannot determine that issue without indulging in speculation and conjecture. See, also, El Fredo Pizza, Inc. v. Roto-Flex Oven Co., 199 Neb. 697, 261 N.W.2d 358 (1978). The record is uncontradicted that plaintiffs made continuous good faith efforts to mitigate any crop loss involving the Migro seed. See § 2-715(2). Included in the evidence supporting plaintiffs' consequential damages were: All seed varieties were planted, cultivated, fertilized, irrigated, and harvested in the same manner. Two hundred twenty acres in the four circles were planted with Migro SPX-8 seed, and the remaining acres were planted with four other seed varieties. Plaintiffs maintained detailed farming records concerning all crops. Uncontroverted tests established the average yield of the Migro corn at 19½ bushels per acre *634 and the other varieties at 113¾ bushels per acre. The probable crop was estimated at 22,000 bushels. A part of the harvested corn was sold for $3.42 per bushel, and the remainder was put into a U.S. reserve program at $2.83 per bushel, plus $0.265 per bushel storage. For convenience, all planted corn was harvested by plaintiffs together. Separate records of harvesting expenses for the probable crop were not maintained; plaintiffs claim such proof was unreasonable. Plaintiffs argue that the Hopper rule should not apply in warranty cases brought under the Uniform Commercial Code. We see no reason in this case to apply a different rule depending upon the method of injury, whether by external forces or improper seed; the economic loss is the same. It was not necessary for plaintiffs to show the expense of harveting the probable crop, since they harvested all the growing plants on the 220 Migro acres; that expense was about the same whether a good or poor crop. The question, then, is limited to the expense of handling and trucking the probable crop from the field to plaintiffs' storage facility or to market, or both, which is a normal farming procedure. Mathematical precision of that expense could require consideration of many factors, including hired labor costs, fuel costs, machinery use-depreciation costs, and repair expenses. Such would assist the jury; however, they are not absolutes. We conclude that the evidence proving damages was not speculative, and it was sufficient for the jury to estimate and assess plaintiffs' damages with a reasonable degree of certainty and exactness. Cross-Appeal In their cross-appeal plaintiffs claim error that prejudgment interest was not allowed. At trial plaintiffs were prevented from proving what rate of return they would have on their crop proceeds if they would have received such proceeds at the time the grain could have been sold, if produced. They contend that the loss of the use of the crop proceeds is a § 2-715(2)(a) proximate injury that was foreseeable and, thus, a recoverable element of their damage. They cite 4 R. Anderson, Anderson on the Uniform Commercial Code § 2-715:46 (3d ed. 1983). That section and the cases therein are aimed at establishing that the recovery of amounts by the buyer as interest paid in connection with the purchase of a product or amounts paid by the buyer as interest on amounts that needed to be borrowed as a result of a breach of warranty are recoverable. There is no persuasive reason to depart from our usual rule that where the amount of a loss, the subject of litigation, cannot be computed without opinion or discretion, the claim is unliquidated and prejudgment interest is not recoverable. Erin Rancho Motels v. United States F. & G. Co., 218 Neb. 9, 352 N.W.2d 561 (1984). AFFIRMED.

107 Wis.2d 392 (1982) 320 N.W.2d 172 BLUE TOP MOTEL, INC., Ronald McCord and James McCord, d/b/a Traveller Motel; Point Motel, Inc., Roadstar Inn Motel of Stevens Point, Inc., and Zenoff Inns, Inc., Plaintiffs-Appellants, v. CITY OF STEVENS POINT, Defendant-Respondent. No. 81-1096. Supreme Court of Wisconsin. Argued April 27, 1982. Decided June 2, 1982. *393 For the plaintiffs-appellants there were briefs by Tinkham, Smith, Bliss, Patterson, Richards & Hessert and oral argument by George A. Richards, all of Wausau. For the defendant-respondent there was a brief and oral argument by Louis J. Molepske, city attorney. For the attorney general the cause was argued by Robert J. Vergeront, assistant attorney general, with whom on the brief was Bronson C. La Follette, attorney general. On certification from court of appeals. BEILFUSS, C.J. This is an appeal from an order of the circuit court for Portage county, ROBERT C. JENKINS, Circuit Judge, which dismissed the plaintiffs' declaratory judgment action. The plaintiffs are hotel and motel owners in Stevens Point, Wisconsin, who sought a declaration that a city ordinance, which imposed a tax on the privilege of furnishing rooms and lodging, was invalid. The court of appeals certified the plaintiffs' appeal to this court, pursuant to sec. 809.61, Stats. 1979-80, and we accepted the certification. Sec. 66.75, Stats. 1979-80, authorizes a municipality to enact a "room tax." The statute provides: "66.75 Room tax. The governing body of a town, village or city may enact an ordinance imposing a tax on the privilege of furnishing, at retail, rooms or lodging to transients by hotelkeepers, motel operators and other persons furnishing accommodations that are available to the public, irrespective of whether membership is required for use of the accommodations. In this section *394 `transient,' `hotel' and `motel' have the meaning set forth in s. 77.52(2) (a) 1. Any tax so imposed shall not be subject to the selective tax imposed by s. 77.52(2) (a) 1." On May 19, 1980, the common council of Stevens Point passed sec. 4.12 of the Revised Municipal Code. This ordinance states in part: "(2) Pursuant to Wisconsin Statutes, Section 66.75, a tax is hereby imposed on the privilege and service of furnishing, at retail, of rooms or lodging to transients by hotelkeepers, motel operators, and other persons furnishing accommodations that are available to the public, irrespective of whether membership is required for the use of the accommodations. Such tax shall be at the rate of four percent (4%) of the gross receipts from such retail furnishing of rooms or lodgings. Such tax shall not be subject to the selective sales tax imposed by Wisconsin Statutes, Section 77.52(2) (a) 1." The ordinance also provides that every person furnishing such rooms and lodging must apply for a permit and pay a $2 fee to obtain a permit. Failure to pay the tax and otherwise comply with the requirements of the ordinance can result in a revocation or suspension of the permit. Provisions are made in the ordinance for the city treasurer to administer the collection of the tax. The treasurer is authorized to conduct audits in order to verify a hotel or motel operator's liability for this "room tax." The proceeds from the tax are allocated by the ordinance to "the Special Parks and Recreation Sinking Fund of the City of Stevens Point." The ordinance does not state the purpose for which the funds will be used nor does it contain any limit on the amount that can be raised. The plaintiffs raised several arguments in the circuit court in support of a declaration that the ordinance was invalid. Their principal contentions arose from the fact that the tax is measured according to the gross receipts *395 from the retail furnishing of rooms and lodging. The plaintiffs argued that the city lacked specific legislative authorization to use gross receipts as the basis of the tax. Further, they argued that a tax measured by gross receipts cannot be enacted by the city because such a tax is "measured by income" and is prohibited by sec. 66.70, Stats. 1979-80.[1] In addition, the plaintiffs argued that the ordinance is defective because it established a sinking fund without any definite purpose and without any limit on the amount of funds that can be accumulated. The circuit court upheld the ordinance, ruling that sec. 66.75, Stats. 1979-80, does provide authority for a "room tax" measured by gross receipts. It also concluded that sec. 66.70 only prohibits cities from taxing net income and therefore does not apply to this case. Finally, the court held that because there was no evidence that excess amounts had accumulated in the sinking fund the ordinance was valid. In order to clarify the relation between these statutes, this court accepted the case following certification by the court of appeals. [1] We hold that the city can use the gross receipts as the basis by which to determine the room tax. Sec. 66.75, Stats. 1979-80, does authorize cities to enact a room tax and the gross receipts method is a fair and reasonable way of calculating the tax. It is true, as the plaintiffs contend, that cities have no inherent power to tax. Cities may only enact the types of taxes authorized by the legislature. Jordan v. Menomonee Falls, 28 Wis. 2d 608, 621, 137 N.W.2d 442 (1965). However, sec. 66.75 *396 is a specific legislative grant of authority for cities to enact such a tax. Although the statute does not specify that the tax shall be based on gross receipts, it does provide for a scheme of taxation similar to the state sales tax in sec. 77.52, which is based on gross receipts.[2] Sec. *397 66.75 makes two direct references to the sales tax statutes. Many of the administrative provisions in the ordinance are clearly patterned after the sales tax provisions in sec. 77.52. Secs. 66.75 and 77.52 are both taxes upon the privilege of furnishing at retail. Sec. 66.75 allows cities to impose what is essentially a type of sales tax on a limited group of transactions. Arguably, the most equitable, reasonable and convenient way to measure the room tax is by basing it on gross receipts, as is done with the sales tax. [2] We also conclude that sec. 66.70, Stats. 1979-80, does not prevent the city from basing the tax on gross receipts. Sec. 66.70 provides: "Political subdivisions prohibited from levying tax on incomes. No county, city, village, town, or other unit of government authorized to levy taxes shall assess, levy or collect any tax on income, or measured by income, and any such tax so assessed or levied is void." The plaintiffs do not claim that the room tax is an income tax, but rather that it is "measured by income" and therefore void under sec. 66.70, Stats. 1979-80. However, we hold that sec. 66.70 does not apply here because sec. 66.75 explicitly authorizes this room tax. The ordinance taxes gross receipts derived only from the furnishing of rooms and lodging. Other potential income to the plaintiffs from the sale of meals or other services is not covered. In all probability, the gross receipts from furnishing rooms and lodging will comprise a significant part of the plaintiffs' income. A tax measured by the gross receipts can thus, in a sense, be said to be a tax measured by income. However, we view sec. 66.75 as creating a specific exception to the prohibition on income taxes in sec. 66.70. The legislature enacted sec. *398 66.70 in 1947 as a general prohibition against cities enacting taxes on or measured by income. In 1967, the legislature created sec. 66.75, which granted cities the power to enact such a room tax. To the extent that the ordinance in question can be said to be a tax "measured by income," we hold that it is permissible as an exception created by the later, more specific statute. Although we hold that the ordinance is valid insofar as the tax is concerned, we remand to the circuit court for consideration of the plaintiffs' arguments relating to the sinking fund. The plaintiffs claim that because no limits are set on the use of the revenue from this tax or the amount that can be collected, the revenue will accumulate as a surplus. They contend that the case of Immega v. Elkhorn, 253 Wis. 282, 34 N.W.2d 101 (1948), established the rule that such a sinking fund is illegal. Immega involved a sinking fund, ostensibly to be used for a new courthouse. However, no binding obligation was made or other official action taken towards the construction of a courthouse. This court stated at 287: "The only authorized sinking fund is that which is required by sec. 67.11, Stats., for solely the specific purpose of providing for the payment of a particular bond issue. Likewise there is no statute empowering the county to levy a tax to create a surplus for any purpose excepting for postwar planning, pursuant to sec. 59.08(53), Stats.; nor is there any statute authorizing a county to levy taxes for the purpose of accumulating funds in substantial amounts of money for the future or contingencies which may never occur, or for the purpose of enriching the public treasury." This rule from Immega was qualified in Fiore v. Madison, 264 Wis. 482, 59 N.W.2d 460 (1953). In Fiore, the court recognized the right of city governments to retain reasonable amounts on hand to meet the city's needs. As the court wrote in Fiore at 486: *399 "Plaintiff submits that the city audit as of December 31, 1951, shows other surplus unallocated funds in large amounts which were not taken into consideration, but should have been, when the tax rate was fixed. We agree that if there are such funds they must be applied as far as they will go to finance the budget, but there are certain reservations. One is that the funds must be in cash or in so liquid a form as to be the equivalent of cash, if reliance to pay budgeted expenses is to be placed on them. Another is that, even of such cash, the last cent need not be devoted to reduction of taxes in aid of the budget. Ordinary business principles, which city government is neither required by law nor expected to disregard, permit the retention of reasonable working cash balances in the city treasury." Taken together, Immega and Fiore establish generally that a city may retain funds to meet its needs, but may not simply carry a large surplus which has not been designated for any particular use. In the present case the circuit court did not allow an evidentiary hearing to explore what uses are to be made of the fund and how much money had accumulated in it. The court did state that there was no evidence as to the use of the fund. The plaintiffs should be given an opportunity to show whether the revenues from this tax were actually being applied for parks and recreation purposes or were merely being carried as a surplus on the city's records, as in Immega. Therefore we remand to the circuit court for a hearing on this issue. By the Court.—Order affirmed in part, reversed in part and remanded for proceedings consistent with this opinion. NOTES [1] Sec. 66.70, Stats. 1979-80, provides: "Political subdivisions prohibited from levying tax on incomes. No county, city, village, town, or other unit of government authorized to levy taxes shall assess, levy or collect any tax on income, or measured by income, and any such tax so assessed or levied is void. [2] Sec. 77.52, Stats. 1979-80, states in part: "77.52 Imposition of retail sales tax. (1) For the privilege of selling, leasing or renting tangible personal property, including accessories, components, attachments, parts, supplies and materials, at retail a tax is hereby imposed upon all retailers at the rate of 3% of the gross receipts from the sale, lease or rental of tangible personal property, including accessories, components, attachments, parts, supplies and materials, sold, leased or rented at retail in this state on or after February 1, 1962; but beginning on September 1, 1969 the rate of the tax hereby imposed shall be 4%. "(2) For the privilege of selling, performing or furnishing the services herein described at retail in this state to consumers or users, a tax is hereby levied and imposed upon all persons selling, performing, or furnishing such services at the rate of 3% of the gross receipts from the sale, performance, or furnishing of such services on or after February 1, 1962; but beginning on September 1, 1969 the rate of the tax hereby imposed shall be 4%. "(a) the tax imposed herein applies to the following types of services: "1. The furnishing of rooms or lodging to transients by hotelkeepers, motel operators and other persons furnishing accommodations that are available to the public, irrespective of whether membership is required for use of the accommodations. As used in this paragraph, `transient' means any person residing for a continuous period of less than one month in a hotel, motel or other furnished accommodations available to the public. As used in this paragraph, `hotel' or `motel' means a building or group of buildings in which the public may obtain accommodations for a consideration, including, without limitation, such establishments as inns, motels, tourist homes, tourist houses, summer camps, apartment hotels, resort lodges and cabins and any other building or group of buildings in which accommodations are available to the public, except accommodations rented for a continuous period of more than one month and accommodations furnished by any hospitals, sanatoriums, or nursing homes, or by corporations or associations organized and operated exclusively for religious, charitable or educational purposes provided that no part of the net earnings of such corporations and associations inures to the benefit of any private shareholder or individual."

Filed 7/19/16 P. v. Reed CA1/1 NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA FIRST APPELLATE DISTRICT DIVISION ONE THE PEOPLE, Plaintiff and Respondent, A143247 v. DEANTRAY REED, (San Francisco City & County Super. Ct. No. 219366) Defendant and Appellant. A jury convicted defendant Deantray Reed of second degree robbery (Pen. Code, § 211),1 assault with force likely to cause bodily injury (§ 245, subd. (a)(1)), participation in a criminal street gang (§ 186.22, subd. (a)), and evading an officer (Veh. Code, § 2800.2, subd. (a)). However, the jury found untrue an alleged enhancement that defendant committed the assault and robbery for the benefit of a criminal street gang (Pen. Code, § 186.22, subd. (b)). The trial court sentenced defendant to a 15-year four- month prison term. In computing this term, the court stayed sentence on the gang participation and assault convictions pursuant to Penal Code section 654. On appeal, defendant challenges only his gang participation conviction. We agree the conviction is not supported by substantial evidence, and specifically that there is insufficient evidence he committed the assault and robbery with another gang member as required under Penal Code section 186.22, subdivision (a). We therefore reverse that portion of the judgment. Because the sentence on this conviction was stayed, there is no change in the prison term. 1 All further statutory references are to the Penal Code unless indicated. 1  BACKGROUND Just before 2:59 p.m. on a June afternoon in 2011, the victim saw two men approach her on the street. After passing her, the men doubled back and attacked her. The taller of the two men held and dragged her, the shorter man hit her, and the victim screamed for help. After the struggle, the short man grabbed the victim’s purse and the tall man snickered. Both ran off and got into a red vehicle as neighbors arrived and called 911. The victim’s credit cards and other personal items were in her purse. The police tracked charges on the stolen credit cards to two nearby gas stations. Officers linked one credit charge to a station on Bayshore Boulevard. Viewing time- stamped surveillance footage, they concluded the charge was made between 3:15 p.m. and 3:20 p.m., approximately 16 to 23 minutes after the robbery.2 The footage shows a red boxy vehicle pulling into the station, a man later identified as Devante Robinson emerging from the driver’s seat, and that man entering the gas station snack shop. Officers linked a second credit charge to a station on Mission Street. That station’s records show use of the victim’s credit card at 3:58 p.m. Surveillance video from that time depicts a burgundy vehicle, and officers recognized one of its passengers as defendant, another as Alan McCoy, and a third as Robinson. When shown photo lineups, the victim identified defendant as the taller assailant, but could not identify anyone as the shorter assailant. She also identified defendant in court when she testified during trial. Other witnesses, neighbors who arrived on scene, also implicated defendant as the tall attacker, but none could identify the other assailant. At trial, police officers offered their opinions that defendant and McCoy were members of the “Down Below Gang,” and Robinson was at least an associate, if not a member of the gang. In height order, McCoy was shorter than defendant, who was shorter than Robinson. 2 One officer believed he started the surveillance video at the point where the robbery took place and watched for 10 minutes. Video time stamps showed activity somewhere between 3:16 p.m. and 3:22 p.m., 17–23 minutes after the 911 call. Another video time stamp, “15:34 minutes,” might show activity at 3:34 p.m., approximately 35 minutes after the 911 call, but could also have shown activity at 3:15 p.m. 2  A jury convicted defendant of second degree robbery (§ 211), assault with force likely to cause bodily injury (§ 245, subd. (a)(1)), participation in a criminal street gang (§ 186.22, subd. (a)) and also an unrelated charge evading a police officer (Veh. Code, § 2800.2, subd. (a)). The jury found not true, however, a gang enhancement allegation pursuant to Penal Code section 186.22, subdivision (b). The trial court sentenced defendant to 15 years four months in state prison on the robbery and evasion convictions, and stayed sentence on the gang participation and assault convictions under section 654. DISCUSSION On appeal, defendant challenges only his conviction of gang participation under section 186.22, subdivision (a), count 4 of the operative information. He contends no substantial evidence supports the conviction. “[I]n reviewing a challenge to the sufficiency of the evidence, the relevant inquiry is whether, on review of the entire record in the light most favorable to the judgment, any rational trier of fact could have found the elements of the offense beyond a reasonable doubt.” (People v. Young (2005) 34 Cal.4th 1149, 1180 (Young).) “ ‘The test is whether substantial evidence supports the decision, not whether the evidence proves guilt beyond a reasonable doubt.’ ” (People v. White (2015) 241 Cal.App.4th 881, 884.) The “court resolves neither credibility issues nor evidentiary conflicts,” which remains “the exclusive province of the trier of fact.” (Young, supra, at p. 1181.) Section 186.22, subdivision (a), criminalizes the conduct of “[a]ny person who actively participates in any criminal street gang with knowledge that its members engage in or have engaged in a pattern of criminal gang activity, and who willfully promotes, furthers, or assists in any felonious criminal conduct by members of that gang . . . .” (See People v. Rodriguez (2012) 55 Cal.4th 1125, 1130 (Rodriguez).) To be guilty of this “street terrorism” crime, a defendant must “commit an underlying felony with at least one other gang member.” (Id. at p. 1134.) This means there must be “participation of at least two members of the same gang” in the underlying felony. (People v. Vega (2015) 236 Cal.App.4th 484, 503.) 3  Convictions for street terrorism have been reversed when a defendant acted alone; (Rodriguez, supra, 55 Cal.4th at p. 1128); when a defendant likely acted alone, or possibly with a girlfriend whose gang membership had not been established (People v. Rios (2013) 222 Cal.App.4th 542, 545, 560); when a defendant acted in the presence of another person who was “not a validated gang member” (People v. Johnson (2014) 229 Cal.App.4th 910, 923); and when a defendant acted not with a member of his gang, but with the member of another gang (People v. Velasco (2015) 235 Cal.App.4th 66, 78). Most recently, in People v. Vega, the prosecution offered evidence that the defendant, who admitted gang affiliation, and another person, Giovanni, approached a victim. “One or both” of these men taunted the victim by asking where he was from, a common provocation in gang culture. The victim identified himself as affiliated with a rival of the defendant’s gang. A fight then broke out, the victim died from a stab wound, and the defendant was convicted of voluntary manslaughter and a related street terrorism charge under section 186.22, subdivision (a). The appellate court reversed the street terrorism charge. Despite the fight’s obvious relationship to gang rivalry, there was no substantial evidence regarding Giovanni’s gang affiliation. (People v. Vega, supra, 236 Cal.App.4th at pp. 489, 503–506.) During closing argument in this case, the People argued defendant was guilty of the gang participation charge because he committed the underlying offenses of robbery and assault with McCoy and Robinson. The trial court then instructed the jury using CALCRIM No. 1400 as a template. To find defendant guilty of gang participation, the jury was instructed it needed to find defendant “willfully assisted, furthered, or promoted felonious criminal conduct” and find “at least two gang members . . . participated in the felony offense.” The trial court defined “felonious criminal conduct” as “committing or attempting to commit the following crime: assault by means of force likely to produce great bodily injury (Penal Code section 245) or robbery (Penal Code section 211).” Defendant contends no substantial evidence connects his unidentified accomplice in the robbery and assault, i.e., the short man, to membership in the Down Below Gang. 4 We agree. While the People insist the shorter assailant was McCoy, there is no substantial evidence of McCoy’s participation in any criminal activity until he was captured on the surveillance video at the Mission Street gas station at about 3:58 p.m.— nearly an hour after the assault and robbery. No one identified the shorter assailant: not the victim, and not her neighbors. While one could speculate McCoy was the shorter assailant, that is just a possibility and does not constitute substantial evidence necessary to support a conviction. (See People v. Ramon (2009) 175 Cal.App.4th 843, 853 [“a mere possibility is not sufficient to support a verdict”].) Indeed, the People have cited no case suggesting such speculation is sufficient to support a street terrorism charge under section 186.22, subdivision (a). The fundamental problem with the People’s suggestion that use of the victim’s credit cards at the gas stations could be the felony undergirding the street terrorism conviction is that this is not a theory of the case the People ever tried or argued below or on which they sought instruction, and they may not pursue it for the first time on appeal. (See People v. Borland (1996) 50 Cal.App.4th 124, 129 [“It is well established that a party may not change his theory of the case for the first time on appeal.”]; cf. People v. Lewis (2006) 139 Cal.App.4th 874, 890 [felony murder conviction overturned when jury instructed on underlying felony that could not support felony murder conviction, and when jury not instructed on alternative theory of implied malice murder]; People v. Hughes (2002) 27 Cal.4th 287, 349 [in burglary trial, court had well-established duty to instruct jury on elements of “target” offenses the defendant was alleged to have intended upon entry].) This rule against new theories protects a defendant’s right to due process, which requires that “ ‘an accused be advised of the charges against him so that he has a reasonable opportunity to prepare and present his defense and not be taken by surprise by evidence offered at his trial.’ ” (People v. Graff (2009) 170 Cal.App.4th 345, 360.) In People v. Moses (1990) 217 Cal.App.3d 1245, 1250–1253, for example, there was no evidence the stolen property, a cow, was taken by larceny—the only theory of theft argued and instructed on in the trial court. (Id. at pp. 1251–1252.) On appeal, the People argued a different theory of theft, misappropriation. (Id. at p. 1252.) Rejecting 5 this effort to salvage the conviction, the appellate court explained a new theory cannot “save the conviction” when it “ ‘contemplates factual situations the consequences of which are open to controversy and were not put in issue in the lower court.’ ” (Ibid.) When “the only theory buttressing the conviction lacks evidentiary support, the judgment must be reversed for lack of evidence.” (Id. at pp. 1252–1253.) The same is true here. The People cannot urge a new underlying felony offense that was never argued or instructed on in the trial court to save the street terrorism conviction. In sum, given the lack of any substantial evidence that the assault and robbery felonies were committed by more than one member of the Down Below Gang, we reverse the gang participation conviction. DISPOSITION The judgment, as to count 4 only, is reversed. The length of defendant’s prison sentence is unaffected, and remand unnecessary, as the sentence on count four was stayed. (People v. West (1991) 226 Cal.App.3d 892, 900, fn. 17.) The trial court is directed to forward to the Department of Corrections an amended abstract of judgment. 6  _________________________ Banke, J. We concur: _________________________ Humes, P. J. _________________________ Dondero, J. 7 

373 F.2d 301 Fay William BONNER, Appellant,v.Dr. George J. BETO, Director, Texas Department of Corrections, Appellee. No. 23803. United States Court of Appeals Fifth Circuit. February 15, 1967. Rehearing Denied March 17, 1967. Orville A. Harlan, Houston, Tex., Fay William Bonner, pro se, for appellant. Lonny F. Zwiener, Asst. Atty. Gen., Waggoner Carr, Atty. Gen., of Texas, Hawthorne Phillips, First Asst. Atty. Gen., T. B. Wright, Executive Asst. Atty. Gen., Howard M. Fender, Asst. Atty. Gen., for appellee. Before TUTTLE, Chief Judge, and AINSWORTH and DYER, Circuit Judges. DYER, Circuit Judge: 1 This is an appeal in forma pauperis from the District Court's denial of appellant's petition for a Writ of Habeas Corpus. 2 Bonner and his wife were indicted separately in the state courts of Texas for the same burglary. Immediately prior to appellant's trial his wife pleaded guilty and was given probation. When appellant attempted to call her as a witness at his trial, the state trial judge refused to allow her to testify because of Article 711 of the Texas Code of Criminal Procedure, which declared co-principals incompetent to testify for a principal.1 No witnesses appeared for the accused. Bonner was convicted of burglary enhanced by prior convictions and given a life sentence as an habitual offender. The Texas Court of Criminal Appeals upheld the application of the Texas statute in Bonner's trial without discussing federal constitutional issues. Bonner v. State, 375 S.W.2d 723, (Tex.Crim.App., 1964).2 Having exhausted his state remedies Bonner sought but was denied the Great Writ in the United States District Court. 3 The issue we are called upon to decide is whether it is a denial of Fourteenth Amendment due process for a state trial judge to refuse to allow a principal to call a co-principal, indicted in a separate indictment for the same offense, as a witness on his behalf, because a state statute declares a co-principal incompetent to testify on behalf of a principal. 4 Bonner testified that he was returning the goods his wife had stolen. It, therefore, became imperative to his defense that his testimony be corroborated, if possible. His wife was the only one who could do so. She was not allowed to testify, however, and there were no other witnesses called on his behalf. The defendant stood alone. 5 Article 711 is an outgrowth of the common-law's abhorrence of "the idea of any person testifying who had the least interest." State v. Barrows, 76 Me. 401, 409. In his Commentaries, Blackstone stated the settled common-law rule to be that "[a]ll witnesses, of whatever religion or country, that have the use of their reason, are to be received and examined, except such as are infamous, or such as are interested in the event of the cause." 3 Bl.Comm. 369. 6 Wigmore reduced the interest disqualification theory to a syllogism based on the fallacious premises that witnesses who would probably speak falsely should be totally excluded as witnesses and that interested persons are specially likely to speak falsely and therefore should be excluded.3 Thus, indictees and defendants were not competent to testify for themselves or for or against their co-indictees or co-defendants. The courts were divided, however, on whether or not, as here, a person indicted separately for the same crime with which the defendant was charged was competent to testify on behalf of the defendant.4 7 Beginning early in the 19th Century, attacks were made on the disqualification for interest. The removal of the disqualification of interested non-party witnesses in civil cases fell first. See Lord Denman's Act of 1843, 6 and 7 Vict., c. 85. Next, party witnesses in civil cases were declared competent by the County Courts Act of 1846, 9 and 10 Vict., c. 95 and Lord Brougham's Act of 1851, 14 and 15 Vict. c. 99.5 Maine was the first jurisdiction to allow an accused in a criminal prosecution to testify for himself. Maine Acts 1859, c. 104. Texas followed suit in 1889.6 Every state adopted a similar statute except Georgia.7 The object of these statutes was plainly to remove the disqualification of the accused as a party. 2 Wigmore, supra § 580. It would seem that the disqualification of a co-indictee, a co-defendant or a person indicted separately for the same crime should have been removed also; for they were disqualified solely because they were interested parties, and they obviously had less interest in the outcome than did the accused himself. But in the Texas statute, as in other states,8 the accused was declared competent to testify "on his own behalf",9 thus omitting in terms to provide that he be a competent witness on behalf of or against another defendant. Notwithstanding the fact, however, that the historical reasons for the interest disqualification rule had been shown to be unsound and it was discarded, Article 711 and its counterpart10 survived successive revisions of the Texas Codes. 8 The Fourteenth Amendment leaves Texas free to adopt whatever statute or decision she elects concerning the competency of various classifications of witnesses to testify, whether or not her rule conforms to that applied in the Federal Courts or in other state courts. But as the Supreme Court said in Lisenba v. People of State of California, 314 U.S. 219, 62 S.Ct. 280, 86 L.Ed. 166 (1941), "[T]he adoption of the rule of her choice cannot foreclose inquiry as to whether, in a given case, the application of that rule works a deprivation of the prisoner's life or liberty without due process of law."11 314 U.S. at 236, 62 S.Ct. at 290. 9 The district court held that because the testimony of Bonner's wife was self-serving,12 its prohibition was a reasonable policy and was consistent with the Fourteenth Amendment. We disagree and view the determination of the credibility of a witness' testimony as a function of the jury. 10 We hold that the application of Article 711 of the Vernon's Ann.Texas Code of Criminal Procedure to Bonner worked a deprivation of his liberty without due process of law under the Fourteenth Amendment. 11 In view of our holding, we do not reach appellant's contention that the Sixth Amendment's right of an accused "to have compulsory process for obtaining Witnesses in his favor" is incorporated in the Fourteenth Amendment's due process clause. 12 The judgment of the district court is reversed and the cause is remanded with directions to give to the state of Texas a reasonable time within which to grant a new trial to the appellant, failing which the writ shall be granted. 13 Reversed and remanded. Notes: 1 Persons charged as principals, accomplices or accessories, whether in the same or different indictments, cannot be introduced as witnesses for one another, but they may claim a severance; and, if any one or more be acquitted, or the prosecution against them be dismissed, they may testify in behalf of the others. Article 711, Vernon's Ann.Texas Code of Criminal Procedure. (1925) We observe that Texas revised its Code of Criminal Procedure in 1965, omitting Article 711. Article 38.08 of the Revised Code, however, notes that Article 82 of Vernon's Ann.Texas Penal Code was not repealed by the 1965 revision and still prohibits principals, accomplices or accessories from testifying for each other in language similar to old Article 711 Vernon's Ann.C.C.P. (1925). 2 There is a long line of Texas cases applying Article 711 of the Vernon's Ann. Texas Code of Criminal Procedure and Article 82 of the Vernon's Ann.Texas Penal Code Not, however, until the recent cases of Washington v. State (Tex.Crim.App. 1966) 400 S.W.2d 756, and Brown v. State, (Tex.Crim.App.1966) 401 S.W.2d 251 has the constitutionality of Articles 711 Vernon's Ann.C.C.P. and 82 Vernon's Ann.P.C. been attacked. The Washington court in refusing to hold the statute unconstitutional said: "The legislature has the power, except as limited by the constitution, to proscribe the competency of witnesses in all cases. * * * These statutes are procedural only, and do not deprive the accused of any constitutional right." 400 S.W.2d at 759. The United States Supreme Court granted certiorari in Washington, supra, and transferred the case to the Appellate docket placing it on the summary calendar October 10, 1966, to decide the question: "Is petitioner's conviction and sentence void because he was denied his rights under the Sixth and Fourteenth Amendments to the Constitution of the United States to have compulsory process in obtaining an available witness in his favor, namely, a Co-Defendant, charged and previously convicted under a separate indictment for the same transaction and which Co-Defendant, according to his Affidavit, could have exonerated Petitioner if such testimony were believed by the jury?" Washington v. State of Texas, 385 U.S. 812, 87 S.Ct. 123, 17 L.Ed.2d 54. 3 The fallacies were exposed for the first time by Jeremy Bentham in his treatise, Rationale of Judicial Evidence, b. IX, pt. III, c. III (Bowring ed., 1827, Vol. VII, pp. 393 ff.) See 2 Wigmore, Evidence, 3rd ed., § 576 4 For a list of the cases on each side see 2 Wigmore, Evidence, § 580, n. 4 and 18 Texas L.Rev. 62 n. 2 5 The American development followed a similar pattern. It is traced in 2 Wigmore, supra, pp. 686-695 6 Acts 1889, p. 37, now Vernon's Ann. Texas Code Crim.Proc. (1925) Art. 710. Up until this time Texas had generally followed the common law rules of incompetency including the disqualification of the accused. The common law had been in effect in Texas since 1840, when the Congressional Act of January 20, 1840, 2 Gammel's Laws, p. 177, Art. 1 Vernon's Ann.Tex.Civ.Stats., made the common law of England, so far as it was consistent with the constitutional and legislative enactments of Texas, the law in Texas. Although Texas was an independent republic at that time, the 1840 Act was construed as referring to the English Common Law as declared by the various courts of the United States as it existed in 1840. Southern Pacific Co. v. Porter, 160 Tex. 329, 331 S.W.2d 42, 45 (1960) 7 In Ferguson v. State of Georgia, 365 U.S. 570, 81 S.Ct. 756, 5 L.Ed.2d 783 (1961) the court refused to consider the constitutionality of the Georgia disqualification statute, because the appellant did not raise the point, nor did he proffer any testimony. Mr. Justice Clark in his concurring opinion in which Mr. Justice Frankfurter joined, stated that: "Reaching the basic issue of incompetency, as I feel one must, I do not hesitate to state that in my view § 38-416 [the Georgia disqualification statute] does not meet the requirements of due process and that, as an unsatisfactory remnant of an age gone by, it must fall." 365 U.S. at 602, 81 S.Ct. at 773 8 The Texas history here parallels that of other states. See 2 Wigmore, supra, at 707 9 See footnote 6 10 See footnote 1 11 The court there was speaking of a state rule on the admissibility of confessions, but the principle is equally applicable here 12 That her testimony was going to be self-serving is beyond question. The proffer of her testimony shows she was going to testify that she alone committed the burglary

783 F.2d 1470 UNITED STATES of America, Plaintiff-Appellee,v.Robert CRUZ, Defendant-Appellant. No. 85-1127. United States Court of Appeals,Ninth Circuit. Argued and Submitted Jan. 14, 1986.Decided March 5, 1986. Frederick Black, Asst. U.S. Atty., Agana, Guam, for plaintiff-appellee. Jeffrey R. Siegel, Francis L. Gill, Del Priore, Unpinco & Gill, Agana, Guam, for defendant-appellant. On Appeal From the United States District Court for the District of Guam. Before POOLE, BEEZER and KOZINSKI, Circuit Judges. BEEZER, Circuit Judge: 1 Cruz appeals his conviction for distribution of heroin and conspiracy to distribute heroin. Cruz contends that the court abused its discretion by refusing to appoint expert witnesses pursuant to Fed.R.Crim.P. 17(b) and erroneously instructed the jury regarding entrapment. We AFFIRM. FACTS 2 Cruz was a drug dealer working in the Pablo Max organization in Guam. Cruz provided heroin to Kevin Kamekona and others. Kamekona was a DEA informant. Upon learning that indictments were pending, Cruz fled. 3 Prior to trial, Cruz requested the court to appoint a medical doctor and a psychiatrist at government expense. Cruz claimed that the expert witnesses would testify that Cruz, a drug addict, easily could have been induced to violate the law. The court denied Cruz' request. 4 At trial, Cruz pursued an entrapment defense. Cruz' theory was that the DEA sought revenge for Cruz' involvement in an automobile accident that resulted in severe injury to the wife of a DEA agent. Cruz claimed that Kevin Kamekona, acting as a DEA informant, caused Cruz to become addicted to heroin. Cruz objected to the proposed entrapment instruction on the grounds that the instruction would mislead the jury into believing that only paid law enforcement officials were government agents. The instruction stated: 5 The Defendant Robert Cruz has raised the defense of entrapment. A defendant is not guilty of a crime if: 6 First, that the idea of committing the crime came from Government agents and not from the defendant; and second, that the Government agents then talked defendant into committing the crime. However, simply giving defendant the opportunity to commit the crime is not the same as talking him into it. And three, that the defendant was not ready and willing to commit the crime before the Government agents talked him into it. Consider all of the facts when you decide whether the defendant would have been ready and willing to commit the crime without the actions of Government agents. 7 The Government must prove beyond a reasonable doubt that the defendant was not entrapped by Government agents. Therefore, the Government must prove beyond a reasonable doubt at least one of the following: 8 One, that the idea for committing the crime came from the defendant, not the Government; two, that the defendant was not talked into committing the crime; or three, that the defendant was ready and willing to commit the crime before the Government agents talked to him about it. 9 If you find that the defendant committed the crime charged, but have a reasonable doubt as to whether he was entrapped by Government agents, you must find him not guilty. 10 Cruz requested the following additional language: 11 When Kevin Kamekona became a Government informer he also became a Government agent. 12 If you find that the Defendant was originally entrapped, and that the subsequent offenses by the Defendant were a product of that initial inducement by the Government informant, then you must find the Defendant Robert Cruz not guilty of the charge in the indictment. 13 The court adopted the proposed instruction and rejected Cruz' proffered additional language. Cruz was convicted and now appeals. DISCUSSION 1. The Entrapment Instruction 14 When reviewing a claim of error relating to jury instructions, the instructions must be viewed as a whole. Moreover, the adequacy of the entire charge must be evaluated in the context of the whole trial. A trial judge is given substantial latitude in tailoring the instructions so long as they fairly and adequately cover the issues presented. Finally, although a criminal defendant is entitled to an instruction regarding his theory of the case, challenges which merely pertain to the trial judge's language or formulation of the charge are reversible only for an abuse of discretion. 15 United States v. Marabelles, 724 F.2d 1374, 1382-83 (9th Cir.1984) (citations omitted). "Moreover, 'an omission or an incomplete instruction is less likely to be prejudicial than a misstatement of the law.' " United States v. Witt, 648 F.2d 608, 610 (9th Cir.1981) (quoting Henderson v. Kibbe, 431 U.S. 145, 155, 97 S.Ct. 1730, 1737, 52 L.Ed.2d 203 (1977)). 16 Cruz argues that the court's entrapment instruction was potentially misleading because it used the term "government agents" rather than "law enforcement officers or their agents." Cruz contends that the jury might have understood the term, "government agents," to include only paid law enforcement officers, such as DEA agents. 17 Many variations of entrapment instructions exist. Several include language that distinguishes between the law enforcement officer and the agent.1 Some variations of the instruction refer to government agents alone.2 Other variations refer to government agents at some places in the instruction, but distinguish between the law enforcement officer and the agent at other places in the instruction.3 18 Cruz cites no case in which a court has rejected an entrapment instruction similar to the one given here. The two courts that have addressed the propriety of referring only to "government agents" have approved similar instructions. See United States v. Hoppe, 645 F.2d 630, 632-33 (8th Cir.), cert. denied, 454 U.S. 849, 102 S.Ct. 170, 70 L.Ed.2d 138 (1981); United States v. Turner, 490 F.Supp. 583, 594 (E.D.Mich.1979), aff'd, 633 F.2d 219 (6th Cir.1980), cert. denied, 450 U.S. 912, 101 S.Ct. 1351, 67 L.Ed.2d 336 (1981); cf. United States v. Sheldon, 544 F.2d 213, 220-21 (5th Cir.1976) (reversing conviction in part because the trial court instructed jury that informant's conduct, as a matter of law, could not be attributed to government).4 19 The instruction given by the court correctly states the law. Entrapment will lie only when the government induces the violation; inducement by a private party is not entrapment. United States v. Busby, 780 F.2d 804, 805, 806-07 (9th Cir.1986); United States v. Stewart, 770 F.2d 825, 831 (9th Cir.1985); United States v. North, 746 F.2d 627, 630 (9th Cir.1984), cert. denied, --- U.S. ----, 105 S.Ct. 1773, 84 L.Ed.2d 832 (1985); United States v. Rhodes, 713 F.2d 463, 467 (9th Cir.), cert. denied, 464 U.S. 1012, 104 S.Ct. 535, 78 L.Ed.2d 715 (1983). Moreover, the first sentence of Cruz' proffered instruction misstates the law. An informant is not necessarily a government agent. See United States v. Busby, 780 F.2d at 806-07; United States v. Rhodes, 713 F.2d at 467; United States v. Hoppe, 645 F.2d at 633. 20 Cruz also argues that even if the jury found that Cruz' initial sales were induced, the court's instruction erroneously would have allowed the jury to find that later sales were not induced. However, there was no error in allowing the jury to find that later sales were independent of the initial inducement. In United States v. North, 746 F.2d at 630, we held that an initial entrapment does not immunize a defendant from criminal liability for subsequent transactions that he readily and willingly undertakes. "Whether any initial entrapment extended through some or all of the later transactions was a question of fact" for the jury to decide. Id. Moreover, a jury might have understood the second sentence of the proffered instruction to have required a jury to find entrapment as to all transactions if the jury found that Cruz initially had been entrapped. The trial court's choice of language, therefore, constituted a proper exercise of its discretion. 21 2. The Motion to Appoint Expert Witnesses at Court Expense. 22 Finally, Cruz argues that the district court abused its discretion by refusing to appoint a doctor and a psychologist pursuant to Fed.R.Crim.P. 17(b). This case is functionally indistinguishable from United States v. Bernard, 625 F.2d 854, 860 (9th Cir.1980), in which we held that denial of such a motion was not an abuse of discretion. 23 Therefore, we AFFIRM the district court. 1 See Devitt & Blackmar, Federal Jury Practice and Instructions Sec. 13.09 (Supp.1985); Federal Criminal Jury Instructions for the Seventh Circuit Sec. 4.04, reprinted in S. Saltzburg & H. Perlman, Federal Criminal Jury Instructions, Appendix II at 30 (Michie 1985); Pattern Jury Instructions for the Fifth Circuit Sec. 5, reprinted in S. Saltzburg & H. Perlman, supra, Appendix III at 18; see also United States v. Gonzales-Benitez, 537 F.2d 1051, 1054 n. 3 (9th Cir.), cert. denied, 429 U.S. 923, 97 S.Ct. 323, 50 L.Ed.2d 291 (1976) 2 See Manual of Model Jury Instructions for the Ninth Circuit Sec. 6.02 (West 1985); Federal Judicial Center, Pattern Criminal Jury Instructions Sec. 54, reprinted in S. Saltzburg & H. Perlman, supra note 2, Appendix I at 31 3 See United States v. Pico-Zazueta, 564 F.2d 1367, 1370 n. 7 (9th Cir.1977), cert. denied, 435 U.S. 946, 98 S.Ct. 1531, 55 L.Ed.2d 544 (1978); United States v. Reynoso-Ulloa, 548 F.2d 1329, 1339 (9th Cir.1977), cert. denied, 436 U.S. 926, 98 S.Ct. 2820, 56 L.Ed.2d 769 (1978) 4 Cruz cites Carson v. United States, 310 F.2d 558, 561 (9th Cir.1962), for the proposition that Cruz' proposed Devitt and Blackmar instruction was required. Carson is inapposite. Kamekona was an informant. Cruz points out no fact indicating that Kamekona was a "special government employee." Cruz' reliance on Sherman v. United States, 356 U.S. 369, 78 S.Ct. 819, 2 L.Ed.2d 848 (1958), is also misplaced because there was no evidence that Kamekona was an "active government informer" in the Sherman sense, and it was "patently clear" that the informer in Sherman actively induced the defendant to resume his drug habit and to obtain drugs for him. See United States v. Busby, 780 F.2d 804, 805, 807 n. 1 (9th Cir.1986); United States v. Rhodes, 713 F.2d 463, 467 (9th Cir.), cert. denied, 464 U.S. 1012, 104 S.Ct. 535, 78 L.Ed.2d 715 (1983)

470 U.S. 298 (1985) OREGON v. ELSTAD No. 83-773. Supreme Court of United States. Argued October 3, 1984 Decided March 4, 1985 CERTIORARI TO THE COURT OF APPEALS OF OREGON *299 David B. Frohnmayer, Attorney General of Oregon, argued the cause for petitioner. With him on the brief were William F. Gary, Deputy Attorney General, James E. Mountain, Jr., Solicitor General, and Thomas H. Denney, Virginia L. Linder, and Stephen F. Peifer, Assistant Attorneys General. *300 Gary D. Babcock argued the cause for respondent. With him on the brief was Stephen J. Williams.[*] JUSTICE O'CONNOR delivered the opinion of the Court. This case requires us to decide whether an initial failure of law enforcement officers to administer the warnings required by Miranda v. Arizona, 384 U. S. 436 (1966), without more, "taints" subsequent admissions made after a suspect has been fully advised of and has waived his Miranda rights. Respondent, Michael James Elstad, was convicted of burglary by an Oregon trial court. The Oregon Court of Appeals reversed, holding that respondent's signed confession, although voluntary, was rendered inadmissible by a prior remark made in response to questioning without benefit of Miranda warnings. We granted certiorari, 465 U. S. 1078 (1984), and we now reverse. I In December 1981, the home of Mr. and Mrs. Gilbert Gross, in the town of Salem, Polk Country, Ore., was burglarized. Missing were art objects and furnishings valued at $150,000. A witness to the burglary contacted the Polk County Sheriff's Office, implicating respondent Michael Elstad, an 18-year-old neighbor and friend of the Grosses' teenage son. Thereupon, Officers Burke and McAllister went to the home of respondent Elstad, with a warrant for his arrest. Elstad's mother answered the door. She led the officers to her son's room where he lay on his bed, clad in shorts and listening to his stereo. The officers asked him to get dressed and to accompany them into the living room. Officer McAllister asked respondent's mother to step into the kitchen, where he explained that they had a warrant for her *301 son's arrest for the burglary of a neighbor's residence. Officer Burke remained with Elstad in the living room. He later testified: "I sat down with Mr. Elstad and I asked him if he was aware of why Detective McAllister and myself were there to talk with him. He stated no, he had no idea why we were there. I then asked him if he knew a person by the name of Gross, and he said yes, he did, and also added that he heard that there was a robbery at the Gross house. And at that point I told Mr. Elstad that I felt he was involved in that, and he looked at me and stated, `Yes, I was there.' " App. 19-20. The officers then escorted Elstad to the back of the patrol car. As they were about to leave for the Polk County Sheriff's office, Elstad's father arrived home and came to the rear of the patrol car. The officers advised him that his son was a suspect in the burglary. Officer Burke testified that Mr. Elstad became quite agitated, opened the rear door of the car and admonished his son: "I told you that you were going to get into trouble. You wouldn't listen to me. You never learn." Id., at 21. Elstad was transported to the Sheriff's headquarters and approximately one hour later, Officers Burke and McAllister joined him in McAllister's office. McAllister then advised respondent for the first time of his Miranda rights, reading from a standard card. Respondent indicated he understood his rights, and, having these rights in mind, wished to speak with the officers. Elstad gave a full statement, explaining that he had known that the Gross family was out of town and had been paid to lead several acquaintances to the Gross residence and show them how to gain entry through a defective sliding glass door. The statement was typed, reviewed by respondent, read back to him for correction, initialed and signed by Elstad and both officers. As an afterthought, Elstad added and initialed the sentence, "After leaving the house Robby & I went back to [the] van & Robby handed *302 me a small bag of grass." App. 42. Respondent concedes that the officers made no threats or promises either at his residence or at the Sheriff's office. Respondent was charged with first-degree burglary. He was represented at trial by retained counsel. Elstad waived his right to a jury, and his case was tried by a Circuit Court Judge. Respondent moved at once to suppress his oral statement and signed confession. He contended that the statement he made in response to questioning at his house "let the cat out of the bag," citing United States v. Bayer, 331 U. S. 532 (1947), and tainted the subsequent confession as "fruit of the poisonous tree," citing Wong Sun v. United States, 371 U. S. 471 (1963). The judge ruled that the statement, "I was there," had to be excluded because the defendant had not been advised of his Miranda rights. The written confession taken after Elstad's arrival at the Sheriff's office, however, was admitted in evidence. The court found: "[H]is written statement was given freely, voluntarily and knowingly by the defendant after he had waived his right to remain silent and have counsel present which waiver was evidenced by the card which the defendant had signed. [It] was not tainted in any way by the previous brief statement between the defendant and the Sheriff's Deputies that had arrested him." App. 45. Elstad was found guilty of burglary in the first degree. He received a 5-year sentence and was ordered to pay $18,000 in restitution. Following his conviction, respondent appealed to the Oregon Court of Appeals, relying on Wong Sun and Bayer. The State conceded that Elstad had been in custody when he made his statement, "I was there," and accordingly agreed that this statement was inadmissible as having been given without the prescribed Miranda warnings. But the State maintained that any conceivable "taint" had been dissipated prior to the respondent's written confession by McAllister's careful administration of the requisite warnings. The Court *303 of Appeals reversed respondent's conviction, identifying the crucial constitutional inquiry as "whether there was a sufficient break in the stream of events between [the] inadmissible statement and the written confession to insulate the latter statement from the effect of what went before." 61 Ore. App. 673, 676, 658 P. 2d 552, 554 (1983). The Oregon court concluded: "Regardless of the absence of actual compulsion, the coercive impact of the unconstitutionally obtained statement remains, because in a defendant's mind it has sealed his fate. It is this impact that must be dissipated in order to make a subsequent confession admissible. In determining whether it has been dissipated, lapse of time, and change of place from the original surroundings are the most important considerations." Id., at 677, 658 P. 2d, at 554. Because of the brief period separating the two incidents, the "cat was sufficiently out of the bag to exert a coercive impact on [respondent's] later admissions." Id., at 678, 658 P. 2d, at 555. The State of Oregon petitioned the Oregon Supreme Court for review, and review was declined. This Court granted certiorari to consider the question whether the Self-incrimination Clause of the Fifth Amendment requires the suppression of a confession, made after proper Miranda warnings and a valid waiver of rights, solely because the police had obtained an earlier voluntary but unwarned admission from the defendant. II The arguments advanced in favor of suppression of respondent's written confession rely heavily on metaphor. One metaphor, familiar from the Fourth Amendment context, would require that respondent's confession, regardless of its integrity, voluntariness, and probative value, be suppressed as the "tainted fruit of the poisonous tree" of the Miranda violation. A second metaphor questions whether a *304 confession can be truly voluntary once the "cat is out of the bag." Taken out of context, each of these metaphors can be misleading. They should not be used to obscure fundamental differences between the role of the Fourth Amendment exclusionary rule and the function of Miranda in guarding against the prosecutorial use of compelled statements as prohibited by the Fifth Amendment. The Oregon court assumed and respondent here contends that a failure to administer Miranda warnings necessarily breeds the same consequences as police infringement of a constitutional right, so that evidence uncovered following an unwarned statement must be suppressed as "fruit of the poisonous tree." We believe this view misconstrues the nature of the protections afforded by Miranda warnings and therefore misreads the consequences of police failure to supply them. A Prior to Miranda, the admissibility of an accused's in custody statements was judged solely by whether they were "voluntary" within the meaning of the Due Process Clause. See e. g., Haynes v. Washington, 373 U. S. 503 (1963); Chambers v. Florida, 309 U. S. 227 (1940). If a suspect's statements had been obtained by "techniques and methods offensive to due process," Haynes v. Washington, 373 U. S., at 515, or under circumstances in which the suspect clearly had no opportunity to exercise "a free and unconstrained will," id., at 514, the statements would not be admitted. The Court in Miranda required suppression of many statements that would have been admissible under traditional due process analysis by presuming that statements made while in custody and without adequate warnings were protected by the Fifth Amendment. The Fifth Amendment, of course, is not concerned with nontestimonial evidence. See Schmerber v. California, 384 U. S. 757, 764 (1966) (defendant may be compelled to supply blood samples). Nor is it concerned *305 with moral and psychological pressures to confess emanating from sources other than official coercion. See, e. g., California v. Beheler, 463 U. S. 1121, 1125, and n. 3 (1983) (Per curiam); Rhode Island v. Innis, 446 U. S. 291, 303, and n. 10 (1980); Oregon v. Mathiason, 429 U. S. 492, 495-496 (1977). Voluntary statements "remain a proper element in law enforcement." Miranda v. Arizona, 384 U. S., at 478. "Indeed, far from being prohibited by the Constitution, admissions of guilt by wrongdoers, if not coerced, are inherently desirable. . . . Absent some officially coerced self-accusation, the Fifth Amendment privilege is not violated by even the most damning admissions." United States v. Washington, 431 U. S. 181, 187 (1977). As the Court noted last Term in New York v. Quarles, 467 U. S. 649, 654 (1984) (footnote omitted): "The Miranda Court, however, presumed that interrogation in certain custodial circumstances is inherently coercive and . . . that statements made under those circumstances are inadmissible unless the suspect is specifically informed of his Miranda rights and freely decides to forgo those rights. The prophylactic Miranda warnings therefore are `not themselves rights protected by the Constitution but [are] instead measures to insure that the right against compulsory self-incrimination [is] protected.' Michigan v. Tucker, 417 U. S. 433, 444 (1974); see Edwards v. Arizona, 451 U. S. 477, 492 (1981) (POWELL, J., concurring). Requiring Miranda warnings before custodial interrogation provides `practical reinforcement' for the Fifth Amendment right." Respondent's contention that his confession was tainted by the earlier failure of the police to provide Miranda warnings and must be excluded as "fruit of the poisonous tree" assumes the existence of a constitutional violation. This figure of speech is drawn from Wong Sun v. United States, 371 U. S. 471 (1963), in which the Court held that evidence and witnesses *306 discovered as a result of a search in violation of the Fourth Amendment must be excluded from evidence. The Wong Sun doctrine applies as well when the fruit of the Fourth Amendment violation is a confession. It is settled law that "a confession obtained through custodial interrogation after an illegal arrest should be excluded unless intervening events break the causal connection between the illegal arrest and the confession so that the confession is `sufficiently an act of free will to purge the primary taint." Taylor v. Alabama, 457 U. S. 687, 690 (1982) (quoting Brown v. Illinois, 422 U. S. 590, 602 (1975)). But as we explained in Quarles and Tucker, a procedural Miranda violation differs in significant respects from violations of the Fourth Amendment, which have traditionally mandated a broad application of the "fruits" doctrine. The purpose of the Fourth Amendment exclusionary rule is to deter unreasonable searches, no matter how probative their fruits. Dunaway v. New York, 442 U. S. 200, 216-217 (1979); Brown v. Illinois, 422 U. S., at 600-602. "The exclusionary rule, . . . when utilized to effectuate the Fourth Amendment, serves interests and policies that are distinct from those it serves under the Fifth." Id., at 601. Where a Fourth Amendment violation "taints" the confession, a finding of voluntariness for the purposes of the Fifth Amendment is merely a threshold requirement in determining whether the confession may be admitted in evidence. Taylor v. Alabama, supra, at 690. Beyond this, the prosecution must show a sufficient break in events to undermine the inference that the confession was caused by the Fourth Amendment violation. The Miranda exclusionary rule, however, serves the Fifth Amendment and sweeps more broadly than the Fifth Amendment itself. It may be triggered even in the absence of a Fifth Amendment violation.[1] The Fifth Amendment prohibits *307 use by the prosecution in its case in chief only of compelled testimony. Failure to administer Miranda warnings creates a presumption of compulsion. Consequently, unwarned statements that are otherwise voluntary within the meaning of the Fifth Amendment must nevertheless be excluded from evidence under Miranda. Thus, in the individual case, Miranda's preventive medicine provides a remedy even to the defendant who has suffered no identifiable constitutional harm. See New York v. Quarles, supra, at 654; Michigan v. Tucker, 417 U. S. 433, 444 (1974). But the Miranda presumption, though irrebuttable for purposes of the prosecution's case in chief, does not require that the statements and their fruits be discarded as inherently tainted. Despite the fact that patently voluntary statements taken in violation of Miranda must be excluded from the prosecution's case, the presumption of coercion does not bar their use for impeachment purposes on cross-examination. Harris v. New York, 401 U. S. 222 (1971). The Court in Harris rejected as an "extravagant extension of the Constitution," the theory that a defendant who had confessed under circumstances that made the confession inadmissible, could thereby enjoy the freedom to "deny every fact disclosed or discovered as a `fruit' of his confession, free from confrontation with his prior statements" and that the voluntariness of his confession would be totally irrelevant. Id., at 225, and n. 2. Where an unwarned statement is preserved for use in situations that fall outside the sweep of the Miranda presumption, "the primary criterion of admissibility *308 [remains] the `old' due process voluntariness test." Schulhofer, Confessions and the Court, 79 Mich. L. Rev. 865, 877 (1981). In Michigan v. Tucker, supra, the Court was asked to extend the Wong Sun fruits doctrine to suppress the testimony of a witness for the prosecution whose identity was discovered as the result of a statement taken from the accused without benefit of full Miranda warnings. As in respondent's case, the breach of the Miranda procedures in Tucker involved no actual compulsion. The Court concluded that the unwarned questioning "did not abridge respondent's constitutional privilege . . . but departed only from the prophylactic standards later laid down by this Court in Miranda to safeguard that privilege." 417 U. S., at 446. Since there was no actual infringement of the suspect's constitutional rights, the case was not controlled by the doctrine expressed in Wong Sun that fruits of a constitutional violation must be suppressed. In deciding "how sweeping the judicially imposed consequences" of a failure to administer Miranda warnings should be, 417 U. S., at 445, the Tucker Court noted that neither the general goal of deterring improper police conduct nor the Fifth Amendment goal of assuring trustworthy evidence would be served by suppression of the witness' testimony. The unwarned confession must, of course, be suppressed, but the Court ruled that introduction of the third-party witness' testimony did not violate Tucker's Fifth Amendment rights. We believe that this reasoning applies with equal force when the alleged "fruit" of a noncoercive Miranda violation is neither a witness nor an article of evidence but the accused's own voluntary testimony. As in Tucker, the absence of any coercion or improper tactics undercuts the twin rationales — trust worthiness and deterrence — for a broader rule. Once warned, the suspect is free to exercise his own volition in deciding whether or not to make a statement to the authorities. The Court has often noted: " `[A] living witness is not to be *309 mechanically equated with the proffer of inanimate evidentiary objects illegally seized. . . . [T]he living witness is an individual human personality whose attributes of will, perception, memory and volition interact to determine what testimony he will give.' " United States v. Ceccolini, 435 U. S. 268, 277 (1978) (emphasis added) (quoting from Smith v. United States, 117 U. S. App. D. C. 1, 3-4, 324 F. 2d 879, 881-882 (1963) (Burger, J.) (footnotes omitted), cert. denied, 377 U. S. 954 (1964)). Because Miranda warnings may inhibit persons from giving information, this Court has determined that they need be administered only after the person is taken into "custody" or his freedom has otherwise been significantly restrained. Miranda v. Arizona, 384 U. S., at 478. Unfortunately, the task of defining "custody" is a slippery one, and "policemen investigating serious crimes [cannot realistically be expected to] make no errors whatsoever." Michigan v. Tucker, supra, at 446. If errors are made by law enforcement officers in administering the prophylactic Miranda procedures, they should not breed the same irremediable consequences as police infringement of the Fifth Amendment itself. It is an unwarranted extension of Miranda to hold that a simple failure to administer the warnings, unaccompanied by any actual coercion or other circumstances calculated to undermine the suspect's ability to exercise his free will, so taints the investigatory process that a subsequent voluntary and informed waiver is ineffective for some indeterminate period. Though Miranda requires that the unwarned admission must be suppressed, the admissibility of any subsequent statement should turn in these circumstances solely on whether it is knowingly and voluntarily made. B The Oregon court, however, believed that the unwarned remark compromised the voluntariness of respondent's later confession. It was the court's view that the prior answer *310 and not the unwarned questioning impaired respondent's ability to give a valid waiver and that only lapse of time and change of place could dissipate what it termed the "coercive impact" of the inadmissible statement. When a prior statement is actually coerced, the time that passes between confessions, the change in place of interrogations, and the change in identity of the interrogators all bear on whether that coercion has carried over into the second confession. See Westover v. United States, decided together with Miranda v. Arizona, 384 U. S., at 494; Clewis v. Texas, 386 U. S. 707 (1967). The failure of police to administer Miranda warnings does not mean that the statements received have actually been coerced, but only that courts will presume the privilege against compulsory self-incrimination has not been intelligently exercised. See New York v. Quarles, 467 U. S., at 654, and n. 5; Miranda v. Arizona, supra, at 457. Of the courts that have considered whether a properly warned confession must be suppressed because it was preceded by an unwarned but clearly voluntary admission, the majority have explicitly or implicitly recognized that Westover's requirement of a break in the stream of events is inapposite.[2] In these circumstances, a careful and thorough *311 administration of Miranda warnings serves to cure the condition that rendered the unwarned statement inadmissible. The warning conveys the relevant information and thereafter the suspect's choice whether to exercise his privilege to remain silent should ordinarily be viewed as an "act of free will." Wong Sun v. United States, 371 U. S., at 486. The Oregon court nevertheless identified a subtle form of lingering compulsion, the psychological impact of the suspect's conviction that he has let the cat out of the bag and, in so doing, has sealed his own fate. But endowing the psychological effects of voluntary unwarned admissions with constitutional implications would, practically speaking, disable the police from obtaining the suspect's informed cooperation even when the official coercion proscribed by the Fifth Amendment played no part in either his warned or unwarned confessions. As the Court remarked in Bayer: "[A]fter an accused has once let the cat out of the bag by confessing, no matter what the inducement, he is never thereafter free of the psychological and practical disadvantages of having confessed. He can never get the cat back in the bag. The secret is out for good. In such a sense, a later confession may always be looked upon as fruit of the first. But this Court has never gone so far as to hold that making a confession under circumstances which preclude its use, perpetually disables the confessor from making a usable one after those conditions have been removed." 331 U. S., at 540-541. Even in such extreme cases as Lyons v. Oklahoma, 322 U. S. 596 (1944), in which police forced a full confession from the accused through unconscionable methods of interrogation, the Court has assumed that the coercive effect of the confession *312 could, with time, be dissipated. See also Westover v. United States, supra, at 496. This Court has never held that the psychological impact of voluntary disclosure of a guilty secret qualifies as state compulsion or compromises the voluntariness of a subsequent informed waiver. The Oregon court, by adopting this expansive view of Fifth Amendment compulsion, effectively immunizes a suspect who responds to pre-Miranda warning questions from the consequences of his subsequent informed waiver of the privilege of remaining silent. See 61 Ore. App., at 679, 658 P. 2d, at 555 (Gillette, P. J., concurring). This immunity comes at a high cost to legitimate law enforcement activity, while adding little desirable protection to the individual's interest in not being compelled to testify against himself. Cf. Michigan v. Mosley, 423 U. S. 96, 107-111 (1975) (WHITE, J., concurring in result). When neither the initial nor the subsequent admission is coerced, little justification exists for permitting the highly probative evidence of a voluntary confession to be irretrievably lost to the factfinder. There is a vast difference between the direct consequences flowing from coercion of a confession by physical violence or other deliberate means calculated to break the suspect's will and the uncertain consequences of disclosure of a "guilty secret" freely given in response to an unwarned but noncoercive question, as in this case. JUSTICE BRENNAN'S contention that it is impossible to perceive any causal distinction between this case and one involving a confession that is coerced by torture is wholly unpersuasive.[3] Certainly, in *313 respondent's case, the causal connection between any psychological disadvantage created by his admission and his ultimate decision to cooperate is speculative and attenuated at *314 best. It is difficult to tell with certainly what motivates a suspect to speak. A suspect's confession may be traced to factors as disparate as "a prearrest event such as a visit with a minister," Dunaway v. New York, 442 U. S., at 220 (STEVENS, J., concurring), or an intervening event such as the exchange of words respondent had with his father. We must conclude that, absent deliberately coercive or improper tactics in obtaining the initial statement, the mere fact that a suspect has made an unwarned admission does not warrant a presumption of compulsion. A subsequent administration of Miranda warnings to a suspect who has given a voluntary but unwarned statement ordinarily should suffice to remove the conditions that precluded admission of the earlier statement. In such circumstances, the finder of fact may reasonably conclude that the suspect made a rational and intelligent choice whether to waive or invoke his rights. III Though belated, the reading of respondent's rights was undeniably complete. McAllister testified that he read the Miranda warnings aloud from a printed card and recorded *315 Elstad's responses.[4] There is no question that respondent knowingly and voluntarily waived his right to remain silent before he described his participation in the burglary. It is also beyond dispute that respondent's earlier remark was voluntary, within the meaning of the Fifth Amendment. Neither the environment nor the manner of either "interrogation" was coercive. The initial conversation took place at midday, in the living room area of respondent's own home, with his mother in the kitchen area, a few steps away. Although in retrospect the officers testified that respondent was then in custody, at the time he made his statement he had not been informed that he was under arrest. The arresting officers' testimony indicates that the brief stop in the living room before proceeding to the station house was not to interrogate the suspect but to notify his mother of the reason for his arrest. App. 9-10. The State has conceded the issue of custody and thus we must assume that Burke breached Miranda procedures in failing to administer Miranda warnings before initiating the discussion in the living room. This breach may have been the result of confusion as to whether the brief exchange qualified as "custodial interrogation" or it may simply have reflected Burke's reluctance to initiate an alarming police *316 procedure before McAllister had spoken with respondent's mother. Whatever the reason for Burke's oversight, the incident had none of the earmarks of coercion. See Rawlings v. Kentucky, 448 U. S. 98, 109-110 (1980). Nor did the officers exploit the unwarned admission to pressure respondent into waiving his right to remain silent. Respondent, however, has argued that he was unable to give a fully informed waiver of his rights because he was unaware that his prior statement could not be used against him. Respondent suggests that Officer McAllister, to cure this deficiency, should have added an additional warning to those given him at the Sheriff's office. Such a requirement is neither practicable nor constitutionally necessary. In many cases, a breach of Miranda procedures may not be identified as such until long after full Miranda warnings are administered and a valid confession obtained. See, e. g., United States v. Bowler, 561 F. 2d 1323, 1324-1325 (CA9 1977) (certain statements ruled inadmissible by trial court); United States v. Toral, 536 F. 2d 893, 896 (CA9 1976); United States v. Knight, 395 F. 2d 971, 974-975 (CA2 1968) (custody unclear). The standard Miranda warnings explicitly inform the suspect of his right to consult a lawyer before speaking. Police officers are ill-equipped to pinch-hit for counsel, construing the murky and difficult questions of when "custody" begins or whether a given unwarned statement will ultimately be held admissible. See Tanner v. Vincent, 541 F. 2d 932, 936 (CA2 1976), cert. denied, 429 U. S. 1065 (1977). This Court has never embraced the theory that a defendant's ignorance of the full consequences of his decisions vitiates their voluntariness. See California v. Beheler, 463 U. S., at 1125-1126, n. 3; McMann v. Richardson, 397 U. S. 759, 769 (1970). If the prosecution has actually violated the defendant's Fifth Amendment rights by introducing an inadmissible confession at trial, compelling the defendant to testify in rebuttal, the rule announced in Harrison v. United States, 392 U. S. 219 (1968), precludes use of that testimony *317 on retrial. "Having `released the spring' by using the petitioner's unlawfully obtained confessions against him, the Government must show that its illegal action did not induce his testimony." Id., at 224-225. But the Court has refused to find that a defendant who confesses, after being falsely told that his codefendant has turned State's evidence, does so involuntarily. Frazier v. Cupp, 394 U. S. 731, 739 (1969). The Court has also rejected the argument that a defendant's ignorance that a prior coerced confession could not be admitted in evidence compromised the voluntariness of his guilty plea. McMann v. Richardson, supra, at 769. Likewise, in California v. Beheler, supra, the Court declined to accept defendant's contention that, because he was unaware of the potential adverse consequences of statements he made to the police, his participation in the interview was involuntary. Thus we have not held that the sine qua non for a knowing and voluntary waiver of the right to remain silent is a full and complete appreciation of all of the consequences flowing from the nature and the quality of the evidence in the case. IV When police ask questions of a suspect in custody without administering the required warnings, Miranda dictates that the answers received be presumed compelled and that they be excluded from evidence at trial in the State's case in chief. The Court has carefully adhered to this principle, permitting a narrow exception only where pressing public safety concerns demanded. See New York v. Quarles, 467 U. S., at 655-656. The Court today in no way retreats from the bright-line rule of Miranda. We do not imply that good faith excuses a failure to administer Miranda warnings; nor do we condone inherently coercive police tactics or methods offensive to due process that render the initial admission involuntary and undermine the suspect's will to invoke his rights once they are read to him. A handful of courts have, however, applied our precedents relating to confessions obtained *318A under coercive circumstances to situations involving wholly voluntary admissions, requiring a passage of time or break in events before a second, fully warned statement can be deemed voluntary. Far from establishing a rigid rule, we direct courts to avoid one; there is no warrant for presuming coercive effect where the suspect's initial inculpatory statement, though technically in violation of Miranda, was voluntary.[5] The relevant inquiry is whether, in fact, the second statement was also voluntarily made. As in any such inquiry, the finder of fact must examine the surrounding circumstances and the entire course of police conduct with respect to the suspect in evaluating the voluntariness of his statements. The fact that a suspect chooses to speak after being informed of his rights is, of course, highly probative. We find that the dictates of Miranda and the goals of the Fifth Amendment proscription against use of compelled testimony are fully satisfied in the circumstances of this case by barring use of the unwarned statement in the case in chief. No further purpose is served by imputing "taint" to subsequent statements obtained pursuant to a voluntary and knowing waiver. We hold today that a suspect who has once responded to unwarned yet uncoercive questioning is not thereby disabled from waiving his rights and confessing after he has been given the requisite Miranda warnings. The judgment of the Court of Appeals of Oregon is reversed, and the case is remanded for further proceedings not inconsistent with this opinion. It is so ordered. *318B JUSTICE BRENNAN, with whom JUSTICE MARSHALL joins, dissenting. The Self-Incrimination Clause of the Fifth Amendment guarantees every individual that, if taken into official custody, *319 he shall be informed of important constitutional rights and be given the opportunity knowingly and voluntarily to waive those rights before being interrogated about suspected wrongdoing. Miranda v. Arizona, 384 U. S. 436 (1966).[1] This guarantee embodies our society's conviction that "no system of criminal justice can, or should, survive if it comes to depend for its continued effectiveness on the citizens' abdication through unawareness of their constitutional rights." Escobedo v. Illinois, 378 U. S. 478, 490 (1964). Even while purporting to reaffirm these constitutional guarantees, the Court has engaged of late in a studied campaign to strip the Miranda decision piecemeal and to undermine the rights Miranda sought to secure. Today's decision not only extends this effort a further step, but delivers a potentially crippling blow to Miranda and the ability of courts to safeguard the rights of persons accused of crime. For at least with respect to successive confessions, the Court today appears to strip remedies for Miranda violations of the "fruit of the poisonous tree" doctrine prohibiting the use of evidence presumptively derived from official illegality.[2] Two major premises undergird the Court's decision. The Court rejects as nothing more than "speculative" the long-recognized presumption that an illegally extracted confession causes the accused to confess again out of the mistaken belief that he already has sealed his fate, and it condemns as " `extravagant' " the requirement that the prosecution affirmatively rebut the presumption before the subsequent confession *320 may be admitted. Ante, at 307, 313. The Court instead adopts a new rule that, so long as the accused is given the usual Miranda warnings before further interrogation, the taint of a previous confession obtained in violation of Miranda "ordinarily" must be viewed as automatically dissipated. Ante, at 311. In the alternative, the Court asserts that neither the Fifth Amendment itself nor the judicial policy of deterring illegal police conduct requires the suppression of the "fruits" of a confession obtained in violation of Miranda, reasoning that to do otherwise would interfere with "legitimate law enforcement activity." Ante, at 312. As the Court surely understands, however, "[t]o forbid the direct use of methods . . . but to put no curb on their full indirect use would only invite the very methods deemed `inconsistent with ethical standards and destructive of personal liberty.' " Nardone v. United States, 308 U. S. 338, 340 (1939). If violations of constitutional rights may not be remedied through the well-established rules respecting derivative evidence, as the Court has held today, there is a critical danger that the rights will be rendered nothing more than a mere "form of words." Silverthorne Lumber Co. v. United States, 251 U. S. 385, 392 (1920). The Court's decision says much about the way the Court currently goes about implementing its agenda. In imposing its new rule, for example, the Court mischaracterizes our precedents, obfuscates the central issues, and altogether ignores the practical realities of custodial interrogation that have led nearly every lower court to reject its simplistic reasoning. Moreover, the Court adopts startling and unprecedented methods of construing constitutional guarantees. Finally, the Court reaches out once again to address issues not before us. For example, although the State of Oregon has conceded that the arresting officers broke the law in this case, the Court goes out of its way to suggest that they may have been objectively justified in doing so. *321 Today's decision, in short, threatens disastrous consequences far beyond the outcome in this case. As the Court has not seen fit to provide a full explanation for this result, I believe it essential to consider in detail the premises, reasoning, and implications of the Court's opinion. I The threshold question is this: What effect should an admission or confession of guilt obtained in violation of an accused's Miranda rights be presumed to have upon the voluntariness of subsequent confessions that are preceded by Miranda warnings? Relying on the "cat out of the bag" analysis of United States v. Bayer, 331 U. S. 532, 540-541 (1947), the Oregon Court of Appeals held that the first confession presumptively taints subsequent confessions in such circumstances. 61 Ore. App. 673, 676, 658 P. 2d 552, 554 (1983). On the specific facts of this case, the court below found that the prosecution had not rebutted this presumption. Rather, given the temporal proximity of Elstad's second confession to his first and the absence of any significant intervening circumstances, the court correctly concluded that there had not been "a sufficient break in the stream of events between [the] inadmissible statement and the written confession to insulate the latter statement from the effect of what went before." Ibid. If this Court's reversal of the judgment below reflected mere disagreement with the Oregon court's application of the "cat out of the bag" presumption to the particular facts of this case, the outcome, while clearly erroneous, would be of little lasting consequence. But the Court rejects the "cat out of the bag" presumption entirely and instead adopts a new rule presuming that "ordinarily" there is no causal connection between a confession extracted in violation of Miranda and a subsequent confession preceded by the usual Miranda warnings. Ante, at 311, 314. The Court suggests that it is merely following settled lower-court practice in adopting this *322 rule and that the analysis followed by the Oregon Court of Appeals was aberrant. This is simply not so. Most federal courts have rejected the Court's approach and instead held that (1) there is a rebuttable presumption that a confession obtained in violation of Miranda taints subsequent confessions, and (2) the taint cannot be dissipated solely by giving Miranda warnings.[3] Moreover, those few federal courts that have suggested approaches similar to the Court's have subsequently qualified their positions.[4] Even more significant is the case among state courts. Although a handful have adopted the Court's approach,[5] the overwhelming majority *323 of state courts that have considered the issue have concluded that subsequent confessions are presumptively tainted by a first confession taken in violation of Miranda and that Miranda warnings alone cannot dissipate the taint.[6] *324 The Court today sweeps aside this common-sense approach as "speculative" reasoning, adopting instead a rule that "the psychological impact of voluntary disclosure of a guilty secret" neither "qualifies as state compulsion" nor "compromises the voluntariness" of subsequent confessions. Ante, at 312, 313 (emphasis added). So long as a suspect receives the usual Miranda warnings before further interrogation, the Court reasons, the fact that he "is free to exercise his own volition in deciding whether or not to make" further confessions "ordinarily" is a sufficient "cure" and serves to break any causal connection between the illegal confession and subsequent statements. Ante, at 308, 311. The Court's marble-palace psychoanalysis is tidy, but it flies in the face of our own precedents, demonstrates a startling unawareness of the realities of police interrogation, and is completely out of tune with the experience of state and federal courts over the last 20 years. Perhaps the Court has grasped some psychological truth that has eluded persons far more experienced in these matters; if so, the Court owes an explanation of how so many could have been so wrong for so many years. A (1) This Court has had long experience with the problem of confessions obtained after an earlier confession has been *325 illegally secured. Subsequent confessions in these circumstances are not per se inadmissible, but the prosecution must demonstrate facts "sufficient to insulate the [subsequent] statement from the effect of all that went before." Clewis v. Texas, 386 U. S. 707, 710 (1967). If the accused's subsequent confession was merely the culmination of "one continuous process," or if the first confession was merely "filled in and perfected by additional statements given in rapid succession," the subsequent confession is inadmissible even though it was not obtained through the same illegal means as the first. Leyra v. Denno, 347 U. S. 556, 561 (1954); see also Westover v. United States, decided together with Miranda v. Arizona, 384 U. S. 436, 494-496 (1966). The question in each case is whether the accused's will was "overborne at the time he confessed," and the prosecution must demonstrate that the second confession "was an act independent of the [earlier] confession." Reck v. Pate, 367 U. S. 433, 440, 444 (1961). One of the factors that can vitiate the voluntariness of a subsequent confession is the hopeless feeling of an accused that he has nothing to lose by repeating his confession, even where the circumstances that rendered his first confession illegal have been removed. As the Court observed in United States v. Bayer, 331 U. S., at 540: "[A]fter an accused has once let the cat out of the bag by confessing, no matter what the inducement, he is never thereafter free of the psychological and practical disadvantages of having confessed. He can never get the cat back in the bag. The secret is out for good. In such a sense, a later confession always may be looked upon as a fruit of the first." The Court today decries the "irremediable consequences" of this reasoning, ante, at 309, but it has always been clear that even after "let[ting] the cat out of the bag" the accused is not "perpetually disable[d]" from giving an admissible subsequent confession. United States v. Bayer, supra, at 541. *326 Rather, we have held that subsequent confessions in such circumstances may be admitted if the prosecution demonstrates that, "[c]onsidering the `totality of the circumstances,' " there was a " `break in the stream of events . . . sufficient to insulate' " the subsequent confession from the damning impact of the first. Darwin v. Connecticut, 391 U. S. 346, 349 (1968) (citations omitted). Although we have thus rejected a per se rule forbidding the introduction of subsequent statements in these circumstances, we have emphasized that the psychological impact of admissions and confessions of criminal guilt nevertheless can have a decisive impact in undermining the voluntariness of a suspect's responses to continued police interrogation and must be accounted for in determining their admissibility. As Justice Harlan explained in his separate Darwin opinion: "A principal reason why a suspect might make a second or third confession is simply that, having already confessed once or twice, he might think he has little to lose by repetition. If a first confession is not shown to be voluntary, I do not think a later confession that is merely a direct product of the earlier one should be held to be voluntary. It would be neither conducive to good police work, nor fair to a suspect, to allow the erroneous impression that he has nothing to lose to play the major role in a defendant's decision to speak a second or third time. "In consequence, when the prosecution seeks to use a confession uttered after an earlier one not found to be voluntary, it has . . . the burden of proving not only that the later confession was not itself the product of improper threats or promises or coercive conditions, but also that it was not directly produced by the existence of the earlier confession." Id., at 350-351 (concurring in part and dissenting in part). See also Brown v. Illinois, 422 U. S. 590, 605, n. 12 (1975) ("The fact that Brown had made one statement, believed by *327 him to be admissible, . . . bolstered the pressures for him to give the second, or at least vitiated any incentive on his part to avoid self-incrimination"); Beecher v. Alabama, 389 U. S. 35, 36, n. 2 (1967) (per curiam) (existence of earlier illegal confession "is of course vitally relevant to the voluntariness of petitioner's later statements").[7] *328 (2) Our precedents did not develop in a vacuum. They reflect an understanding of the realities of police interrogation and the everyday experience of lower courts. Expert interrogators, far from dismissing a first admission or confession as creating merely a "speculative and attenuated" disadvantage for a suspect, ante, at 313, understand that such revelations frequently lead directly to a full confession. Standard interrogation manuals advise that "[t]he securing of the first admission is the biggest stumbling block . . . ." A. Aubry & R. Caputo, Criminal Interrogation 290 (3d ed. 1980). If this first admission can be obtained, "there is every reason to expect that the first admission will lead to others, and eventually to the full confession." Ibid. "For some psychological reason which does not have to concern us at this point `the dam finally breaks as a result of the first leak' with regards to the tough subject.. . . Any structure is only as strong as its weakest component, and total collapse can be anticipated when the weakest part first begins to sag." Id., at 291. Interrogators describe the point of the first admission as the "breakthrough" and the "beachhead," R. Royal & S. Schutt, The Gentle Art of Interviewing and Interrogation: A Professional Manual and Guide 143 (1976), which once obtained will give them enormous "tactical advantages," F. Inbau & J. Reid, Criminal Interrogation and Confessions 82 (2d ed. 1967). See also W. Dienstein, Technics for the Crime Investigator 117 (2d ed. 1974). Thus "[t]he securing of incriminating admissions might well be considered as the beginning of the final stages in crumbling the defenses of the suspect," and the process of obtaining such admissions is described as "the spadework required to motivate the subject into making the full confession." Aubry & Caputo, supra, at 31, 203. *329 "Once the initial admission has been made, further inducement in the form of skillfully applied interrogation techniques will motivate the suspect into making the confession." Id., at 26; see also id., at 33 (initial admissions are "capitalized upon by the interrogator in securing the eventual confession"). Some of these "skillfully applied" techniques involve direct confrontation of the suspect with the earlier admission, but many of the techniques are more discreet and create leverage without the need of expressly discussing the earlier admission. These techniques are all aimed at reinforcing in the suspect's mind that, as one manual describes it, " `you're wasting your own time, and you're wasting my time, you're guilty and you know it, I know it, what's more, you know that I know it.' " Id., at 234.[8] The practical experience of state and federal courts confirms the experts' understanding. From this experience, lower courts have concluded that a first confession obtained without proper Miranda warnings, far from creating merely some "speculative and attenuated" disadvantage for the accused, ante, at 313, frequently enables the authorities to obtain subsequent confessions on a "silver platter." Cagle v. State, 45 Ala. App. 3, 4, 221 So. 2d 119, 120, cert. denied, 284 Ala. 727, 221 So. 2d 121 (1969). One police practice that courts have frequently encountered involves the withholding of Miranda warnings until the end of an interrogation session. Specifically, the police *330 escort a suspect into a room, sit him down and, without explaining his Fifth Amendment rights or obtaining a knowing and voluntary waiver of those rights, interrogate him about his suspected criminal activity. If the police obtain a confession, it is then typed up, the police hand the suspect a pen for his signature, and — just before he signs — the police advise him of his Miranda rights and ask him to proceed. Alternatively, the police may call a stenographer in after they have obtained the confession, advise the suspect for the first time of his Miranda rights, and ask him to repeat what he has just told them. In such circumstances, the process of giving Miranda warnings and obtaining the final confession is " `merely a formalizing, a setting down almost as a scrivener does, [of] what ha[s] already taken [place].' " People v. Raddatz, 91 Ill. App. 2d 425, 430, 235 N. E. 2d 353, 356 (1968) (quoting trial court). In such situations, where "it was all over except for reading aloud and explaining the written waiver of the Miranda safeguards," courts have time and again concluded that "[t]he giving of the Miranda warnings before reducing the product of the day's work to written form could not undo what had been done or make legal what was illegal." People v. Bodner, 75 App. Div. 2d 440, 448, 430 N. Y. S. 2d 433, 438 (1980).[9] There are numerous variations on this theme. Police may obtain a confession in violation of Miranda and then take a break for lunch or go home for the evening. When questioning is resumed, this time preceded by Miranda warnings, the suspect is asked to "clarify" the earlier illegal confession and to provide additional information.[10] Or he is led by one of *331 the interrogators into another room, introduced to another official, and asked to repeat his story. The new officer then gives the Miranda warnings and asks the suspect to proceed.[11] Alternatively, the suspect might be questioned by arresting officers "in the field" and without Miranda warnings, as was young Elstad in the instant case. After making incriminating admissions or a confession, the suspect is then brought into the station house and either questioned by the same officers again or asked to repeat his earlier statements to another officer.[12] The variations of this practice are numerous, but the underlying problem is always the same: after hearing the witness testimony and considering the practical realities, courts have confirmed the time-honored wisdom of presuming that a first illegal confession "taints" subsequent confessions, and permitting such subsequent confessions to be admitted at trial only if the prosecution convincingly rebuts the presumption. They have discovered that frequently, "[h]aving once confessed [the accused] was ready to confess some more." State v. Lekas, 201 Kan. 579, 587-588, 442 P. 2d 11, 19 (1968). For all practical purposes, the prewarning and postwarning questioning are often but stages of one overall interrogation. Whether or not the authorities explicitly confront the suspect with his earlier illegal admissions makes no significant difference, of course, because the suspect knows that the authorities know of his earlier statements and most frequently will believe that those statements already have sealed his fate. Thus a suspect in such circumstances is likely to conclude that "he might as well answer the questions *332 put to him, since the [authorities are] already aware of the earlier answers," United States v. Pierce, 397 F. 2d 128, 131 (CA4 1968); he will probably tell himself that "it's O. K., I have already told them," State v. Lekas, supra, at 582, 442 P. 2d, at 15. See also Cagle v. State, 45 Ala. App., at 4, 221 So. 2d, at 120 ("I have already give[n] the Chief . . . a statement, and I might as well give one to you, too"). In such circumstances, courts have found, a suspect almost invariably asks himself, "What use is a lawyer" What good is a lawyer now? What benefit can a lawyer tell me? [sic] I have already told the police everything." People v. Raddatz, 91 Ill. App. 2d, at 430, 235 N. E. 2d, at 356.[13] I would have thought that the Court, instead of dismissing the "cat out of the bag" presumption out of hand, would have accounted for these practical realities. Compare Nardone v. United States, 308 U. S., at 342 (derivative-evidence rules should be grounded on the "learning, good sense, fairness and courage" of lower-court judges). Expert interrogators and experienced lower-court judges will be startled, to say the least, to learn that the connection between multiple confessions is "speculative" and that a subsequent rendition of Miranda warnings "ordinarily" enables the accused in these circumstances to exercise his "free will" and to make "a rational and intelligent choice whether to waive or invoke his rights." Ante, at 311, 314. (3) The Court's new view about the "psychological impact" of prior illegalities also is at odds with our Fourth Amendment *333 precedents. For example, it is well established that a confession secured as a proximate result of an illegal arrest must be suppressed. See, e. g., Taylor v. Alabama, 457 U. S. 687 (1982); Brown v. Illinois, 422 U. S. 590 (1975); Wong Sun v. United States, 371 U. S. 471 (1963). We have emphasized in this context that "verbal evidence which derives so immediately from an unlawful entry and an unauthorized arrest . . . is no less the `fruit' of official illegality than the more common tangible fruits of the unwarranted intrusion." Wong Sun v. United States, supra, at 485. The Court seeks to distinguish these precedents on the ground that Fourth Amendment violations require a broader exclusionary rule than do Fifth Amendment violations. Ante, at 306. I address this reasoning in Part II-B, infra. But the question immediately at issue — whether there should be a presumptive rule against finding a causal connection between successive confessions — would surely seem to be controlled by the logic of these Fourth Amendment cases. In part because of the inherent psychological pressures attendant upon an arrest, we have refused to presume that a confession following an illegal arrest is "sufficiently an act of free will to purge the primary taint of the unlawful invasion." Wong Sun v. United States, supra, at 486. See also Brown v. Illinois, supra, at 601-603. If the Court so quickly dismisses the notion of a multiple-confession taint as nothing more than a "speculative and attenuated" disadvantage, ante, at 313, what is to prevent it in the future from deciding that, contrary to the settled understanding, the fact of a proximate illegal arrest is presumptively nothing but a "speculative and attenuated" disadvantage to a defendant who is asked to confess? Similarly, a confession obtained as a proximate result of confronting the accused with illegally seized evidence is inadmissible as the fruit of the illegal seizure. See, e. g., Fahy v. Connecticut, 375 U. S. 85, 90-91 (1963) (remanding for determination whether admission was so induced); see generally 3 W. LaFave, Search and Seizure § 11.4, pp. 638-642 *334 (1978) (collecting cases). As commentators have noted, courts in finding such confessions to be tainted by the Fourth Amendment violation have emphasized that " `the realization that the "cat is out of the bag" plays a significant role in encouraging the suspect to speak.' " Id., § 11.4, p. 639 (footnote omitted). By discarding the accepted "cat out of the bag" presumption in the successive-confession context, however, the Court now appears to have opened the door to applying this same simplistic reasoning to Fourth Amendment violations.[14] *335 B The correct approach, administered for almost 20 years by most courts with no untoward results, is to presume that an admission or confession obtained in violation of Miranda taints a subsequent confession unless the prosecution can show that the taint is so attenuated as to justify admission of the subsequent confession. See cases cited in nn. 3, 6, supra. Although the Court warns against the "irremediable consequences" of this presumption, ante, at 309, it is obvious that a subsequent confession, just like any other evidence that follows upon illegal police action, does not become "sacred and inaccessible." Silverthorne Lumber Co. v. United States, 251 U. S., at 392. As with any other evidence, the inquiry is whether the subsequent confession " `has been come at by exploitation of [the] illegality or instead by means sufficiently distinguishable to be purged of the primary taint.' " Wong Sun v. United States, 371 U. S., at 488 (citation omitted). Until today the Court has recognized that the dissipation inquiry requires the prosecution to demonstrate that the official illegality did not taint the challenged confession, and we have rejected the simplistic view that abstract notions of "free will" are alone sufficient to dissipate the challenged taint. "The question whether a confession is the product of a free will under Wong Sun must be answered on the facts of each case. No single fact is dispositive. The workings *336 of the human mind are too complex, and the possibilities of misconduct too diverse, to permit protection of [constitutional rights] to turn on . . . a talismanic test." Brown v. Illinois, 422 U. S., at 603. Instead, we have instructed courts to consider carefully such factors as the strength of the causal connection between the illegal action and the challenged evidence, their proximity in time and place, the presence of intervening factors, and the "purpose and flagrancy of the official misconduct." Id., at 603-604. The Court today shatters this sensitive inquiry and decides instead that, since individuals possess " `will, perception, memory and volition,' " a suspect's "exercise [of] his own volition in deciding whether or not to make a [subsequent] statement to the authorities" must "ordinarily" be viewed as sufficient to dissipate the coercive influence of a prior confession obtained in violation of Miranda. Ante, at 308, 309, 311 (citation omitted). But "[w]ill, perception, memory and volition are only relevant as they provide meaningful alternatives in the causal chain, not as mystical qualities which in themselves invoke the doctrine of attenuation." Hirtle, Inadmissible Confessions and Their Fruits: A Comment on Harrison v. United States, 60 J. Crim. L., C., & P. S. 58, 62 (1969). Thus we have always rejected, until today, the notion that "individual will" alone presumptively serves to insulate a person's actions from the taint of earlier official illegality. See, e. g., United States v. Ceccolini, 435 U. S. 268, 274-275 (1978) (rejecting Government's request for a rule "that the testimony of a live witness should not be excluded at trial no matter how close and proximate the connection between it" and an illegal search); Wong Sun v. United States, supra, at 486 (confession obtained as a proximate result of an illegal arrest is not presumptively admissible as an "intervening independent act of a free will"). Nor have we ever allowed Miranda warnings alone to serve talismanically to purge the taint of prior illegalities. In Brown v. Illinois, for example, we emphasized that *337 "Miranda warnings, alone and per se, cannot always make [a confession] sufficiently a product of free will to break . . . the causal connection between [an illegal arrest] and the confession." 422 U. S., at 603 (emphasis in original).[15] See also Taylor v. Alabama, 457 U. S., at 690-691. The reason we rejected this rule is manifest: "The Miranda warnings in no way inform a person of his Fourth Amendment rights, including his right to be released from unlawful custody following an arrest made without a warrant or without probable cause." Brown v. Illinois, supra, at 601, n. 6. This logic applies with even greater force to the Fifth Amendment problem of successive confessions. Where an accused believes that it is futile to resist because the authorities already have elicited an admission of guilt, the mere rendition of Miranda warnings does not convey the information most critical at that point to ensuring his informed and voluntary decision to speak again: that the earlier confession may not be admissible and thus that he need not speak out of any feeling that he already has sealed his fate. The Court therefore is flatly wrong in arguing, as it does repeatedly, that the mere provision of Miranda warnings prior to subsequent interrogation supplies the accused with "the relevant information" and ensures that a subsequent confession "ordinarily" will be the product of "a rational and intelligent choice" and " `an act of free will.' " Ante, at 311, 314.[16] *338 The Court's new approach is therefore completely at odds with established dissipation analysis. A comparison of the Court's analysis with the factors most frequently relied on by lower courts in considering the admissibility of subsequent confessions demonstrates the practical and legal flaws of the new rule. Advice that earlier confession may be inadmissible. The most effective means to ensure the voluntariness of an accused's subsequent confession is to advise the accused that his earlier admissions may not be admissible and therefore that he need not speak solely out of a belief that "the cat is out of the bag." Many courts have required such warnings in the absence of other dissipating factors,[17] and this Court has not uncovered anything to suggest that this approach has not succeeded in the real world. The Court, however, believes that law enforcement authorities could never possibly understand "the murky and difficult questio[n]" of when *339 Miranda warnings must be given, and therefore that they are "ill-equipped" to make the decision whether supplementary warnings might be required. Ante, at 316. This reasoning is unpersuasive for two reasons. First, the whole point of Miranda and its progeny has been to prescribe "bright line" rules for the authorities to follow.[18] Although borderline cases will of course occasionally arise, thus militating against a per se rule requiring supplementary warnings, the experience of the lower courts demonstrates that the vast majority of confrontations implicating this question involve obvious Miranda violations. The occasional "murky and difficult" case should not preclude consideration of supplementary warnings in situations where the authorities could not possibly have acted in an objectively reasonable manner in their earlier interrogation of the accused. Second, even where the authorities are not certain that an earlier confession has been illegally obtained, courts and commentators have recognized that a supplementary warning merely advising the accused that his earlier confession may be inadmissible can dispel his belief that he has nothing to lose by repetition.[19] Proximity in time and place. Courts have frequently concluded that a subsequent confession was so removed in time and place from the first that the accused most likely was able fully to exercise his independent judgment in deciding whether to speak again.[20] As in the instant case, however, a *340 second confession frequently follows immediately on the heels of the first and is obtained by the same officials in the same or similar coercive surroundings. In such situations, it is wholly unreasonable to assume that the mere rendition of Miranda warnings will safeguard the accused's freedom of action. The Court today asserts, however, that the traditional requirement that there be a "break in the stream of events" is "inapposite" in this context. Ante, at 310. Yet most lower courts that have considered the question have recognized that our decision in Westover v. United States, 384 U. S., at 494, compels the contrary conclusion.[21] There the accused was questioned by local authorities for several hours and then turned over to federal officials, who only then advised him of his constitutional rights and obtained a confession. We concluded that Westover's waiver was invalid because, from Westover's perspective, the separate questioning amounted to but one continuous period of interrogation, "the warnings came at the end of the interrogation process," and the giving of warnings could not dissipate the effect of *341 the earlier, illegal questioning. Id., at 496.[22] Thus it is clear that Miranda warnings given at the end of the interrogation process cannot dispel the illegality of what has gone before. If this is so in a situation like Westover, where the accused had not yet given a confession, how can the Court possibly conclude otherwise where the accused already has confessed and therefore feels that he has nothing to lose by "confess[ing] some more?" State v. Lekas, 201 Kan., at 588, 442 P. 2d, at 19. Intervening factors. Some lower courts have found that because of intervening factors — such as consultation with a lawyer or family members, or an independent decision to speak — an accused's subsequent confession could not fairly be attributed to the earlier statement taken in violation of Miranda.[23] On the other hand, where as here an accused has continuously been in custody and there is no legitimate suggestion of an intervening event sufficient to break the impact of the first confession, subsequent confessions are inadmissible.[24] The Court reasons, however, that because "[a] suspect's confession may be traced to . . . an intervening event," it "must [be] conclude[d]" that subsequent Miranda warnings presumptively enable the suspect to make "a rational and intelligent choice" whether to repeat his confession. Ante, at 314 (emphasis added). In applying the intervening-events inquiry, however, "courts must use a surgeon's scalpel and not a meat axe." Cf. 3 W. LaFave, Search and Seizure § 11.4, p. 624 (1978). The only proper inquiry is whether a meaningful intervening event actually occurred, not whether *342 a court simply chooses to shut its eyes to human nature and the realities of custodial interrogation. Purpose and flagrancy of the illegality. Courts have frequently taken the "purpose and flagrancy of the official misconduct" into account in considering whether the taint of illegal action was sufficiently dissipated to render a confession admissible. Brown v. Illinois, 422 U. S., at 604. In part, this inquiry has reflected conviction that particularly egregious misconduct must be deterred through particularly stern action. This factor is also important, however, because it is fair to presume that if the authorities acted flagrantly in violating the law they probably did so for ulterior motives. Thus if the authorities blatantly failed to advise an accused of his constitutional rights while interrogating him and gave him the Miranda warnings only as they handed him a typed confession for his signature, it is fair to presume that they pursued their strategy precisely to weaken his ability knowingly and voluntarily to exercise his constitutional rights. C Perhaps because the Court is discomfited by the radical implications of its failure to apply the settled derivative-evidence presumption to violations of Miranda, it grudgingly qualifies its sweeping pronouncements with the acknowledgment that its new presumption about so-called "ordinary" Miranda violations can be overcome by the accused. Ante, at 311, 314. Explicitly eschewing "a per se rule," ante, at 317, the Court suggests that its approach should not be followed where the police have employed "improper tactics" or "inherently coercive methods" that are "calculated to undermine the suspect's ability to exercise his free will." Ante, at 308, 309, 312, n. 3; see also ante, at 312, 314, 317. The Court thus concedes that lower courts must continue to be free to "examine the surrounding circumstances and the *343 entire course of police conduct with respect to the suspect in evaluating the voluntariness of his statements." Ante, at 318. The Court's concessions are potentially significant, but its analysis is wholly at odds with established dissipation analysis. To begin with, the Court repeatedly suggests that a confession may be suppressed only if the police have used "improper tactics," ante, at 308; this obscure reasoning overlooks the fact that a violation of Miranda is obviously itself an "improper tactic," one frequently used precisely to undermine the voluntariness of subsequent confessions. See supra, at 329-332. The Court's negative implication that Miranda violations are not "improper tactics" is, to say the least, disquieting. Second, the Court reasons that the fact that the accused gave a subsequent confession is itself "highly probative" evidence that he was able to exercise his free will. Ante, at 318. This inaccurate premise follows from the Court's erroneous rejection of the "cat out of the bag" presumption in these circumstances and its inexplicable assertion that the previous extraction of a "guilty secret" neither constitutes compulsion nor compromises the voluntariness of later confessions. Ante, at 312.[25] Finally, the *344 foundation of the derivative-evidence doctrine has always been that, where the authorities have acted illegally, they must bear the "ultimate burden" of proving that their misconduct did not "taint" subsequently obtained evidence. Alderman v. United States, 394 U. S. 165, 183 (1969); see also Nardone v. United States, 308 U. S., at 341. That is precisely the point of the derivative-evidence presumption. By rejecting this presumption in Miranda cases, the Court today appears to adopt a "go ahead and try to prove it" posture toward citizens whose Fifth Amendment Miranda rights have been violated, an attitude that marks a sharp break from the Court's traditional approach to official lawlessness. Nevertheless, prudent law enforcement officials must not now believe that they are wholly at liberty to refuse to give timely warnings and obtain effective waivers, confident that evidence derived from Miranda violations will be entirely immune from judicial scrutiny. I believe that most state and federal courts will continue to exercise the "learning, good sense, fairness and courage" they have displayed in administering the derivative-evidence rules prior to today's decision. Nardone v. United States, supra, at 342. Lower courts are free to interpret the Court's qualifications, grudging though they may be, as providing sufficient latitude to scrutinize confessions obtained in the wake of Miranda violations to determine whether, in light of all "the surrounding circumstances and the entire course of police conduct," the initial Miranda violation compromised the voluntariness of the accused's subsequent confession. Ante, at 318. Any overt *345 use of the illegally secured statement by the police in obtaining the subsequent confession must of course be viewed as powerful evidence of a tainted connection; the Court itself asserts that the officers in this case did not "exploit the unwarned admission to pressure respondent" into giving his subsequent confession. Ante, at 316.[26] In such circumstances, "[h]aving `released the spring' by using the petitioner's unlawfully obtained confessions against him, the Government must show that its illegal action did not induce his [subsequent statements]." Harrison v. United States, 392 U. S. 219, 224-225 (1968). Moreover, courts must scrutinize the totality of the circumstances even where the authorities have not explicitly exploited the earlier confession. Many of the police practices discussed above do not rely on overt use of the earlier confession at all, but instead are implicit strategies that create leverage on the accused to believe he already has sealed his fate. See supra, at 328-332. These strategies are just as pernicious as overt exploitation of the illegal confession, because they just as surely are "calculated to undermine the suspect's ability to exercise his free will." Ante, at 309.[27] In evaluating the likely effects of such tactics, courts should continue to employ many of the same elements traditionally used in dissipation analysis. Thus, although the Court discounts the importance of a "break in the stream of events" in *346 the context of the derivative-evidence presumption, the proximity in time and place of the first and second confessions surely remains a critical factor. See supra, at 339-341. So too does the inquiry into possible intervening events. Supra, at 341-342. And if the official violation of Miranda was flagrant, courts may fairly conclude that the violation was calculated and employed precisely so as to "undermine the suspect's ability to exercise his free will." Ante, at 309. See also ante, at 314 ("deliberately . . . improper tactics" warrant a presumption of compulsion).[28] In sum, today's opinion marks an evisceration of the established fruit of the poisonous tree doctrine, but its reasoning is sufficiently obscure and qualified as to leave state and federal courts with continued authority to combat obvious flouting by the authorities of the privilege against self-incrimination. I am confident that lower courts will exercise this authority responsibly, as they have for the most part prior to this Court's intervention. II Not content merely to ignore the practical realities of police interrogation and the likely effects of its abolition of the derivative-evidence presumption, the Court goes on to assert that nothing in the Fifth Amendment or the general judicial policy of deterring illegal police conduct "ordinarily" requires the suppression of evidence derived proximately from a confession obtained in violation of Miranda. The Court does not limit its analysis to successive confessions, but recurrently refers generally to the "fruits" of the illegal confession. Ante, at 306, 307, 308. Thus the potential impact of the Court's reasoning might extend far beyond the *347 "cat out of the bag" context to include the discovery of physical evidence and other derivative fruits of Miranda violations as well.[29] A The Fifth Amendment requires that an accused in custody be informed of important constitutional rights before the authorities interrogate him. Miranda v. Arizona. This requirement serves to combat the "inherently compelling pressures" of custodial questioning "which work to undermine the individual's will to resist and to compel him to speak where he would not otherwise do so freely," and is a prerequisite to securing the accused's informed and voluntary waiver of his *348 rights. 384 U. S., at 467. Far from serving merely as a prophylactic safeguard, "[t]he requirement of warnings and waiver of rights is a fundamental with respect to the Fifth Amendment privilege . . . ." Id., at 476. It is precisely because this requirement embraces rights that are deemed to serve a "central role in the preservation of basic liberties," Malloy v. Hogan, 378 U. S. 1, 5 (1964), that it is binding on the States through the Fourteenth Amendment, Miranda v. Arizona, 384 U. S., at 467. Twice in the last 10 years, however, the Court has suggested that the Miranda safeguards are not themselves rights guaranteed by the Fifth Amendment. In Michigan v. Tucker, 417 U. S. 433 (1974), the Court stated that Miranda had only prescribed "recommended" procedural safeguards "to provide practical reinforcement for the right against compulsory self-incrimination," the violation of which may not necessarily violate the Fifth Amendment itself. 417 U. S., at 443-444. And in New York v. Quarles, 467 U. S. 649 (1984), the Court last Term disturbingly rejected the argument that a confession "must be presumed compelled because of . . . failure to read [the accused] his Miranda warnings." Id., at 655, n. 5 (emphasis in original). These assertions are erroneous. Miranda's requirement of warnings and an effective waiver was not merely an exercise of supervisory authority over interrogation practices. As Justice Douglas noted in his Tucker dissent: "Miranda's purpose was not promulgation of judicially preferred standards for police interrogation, a function we are quite powerless to perform; the decision enunciated `constitutional standards for protection of the privilege' against self-incrimination. 384 U. S., at 491." 417 U. S., at 465-466 (emphasis in original). Miranda clearly emphasized that warnings and an informed waiver are essential to the Fifth Amendment privilege itself. See supra, at 347 and this page. As noted in Tucker, Miranda did state that the Constitution does not require *349 " `adherence to any particular solution' " for providing the required knowledge and obtaining an informed waiver. 417 U. S., at 444 (quoting Miranda, supra, at 467). But to rely solely on this language in concluding that the Miranda warnings are not constitutional rights, as did the Court in Tucker, ignores the central issue. The Court in Tucker omitted to mention that in Miranda, after concluding that no "particular solution" is required, we went on to emphasize that "unless we are shown other procedures which are at least as effective in apprising accused persons of their right of silence and in assuring a continuous opportunity to exercise it, the [prescribed] safeguards must be observed." Miranda, supra, at 467. Thus "the use of [any] admissions obtained in the absence of the required warnings [is] a flat violation of the Self-Incrimination Clause of the Fifth Amendment . . . ." Orozco v. Texas, 394 U. S. 324, 326 (1969). The Court today finally recognizes these flaws in the logic of Tucker and Quarles.[30] Although disastrous in so many other respects, today's opinion at least has the virtue of rejecting the inaccurate assertion in Quarles that confessions extracted in violation of Miranda are not presumptively coerced for Fifth Amendment purposes. Cf. Quarles, supra, at 655, n. 5. Instead, the Court holds squarely that there is an "irrebuttable" presumption that such confessions are indeed coerced and are therefore inadmissible under the Fifth Amendment except in narrow circumstances. Ante, at 307.[31] B Unfortunately, the Court takes away with one hand far more than what it has given with the other. Although the *350 Court concedes, as it must, that a confession obtained in violation of Miranda is irrebuttably presumed to be coerced and that the Self-Incrimination Clause therefore prevents its use in the prosecution's case in chief, ante, at 306-307, the Court goes on to hold that nothing in the Fifth Amendment prevents the introduction at trial of evidence proximately derived from the illegal confession. It contends, for example, that the Fifth Amendment prohibits introduction "only" of the "compelled testimony," and that this constitutional guarantee "is not concerned with nontestimonial evidence." Ante, at 304, 307. This narrow compass of the protection against compelled self-incrimination does not accord with our historic understanding of the Fifth Amendment. Although the Self-Incrimination Clause "protects an accused only from being compelled to testify against himself, or otherwise provide the State with evidence of a testimonial or communicative nature," Schmerber v. California, 384 U. S. 757, 761 (1966), it prohibits the use of such communications "against" the accused in any way. The Fifth Amendment therefore contains a self-executing rule commanding the exclusion of evidence derived from such communications.[32] It bars "the use of compelled testimony, as well as evidence derived directly and indirectly therefrom," and "prohibits the prosecutorial authorities from using the compelled testimony in any respect." Kastigar v. United States, 406 U. S. 441, 453 (1972) (emphasis in original). If a coerced statement leads to "sources of information which may supply other means of convicting" the accused, those sources must also be suppressed. Counselman v. Hitchcock, 142 U. S. 547, 586 (1892). Under this constitutional exclusionary rule, the authorities are thus *351 "prohibited from making any . . . use of compelled testimony and its fruits" "in connection with a criminal prosecution against" the accused. Murphy v. Waterfront Comm'n, 378 U. S. 52, 79 (1964) (emphasis added).[33] In short, the Fifth Amendment's rule excluding "the use of compelled testimony and evidence derived therefrom is coextensive with the scope of the privilege" against self-incrimination itself. Kastigar v. United States, supra, at 452-453. "The essence of a provision forbidding the acquisition of evidence in a certain way is that not merely evidence so acquired shall not be used before the Court but that it shall not be used at all." Silverthorne Lumber Co. v. United States, 251 U. S., at 392 (emphasis added). If the authorities were permitted to use an accused's illegal confession to extract additional confessions or to uncover physical evidence against him, the use of these fruits at trial would violate the Self-Incrimination Clause just as surely as if the original confession itself were introduced. Yet that is precisely what today's decision threatens to encourage. What possible justification does the Court advance for its evisceration of the Fifth Amendment's exclusionary rule in this context? Two rationales appear to be at work here. First, while acknowledging that a confession obtained in the absence of warnings and an informed waiver is irrebuttably presumed to be coerced in violation of the Self-Incrimination Clause, ante, at 307, the Court recurrently asserts elsewhere that the extraction of such a confession is not really "a Fifth Amendment violation," ante, at 306. Thus the Court suggests that a Miranda violation does not constitute "police *352 infringement of a constitutional right," that it is not "a constitutional violation," that a suspect in such circumstances "suffer[s] no identifiable constitutional harm," and that his "Fifth Amendment rights" have not "actually [been] violated." Ante, at 304, 305, 307, 316. Similarly, the Court persists in reasoning that a confession obtained in violation of Miranda "ordinarily" should be viewed as "voluntary," a "voluntary disclosure of a guilty secret," "freely given," "noncoerc[ed]," and "wholly voluntary." Ante, at 311, 312, 318. I have already demonstrated the fallacy of this reasoning. See Part II-A, supra. Suffice it to say that the public will have understandable difficulty in comprehending how a confession obtained in violation of Miranda can at once be (1) "irrebuttabl[y]" presumed to be the product of official compulsion, and therefore suppressible as a matter of federal constitutional law, ante, at 307, 317, and (2) "noncoerc[ed]" and "wholly voluntary," ante, at 312, 318. Second, while not discussed in today's opinion, JUSTICE O'CONNOR has recently argued that the Fifth Amendment's exclusion of derivative evidence extends only to confessions obtained when the accused is compelled "to appear before a court, grand jury, or other such formal tribunal," and not merely when he is "subject to informal custodial police interrogation." New York v. Quarles, 467 U. S., at 670 (O'CONNOR, J., concurring in part in judgment and dissenting in part). An accused in this situation, it is argued, "has a much less sympathetic case for obtaining the benefit of a broad suppression ruling." Ibid. Such an analysis overlooks that, by the time we decided Miranda, it was settled that the privilege against self-incrimination applies with full force outside the chambers of "formal" proceedings. "Today, then, there can be no doubt that the Fifth Amendment privilege is available outside of criminal court proceedings and serves to protect persons in all settings in which their freedom of action is curtailed in any significant way from being compelled to incriminate themselves." Miranda v. Arizona, 384 U. S., at 467. See also *353 Ziang Sung Wan v. United States, 266 U. S. 1, 14-15 (1924) ("[A] confession obtained by compulsion must be excluded whatever may have been the character of the compulsion, and whether the compulsion was applied in a judicial proceeding or otherwise") (emphasis added); Bram v. United States, 168 U. S. 532 (1897). Thus there is no question that "all the principles embodied in the privilege apply to informal compulsion exerted by law-enforcement officers during incustody questioning." Miranda v. Arizona, supra, at 461. The application of the privilege to custodial interrogation simply reflects the realities and purposes of 20th-century police investigations, matters which the Court chooses to ignore. "[P]olice interrogation has in recent times performed the function once accomplished by interrogation of the defendant by the committing magistrate, a practice brought to an end by establishment of the rule against self-incrimination."[34] Moreover, "[a]s a practical matter, the compulsion to speak in the [police interrogation setting] may well be greater than in courts or other official investigations, where there are often impartial observers to guard against intimidation or trickery." 384 U. S., at 461 (emphasis added).[35] In addition, there can be no legitimate dispute that *354 an incriminating statement obtained through custodial interrogation "is as revealing of leads" and other derivative evidence as a statement compelled before a judicial tribunal. Murphy v. Waterfront Comm'n, 378 U. S., at 103 (WHITE, J., concurring). Accordingly, Miranda itself emphasized that, under the Fifth Amendment exclusionary rule, "no evidence obtained as a result of interrogation can be used against" the defendant unless he was warned of his rights and gave an effective waiver. 384 U. S., at 479 (emphasis added).[36] For these reasons, the Fifth Amendment itself requires the exclusion of evidence proximately derived from a confession obtained in violation of Miranda. The Court today has altogether evaded this constitutional command, the application of which should not turn simply on whether one is "sympathetic" to suspects undergoing custodial interrogation. C Even if I accepted the Court's conclusion that the Fifth Amendment does not command the suppression of evidence proximately derived from a Miranda violation, I would nevertheless dissent from the Court's refusal to recognize the importance of deterring Miranda violations in appropriate circumstances. Just last Term, in United States v. Leon, 468 U. S. 897 (1984), the Court held that while the Fourth Amendment does not per se require the suppression of evidence derived from an unconstitutional search, the exclusionary rule must nevertheless be invoked where the search was objectively unreasonable. Id., at 919-920, n. 20. Although *355 I do not share the Court's view of the Fourth Amendment,[37]Leon at least had the virtue of recognizing that exclusion of derivative evidence is essential to the effective deterrence of objectively unreasonable failures by the authorities to obey the law. Ibid. The Court today refuses to apply the derivative-evidence rule even to the extent necessary to deter objectively unreasonable failures by the authorities to honor a suspect's Miranda rights. Incredibly, faced with an obvious violation of Miranda, the Court asserts that it will not countenance suppression of a subsequent confession in such circumstances where the authorities have acted "legitimate[ly]" and have not used "improper tactics." Ante, at 312, 314. One can only respond: whither went Miranda? The Court contends, however, that Michigan v. Tucker, 417 U. S. 433 (1974), already decided that the failure of the authorities to obey Miranda should not be deterred by application of the derivative-evidence rule. Ante, at 308-309. Tucker did not so decide. After criticizing the Fifth Amendment basis for exclusion, the Court in Tucker went on to note another " `prime purpose' " for the exclusion of evidence — " `to deter future unlawful police conduct and thereby effectuate the guarantee[s]' " of the Constitution. 417 U. S., at 446 (citation omitted). The Court emphasized that "[i]n a proper case this rationale would seem applicable to the Fifth Amendment context as well." Id., at 447. Anticipating Leon, however, the Court asserted that the "deterrent purpose" was applicable only where "the police have engaged in willful, or at the very least negligent, conduct . . . ." 417 U. S, at 447. Because the questioning in Tucker occurred before Miranda was announced and was otherwise conducted in an objectively reasonable manner, the exclusion of the derivative evidence solely for failure to comply with the then-nonexistent *356 Miranda requirement would not significantly deter future Miranda violations. As the Court noted, the "deterrence rationale loses much of its force" when there is nothing to deter. 417 U. S, at 447. Far from rejecting the derivative-evidence rule, Tucker thus expressly invited its application in "a proper case" when the authorities have acted unreasonably. Ibid. Nearly every court and commentator considering the issue have correctly recognized that Tucker's logic and its reliance on the Fourth Amendment "good faith" analysis compel the exclusion of derivative evidence where the police have deliberately, recklessly, or negligently violated the Fifth Amendment requirement of warnings and an effective waiver.[38] Thus the Court's assertion today that Tucker's "reasoning applies with equal force" to preclude application of the derivative-evidence rule in this case is a gross mischaracterization. Ante, at 308. If the police acted in an objectively unreasonable manner, see Part II-D, infra, Tucker's "reasoning" instead requires suppression of Elstad's subsequent statement. The Court clearly errs in suggesting that suppression of the "unwarned admission" alone will provide meaningful deterrence. Ante, at 309. The experience of lower courts demonstrates that the police frequently have refused to comply with Miranda precisely in order to obtain incriminating statements that will undermine the voluntariness of the accused's decision to speak again once he has received the usual warnings; in such circumstances, subsequent confessions *357 often follow on a "silver platter." Cagle v. State, 45 Ala. App., at 4, 221 So. 2d, at 120. See generally supra, at 329-332. Expert interrogators themselves recognize the direct connection between such statements. Supra, at 328-329. And the Court's suggestion that its analysis might apply generally to "fruits" of illegal interrogations, but see n. 29, supra, blinks reality even further. For example, expert interrogators acknowledge that confessions are " `the prime source of other evidence.' "[39] If the police through illegal interrogation could discover contraband and be confident that the contraband "ordinarily" would not be suppressed, what possible incentive would they have to obey Miranda? The Court simply has not confronted the basic premise of the derivative-evidence rule: that "[t]o forbid the direct use of methods . . . but to put no curb on their full indirect use would only invite the very methods deemed `inconsistent with ethical standards and destructive of personal liberty.' " Nardone v. United States, 308 U. S., at 340. "[I]t is clear that if the police were permitted to utilize illegally obtained confessions for links and leads rather than being required to gather evidence independently, then the Miranda warnings would be of no value in protecting the privilege against self-incrimination. The requirement of a warning would be meaningless, for the police would be permitted to accomplish indirectly what they could not accomplish directly, and there would exist no incentive to warn." Pitler, 56 Calif. L. Rev., supra n. 16, at 620. *358 As the Executive Director of the National District Attorneys Association Foundation emphasized shortly after Miranda, merely to exclude the statement itself while putting no curbs on the admission of derivative evidence "would destroy the whole basis for the rule in the first instance." Nedrud, The New Fifth Amendment Concept: Self-Incrimination Redefined, 2 J. Nat. Dist. Att. Assn. Found. 112, 114 (1966).[40] Yet that is precisely the result that today's disastrous opinion threatens to encourage. How can the Court possibly expect the authorities to obey Miranda when they have every incentive now to interrogate suspects without warnings or an effective waiver, knowing that the fruits of such interrogations "ordinarily" will be admitted, that an admissible subsequent confession "ordinarily" can be obtained simply by reciting the Miranda warnings shortly after the first has been procured and asking the accused to repeat himself, and that unless the accused can demonstrate otherwise his confession will be viewed as an "act of free will" in response to "legitimate law *359 enforcement activity"? Ante, at 311, 312. By condoning such a result, the Court today encourages practices that threaten to reduce Miranda to a mere "form of words," Silverthorne Lumber Co. v. United States, 251 U. S., at 392, and it is shocking that the Court nevertheless disingenuously purports that it "in no way retreats" from the Miranda safeguards, ante, at 317. D Not content with its handiwork discussed above, the Court goes on and devotes considerable effort to suggesting that, "[u]nfortunately," Miranda is such an inherently "slippery," "murky," and "difficult" concept that the authorities in general, and the police officer conducting the interrogation in this case in particular, cannot be faulted for failing to advise a suspect of his rights and to obtain an informed waiver. Ante, at 309, 316. Miranda will become "murky," however, only because the Court's opinion today threatens to become a self-fulfilling prophecy. Although borderline cases occasionally have arisen respecting the concepts of "custody" and "interrogation," until today there has been nothing "slippery," "murky," or "difficult" about Miranda in the overwhelming majority of cases. The whole point of the Court's work in this area has been to prescribe "bright line" rules to give clear guidance to the authorities.[41] Rather than acknowledge that the police in this case clearly broke the law, the Court bends over backwards to suggest why the officers may have been justified in failing to obey Miranda. *360 First. The Court asserts that "[n]either the environment nor the manner of either `interrogation' was coercive," noting that the initial interrogation took place in Elstad's "own home." Ante, at 315. The Court also believes that, "[a]lthough in retrospect the officers testified that respondent was then in custody, at the time he made his statement he had not been informed that he was under arrest." Ibid. There is no question, however, that Michael Elstad was in custody and "deprived of his freedom of action in [a] significant way" at the time he was interrogated. Miranda v. Arizona, 384 U. S., at 444. Two police officers had entered his bedroom, ordered him to get out of bed and come with them, stood over him while he dressed, taken him downstairs, and separated him from his mother. Tr. 64-65, 74-75, 80-84. The officers themselves acknowledged that Elstad was then under arrest. Id., at 81-82. Moreover, we have made clear that police interrogation of an accused in custody triggers the Miranda safeguard even if he is in the "familiar surroundings" of his own home, precisely because he is no less " `deprived of his freedom of action' " there than if he were at a police station. Orozco v. Texas, 394 U. S., at 326-327 (citation omitted). Thus because Elstad was in custody, the circumstances of his interrogation were inherently coercive, and the Court once again flouts settled law in suggesting otherwise. "[W]ithout proper safeguards the process of in-custody interrogation of persons suspected or accused of crime contains inherently compelling pressures which work to undermine the individual's will to resist and to compel him to speak where he would not otherwise do so freely." Miranda v. Arizona, 384 U. S., at 467. The Fifth Amendment's requirement of warnings and an informed waiver is "an absolute prerequisite in overcoming the inherent pressures of the interrogation atmosphere." Id., at 468. Second. Without anything in the record to support its speculation, the Court suggests that Officer Burke's violation *361 of Miranda "may have been the result of confusion as to whether the brief exchange qualified as `custodial interrogation'. . . ." Ante, at 315. There was no confusion on this point until today. Burke made Elstad sit down and, standing over him, said "[y]ou know why we're here," asked if he knew the Gross family, and "asked what he knew about the burglary." Tr. 83-84. This questioning obviously constituted interrogation because it was "reasonably likely to evoke an incriminating response" from Elstad, as it did. Rhode Island v. Innis, 446 U. S. 291, 301 (1980). Third. The Court contends that the interrogation might be excusable because "the brief stop in the living room before proceeding to the station house was not to interrogate the suspect but to notify his mother of the reason for his arrest." Ante, at 315. Officer Burke's partner did take Elstad's mother into the kitchen to inform her of the charges, but Burke took Elstad into another room, sat him down, and interrogated him concerning "what he knew about the burglary." Tr. 84. How can the Court possibly describe this interrogation as merely informing Elstad's mother of his arrest? Finally. The Court suggests that Burke's violation of Elstad's Fifth Amendment rights "may simply have reflected Burke's reluctance to initiate an alarming police procedure before McAllister had spoken with respondent's mother." Ante, at 315-316. As the officers themselves acknowledged, however, the fact that they "[took] the young fellow out of bed" had "[o]bviously" already created "tension and stress" for the mother, Tr. 64, which surely was not lessened when she learned that her son was under arrest. And if Elstad's mother was in earshot, as the Court assumes, it is difficult to perceive how listening to the Miranda warnings would be any more "alarming" to her than what she actually heard — actual interrogation of her son, including Burke's direct accusation that the boy had committed a felony. Most importantly, an individual's constitutional rights should not turn on *362 whether his relatives might be upset. Surely there is no "tender feelings" exception to the Fifth Amendment privilege against self-incrimination.[42] III The Court's decision today vividly reflects its impatience with the constitutional rights that the authorities attack as standing in the way of combating crime. But the States that adopted the Bill of Rights struck that balance and it is not for this Court to balance the Bill of Rights away on a cost/benefit scale "where the `costs' of excluding illegally obtained evidence loom to exaggerated heights and where the `benefits' of such exclusion are made to disappear with a mere wave of the hand." United States v. Leon, 468 U. S., at 929 (BRENNAN, J., dissenting). It is precisely in that vein, however, that the Court emphasizes that the subsequent confession in this case was "voluntary" and "highly probative evidence," that application of the derivative-evidence presumption would cause the confession to be "irretrievably lost," and that such a result would come at an impermissibly "high cost to legitimate law enforcement activity." Ante, at 312. Failure of government to obey the law cannot ever constitute "legitimate law enforcement activity." In any event, application of the derivative-evidence presumption does not *363 "irretrievably" lead to suppression. If a subsequent confession is truly independent of earlier, illegally obtained confession, nothing prevents its full use to secure the accused's conviction. If the subsequent confession did result from the earlier illegalities, however, there is nothing "voluntary" about it. And even if a tainted subsequent confession is "highly probative," we have never until today permitted probity to override the fact that the confession was "the product of constitutionally impermissible methods in [its] inducement." Rogers v. Richmond, 365 U. S. 534, 541 (1961). In such circumstances, the Fifth Amendment makes clear that the prosecutor has no entitlement to use the confession in attempting to obtain the accused's conviction.[43] The lesson of today's decision is that, at least for now, what the Court decrees are "legitimate" violations by authorities of the rights embodied in Miranda shall "ordinarily" go undeterred. It is but the latest of the escalating number of decisions that are making this tribunal increasingly irrelevant in the protection of individual rights, and that are requiring other tribunals to shoulder the burden.[44] "There is hope, however, that in time this or some later Court will restore *364A these precious freedoms to their rightful place as a primary protection for our citizens against overreaching officialdom." United States v. Leon, supra, at 960 (BRENNAN, J., dissenting). I dissent. *364b JUSTICE STEVENS, dissenting. The Court concludes its opinion with a carefully phrased statement of its holding: "We hold today that a suspect who has once responded to unwarned yet uncoercive questioning is not thereby disabled from waiving his rights and confessing after he has been given the requisite Miranda warnings." Ante, at 318. I find nothing objectionable in such a holding. Moreover, because the Court expressly endorses the "bright-line rule of Miranda," which conclusively presumes that incriminating statements obtained from a suspect in custody without administering the required warnings are the product of compulsion,[1] and because the Court places so much emphasis on the special facts of this case, I am persuaded that the Court intends its holding to apply only to a narrow category of cases in which the initial questioning of the suspect was made in a totally uncoercive setting and in which the first confession obviously had no influence on the second.[2] I nevertheless *365 dissent because even such a narrowly confined exception is inconsistent with the Court's prior cases, because the attempt to identify its boundaries in future cases will breed confusion and uncertainty in the administration of criminal justice, and because it denigrates the importance of one of the core constitutional rights that protects every American citizen from the kind of tyranny that has flourished in other societies. I The desire to achieve a just result in this particular case has produced an opinion that is somewhat opaque and internally inconsistent. If I read it correctly, its conclusion rests on two untenable premises: (1) that the respondent's first confession was not the product of coercion;[3] and (2) that no constitutional right was violated when respondent was questioned in a tranquil, domestic setting.[4] *366 Even before the decision in Miranda v. Arizona, 384 U. S. 436 (1966), it had been recognized that police interrogation of a suspect who has been taken into custody is presumptively coercive. That presumption had its greatest force when the questioning occurred in a police station, when it was prolonged, and when there was evidence that the prisoner had suffered physical injury. To rebut the presumption, the prosecutor had the burden of proving the absence of any actual coercion.[5] Because police officers are generally more credible witnesses than prisoners and because it is always difficult for triers of fact to disregard evidence of guilt when addressing a procedural question, more often than not the presumption of coercion afforded only slight protection to the accused. The decision in Miranda v. Arizona clarified the law in three important respects. First, it provided the prosecutor with a simple method of overcoming the presumption of coercion.[6] If the police interrogation is preceded by the warning specified in that opinion, the usual presumption does not attach. Second, it provided an important protection to the accused by making the presumption of coercion irrebuttable if the prescribed warnings are not given.[7] Third, the decision *367 made it clear that a self-incriminatory statement made in response to custodial interrogation was always to be considered "compelled" within the meaning of the Fifth Amendment to the Federal Constitution if the interrogation had not been preceded by appropriate warnings.[8] Thus the irrebuttable presumption of coercion that applies to such a self-incriminatory statement, like a finding of actual coercion, renders the resulting confession inadmissible as a matter of federal constitutional law.[9] *368 In my opinion, the Court's attempt to fashion a distinction between actual coercion "by physical violence or other deliberate means calculated to break the suspect's will," ante, at 312, and irrebuttably presumed coercion cannot succeed. The presumption is only legitimate if it is assumed that there is always a coercive aspect to custodial interrogation that is not preceded by adequate advice of the constitutional right to remain silent. Although I would not support it, I could understand a rule that refused to apply the presumption unless the interrogation took place in an especially coercive setting — perhaps only in the police station itself — but if the presumption arises whenever the accused has been taken into custody or his freedom has been restrained in any significant way, it will surely be futile to try to develop subcategories of custodial interrogation.[10] Indeed, a major purpose of treating the presumption of coercion as irrebuttable is to avoid the kind of fact-bound inquiry that today's decision will surely engender.[11] As I read the Court's opinion, it expressly accepts the proposition that routine Miranda warnings will not be sufficient to overcome the presumption of coercion and thereby make a second confession admissible when an earlier confession is tainted by coercion "by physical violence or other *369 deliberate means calculated to break the suspect's will."[12] Even in such a case, however, it is not necessary to assume that the earlier confession will always "effectively immunize" a later voluntary confession. But surely the fact that an earlier confession was obtained by unlawful methods should add force to the presumption of coercion that attaches to subsequent custodial interrogation and should require the prosecutor to shoulder a heavier burder of rebuttal than in a routine case. Simple logic, as well as the interest in not providing an affirmative incentive to police misconduct, requires that result. I see no reason why the violation of a rule that is as well recognized and easily administered as the duty to give Miranda warnings should not also impose an additional burden on the prosecutor.[13] If we are faithful to the holding in *370 Miranda itself, when we are considering the admissibility of evidence in the prosecutor's case in chief, we should not try to fashion a distinction between police misconduct that warrants a finding of actual coercion and police misconduct that establishes an irrebuttable presumption of coercion. II For me, the most disturbing aspect of the Court's opinion is its somewhat opaque characterization of the police misconduct in this case. The Court appears ambivalent on the question whether there was any constitutional violation.[14] This ambivalence is either disingenuous or completely lawless. This Court's power to require state courts to exclude probative self-incriminatory statements rests entirely on the premise that the use of such evidence violates the Federal Constitution.[15] The same constitutional analysis applies *371 whether the custodial interrogation is actually coercive or irrebuttably presumed to be coercive. If the Court does not accept that premise, it must regard the holding in the Miranda case itself, as well as all of the federal jurisprudence that has evolved from that decision, as nothing more than an illegitimate exercise of raw judicial power.[16] If the Court accepts the proposition that respondent's self-incriminatory statement was inadmissible, it must also acknowledge that the Federal Constitution protected him from custodial police interrogation without first being advised of his right to remain silent. The source of respondent's constitutional protection is the Fifth Amendment's privilege against compelled self-incrimination that is secured against state invasion by the Due Process Clause of the Fourteenth Amendment. Like many other provisions of the Bill of Rights, that provision is merely a procedural safeguard. It is, however, the specific provision that protects all citizens from the kind of custodial interrogation that was once employed by the Star Chamber,[17] by "the Germans of the 1930's and early 1940's,"[18] and by some of our own police departments only a few decades ago.[19]*372 Custodial interrogation that violates that provision of the Bill of Rights is a classic example of a violation of a constitutional right. I respectfully dissent. NOTES [*] Briefs of amici curiae urging reversal were filed for the United States by Solicitor General Lee, Assistant Attorney General Trott, Deputy Solicitor General Frey, and David A. Strauss; and for Americans for Effective Law Enforcement, Inc., et al. by Fred E. Inbau, Wayne W. Schmidt, James P. Manak, David Crump, and Daniel B. Hales. [1] JUSTICE STEVENS expresses puzzlement at our statement that a simple failure to administer Miranda warnings is not in itself a violation of the Fifth Amendment. Yet the Court so held in New York v. Quarles, 467 U. S. 649, 654 (1983), and Michigan v. Tucker, 417 U. S. 433, 444 (1974). The Miranda Court itself recognized this point when it disclaimed any intent to create a "constitutional straitjacket" and invited Congress and the States to suggest "potential alternatives for protecting the privilege." 384 U. S., at 467. A Miranda violation does not constitute coercion but rather affords a bright-line, legal presumption of coercion, requiring suppression of all unwarned statements. It has never been remotely suggested that any statement taken from Mr. Elstad without benefit of Miranda warnings would be admissible. [2] See, e. g., United States v. Bowler, 561 F. 2d 1323, 1326 (CA9 1977); Tanner v. Vincent, 541 F. 2d 932 (CA2 1976); United States v. Toral, 536 F. 2d 893, 896-897 (CA9 1976); United States v. Knight, 395 F. 2d 971, 975 (CA2 1968); State v. Montes, 136 Ariz. 491, 496-497, 667 P. 2d 191, 196-197 (1983); State v. Derrico, 181 Conn. 151, 166-167, 434 A. 2d 356, 365-366, cert. denied, 449 U. S. 1064 (1980); State v. Holt, 354 So. 2d 888, 890 (Fla. App.), cert. denied, 361 So. 2d 832 (Fla. 1978); Fried v. State, 42 Md. App. 643, 644-648, 402 A. 2d 101, 102-104 (1979); Commonwealth v. White, 353 Mass. 409, 232 N. E. 2d 335 (1967); State v. Sickels, 275 N. W. 2d 809, 813-814 (Minn. 1979); State v. Dakota, 300 Minn. 12, 217 N. W. 2d 748 (1974); State v. Raymond, 305 Minn. 160, 170, 232 N. W. 2d 879, 886 (1975) (noting common thread in line of cases holding prejudicial coercion not present "just because [defendant] had made an earlier confession which `let the cat out of the bag' "); Commonwealth v. Chacko, 500 Pa. 571, 580-582, 459 A. 2d 311, 316 (1983) ("After being given his Miranda warnings it is clear [defendant] maintained his intention to provide his questioners with his version of the incident"). But see In re Pablo A. C., 129 Cal. App. 3d 984, 181 Cal. Rptr. 468 (1982); State v. Hibdon, 57 Ore. App. 509, 645 P. 2d 580 (1982); State v. Lavaris, 99 Wash. 2d 851, 857-860, 664 P. 2d 1234, 1237-1239 (1983). [3] Most of the 50 cases cited by JUSTICE BRENNAN in his discussion of consecutive confessions concern an initial unwarned statement obtained through overtly or inherently coercive methods which raise serious Fifth Amendment and due process concerns. Without describing each case cited, the following are representative of the situations JUSTICE BRENNAN views as analogous to this case: e. g., Darwin v. Connecticut, 391 U. S. 346 (1968) (suspect interrogated for 48 hours incommunicado while officers denied access to counsel); Beecher v. Alabama, 389 U. S. 35, 36 (1967) (officer fired rifle next to suspect's ear and said "If you don't tell the truth I am going to kill you"); Clewis v. Texas, 386 U. S. 707 (1967) (suspect was arrested without probable cause, interrogated for nine days with little food or sleep, and gave three unwarned "confessions" each of which he immediately retracted); Reck v. Pate, 367 U. S. 433, 439-440, n. 3 (1961) (mentally retarded youth interrogated incommunicado for a week "during which time he was frequently ill, fainted several times, vomited blood on the floor of the police station and was twice taken to the hospital on a stretcher"). Typical of the state cases cited in the dissent's discussion are: e. g., Cagle v. State, 45 Ala. App. 3, 4, 221 So. 2d 119, 120 (1969) (police interrogated wounded suspect at police station for one hour before obtaining statement, took him to hospital to have his severe wounds treated, only then giving the Miranda warnings; suspect prefaced second statement with "I have already give the Chief a statement and I might as well give one to you, too"), cert. denied, 284 Ala. 727, 221 So. 2d 121 (1969); People v. Saiz, 620 P. 2d 15 (Colo. 1980) (two hours' unwarned custodial interrogation of 16-year-old in violation of state law requiring parent's presence, culminating in visit to scene of crime); People v. Bodner, 75 App. Div. 2d 440, 430 N. Y. S. 2d 433 (1980) (confrontation at police station and at scene of crime between police and retarded youth with mental age of eight or nine); State v. Badger, 141 Vt. 430, 441, 450 A. 2d 336, 343 (1982) (unwarned "close and intense" station house questioning of 15-year-old, including threats and promises, resulted in confession at 1:20 a. m.; court held "[w]arnings . . . were insufficient to cure such blatant abuse or compensate for the coercion in this case"). JUSTICE BRENNAN cannot seriously mean to equate such situations with the case at bar. Likewise inapposite are the cases the dissent cites concerning suspects whose invocation of their rights to remain silent and to have counsel present were flatly ignored while police subjected them to continued interrogation. See, e. g., United States ex rel. Sanders v. Rowe, 460 F. Supp. 1128 (ND Ill. 1978); People v. Braeseke, 25 Cal. 3d 691, 602 P. 2d 384 (1979), vacated on other grounds, 446 U. S. 932 (1980); Smith v. State, 132 Ga. App. 491, 208 S. E. 2d 351 (1974). Finally, many of the decisions JUSTICE BRENNAN claims require that the "taint" be "dissipated" simply recite the stock "cat" and "tree" metaphors but go on to find the second confession voluntary without identifying any break in the stream of events beyond the simple administration of a careful and thorough warning. See cases cited in n. 2, supra. Out of the multitude of decisions JUSTICE BRENNAN cites, no more than half a dozen fairly can be said to suppress confessions on facts remotely comparable to those in the instant case, and some of these decisions involved other elements not present here. See United States v. Pierce, 397 F. 2d 128 (CA4 1968) (thorough custodial interrogation at station house); United States v. Pellegrini, 309 F. Supp. 250, 257 (SDNY 1970) (officers induced unwarned suspect to produce "the clinching evidence of his crime"); In re Pablo A. C., 129 Cal. App. 3d 984, 181 Cal. Rptr. 468 (1982). (25-minute interrogation of juvenile; court finds causal connection but notes that all prior cited cases relying on "cat-out-of-bag" theory have involved coercion); State v. Lekas, 201 Kan. 579, 442 P. 2d 11 (1968) (parolee taken into custody and questioned at courthouse). At least one State Supreme Court cited by JUSTICE BRENNAN that read Miranda as mandating suppression of a subsequent voluntary and fully warned confession did so with express reluctance, convinced that admissibility of a subsequent confession should turn on voluntariness alone. See Brunson v. State, 264 So. 2d 817, 819-820 (Miss. 1972). [4] The Miranda advice on the card was clear and comprehensive, incorporating the warning that any statements could be used in a court of law; the rights to remain silent, consult an attorney at state expense, and interrupt the conversation at any time; and the reminder that any statements must be voluntary. The reverse side of the card carried three questions in boldface and recorded Elstad's responses: "DO YOU UNDERSTAND THESE RIGHTS? `Yeh' "DO YOU HAVE ANY QUESTIONS ABOUT YOUR RIGHTS? `No' "HAVING THESE RIGHTS IN MIND, DO YOU WISH TO TALK TO US NOW? `Yeh I do!' " The card is dated and signed by respondent and by Officer McAllister. A recent high school graduate, Elstad was fully capable of understanding this careful administering of Miranda warnings. [5] JUSTICE BRENNAN, with an apocalyptic tone, heralds this opinion as dealing a "crippling blow to Miranda." Post, at 319. JUSTICE BRENNAN not only distorts the reasoning and holding of our decision, but, worse, invites trial courts and prosecutors to do the same. [1] "Prior to any questioning, the person must be warned that he has a right to remain silent, that any statement he does make may be used as evidence against him, and that he has a right to the presence of an attorney, either retained or appointed. The defendant may waive effectuation of these rights, provided the waiver is made voluntarily, knowingly and intelligently." 384 U. S., at 444. [2] The Court repeatedly casts its analysis in terms of the "fruits" of a Miranda violation, see ante, at 306, 307, 308, but its dicta nevertheless surely should not be read as necessarily foreclosing application of derivative-evidence rules where the Miranda violation produces evidence other than a subsequent confession by the accused. See n. 29, infra. [3] See, e. g., United States v. Lee, 699 F. 2d 466, 468-469 (CA9 1982); United States v. Nash, 563 F. 2d 1166, 1169 (CA5 1977); Randall v. Estelle, 492 F. 2d 118, 120 (CA5 1974); Fisher v. Scafati, 439 F. 2d 307, 311 (CA1), cert. denied, 403 U. S. 939 (1971); United States v. Pierce, 397 F. 2d 128, 130-131 (CA4 1968); Evans v. United States, 375 F. 2d 355, 360-361 (CA8 1967), rev'd on other grounds sub nom. Bruton v. United States, 391 U. S. 123 (1968); United States ex rel. Sanders v. Rowe, 460 F. Supp. 1128, 1137-1138 (ND Ill. 1978); United States v. Pellegrini, 309 F. Supp. 250, 257 (SDNY 1970). Cf. Killough v. United States, 114 U. S. App. D. C. 305, 312, 315 F. 2d 241, 248 (1962) (Wright, J., concurring) (McNabb-Mallory violation) (McNabb v. United States, 318 U. S. 332 (1943); Mallory v. United States, 354 U. S. 449 (1957)). [4] Three decisions from the Second and Ninth Circuits that are cited in the Court's opinion reached similar results. See ante, at 310, n. 2, citing United States v. Bowler, 561 F. 2d 1323 (CA9 1977); United States v. Toral, 536 F. 2d 893 (CA9 1976); and United States v. Knight, 395 F. 2d 971 (CA2 1968), cert. denied, 395 U. S. 930 (1969). Yet subsequent decisions of the Ninth Circuit have made clear that Bowler and Toral have not led to an abandonment of traditional derivative-evidence analysis in that jurisdiction. See, e. g., United States v. Lee, supra, at 468-469 ("Here, the second confession, a virtual repetition of the first, was obtained less than 24 hours after the first confession was elicited without Miranda warnings.. . . [T]he [second] confession was correctly suppressed as the fruit of the poisonous tree"). And the Second Circuit has expressly reserved the question whether "the exclusion of a second confession might be required in order to deter avoidance of Miranda in obtaining the first." Tanner v. Vincent, 541 F. 2d 932, 937, n. 5 (1976), cert. denied, 429 U. S. 1065 (1977). [5] See, e. g., State v. Montes, 136 Ariz. 491, 496-497, 667 P. 2d 191, 196-197 (1983) (en banc); State v. Holt, 354 So. 2d 888, 890 (Fla. App.), cert. denied, 361 So. 2d 832 (Fla. 1978); Fried v. State, 42 Md. App. 643, 646-648, 402 A. 2d 101, 102-104 (1979). [6] See, e. g., Cagle v. State, 45 Ala. App. 3, 4, 221 So. 2d 119, 120 (subsequent confession suppressed), cert. denied, 284 Ala. 727, 221 So. 2d 121 (1969); People v. Braeseke, 25 Cal. 3d 691, 703-704, 602 P. 2d 384, 391-392 (1979) (same), vacated on other grounds, 446 U. S. 932 (1980); In re Pablo A. C., 129 Cal. App. 3d 984, 989-991, 181 Cal. Rptr. 468, 471-472 (1982) (same); People v. Saiz, 620 P. 2d 15, 19-21 (Colo. 1980) (en banc) (same); People v. Algien, 180 Colo. 1, 8, 501 P. 2d 468, 471 (1972) (en banc) (same); State v. Derrico, 181 Conn. 151, 165-167, 434 A. 2d 356, 365-366 (taint dissipated), cert. denied, 449 U. S. 1064 (1980); Smith v. State, 132 Ga. App. 491, 492, 208 S. E. 2d 351 (1974) (subsequent confession suppressed); State v. Medeiros, 4 Haw. App. 248, 252-253, 665 P. 2d 181, 184-185 (1983) (taint dissipated); People v. Jordan, 90 Ill. App. 3d 489, 495, 413 N. E. 2d 195, 199 (1980) (subsequent confession suppressed); People v. Raddatz, 91 Ill. App. 2d 425, 429-436, 235 N. E. 2d 353, 355-359 (1968) (same); State v. Gress, 210 Kan. 850, 852-854, 504 P. 2d 256, 259-261 (1972) (taint dissipated); State v. Lekas, 201 Kan. 579, 585-588, 442 P. 2d 11, 17-19 (1968) (subsequent confession suppressed); State v. Young, 344 So. 2d 983, 987 (La. 1977) (taint dissipated); State v. Welch, 337 So. 2d 1114, 1120 (La. 1976) (subsequent confession suppressed); State v. Ayers, 433 A. 2d 356, 362 (Me. 1981) (trial statement suppressed); State v. Sickels, 275 N. W. 2d 809, 813-814 (Minn. 1979) (taint dissipated); State v. Raymond, 305 Minn. 160, 168-172, 232 N. W. 2d 879, 884-886 (1975) (same); Brunson v. State, 264 So. 2d 817, 819-820 (Miss. 1972) (subsequent confession suppressed); State v. Wright, 515 S. W. 2d 421, 426-427 (Mo. 1974) (en banc) (taint dissipated); State v. Williams, 486 S. W. 2d 468, 474 (Mo. 1972) (subsequent confession suppressed); In re R. P. S., ___ Mont. ___, ___, 623 P. 2d 964, 968-969 (1981) (taint dissipated); Rhodes v. State, 91 Nev. 17, 21-22, 530 P. 2d 1199, 1201-1202 (1975) (dictum); People v. Bodner, 75 App. Div. 2d 440, 447-449, 430 N. Y. S. 2d 433, 438-439 (1980) (subsequent confession suppressed); State v. Edwards, 284 N. C. 76, 78-81, 199 S. E. 2d 459, 461-462 (1973) (same); State v. Hibdon, 57 Ore. App. 509, 512, 645 P. 2d 580 (1982) (same); Commonwealth v. Chacko, 500 Pa. 571, 580-582, 459 A. 2d 311, 316 (1983) (taint dissipated); Commonwealth v. Wideman, 460 Pa. 699, 708-709, 334 A. 2d 594, 599 (1975) (subsequent confession suppressed); State v. Branch, 298 N. W. 2d 173, 175-176 (S. D. 1980) (taint dissipated); Martin v. State, 1 Tenn. Crim. App. 282, 289-291, 440 S. W. 2d 624, 627-628 (1968) (subsequent confession suppressed); State v. Badger, 141 Vt. 430, 439-441, 450 A. 2d 336, 342-343 (1982) (same); State v. Lavaris, 99 Wash. 2d 851, 856-860, 664 P. 2d 1234, 1237-1239 (1983) (en banc) (same). The Court scrambles to distinguish some of the cases cited in this footnote and in notes 3 and 4, supra, arguing that "JUSTICE BRENNAN cannot seriously mean to equate" these precedents with the case at hand. Ante, at 313, n. 3. To the contrary. Although many of these cases unquestionably raised traditional due process questions on their individual facts, that is not the ground on which they were decided. Instead, courts in every one of the cited cases explicitly or implicitly recognized the applicability of traditional derivative-evidence analysis in evaluating the consequences of Miranda violations. [7] The application of the "cat out of the bag" presumption is further illustrated by our decision in Harrison v. United States, 392 U. S. 219 (1968). Harrison took the stand at his trial in an attempt to rebut illegally obtained confessions that the prosecution had been permitted to introduce into evidence. His conviction was overturned on appeal because of the introduction of these confessions. On retrial, Harrison's earlier trial testimony was introduced and led to his second conviction. We reversed that conviction, reasoning that if Harrison testified "in order to overcome the impact of confessions illegally obtained and hence improperly introduced, then his testimony was tainted by the same illegality that rendered the confessions themselves inadmissible." Id., at 223. We observed: "It is, of course, difficult to unravel the many considerations that might have led the petitioner to take the witness stand at his former trial. But, having illegally placed his confessions before the jury, the Government can hardly demand a demonstration by the petitioner that he would not have testified as he did if his inadmissible confessions had not been used. `The springs of conduct are subtle and varied,' Mr. Justice Cardozo once observed. `One who meddles with them must not insist upon too nice a measure of proof that the spring which he released was effective to the exclusion of all others.' Having `released the spring' by using the petitioner's unlawfully obtained confessions against him, the Government must show that its illegal action did not induce his testimony." Id., at 224-225 (footnotes omitted). The Court today cryptically acknowledges the Harrison precedent, ante, at 316-317, but it wholly fails to explain the palpable inconsistencies between its reasoning and the logical force of Harrison. Courts considering the applicability of Harrison to cases similar to the one before us have correctly recognized that it sheds controlling light on whether to presume a causal connection between illegal confessions and an individual's decision to speak again. See, e. g., Randall v. Estelle, 492 F. 2d, at 120-121; Fisher v. Scafati, 439 F. 2d, at 311; People v. Saiz, 620 P. 2d, at 19; Commonwealth v. Wideman, 460 Pa., at 709, 334 A. 2d, at 599; State v. Lavaris, 99 Wash. 2d, at 859, 664 P. 2d, at 1238. See also State v. Ayers, 433 A. 2d, at 362 (citing cases). [8] See also A. Aubry & R. Caputo, Criminal Interrogation 206 (3d ed. 1980) (discussing the "fait accompli," or "what's done is done, and you can't change it now" approach), id., at 239 (discussing the "I would sure hate to be in your shoes" and the "[t]hings sure look dark for you" techniques); F. Inbau & J. Reid, Criminal Interrogation and Confessions 26-31 (2d ed. 1967) (displaying an air of confidence in the subject's guilt), id., at 77 (creating the impression of the futility of resistance); R. Royal & S. Schutt, The Gentle Art of Interviewing and Interrogation: A Professional Manual and Guide 145-149 (1976) (techniques for "capitaliz[ing]" on the "break-through" admission). [9] See also United States v. Nash, 563 F. 2d, at 1168; People v. Saiz, 620 P. 2d, at 20; State v. Lekas, 201 Kan., at 581-582, 442 P. 2d, at 14-15; Commonwealth v. Wideman, 460 Pa., at 704, 334 A. 2d, at 597; State v. Badger, 141 Vt., at 434-437, 450 A. 2d, at 339-340; State v. Lavaris, 99 Wash. 2d, at 854-856, 664 P. 2d, at 1236-1237. [10] See, e. g., United States v. Lee, 699 F. 2d, at 467-469; Smith v. State, 132 Ga. App., at 491-492, 208 S. E. 2d, at 351; State v. Welch, 337 So. 2d, at 1120; Martin v. State, 1 Tenn. Crim. App., at 289-290, 440 S. W. 2d, at 627; State v. Badger, supra, at 440, 450 A. 2d, at 342. [11] See, e. g., United States v. Pierce, 397 F. 2d, at 129-130; Evans v. United States, 375 F. 2d, at 358; Cagle v. State, 45 Ala. App., at 4, 221 So. 2d, at 120; People v. Braeseke, 25 Cal. 3d, at 695-696, 602 P. 2d, at 386-388; People v. Algien, 180 Colo., at 4-5, 501 P. 2d, at 469-470; People v. Raddatz, 91 Ill. App. 2d, at 428-429, 235 N. E. 2d, at 355; Rhodes v. State, 91 Nev., at 21, 530 P. 2d, at 1201. [12] See, e. g., Randall v. Estelle, 492 F. 2d, at 119-120; In re Pablo A. C., 129 Cal. App. 3d, at 987-988, 181 Cal. Rptr., at 470; Note, 45 Denver L. J. 427, 462-463 (1968). [13] See also Killough v. United States, 114 U. S. App. D. C., at 313-314, 315 F. 2d, at 249-250 (Wright, J., concurring) (McNabb-Mallory violation) ("[H]uman nature being what it is, we must recognize a presumption that one [confession] is the fruit of the other. . . . While the psychological helplessness that comes from surrender need not last forever, . . . the burden should be on the Government to show that a second confession did not spring from a mind in which all the mechanisms of resistance are still subdued by defeat and the apparent futility of further combat"). [14] The Court cites three cases in support of its assertion that an illegally obtained "guilty secret" does not "ordinarily" compromise the voluntariness of a subsequent confession preceded by the usual Miranda warnings. Ante, at 316-317. These cases are all inapposite. The Court in McMann v. Richardson, 397 U. S. 759 (1970), held that a defendant's guilty plea may not be attacked on federal collateral review on the ground that it was induced by the mistaken assumption that an illegal confession might have been admitted at trial and have led to conviction. Id., at 770. The Court emphasized that this bar applies only when the defendant pleads in "open court" and the decision not to challenge the confession is based on "the good-faith evaluations of a reasonably competent attorney." Id., at 770, 773. Thus the defendant's decision to reiterate the confession is insulated in these circumstances by the assistance of counsel and review by a court — factors wholly absent in the confession context at hand. The Court in McMann noted that collateral review is available where the defendant "was incompetently advised by his attorney," id., at 772, and in light of this qualification I cannot see how that case is at all analogous to uncounseled decisions to repeat a proximate confession. Similarly, in Frazier v. Cupp, 394 U. S. 731 (1969), the Court held that police misrepresentations concerning an accomplice, while "relevant" to the admissibility of the defendant's confession, did not vitiate the voluntariness of the confession under the totality of the circumstances of that case. Id., at 739. The defendant there, however, had received warnings which were proper at the time. Ibid. And under the Fifth Amendment, there of course are significant distinctions between the use of third-party statements in obtaining a confession and the use of the accused's own previously compelled illegal admissions. Finally, the respondent in California v. Beheler, 463 U. S. 1121 (1983) (per curiam), was not in custody at all when he spoke with the police, and the Court rejected his contention that "his lack of awareness [of the consequences of what he said] transformed the situation into a custodial one." Id., at 1125, n. 3. The Court emphasized that a person is in "custody" for purposes of the Fifth Amendment only if "there is a `formal arrest or restraint on freedom of movement' of the degree associated with a formal arrest." Id., at 1125 (citation omitted). Michael Elstad obviously was in custody at the time he was questioned. See Part II-D, infra. [15] Under a contrary rule, we emphasized, "[a]ny incentive to avoid Fourth Amendment violations would be eviscerated by making the warnings, in effect, a `cure-all,' and the constitutional guarantee against unlawful searches and seizures could be said to be reduced to `a form of words.' " 422 U. S., at 602-603. [16] See, e. g., Fisher v. Scafati, 439 F. 2d, at 311 ("All that intervened between the two confessions was a full Miranda warning, which of course did not warn the defendant that the first confession was invalid and could not be used against him"); People v. Saiz, 620 P. 2d, at 20; People v. Raddatz, 91 Ill. App. 2d, at 434, 235 N. E. 2d, at 357-358 ("If a suspect is to intelligently waive his Fifth Amendment rights he is entitled to know the scope of the amendment's protection at the time he is being interrogated. In the absence of this knowledge of the consequence of his prior confession, Raddatz' waiver of rights cannot be considered one intelligently made"); State v. Lavaris, 99 Wash. 2d, at 860, 664 P. 2d, at 1239. See also Pitler, "The Fruit of the Poisonous Tree" Revisited and Shepardized, 56 Calif. L. Rev. 579, 608-609 (1968). Cf. Killough v. United States, 114 U. S. App. D. C., at 313, 315 F. 2d, at 249 (Wright, J., concurring) ("The assumption that a commissioner's statement to an accused, who has already confessed, that he may remain silent, will immediately remove the psychological disadvantage he suffers when confronting the same officers, who know his secret, is simply unrealistic"). [17] "It has also been held, generally, that the influence of the improper inducement is removed when the accused is properly cautioned before the subsequent confession. The warning so given, however, should be explicit, and it ought to be full enough to apprise the accused (1) that anything he may say after such warning can be used against him; and (2) that his previous confession, made under improper inducement, cannot be used against him." 2 F. Wharton, Criminal Evidence § 359, p. 66 (12th ed. 1955) (citing cases). See also Williams v. United States, 328 F. 2d 669, 672-673 (CA5 1964); State v. Edwards, 284 N. C., at 80-81, 199 S. E. 2d, at 462; State v. Williams, 162 W. Va. 309, 318, 249 S. E. 2d 758, 764 (1978); 1 W. LaFave & J. Israel, Criminal Procedure § 9.4, p. 747, § 9.5, p. 767 (1984); E. Cleary, McCormick on Evidence § 157, pp. 345-346 (2d ed. 1972). [18] See n. 41, infra. [19] In addition to the sources cited in n. 17, supra, see Note, 45 Denver L. J., supra, n. 12, at 463, suggesting the following warning: "Nothing that you may have said or confessed to prior to this time to any law enforcement official may be used against you in any way unless they first told you of your right to remain silent and to talk to an attorney and have him present during questioning, and you then agreed to talk to them. Do you understand?" [20] See, e. g., State v. Raymond, 305 Minn., at 171-172, 232 N. W. 2d, at 886. [21] See, e. g., State v. Medeiros, 4 Haw. App., at 252-253, 665 P. 2d, at 184-185; People v. Raddatz, 91 Ill. App. 2d, at 431-433, 235 N. E. 2d, at 356-357; State v. Lekas, 201 Kan., at 585, 442 P. 2d, at 17; People v. Bodner, 75 App. Div. 2d, at 447-448, 430 N. Y. S. 2d, at 438; State v. Badger, 141 Vt., at 439-440, 450 A. 2d, at 342; State v. Lavaris, supra, at 857-858, 664 P. 2d, at 1237-1238. See also People v. Saiz, 620 P. 2d, at 20; Rhodes v. State, 91 Nev., at 21, 530 P. 2d, at 1201. See generally George, The Fruits of Miranda: Scope of the Exclusionary Rule, 39 U. Colo. L. Rev. 478, 492-494 (1967); Pitler, 56 Calif. L. Rev., supra n. 16, at 612-613, 618; Comment, 41 Brooklyn L. Rev. 325, 330 (1974); Note, 45 Denver L. J., supra n. 12, at 461-463. After reviewing the cases cited in nn. 3-6, supra, the Court pronounces that "the majority have explicitly or implicitly recognized that Westover's requirement of a break in the stream of events is inapposite." Ante, at 310, and n. 1. This is incorrect. Whether "explicitly" or "implicitly," the majority of the cited cases have "recognized" precisely the contrary. [22] We advised: "A different case would be presented if an accused were taken into custody by the second authority, removed both in time and place from his original surroundings, and then adequately advised of his rights and given an opportunity to exercise them." 384 U. S., at 496. [23] See, e. g., State v. Medeiros, supra, at 252-253, 665 P. 2d, at 184-185; In re R. P. S., ___ Mont., at ___, 623 P. 2d, at 969. [24] See cases in nn. 16, 22, supra. [25] The Court appears to limit the reach of its "guilty secret" doctrine to so-called "voluntary" confessions, but the logic of its analysis raises disturbing implications for the application of derivative-evidence rules to involuntarily obtained confessions. If a confession were extracted through savage beatings or other unconscionable techniques, and the accused were then permitted a good night's sleep and were questioned the next day by sympathetic officers, most would agree that the subsequent confession, if given out of the defeated feeling that the accused had nothing more to lose, should not be admissible because it just as surely was the product of torture as the earlier confession. Yet the Court permitted the admission of just such a confession in Lyons v. Oklahoma, 322 U. S. 596 (1944). In light of the maturation of our scruples against such techniques over the past 40 years, I believe such a result would be impossible today. See, e. g., Darwin v. Connecticut, 391 U. S. 346, 350-351 (1968) (Harlan, J., concurring in part and dissenting in part). Yet today the Court cites Lyons as support for its "guilty secret" doctrine. Ante, at 311-312. Although I am confident that the entire Court would never sanction the multiple-confession technique employed in Lyons, I nevertheless respectfully submit that it is impossible to perceive any causal distinction between the "guilty secret" consequences of a confession that is presumptively coerced under Miranda and one that is actually coerced through torture. [26] The Court's reliance on this qualification undermines the fallacious suggestion elsewhere in its opinion that an illegally obtained "guilty secret" may be used to secure a confession. Ante, at 312. [27] See, e. g., Pitler, 56 Calif. L. Rev., supra n. 16, at 617: "[P]olice could procure a confession absent the warnings, then take the suspect out for dinner, let him shower, shave, get a good twelve hours sleep, and the next day let two different officers warn and question him. The questioning need not even refer tangentially to the previous confession; for the suspect has those spoken words imprinted on his mind and assumes they can be used against him. Under such circumstances is any waiver the product of a free will and a rational intellect?" [28] In addition, the Court concedes that its new analysis does not apply where the authorities have ignored the accused's actual invocation of his Miranda rights to remain silent or to consult with counsel. Ante, at 312-314, n. 3. In such circumstances, courts should continue to apply the traditional presumption of tainted connection. [29] Notwithstanding the sweep of the Court's language, today's opinion surely ought not be read as also foreclosing application of the traditional derivative-evidence presumption to physical evidence obtained as a proximate result of a Miranda violation. The Court relies heavily on individual "volition" as an insulating factor in successive-confession cases. Ante, at 308-309, 314. Although the Court's reliance on this factor is clearly misplaced, see supra, at 328-332, the factor is altogether missing in the context of inanimate evidence. As they have in successive-confession cases, most courts considering the issue have recognized that physical evidence proximately derived from a Miranda violation is presumptively inadmissible. See, e. g., United States v. Downing, 665 F. 2d 404, 407-409 (CA1 1981); United States v. Castellana, 488 F. 2d 65, 67-68 (CA5 1974); In re Yarber, 375 So. 2d 1231, 1234-1235 (Ala. 1979); People v. Braeseke, 25 Cal. 3d, at 703-704, 602 P. 2d, at 391-392; People v. Schader, 71 Cal. 2d 761, 778-779, 457 P. 2d 841, 851-852 (1969); State v. Lekas, 201 Kan., at 588-589, 442 P. 2d, at 19-20; State v. Preston, 411 A. 2d 402, 407-408 (Me. 1980); In re Appeal No. 245 (75), 29 Md. App. 131, 147-153, 349 A. 2d 434, 444-447 (1975); Commonwealth v. White, 374 Mass. 132, 138-139, 371 N. E. 2d 777, 781 (1977), aff'd by an equally divided Court, 439 U. S. 280 (1978); People v. Oramus, 25 N. Y. 2d 825, 826-827, 250 N. E. 2d 723, 724 (1969); Commonwealth v. Wideman, 478 Pa. 102, 104-107, 385 A. 2d 1334, 1335-1336 (1978); Noble v. State, 478 S. W. 2d 83, 84 (Tex. Crim. App. 1972); State v. Badger, 141 Vt., at 453-454, 450 A. 2d, at 349-350. Cf. People v. Briggs, 668 P. 2d 961, 962-963 (Colo. App. 1983); State v. Williams, 162 W. Va., at 318-319, 249 S. E. 2d, at 764. [30] For an incisive critique of Tucker, see Stone, The Miranda Doctrine in the Burger Court, 1977 S. Ct. Rev. 99, 115-125. [31] The exceptions are where a confession is used to impeach the defendant's trial testimony, Harris v. New York, 401 U. S. 222 (1971), and where Miranda warnings were not given because of "pressing public safety concerns," ante, at 317, citing New York v. Quarles, 467 U. S. 649 (1984). [32] The Court's reliance on Schmerber in support of its constricted view of the Fifth Amendment, ante, at 304, is wholly inappropriate. Schmerber had nothing to do with the derivative-evidence rule, but held only that the evidence compelled in the first instance in that case — blood samples — was nontestimonial in nature. 384 U. S., at 761. [33] See also United States v. Mandujano, 425 U. S. 564, 576 (1976); Maness v. Meyers, 419 U. S. 449, 461 (1975); Lefkowitz v. Turley, 414 U. S. 70, 78 (1973) ("compelled answers and evidence derived therefrom" must be suppressed); Ullmann v. United States, 350 U. S. 422, 437 (1956) (Self-Incrimination Clause requires suppression of "knowledge and sources of information obtained from the compelled testimony"); Hoffman v. United States, 341 U. S. 479, 486 (1951); Arndstein v. McCarthy, 254 U. S. 71, 73 (1920). [34] LaFave & Israel, supra n. 17, § 6.5(a), p. 480, n. 13. See also Y. Kamisar, Police Interrogation and Confessions 48-55 (1980); Morgan, The Privilege Against Self-Incrimination, 34 Minn. L. Rev. 1, 27, 28 (1949): "The function which the police have assumed in interrogating an accused is exactly that of the early committing magistrates, and the opportunities for imposition and abuse are fraught with much greater danger . . . . Investigation by the police is not judicial, but when it consists of an examination of an accused, it is quite as much an official proceeding as the early English preliminary hearing before a magistrate, and it has none of the safeguards of a judicial proceeding. . . . [T]his surely is an area that needs inclusion for reasons infinitely more compelling than those applicable to the arraignment." [35] Accord, Kastigar v. United States, 406 U. S. 441, 461 (1972). As we observed in Miranda, "[a]n individual swept from familiar surroundings into police custody, surrounded by antagonistic forces, and subjected to the techniques of persuasion described above cannot be otherwise than under compulsion to speak." 384 U. S., at 461. [36] Justices Clark and Harlan, dissenting in Miranda, recognized the applicability of the derivative-evidence rule. See, e. g., id., at 500 (Clark, J., dissenting in part and concurring in part in result) ("[F]ailure to follow the new procedures requires inexorably the exclusion of any statement by the accused, as well as the fruits thereof"); id., at 522 (Harlan, J., dissenting). But see id., at 545 (WHITE, J., dissenting) (question remains open). [37] See United States v. Leon, 468 U. S., at 928 (BRENNAN, J., dissenting). [38] See, e. g., United States v. Downing, 665 F. 2d, at 407; State v. Preston, 411 A. 2d, at 407-408 ("[I]f the rationale of the majority in Tucker is followed, it becomes important to determine in each such case of derivative evidence whether, in the circumstances, enforcement of the exclusionary rule has some tendency to deter the police from engaging in conduct violating the fifth and sixth amendment rights of the accused"); In re Appeal No. 245 (75), 29 Md. App., at 150-151, 349 A. 2d, at 445-446; Comment, 41 Brooklyn L. Rev., supra n. 21, at 339-340; Comment, 24 Clev. St. L. Rev. 689, 692-694 (1975). [39] C. O'Hara & G. O'Hara, Fundamentals of Criminal Investigation 131 (5th ed. 1980). See also Aubry & Caputo, supra n. 8, at 24-25; id., at 27-28 ("Interrogation is valuable in developing information leading to the recovery of the fruits of the crime. . . . The process of interrogation ideally lends itself to the accomplishment of the recovery of the fruits of the crime, particularly in the areas of stolen property, contraband, and money"); O. Stephens, The Supreme Court and Confessions of Guilt 192 (1973) (survey-research findings). [40] "What is the point of formulating comprehensive rules as the Court did in Miranda if the police still have a substantial incentive to continue to disregard these rules, if the police can still make use of all the leads and clues stemming from the inadmissible statements or confessions? You are not going to influence police practices greatly, you are not likely to get the police to change their procedures, if you permit them to operate on the premise that even if they pay no attention to Miranda they can still obtain and introduce in a trial valuable evidence derived from the suspect's statements. ..... ". . . We should ask: Would admitting evidence or permitting testimony obtained under these circumstances give the police a significant incentive to act illegally?" A New Look At Confessions: Escobedo — The Second Round 150, 156 (B. George ed. 1967) (remarks of Professor Yale Kamisar). See also Dershowitz & Ely, Harris v. New York: Some Anxious Observations on the Candor and Logic of the Emerging Nixon Majority, 80 Yale L. J. 1198, 1220 (1971); Pitler, 56 Calif. L. Rev., supra n. 16, at 619 ("There appears no logical reason to permit the fruits of a Miranda violation to be admissible. Any other holding, despite the cries of the disastrous effects on law enforcement, would emasculate the rights granted by Miranda") (footnote omitted). [41] Solem v. Stumes, 465 U. S. 638, 646-647 (1984). See also Smith v. Illinois, 469 U. S. 91 (1984) (per curiam); Edwards v. Arizona, 451 U. S. 477 (1981); Fare v. Michael C., 442 U. S. 707, 718 (1979). See also Schulhofer, Confessions and the Court, 79 Mich. L. Rev. 865, 879 (1981) (although there "was some potential ambiguity at the fringes of `custody' and `interrogation,' " the Court in Miranda had "taken a big step toward clarifying the ground rules of permissible interrogation" and "provided plenty of guidance for the police"). [42] If the Court means to suggest otherwise, the authorities would be well advised to arrest and interrogate suspects in the presence of loved ones so as to avoid the traumatizing need to obey Miranda. This procedure would fit in well with a classic interrogation ploy — the "you're just hurting yourself and your loved ones" technique. See, e. g., Aubry & Caputo, supra n. 8, at 235: "The direct implication about hurting the loved ones can be made by statements to the effect of `What are your wife and children going to think about you when they find out about this?' `What are your kids going to think of their father?' The subject has most probably thought of little else since he was apprehended, and having these ideas forcefully brought to his attention by the interrogator is going to increase and intensify these fears and anxieties." See also W. Dienstein, Technics for the Crime Investigator 116 (2d ed. 1974). [43] The exclusion of an illegally procured confession and of any testimony obtained in its wake deprives the Government of nothing to which it has any lawful claim and creates no impediment to legitimate methods of investigating and prosecuting crime. On the contrary, the exclusion of evidence causally linked to the Government's illegal activity no more than restores the situation that would have prevailed if the Government had itself obeyed the law." Harrison v. United States, 392 U. S., at 224, n. 10. [44] "In light of today's erosion of Miranda standards as a matter of federal constitutional law, it is appropriate to observe that no State is precluded by the decision from adhering to higher standards under state law. Each State has power to impose higher standards governing police practices under state law than is required by the Federal Constitution. . . . Understandably, state courts and legislatures are, as matters of state law, increasingly according protections once provided as federal rights but now increasingly depreciated by decisions of this Court." Michigan v. Mosley, 423 U. S. 96, 120-121 (1975) (BRENNAN, J., dissenting). [1] "When police ask questions of a suspect in custody without administering the required warnings, Miranda dictates that the answers received be presumed compelled and that they be excluded from evidence at trial in the State's case in chief. The Court has carefully adhered to this principle, permitting a narrow exception only where pressing public safety concerns demanded. See New York v. Quarles, 467 U. S., at 655-656. The Court today in no way retreats from the bright-line rule of Miranda." Ante, at 317. [2] The Court emphasizes the noncoercive setting in which the initial interview occurred, ante, at 300-301, 315; the apparent candor of the respondent during both of his interviews with the police, ante, at 301-302; and the absence of any evidence suggesting that the second confession was motivated by the first, ante, at 315-316. Further, the Court characterizes the first confession as "patently voluntary," ante, at 307 (emphasis in original), because it was not the product of any "physical violence or other deliberate means calculated to break the suspect's will," ante, at 312. Moreover, the Court — apparently not satisfied that the State has conceded that respondent was in custody at the time of the unwarned admission, ante, at 315 — launches into an allegedly fact-based discussion of this "issue," going out of its way to speculate about the probable good faith of the officers. See ante, at 315-316 ("This breach may have been the result of confusion as to whether the brief exchange qualified as `custodial interrogation' or it may simply have reflected Burke's reluctance to initiate an alarming police procedure before McAllister had spoken with respondent's mother"). Finally, the Court makes its own finding that the failure to give Miranda warnings was an "oversight." Ante, at 316. [3] Ante, at 309 ("It is an unwarranted extension of Miranda to hold that a simple failure to administer the warnings, unaccompanied by any actual coercion or other circumstances calculated to undermine the suspect's ability to exercise his free will so taints the investigatory process that a subsequent voluntary and informed waiver is ineffective for some indeterminate period"); ante, at 311 ("voluntary unwarned admissions") (emphasis in original); ante, at 312 ("When neither the initial nor the subsequent admission is coerced"); ante, at 314 ("absent deliberately coercive or improper tactics in obtaining the initial statement"). [4] Ante, at 304 (rejecting contention that "a failure to administer Miranda warnings necessarily breeds the same consequences as police infringement of a constitutional right"); ante, at 305 ("Respondent's contention that his confession was tainted by the earlier failure of the police to provide Miranda warnings and must be excluded as `fruit of the poisonous tree' assumes the existence of a constitutional violation"); ante, at 306 ("[A] procedural Miranda violation differs in significant respects from violations of the Fourth Amendment"); ibid. ("The Miranda exclusionary rule, however, serves the Fifth Amendment and sweeps more broadly than the Fifth Amendment itself"); ante, at 318 ("[T]here is no warrant for presuming coercive effect where the suspect's initial inculpatory statement, though technically in violation of Miranda, was voluntary"). [5] See, e. g., People v. La Frana, 4 Ill. 2d 261, 268, 122 N. E. 2d 583, 586-587 (1954); cf. People v. Nemke, 23 Ill. 2d 591, 601, 179 N. E. 2d 825, 830 (1962). [6] 384 U. S., at 444-445. [7] Id., at 444 ("[T]he prosecution may not use statements, whether exculpatory or inculpatory, stemming from custodial interrogation of the defendant unless it demonstrates the use of procedural safeguards effective to secure the privilege against self-incrimination"); id., at 467-469. [8] Id., at 445, 448, 457-458 ("Unless adequate protective devices are employed to dispel the compulsion inherent in custodial surroundings, no statement obtained from the defendant can truly be the product of his free choice"). [9] In 1964, the Court held that the "Fourteenth Amendment secures against state invasion the same privilege that the Fifth Amendment guarantees against federal infringement — the right of a person to remain silent unless he chooses to speak in the unfettered exercise of his own will, and to suffer no penalty . . . for such silence." Malloy v. Hogan, 378 U. S. 1, 8. Two years later, in Miranda v. Arizona, 384 U. S. 436 (1966), the Court held that the State of Arizona had deprived Miranda of his liberty without due process of law because his conviction was based on a confession that had been obtained in violation of his Fifth Amendment privilege against self-incrimination. Obviously, the Court's power to reverse Miranda's conviction rested entirely on the determination that a violation of the Federal Constitution had occurred. The constitutional violation was established without any evidence that the police actually coerced Miranda in any way. Id., at 445, 491-492. The fact that Miranda had confessed while he was in custody and without having been adequately advised of his right to remain silent was sufficient to establish the constitutional violation. To phrase it another way, the absence of an adequate warning plus the fact of custody created an irrebuttable presumption of coercion. Id., at 492. Thus, the Court wrote: "To be sure, the records do not evince overt physical coercion or patent psychological ploys. The fact remains that in none of these cases did the officers undertake to afford appropriate safeguards at the outset of the interrogation to insure that the statements were truly the product of free choice." Id., at 457. See also id., at 448 ("[T]his Court has recognized that coercion can be mental as well as physical, and that the blood of the accused is not the only hallmark of an unconstitutional inquisition"); id., at 477. [10] Of course, in Orozco v. Texas, 394 U. S. 324 (1969), this Court rejected the contention that Miranda warnings were inapplicable because a defendant "was interrogated on his own bed, in familiar surroundings." Id., at 326-327. [11] Miranda v. Arizona, 384 U. S., at 468; New York v. Quarles, 467 U. S. 649, 664 (1984) (O'CONNOR, J., concurring in part in judgment and dissenting in part) ("When police ask custodial questions without administering the required warnings, Miranda quite clearly requires that the answers received be presumed compelled and that they be excluded from evidence at trial"); Orozco v. Texas, 394 U. S., at 324. [12] Ante, at 312; see also ante, at 314 ("We must conclude that, absent deliberately coercive or improper tactics in obtaining the initial statement, the mere fact that a suspect has made an unwarned admission does not warrant a presumption of compulsion"). [13] In view of the Court's holding, it is not necessary to consider how that additional burden should be discharged in all cases. In general, however, I should think that before the second session of custodial interrogation begins, the prisoner should be advised that his earlier statement is, or may be, inadmissible. I am not persuaded that the Miranda rule is so "murky," ante, at 316, that the law enforcement profession would be unable to identify the cases in which a supplementary warning would be appropriate. Miranda was written, in part, "to give concrete constitutional guidelines for law enforcement agencies and courts to follow." 384 U. S., at 441-442; id., at 468 (noting that the "Fifth Amendment privilege is so fundamental to our system of constitutional rule and the expedient of giving an adequate warning as to the availability of the privilege so simple") (emphasis added). Nearly two decades after that disposition, it is undisputed that the Miranda rule — now so deeply embedded in our culture that most schoolchildren know not only the warnings, but also when they are required — has given that clarity. See New York v. Quarles, 467 U. S., at 660 (O'CONNOR, J., concurring in part in judgment and dissenting in part) (noting Miranda's "now clear strictures"); Rhode Island v. Innis, 446 U. S. 291, 304 (1980) (BURGER, C. J., concurring in judgment) (the "meaning of Miranda has become reasonably clear and law enforcement practices have adjusted to its strictures"); Fare v. Michael C., 442 U. S. 707, 717 (1979) ("The rule the Court established in Miranda is clear"); Stephens, Flanders, & Cannon, Law Enforcement and the Supreme Court: Police Perceptions of the Miranda Requirements, 39 Tenn. L. Rev. 407, 431 (1972). At the same time, it has ensured the right to be free from self-incrimination that the Constitution guarantees to all. Moreover, many professionals are convinced that, rather than hampering law enforcement, the Miranda rule has helped law enforcement efforts. See Jacobs, The State of Miranda, Trial 45 (Jan. 1985) ("[I]ncreased professionalism of police. . . has resulted from the challenging combination of Miranda and Gideon v. Wainwright [and] has benefited both police and prosecutors in preparing good cases"). Nevertheless, the Court today blurs Miranda's clear guidelines. The author of today's opinion — less than one Term ago — summarized precisely my feelings about the Court's disposition today: "Miranda is now the law, and in my view, the Court has not provided sufficient justification for departing from it or for blurring its now clear strictures." New York v. Quarles, 467 U. S., at 660 (O'CONNOR, J., concurring in part in judgment and dissenting in part). [14] See n. 4, supra. Indeed, the Court's holding rests on its view that there were no "improper tactics in obtaining the initial statement." See ante, at 314. [15] At least that is my view. In response to this dissent, however, the Court has added a footnote, ante, at 306-307, n. 1, implying that whenever the Court commands exclusion of a presumptively coerced confession, it is standing — not on a constitutional predicate — but merely on its own shoulders. [16] The Miranda Court explicitly recognized the contrary when it stated that "our holding is not an innovation in our jurisprudence, but is an application of principles long recognized and applied in other settings." 384 U. S., at 442. See also id., at 445 ("The constitutional issue we decide in each of these cases is the admissibility of statements obtained from a defendant questioned while in custody or otherwise deprived of his freedom of action in any significant way"); id., at 460-467. [17] See id., at 458-459; E. Cleary, McCormick on Evidence § 114 (2d ed. 1972); 8 J. Wigmore, Evidence § 2250 (McNaughton rev. ed. 1961). [18] See Burger, Who Will Watch the Watchman, 14 Am. U. L. Rev. 1, 14 (1964). [19] See, e. g., Leyra v. Denno, 347 U. S. 556 (1954); Malinski v. New York, 324 U. S. 401 (1945); Ashcraft v. Tennessee, 322 U. S. 143 (1944); Ward v. Texas, 316 U. S. 547 (1942); Vernon v. Alabama, 313 U. S. 547 (1941); White v. Texas, 310 U. S. 530 (1940); Canty v. Alabama, 309 U. S. 629 (1940); Chambers v. Florida, 309 U. S. 227 (1940); Brown v. Mississippi, 297 U. S. 278 (1936); Wakat v. Harlib, 253 F. 2d 59 (CA7 1958); People v. La Frana, 4 Ill. 2d 261, 122 N. E. 2d 583 (1954); cf. People v. Portelli, 15 N. Y. 2d 235, 205 N. E. 2d 857 (1965) (potential witness tortured by police). Such custodial interrogation is, of course, closer to that employed by the Soviet Union than that which our constitutional scheme tolerates. See Coleman v. Alabama, 399 U. S. 1, 15-16 (1970) (opinion of Douglas, J.) ("In [Russia] detention incommunicado is the common practice, and the period of permissible detention now extends for nine months. Where there is custodial interrogation, it is clear that the critical stage of the trial takes place long before the courtroom formalities commence. That is apparent to one who attends criminal trials in Russia. Those that I viewed never put in issue the question of guilt; guilt was an issue resolved in the inner precincts of a prison under questioning by the police").

In the United States Court of Appeals For the Seventh Circuit ____________ No. 06-3495 UNITED STATES DEPARTMENT OF EDUCATION, Plaintiff-Appellee, v. NATIONAL COLLEGIATE ATHLETIC ASSOCIATION, Defendant-Appellant. ____________ Appeal from the United States District Court for the Southern District of Indiana, Indianapolis Division. No. 1:06-CV-01333—John Daniel Tinder, Judge. ____________ ARGUED FEBRUARY 23, 2007—DECIDED MARCH 21, 2007 ____________ Before POSNER, KANNE, and ROVNER, Circuit Judges. POSNER, Circuit Judge. The University of the District of Columbia is a member of the National Collegiate Athletic Association, and as such subject to its rules. A violation of an NCAA rule can impose heavy costs should it result in the imposition of sanctions on the violator. Typical sanc- tions, such as banning the violator from postseason compe- tition or reducing its athletic scholarships, make a school less successful in postseason play, upon which the school’s share of the television and other media revenues 2 No. 06-3495 that the NCAA obtains and doles out to its members primarily depends. Member schools can minimize their punishment, how- ever, by reporting their violations to the Association before it discovers them. UDC did this, reporting violations involving its basketball teams in the 2004-2005 season. The exact nature of the violations is unclear, but they seem to have included misuse of federal funds, and the Inspector General of the Department of Education began an investi- gation of that misuse. In the course of the investigation the Department issued a subpoena to the NCAA for docu- ments that UDC had submitted, or the Association had prepared, in connection with the Association’s investiga- tion of UDC’s self-reported violations. The Association moved to quash the subpoena or in the alternative for the protective order described below. The district court denied the motion; the Association appeals only from the denial of the protective order. The Association acknowledges that compliance with the subpoena is not burdensome in the sense of imposing heavy costs of identifying, locating, copying, or transport- ing the documents to the Department of Education, that the documents sought are relevant to the Department’s investigation, and that the Department is authorized by law to conduct such an investigation. But the Association argues that if the government can make unrestricted use of documents submitted to the Association in aid of the Association’s own investigations, this will impede those investigations because whistleblowers will worry that if they inform to the Association their cover will be blown. This amounts to arguing that a private organization should have the right to impede government investigations because it wants to conduct its own investigations without No. 06-3495 3 hindrance. To state the proposition is almost enough to refute it. Of course there are privileges that can be used to keep information from government agencies and thus impede government investigations, such as the lawyer-client privilege. But there is no private-investigator’s privilege. The lawyer-client privilege can embrace a lawyer’s agents (including an investigator), for example when “the client in the first instance consults a lawyer who retains an accountant as a listening post.” United States v. Kovel, 296 F.2d 918, 922 (2d Cir. 1961) (Friendly, J.); see also United States. v. Haynes, 216 F.3d 789, 793-94, 798 (9th Cir. 2000); United States v. Alfonso, 552 F.2d 605, 617 (5th Cir. 1977); Parkman v. Arkansas, 742 S.W.2d 927, 928-29 (Ark. 1988); Flynn v. Superior Court, 57 Cal. App. 4th 990, 992-96 (1997); cf. United States v. Nobles, 422 U.S. 225, 237-39 (1975) (work product). But there is nothing like that in this case. There isn’t even a reporter’s privilege in federal cases. Branzburg v. Hayes, 408 U.S. 665 (1972); University of Pennsylvania v. EEOC, 493 U.S. 182, 201 (1990); McKevitt v. Pallasch, 339 F.3d 530 (7th Cir. 2003). The news media conduct investigations, and their ability to do so would be enhanced if they were permitted to conceal the identity of their sources from the government. But they are not. So the NCAA has trimmed its sails, asserting in this appeal a right not to withhold documents from the govern- ment but instead to a protective order that will forbid the Department to show them to anyone without five days’ advanced notice to the Association. During that cooling-off period the Association would go to the intended recipient of the documents (whom the Department would have to identify to the Association) and ask him to keep any sensitive information in the documents confidential. If he 4 No. 06-3495 refused or was unable to give adequate assurance of confidentiality, the NCAA would have a right to ask the court for a further protective order, of indefinite length, against the Department’s turning over the documents. That further order would be enforcing a privilege under a different name; the government would have physical possession of the documents but its ability to use them would be severely limited. Even the five-day cooling- off period would hamper the government’s investigation because of the NCAA’s implied threat to sue any intended recipient of documents if he refused to play ball with the Association. Imagine if the Department of Education intended to give documents that it had obtained from the NCAA to a Justice Department prosecutor for presentation to a grand jury. If the prosecutor decided to submit them to a grand jury over the Association’s protests, the Associa- tion would bring suit to enjoin the submission. The suit, whatever its outcome, would impede the grand jury’s investigation. The Association was stung by a recent incident in which it received information from the head football coach at the University of Tennessee, Phillip Fulmer, concerning possible violations of NCAA rules by another university. It gave the information to a grand jury pursuant to sub- poena. The information became public, precipitating a defamation suit against Fulmer and the NCAA seeking $60 million in damages. Dagnan v. Fulmer, No. 163126-3 (Knox Cty., Tenn., Chancery Ct., Nov. 21, 2005). The suit doesn’t seem to be going anywhere. Defamation based on material contained in a response to a subpoena, as in other statements made in a judicial proceeding, Myers v. Pickering Firm, Inc., 959 S.W.2d 152, 159 (Tenn. App. 1997); Glennon v. Dean Witter Reynolds, Inc., 83 F.3d 132, 137 (6th Cir. 1996) No. 06-3495 5 (Tennessee law); MacGregor v. Rutberg, No. 06-2829, 2007 WL 582494, at *1 (7th Cir. Feb. 27, 2007), is absolutely privileged. Boice v. Unisys Corp., 50 F.3d 1145, 1148-49 (2d Cir. 1995), as the trial court in the Dagnan case has ruled. Dagnan v. Fulmer, supra, at 9-14. (The suit remains pend- ing on other grounds.) The “common interest” privilege, see, e.g., Pate v. Service Merchandise Co., 959 S.W.2d 569, 576 (Tenn. App. 1996); Kennedy v. Children’s Service Society, 17 F.3d 980, 985 (7th Cir. 1994); Gumbhir v. Curators of Univer- sity of Missouri, 157 F.3d 1141, 1145 (8th Cir. 1998); Catrone v. Thoroughbred Racing Associations of North America, Inc., 929 F.2d 881, 887-88 (1st Cir. 1991); Restatement (Second) of Torts § 596 (1977), is probably also applicable, since Fulmer and the NCAA have a common interest in NCAA mem- bers’ complying with the Association’s rules. The existence of these privileges suggests that the Association’s fears may be chimerical, and an additional reason for thinking that is the strong incentive of members to report their violations in order to take advantage of the partial amnesty that the Association gives self-reporting violators. (Granted, those incentives are diminished not only by the threat of a defamation suit but also by the fact that, the fewer whistleblowers there are, the less likely violators of the NCAA’s rules are to be caught and so the less incentive they have to turn themselves in.) There is a further reason to doubt the NCAA’s need for the protective order that it is seeking. The Department of Education was not responsible for the subpoena in the Fulmer case. The Department does not want to kill the golden goose by promiscuously disclosing information it receives from the NCAA and by doing so deterring the reporting to the Association of violations of NCAA rules that may also violate the laws that the Department en- 6 No. 06-3495 forces. Granted, the Department of Justice, directed by the Inspectors General Act of 1978, 5 U.S.C. App. 3, § 6(e)(4), to promulgate guidelines for investigations by inspectors general, requires them to notify the Attorney General whenever they have reasonable grounds to believes there’s been a violation of federal criminal law. Attorney General Guidelines for Offices of Inspector General with Statutory Enforcement Authority, § VII, at 4-5 (Dec. 8, 2003). But we have no authority to negate the regulation by creating a new privilege. To the extent permitted by the regulation, the internal policies of the Department of Education seek to preserve informants’ confidentiality. The NCAA argues that those policies are negated by the Freedom of Information Act, which, the Association contends, authorizes any member of the general public (and not just the Department of Justice, which like the Department of Education has an incentive to protect the confidentiality of informants) to get hold of documents in the possession of a government agency that identify whistleblowers. The relevance of this argument is unclear, because all the Association is seek- ing is an order limiting the Department’s right to turn over the documents to others; until then, the documents are in the Department’s possession and thus exposed to demands for disclosure under FOIA. In any event, FOIA does not require (though neither does it forbid, Chrysler Corp. v. Brown, 441 U.S. 281, 290-94 (1979)) the government to disclose “records or information compiled for law enforcement purposes, . . . to the extent that the production of such law enforcement records or information . . . could reasonably be expected to disclose the identity of a confidential source, including a State, local, or foreign agency or authority or any private institu- No. 06-3495 7 tion which furnished information on a confidential basis.” 5 U.S.C. § 552(b)(7)(D) (emphasis added). (There is a further exemption for “personnel and medical files and similar files the disclosure of which would constitute a clearly unwarranted invasion of personal privacy,” § 552(b)(6), and more extensive protection for the privacy of student records under the Privacy Act of 1974, § 552a(a)(5). But these provisions have no bearing on this case; the Depart- ment of Education is not seeking the kind of information that they protect.) The NCAA argues that the phrase in section 7(D) that we have italicized will prevent the Department of Educa- tion from secreting the identity of sources of information in the subpoenaed documents because the sources did not furnish the information directly to the government on a confidential basis. The argument is unpersuasive; it is also contrary, one might have thought, to the NCAA’s long-run interests. The part of the passage that we quoted from section 7(D) that begins with “including” implies only that a public or private institution that furnishes information to the government and wants the information kept confidential must so indicate; that is, it must furnish the information to the government “on a confidential basis.” To be meaningful, the “confidential basis” must extend to the source of the institution’s infor- mation. Sands v. Murphy, 633 F.2d 968, 970-71 (1st Cir. 1980); Coleman v. FBI, 13 F. Supp. 2d 75, 81-83 (D.D.C. 1998); Kuehnert v. FBI, 620 F.2d 662, 667 and n. 11 (8th Cir. 1980); see also Ferguson v. FBI, 83 F.3d 41, 43 (2d Cir. 1996) (per curiam); Church of Scientology v. United States Depart- ment of Justice, 612 F.2d 417, 426-27 (9th Cir. 1979). Who would cooperate with police if told that the police depart- ment could shield its own identity if it turned over the 8 No. 06-3495 information furnished to it to the federal government but not the informant’s identity? And why would a law en- forcement agency or other public agency want to conceal its own identity? Protecting that identity can’t be the purpose of the “including” provision. The provision would have no domain if it did not protect indirect in- formers. Yet could it not be argued that a private organization could never promise its informants confidentiality be- cause the information could be subpoenaed from the organization? But confidentiality is always a matter of degree. An informant might wish the NCAA to conceal his identity to the extent the Association could do so, while realizing that there could be no absolute guarantee. Such information would be furnished to the Association on a confidential basis, and thus come within section 7(D)’s exemption from compulsory disclosure. The Association could remind any would-be informant that if he wanted his identity concealed to the extent that the Association could conceal it, he should make clear to the Association that he is submitting his information on a confidential basis. However, in concluding that the NCAA has not made a case for the protective order/quasi-privilege that it is seeking, we do not rely, as the district judge did, on the distinction between an “administrative” and a “judicial” subpoena. Subpoenas ancillary to judicial proceedings are issued by courts, while subpoenas ancillary to administra- tive proceedings are often issued by the administrative agency directly. But that is not an interesting difference, because in either case the individual or organization that is subpoenaed can ask a court to quash the subpoena. 5 U.S.C. § 555(d); Fed. R. Civ. P. 45(3); Fed. R. Crim. P. No. 06-3495 9 17(c)(2). There is a significant distinction toward which the distinction between “administrative” and “judicial” subpoenas may be gesturing, but it is the distinction between subpoenas issued in a lawsuit or administrative proceeding or targeted pre-enforcement investigation, on the one hand, and subpoenas issued pursuant to the broader investigative powers that some government agencies, but not private entities, possess. That distinction, however, cuts across the administrative/judicial divide. For example, the EEOC’s “power to conduct an investiga- tion can be exercised only after a specific charge has been filed in writing. In this respect the Commission’s investiga- tory power is significantly narrower than that of the Federal Trade Commission or of the Wage and Hour Administrator, who are authorized to conduct investiga- tions, inspect records, and issue subpoenas, whether or not there has been any complaint of wrongdoing.” EEOC v. Shell Oil Co., 466 U.S. 54, 63-65 (1984), quoting 110 Cong. Rec. 7214 (1964); see also United States v. Morton Salt Co., 338 U.S. 632, 641-43 (1950); Endicott Johnson Corp. v. Perkins, 317 U.S. 501, 509-10 (1943); FTC v. Ken Roberts Co., 276 F.3d 583, 585-87 (D.C. Cir. 2001). The distinction thus relates to the substantive scope of a subpoena, and so has no bite here because the Depart- ment of Education is operating well within the substan- tive scope of its investigative powers. See 5 U.S.C. App. 3 §§ 6(a)(2), (4). The issue in this case—whether the burden of compliance with the subpoena (unless there is a pro- tective order) exceeds the need for the information sought in it—is remote from the distinction between administrative and judicial subpoenas. That leads us to wonder about the occasional judicial statements that an administrative subpoena, unlike a judicial subpoena, can 10 No. 06-3495 be quashed only if compliance would be “excessively burdensome so as to threaten the normal operation of the party’s business.” Commodity Trend Service, Inc. v. CFTC, 223 F.3d 981, 987 (7th Cir. 2000); see also EEOC v. United Air Lines, Inc., 287 F.3d 643, 651-54 (7th Cir. 2002); NLRB v. American Medical Response, Inc., 438 F.3d 188, 192-93 (2d Cir. 2006). (Other cases do not distinguish between the two types of subpoena, so far as assessing burden is concerned. SEC v. Arthur Young & Co., 584 F.2d 1018, 1023- 24, 1032-33 (D.C. Cir. 1978); cf. EEOC v. Sidley Austin Brown & Wood, 315 F.3d 696, 700 (7th Cir. 2002).) It is true that the stakes in many government cases exceed those in most private cases. If the government is prosecuting a major criminal, information that it has subpoenaed for aid in the prosecution is likely to confer a greater public benefit than information sought in a run-of-the-mill tort case, and if so the target of the subpoena will have to demonstrate a greater burden of compliance in order to get it quashed. But this difference cuts across the distinction between administrative and judicial subpoenas. A prosecution is not an administrative proceeding; the subpoena is judicial. Even restating the distinction as one between public and private cases is unsatisfactory, since many private cases involve greater stakes than many public. In this case, in any event, the burden of compliance with the subpoena, even without a protective order to cushion the effect of compliance, is speculative and is outweighed by the investigatory needs of the Department of Education. AFFIRMED. No. 06-3495 11 A true Copy: Teste: _____________________________ Clerk of the United States Court of Appeals for the Seventh Circuit USCA-02-C-0072—3-21-07 

966 F.2d 681 U.S.v.Lane* NO. 91-9058 United States Court of Appeals,Eleventh Circuit. June 03, 1992 1 Appeal From: N.D.Ga. 2 AFFIRMED. * Fed.R.App.P. 34(a); 11th Cir.R. 34-3

277 F.2d 756 Otto H. FISCHER, Appellant,v.Lt. Gen. Clark L. RUFFNER, Appellee. No. 18158. United States Court of Appeals Fifth Circuit. April 26, 1960. Rehearing Denied May 30, 1960. Geo. G. Finch, Atlanta, Ga., for appellant. Charles D. Read, Jr., U. S. Atty., E. Ralph Ivey, Asst. U. S. Atty., Atlanta, Ga., Thomas M. Wells, Jr., Lt. Col., Herman A. Greenglass, 1st Lt., Office of Army Staff, Judge Advocate, Third Headquarters, U. S. Army, Fort McPherson, for appellee. Before HUTCHESON, TUTTLE and JONES, Circuit Judges. TUTTLE, Circuit Judge. 1 This is an appeal from the denial of habeas corpus to a former member of the Armed Forces. Appellant was charged and tried in 1959 for desertion from the Army in 1953. He contends that he could not validly be tried because, unless the offense of desertion occurred "in time of war", the prosecution would be barred after three years; and he maintains that, although his desertion occurred prior to the Korean armistice, the United States was not then at war. 2 Appellant's conviction was approved by the convening authority and was then appealed to the Board of Review which affirmed; the petition for the grant of review by the Court of Military Appeals was denied, as was his petition for reconsideration of the denial. 3 Two questions are presented by this appeal. The first is whether the civil courts have jurisdiction to entertain a habeas corpus petition which asserts as the sole ground for release of a convicted military prisoner that he was charged and tried after such action had been barred by the Statute of Limitations, 10 U.S.C.A. § 843(a). The second is, was the date of Appellant's desertion during the Korean conflict "in time of war". Of course, a negative reply to the first question would cause the second to be moot. 4 We conclude that the point sought to be made in the habeas corpus court, i. e., that the Statute of Limitations had barred the trial of Appellant because the fourteenth day of July, 1953 was not "in time of war", is not subject to review by the Federal civil courts.1 In Bisson v. Howard, 5 Cir., 224 F.2d 586, 587, we spoke of the "very limited field in which the civilian courts can review court martial proceedings". The language is based on the decision and opinion of the Supreme Court in Hiatt v. Brown, 339 U.S. 103, 70 S.Ct. 495, 498, 94 L.Ed. 691. A careful reading of the Hiatt case gives the definite impression that the court by unanimous action, Mr. Justice Douglas not participating, held that alleged errors of law or fact as distinguished from error in asserting jurisdiction occurring in a court martial may not thereafter be corrected by an attack on the legality of the conviction by habeas corpus. The court there said: 5 "It is well settled that `by habeas corpus the civil courts exercise no supervisory or correcting power over the proceedings of a court-martial * * *. The single inquiry, the test, is jurisdiction.' In re Grimley, 137 U.S. 147, 150 [11 S.Ct. 54, 34 L.Ed. 636] (1890). In this case the court-martial had jurisdiction of the person accused and the offense charged, and acted within its lawful powers. The correction of any errors it may have committed is for the military authorities which are alone authorized to review its decision. In re Yamashita, 327 U.S. 1, 8-9 [66 S.Ct. 340, 344, 345, 90 L.Ed. 499] (1946); Swaim v. United States, supra, 165 U.S. [553] at [page] 562 [17 S.Ct. 448, 41 L.Ed. 823]." 6 Although stated in terms of "jurisdiction" the above principle is shown by the later case of Burns v. Wilson, 346 U.S. 137, 73 S.Ct. 1045, 97 L.Ed. 1508, to comprehend such a want of due process as would, under the test of Johnson v. Zerbst, 304 U.S. 458, 58 S.Ct. 1019, 82 L.Ed. 1461, deprive the court of the power to proceed to judgment. The court, in an opinion written by Mr. Justice Clark, concurred in by three Justices, with two separate concurrences, two dissents, and two opinions by Mr. Justice Frankfurter abstaining from participation in the decision and urging reargument of the case on other grounds, seems to have held that when in habeas corpus proceedings, the Federal civilian court determines that the very circumstances constituting a want of due process have themselves been fully and freely dealt with by the military courts, they are "not open to a federal civil court to grant the writ simply to reevaluate the evidence". [346 U.S. 142, 73 S.Ct. 1049.] 7 It is significant to note that whatever disagreement had existed in the views of the several members of the Supreme Court through the Burns case, no disagreement had been expressed as to the proposition that either lack of jurisdiction in the technical sense or a want of essential due process amounting to lack of jurisdiction was necessary to give the civil courts the power to review judgments of courts martial by habeas corpus. In the two cases, Jackson v. Taylor, 353 U.S. 569, 77 S.Ct. 1027, 1029, 1 L.Ed.2d 1045, and Fowler v. Wilkinson, 353 U.S. 583, 77 S.Ct. 1035, 1036, 1 L.Ed.2d 1054, as to which the majority opinion, this time concurred in by Mr. Justice Frankfurter, said: "Petitioner claims no deprivation of constitutional rights," found that the contention was that there was a want of power in the Review Board to modify a sentence downward. The court considered the contention on the merits, and held that the power was properly given by the Code of Military Justice. The dissenting opinion on its consideration of the merits, concluded otherwise. Here the court considered the petition on the merits because of petitioner's allegations had been correct the tribunal would have been without authority to fix the sentence. The issue thus fell within the concept of the jurisdiction of the Board of Review to act. In the Fowler case the court took occasion to restate the power of the civil courts to review in terms of whether there was "an absolute want of power in the military court". It said: 8 "As long ago as 1902 this Court recognized that it was a `salutary rule that the sentences of courts-martial, when affirmed by the military tribunal of last resort, cannot be revised by the civil courts save only when void because of an absolute want of power, and not merely voidable because of the defective exercise of power possessed.' Carter v. McClaughry, 183 U.S. 365, 401 [22 S.Ct. 181, 195, 46 L.Ed. 236]." 9 No case has been found in which the Supreme Court has held that the habeas corpus court may reinquire into ordinary questions of fact and law, such as the applicability of the Statute of Limitations. The court martial record is not before us. We are therefore unable to determine to what extent the plea of the statute was relied on in the court martial proceedings, although the respondent's brief tells us that no such plea was made until after the conviction. Nevertheless, no matter when the issue was raised, we conclude that such plea if made and if decided erroneously presented only questions of law and fact not touching on due process or technical jurisdiction of the military courts. Any ruling or denial of relief based thereon is not reviewable by habeas corpus. 10 This conclusion makes unnecessary a determination whether, within the purview of the Statute of Limitations the offense here charged was committed "in time of war". 11 The judgment is affirmed. Notes: 1 We refer to the attempt to obtain the consideration of the point as an attempt to obtain a "review" because, although not that, but in the form of a collateral attack by habeas corpus, the attack on the trial and conviction can be presented to the civil courts in no other way. There is no appeal or other review provided by statute to the Federal courts from judgments of courts military or the court of Military Appeals

894 F.Supp. 874 (1995) Ross FULLER, Trustee of the International Association of Entrepreneurs of America Benefit Trust v. Dwight K. BARTLETT, III, Commissioner, Maryland Insurance Administration, individually and in his professional capacity. UNITED SERVICE ASSOCIATION FOR HEALTH CARE, et al. v. Dwight K. BARTLETT, III, Commissioner Maryland Insurance Administration. Civ. Nos. L-94-2443, L-94-2460. United States District Court, D. Maryland. July 20, 1995. *875 Richard J. Magid, and Paul W. Madden, Baltimore, MD, for plaintiff Fuller. Bryan D. Bolton, MD, and Derek Barnet Yarmis, Baltimore, and Hector DeLeon, of Austin, TX, for plaintiffs United Service Ass'n for Health Care and USA for Health Care Benefit Trust. J. Joseph Curran, Jr., Atty. Gen. of Maryland and Dennis W. Carroll, Jr., and Christina Beusch, Asst. Attys. Gen., for defendant. MEMORANDUM LEGG, District Judge. Plaintiffs have instituted these actions to prevent the Maryland Insurance Administration ("MIA") from enforcing its regulations against them. At this stage of the proceedings, plaintiffs have moved for a preliminary injunction against MIA, and MIA has resisted. For the reasons below, the Court shall DENY plaintiffs' motions and DISMISS the cases in accordance with the principles of *876 Younger v. Harris, 401 U.S. 37, 91 S.Ct. 746, 27 L.Ed.2d 669 (1971). I. BACKGROUND A. Fuller v. Bartlett, No. L-94-2442 The relevant facts in both cases are undisputed. Ross N. Fuller, the plaintiff in Fuller v. Bartlett, No. L-94-2442, is the Trustee of the International Association of Entrepreneurs of America Benefit Trust ("IAEA"). IAEA administers an employee welfare benefit plan which, according to Fuller, is established and maintained by a group of employers for the purpose of providing its participants and their beneficiaries various health benefits, including medical, occupational and death benefits. Defendant Dwight K. Bartlett, III serves as the Insurance Commissioner for the State of Maryland ("Commissioner") and the head of the MIA. Md.Code Ann. art. 48A § 14. In this position, he enforces the Maryland Insurance Code. § 24. To carry out this responsibility, he may issue orders, § 29, institute legal proceedings, § 25, promulgate rules and regulations, § 26, and hold administrative hearings, § 35. Aggrieved parties may appeal the Commissioner's orders and adjudicatory rulings to the Maryland state courts, which may reverse for prejudice, insufficient evidence or legal error § 40(1), (4). On September 1, 1994, Fuller filed a declaratory judgment action under 28 U.S.C. § 2201 in this Court, seeking to preclude the Commissioner from regulating IAEA's benefit plan. The complaint charges the Commissioner with violating the Employee Retirement Income Security Act ("ERISA"), 29 U.S.C. §§ 1001-1461, and Fuller's civil rights under 42 U.S.C. § 1983. According to the complaint, IAEA's benefit plan constitutes a multiple employer welfare arrangement ("MEWA") within the meaning of ERISA, see 29 U.S.C. § 1002(40), and as such ERISA pre-empts the Commissioner's attempt to regulate it. The complaint asks for a declaratory judgment in Fuller's favor and for an injunction prohibiting the Commissioner from taking any action against IAEA's plan. On September 13, 1994, the MIA issued a Cease and Desist Order against IAEA, ordering it to cease operation of its employee benefit plans on the ground that it was conducting the business of insurance in the State of Maryland without a certificate of authority from the Commissioner. In response, Fuller requested a temporary restraining order from this Court. The same day, Fuller asked the Commissioner for an administrative hearing, which automatically stayed the Cease and Desist Order. Md.Code Ann. art. 48A, § 36. The Court later denied the temporary restraining order. Subsequently, Fuller filed the instant motion for a preliminary injunction, seeking to enjoin the Commissioner from conducting the hearings Fuller had requested. The Commissioner's counsel agreed to stay the administrative proceedings until the Court's ruling on the preliminary injunction motion. B. United Service Association for Health Care v. Bartlett, No. 24-2460 United Service Association for Health Care ("USA+"), the plaintiff in United Service Association for Health Care v. Bartlett, No. 24-2460, is an association of small businesses that offers a variety of human resources services to its members. These services include health benefits to USA+'s members and their employees through an employee welfare benefit plan. On August 24, 1994, MIA issued a Cease and Desist Order against USA+ similar to the one against Fuller. The Order directed USA+ to cease its health benefits activities on the ground that USA+ was conducting the business of insurance in Maryland without authorization from the Insurance Commissioner. USA+ responded by filing a declaratory judgment action against the Commissioner under ERISA and § 1983, alleging violations of ERISA and the United States and Maryland Constitutions. As in Fuller, the complaint alleges that USA+'s benefit plan is a MEWA and that ERISA therefore pre-empts the Commissioner's efforts to enforce Maryland's insurance regulations against it. The complaint seeks a declaration in USA+'s favor and an injunction preventing the Commissioner *877 from taking any further action against the plan. At the same time it filed the complaint, USA+ requested an ex parte temporary restraining order, which was denied. USA+ then requested an administrative hearing with the MIA to stay the Commissioner's Order. Shortly thereafter, the Court consolidated the United Services Association action with the Fuller case. On February 3, USA + moved for a preliminary injunction to prevent the Commissioner from conducting the hearing USA + had requested. Again, the Court conducted a telephone conference during which the Commissioner's counsel agreed to stay the pending administrative proceedings until the Court's ruling. II. DISCUSSION A. Federal Question Jurisdiction First, the Commissioner argues that the Court lacks jurisdiction over these cases because the complaints fail to state a federal question. See 28 U.S.C. § 1331. The Supreme Court put this argument to rest in Shaw v. Delta Air Lines, Inc., 463 U.S. 85, 103 S.Ct. 2890, 77 L.Ed.2d 490 (1983). There, plaintiffs brought declaratory judgment actions seeking an injunction against a New York state official, arguing that ERISA pre-empted certain New York regulations. Id. at 92, 103 S.Ct. at 2897. Speaking to the issue of federal question jurisdiction, the court held "a plaintiff who seeks injunctive relief from state regulation, on the ground that such regulation is pre-empted by a federal statute . . . presents a federal question which the federal courts have jurisdiction . . . to resolve." Id. at 96 n. 14, 103 S.Ct. at 2899 n. 14; accord Aluminum Co. v. Utilities Comm'n of North Carolina, 713 F.2d 1024, 1028 (4th Cir.1983), cert. denied, 465 U.S. 1052, 104 S.Ct. 1326, 79 L.Ed.2d 722 (1984). The existence of federal question jurisdiction in such a case, the Court held, was "beyond dispute." Shaw, 463 U.S. at 96 n. 14, 103 S.Ct. at 2899 n. 14 (citing Ex parte Young, 209 U.S. 123, 160-62, 28 S.Ct. 441, 454-55, 52 L.Ed. 714 (1908)). The procedural similarity between the suits at bar and Shaw compels the conclusion that the Court possesses jurisdiction over plaintiffs' claims. B. Younger Abstention Next, the Commissioner argues that the Court should refuse to entertain these cases pursuant to Younger v. Harris, 401 U.S. 37, 91 S.Ct. 746, 27 L.Ed.2d 669 (1971). In Younger, the Supreme Court held that "interests of comity and federalism counsel federal courts to abstain from jurisdiction whenever federal claims have been or could be presented in ongoing state judicial proceedings that concern important state interests." Hawaii Housing Authority v. Midkiff, 467 U.S. 229, 237-38, 104 S.Ct. 2321, 2328, 81 L.Ed.2d 186 (1984). The Younger doctrine applies to state proceedings bearing "a close relationship to proceedings criminal in nature," Middlesex County Ethics Committee v. Garden State Bar Ass'n, 457 U.S. 423, 432, 102 S.Ct. 2515, 2521, 73 L.Ed.2d 116 (1982), including state administrative proceedings such as the ones at issue here. E.g., Ohio Civil Rights Comm'n v. Dayton Christian Schools, Inc., 477 U.S. 619, 106 S.Ct. 2718, 91 L.Ed.2d 512 (1986); Martin Marietta Corp. v. Maryland Comm'n on Human Relations, 38 F.3d 1392, 1396 (4th Cir. 1994). In Middlesex, supra, the Supreme Court set forth three guidelines for deciding whether to abstain from entertaining a civil suit. First, the Court must determine whether there exist ongoing state judicial proceedings in the matter. Middlesex, 457 U.S. at 432, 102 S.Ct. at 2521. Second, the Court must ascertain whether the state proceedings implicate important state interests. Ibid. Third, the Court must verify that the state proceedings afford an adequate opportunity for the plaintiffs to raise their federal claims. Ibid.; Martin Marietta, 38 F.3d at 1396; Richmond, Fredericksburg & Potomac R.R. Co. v. Forst, 4 F.3d 244, 251 (4th Cir.1993). The Court weighs these factors in turn. 1. Ongoing State Judicial Proceedings Younger mandates abstention "only when state court proceedings are initiated `before any proceedings of substance on the merits have taken place in the federal court.'" Midkiff, 467 U.S. at 238, 104 S.Ct. at 2328 (quoting Hicks v. Miranda, 422 U.S. 332, *878 349, 95 S.Ct. 2281, 2292, 45 L.Ed.2d 223 (1975)). If the state proceeding commences after the federal court takes "substantial" action on the case, "considerations of economy, equity, and federalism counsel against Younger abstention. . . ." Midkiff, 467 U.S. at 238, 104 S.Ct. at 2328. On the other hand, if "the federal litigation [is] in an embryonic stage and no contested matter ha[s] been decided," Younger directs the dismissal of the action. Doran v. Salem Inn, Inc., 422 U.S. 922, 929, 95 S.Ct. 2561, 2566-67, 45 L.Ed.2d 648 (1975). Under Maryland law, the MIA proceedings began when plaintiffs requested hearings on the Cease and Desist Orders. Md.Code Ann. art. 48A, § 35(1), (2). Thus, the question becomes whether "proceedings of substance" took place in this Court before plaintiffs made their requests. The Court answers the question in the negative. The denials of plaintiffs' temporary retraining orders do not qualify as "proceedings of substance." See, e.g., Doran, 422 U.S. at 929, 95 S.Ct. at 2566-67 (Younger abstention proper after denial of temporary restraining order); Hicks, 422 U.S. at 338, 349-50, 95 S.Ct. at 2286, 2291-92 (same). The Court did nothing else before the state proceedings commenced, and none of the Court's actions since then have addressed the merits of these cases.[1] Therefore, the state proceedings were "ongoing" before substantive proceedings occurred in federal court. Second, the Court must determine whether the proceedings are "judicial" in nature. As the Supreme Court has reminded, "A judicial inquiry investigates, declares and enforces liabilities as they stand on present or past facts and under laws supposed already to exist.... The nature of the final act determines the nature of the previous inquiry." New Orleans Pub. Serv., Inc., v. Council of New Orleans, 491 U.S. 350, 370-71, 109 S.Ct. 2506, 2519-20, 105 L.Ed.2d 298 (1989) ("NOPSI") (quoting Prentis v. Atlantic Coast Line Co., 211 U.S. 210, 226-27, 29 S.Ct. 67, 69-70, 53 L.Ed. 150 (1908)). The MIA hearing will, if allowed to proceed, determine whether plaintiffs may operated their benefit plans under Maryland law and whether the agency may prevent the operation of the benefit plans. In other words, the MIA hearing will address present facts under an existing legal standard. It therefore constitutes an adjudicatory action under the Prentis formulation. USA +, however, contends that the hearing is not an adjudicatory action, because (1) the action was not initiated at the request of a "third person," but as a result of the Commissioner's investigation; (2) the Commissioner is attempting to exercise his statutory authority at the hearing rather than acting as an impartial arbiter; and (3) MIA hearing procedures differ from those of a trial in court.[2] The Court addresses these contentions seriatim. As to the first argument, that a third party did not initiate the administrative hearings does not render the function non-adjudicatory. For example, in Dayton Christian Schools, the state agency initiated formal administrative proceedings by filing a complaint itself, Dayton Christian Schools, 477 U.S. at 624, 106 S.Ct. at 2721, yet the court found Younger abstention appropriate there. As to the second argument, a state agency may, contrary to USA+'s contention, review the legality of its own executive or legislative actions, provided that the individual who took the contested action is not also the hearing examiner. Prentis, 211 U.S. at 225, 29 S.Ct. at 69; see Withrow v. Larkin, 421 U.S. 35, 51-52, 95 S.Ct. 1456, 1466, 43 L.Ed.2d 712 (1975) (combination of judicial and investigative function in state agency permissible). For instance, the state agency in Dayton Christian Schools made a preliminary determination that the appellee had violated state law, then initiated formal judicial proceedings within the same agency, Dayton *879 Christian Schools, 477 U.S. at 624, 106 S.Ct. at 2721, yet the court in that case noted no impropriety. With respect to USA+'s third argument, the nature of an agency action does not depend on the form of the proceedings. NOPSI, 491 U.S. at 371, 109 S.Ct. at 2520 (citing Prentis, 211 U.S. at 226-27, 29 S.Ct. at 69-70). Therefore, the absence of formalities in a MIA hearing does not convert the hearing into a non-adjudicatory function. To summarize, the MIA hearings qualify as ongoing state judicial proceedings under Younger and Middlesex. The Commissioner has therefore satisfied the first prong of the Middlesex test for Younger abstention. 2. The Importance of the State's Interests Second, the Court looks to the importance of the State's interest in the MIA proceedings. NOPSI, 491 U.S. at 365, 109 S.Ct. at 2516-17. In this context, the inquiry becomes whether the state has a "substantial, legitimate interest" in regulating insurance. Ibid. As the Fourth Circuit has recognized, states have a "substantial" interest in the regulation of insurance. Charleston Area Medical Center, Inc. v. Blue Cross and Blue Shield Mut. Inc., 6 F.3d 243, 250 n. 5 (4th Cir.1993); see SEC v. Variable Annuity Life Ins. Co., 359 U.S. 65, 69, 79 S.Ct. 618, 621, 3 L.Ed.2d 640 (1959) (regulation of insurance "has traditionally been under the control of the States."); Fuller v. Ulland, 858 F.Supp. 931, 935 (D.Minn.1994). The importance of Maryland's interest in regulating insurance strongly favors abstention. Charleston Area Medical Center, 6 F.3d at 250 n. 5.[3] 3. Opportunity to Raise Federal Challenges in State Proceeding Third, the Court must determine whether plaintiffs may raise their pre-emption challenge in the state proceedings. An opportunity to raise the federal challenge in a state judicial review of the administrative proceeding satisfies this requirement. Dayton Christian Schools, 477 U.S. at 629, 106 S.Ct. at 2723. Plaintiffs do not deny that they may raise their pre-emption defense at the MIA hearing, nor could they. See Ins. Comm'r v. Metropolitan Life Ins. Co., 296 Md. 334, 338, 463 A.2d 793, 795 (1983) (describing insurance company's assertion of ERISA preemption defense at MIA hearing). Even if they could not, the state court, on review, may reverse or modify the decision if it contains legal error, Md.Code Ann. Art. 48A, § 40(1), (4), thereby allowing plaintiffs to argue ERISA pre-emption in the state court appeal. E.g., Metropolitan Life, supra (considering issue of ERISA pre-emption on appeal from MIA hearing decision). This review fulfills the third criteria for Younger abstention. 4. Younger Exceptions Notwithstanding the presence of the factors that ordinarily command Younger abstention, the possibility remains that a plaintiff may face "great and immediate" irreparable injury sufficient to render abstention inappropriate. Younger, 401 U.S. at 46, 91 S.Ct. at 751 (quoting Fenner v. Boykin, 271 U.S. 240, 243, 46 S.Ct. 492, 493, 70 L.Ed. 927 (1926)). In Younger, the court noted two categories of situations that would present such an injury. First, the Court should not abstain if plaintiffs can show that the state official is bringing the action in bad faith or for the purpose of harassment, Younger, 401 U.S. at 47-49, 54, 91 S.Ct. at 752-53, 755, or if the state agency is "incompetent by reason of bias to adjudicate the issues pending before it." Gibson v. Berryhill, 411 U.S. 564, 577, 93 S.Ct. 1689, 1697, 36 L.Ed.2d 488 (1973); accord Kugler v. Helfant, 421 U.S. 117, 124, 95 S.Ct. 1524, 1531, 44 L.Ed.2d 15 (1975) ("if extraordinary circumstances render the state court incapable of fairly and fully adjudicating *880 the federal issues before it," Younger abstention is inapplicable) (quotation marks omitted); Cinema Blue, Inc. v. Gilchrist, 887 F.2d 49, 54 (4th Cir.1989), cert. denied, 494 U.S. 1030, 110 S.Ct. 1479, 108 L.Ed.2d 616 (1990). The parties do not suggest, nor does the Court perceive, that these cases present such a situation. Second, the Court will find "great and immediate" irreparable injury if the state law under which the state prosecutes plaintiffs "flagrantly and patently" violates the Constitution. Younger, 401 U.S. at 53-54, 91 S.Ct. at 755 (quoting Watson v. Buck, 313 U.S. 387, 402, 61 S.Ct. 962, 967, 85 L.Ed. 1416 (1941)). A "facially conclusive" preemption challenge may fall within this category, e.g., Gartrell Constr. Inc. v. Aubry, 940 F.2d 437, 441 (9th Cir.1991); Baggett v. Dep't of Professional Regulation, 717 F.2d 521, 524 (11th Cir.1983), although neither the Supreme Court nor the Fourth Circuit has yet decided the issue. NOPSI, 491 U.S. at 367, 109 S.Ct. at 2517-18; Martin Marietta, 38 F.3d at 1402. Plaintiffs rely on this exception. Younger, however, does not permit the exercise of jurisdiction merely upon an allegation that federal law pre-empts the state law in question. Huffman v. Pursue, Ltd., 420 U.S. 592, 602, 95 S.Ct. 1200, 1207, 43 L.Ed.2d 482 (1975); Simopoulos v. Virginia State Bd. of Medicine, 644 F.2d 321, 328-29 (4th Cir.1981). Rather, to remove a case from Younger's ambit, a pre-emption claim must be "flagrantly and patently violative of express constitutional prohibitions in every clause, sentence and paragraph, and in whatever manner and against whomever an effort might be made to apply it." Younger 401 U.S. at 53-54, 91 S.Ct. at 755 (quoting Buck, 313 U.S. at 402, 61 S.Ct. at 967). The instant claims do not satisfy this rigorous standard. If plaintiffs' benefit plans are fully-insured MEWAs, then ERISA does not preclude Maryland from regulating them, and if they are not, Maryland may not regulate them. 29 U.S.C. § 1144(b)(6)(A). To decide the pre-emption issue, then, the Court must determine whether the plans are in fact "fully-insured." "[W]hat requires further factual inquiry can hardly be deemed `flagrantly' unlawful for purposes of a threshold abstention determination." NOPSI, 491 U.S. at 367, 109 S.Ct. at 2518; see Int'l Ass'n of Entrepreneurs of America Benefit Trust v. Foster, 883 F.Supp. 1050, 1062-66 (E.D.Va. 1995) (analyzing ERISA pre-emption of MEWAs). Consequently, plaintiffs have failed to place these cases within the "facially conclusive" pre-emption exception to Younger, nor have they shown any other reason to avoid Younger abstention. III. CONCLUSION These cases invoke the interests of comity and federalism with which Younger is concerned. The Middlesex criteria for Younger abstention are satisfied, and none of the exceptions to Younger are present. Accordingly, the Court shall dismiss these cases by separate Order.[4] NOTES [1] So far, the Court has struck the Commissioner's motions to dismiss and ordered discovery in both cases because the motions included materials outside the pleadings. See Fed.R.Civ.P. 12(b). The Court has also granted the Commissioner's motion for a protective order in Fuller. [2] USA+'s Supplemental Memorandum in Support of Plaintiff's Motion for a preliminary Injunction at 11-12. [3] Charleston Area Medical Center, Inc. v. Blue Cross and Blue Shield Mut., Inc., 6 F.3d 243 (4th Cir.1993), discussed abstention pursuant to Colorado River Water Conservation Dist. v. United States, 424 U.S. 800, 96 S.Ct. 1236, 47 L.Ed.2d 483 (1976) and Burford v. Sun Oil Co., 319 U.S. 315, 63 S.Ct. 1098, 87 L.Ed. 1424 (1943), rather than Younger abstention. Charleston, 6 F.3d at 250 n. 5. Nonetheless, the interests of comity and of respect for the States's interest in regulating insurance translate well to this context. [4] The Court dismisses rather than stays these actions because no possibility exists that the action will return to federal court. Cf. Harris County Comm'rs Court v. Moore, 420 U.S. 77, 88-89, 95 S.Ct. 870, 877-78, 43 L.Ed.2d 32 (1975).

FILED NOT FOR PUBLICATION JUN 26 2014 MOLLY C. DWYER, CLERK UNITED STATES COURT OF APPEALS U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT EDGAR MARTINEZ, No. 12-72743 Petitioner, Agency No. A094-314-637 v. MEMORANDUM* ERIC H. HOLDER, Jr., Attorney General, Respondent. On Petition for Review of an Order of the Board of Immigration Appeals Submitted June 25, 2014** Before: HAWKINS, TALLMAN, and NGUYEN, Circuit Judges. Edgar Martinez, a native and citizen of El Salvador, petitions pro se for review of the Board of Immigration Appeals’ (“BIA”) order dismissing his appeal from an immigration judge’s decision denying his application for asylum, withholding of removal, and protection under the Convention Against Torture * This disposition is not appropriate for publication and is not precedent except as provided by 9th Cir. R. 36-3. ** The panel unanimously concludes this case is suitable for decision without oral argument. See Fed. R. App. P. 34(a)(2). Petitioner’s request for oral argument is denied. (“CAT”). Our jurisdiction is governed by 8 U.S.C. § 1252. We review for substantial evidence the agency’s factual findings, and de novo claims of due process violations. Singh v. Holder, 638 F.3d 1264, 1268-69 (9th Cir. 2011). We deny in part and dismiss in part the petition for review. Our review is limited to the administrative record and thus we do not consider evidence included in the opening brief that was not part of the record before the agency. See Fisher v. INS, 79 F.3d 955, 963-64 (9th Cir. 1996) (en banc). The record does not compel the conclusion that Martinez established extraordinary circumstances to excuse his untimely filed asylum application. See 8 C.F.R § 1208.4(a)(5); Dhital v. Mukasey, 532 F.3d 1044, 1049-50 (9th Cir. 2008). Accordingly, his asylum claim fails. Substantial evidence supports the BIA’s finding that Martinez failed to establish that the harm he suffered in El Salvador from the El Diablo group had a nexus to a protected ground. See Navas v. INS, 217 F.3d 646, 656 (9th Cir. 2000). Thus, Martinez is not entitled to a presumption of future persecution. See Molina- Estrada v. INS, 293 F.3d 1089, 1096 (9th Cir. 2002). Further, substantial evidence supports the agency’s finding that Martinez failed to demonstrate it is more likely than not he will be persecuted now in El Salvador, more than twenty years after he 2 12-72743 left. See Nagoulko v. INS, 333 F.3d 1012, 1018 (9th Cir. 2003) (possibility of future persecution too speculative). We reject Martinez’s contention that the agency based its decision on evidence that was not in the record. Thus, Martinez’s withholding of removal claim fails. Substantial evidence also supports the agency’s denial of CAT relief because Martinez failed to establish that it is more likely than not he will be tortured by or with the consent or acquiescence of a government official if he returns to El Salvador. See Zehatye v. Gonzales, 453 F.3d 1182, 1188 (9th Cir. 2006). Finally, we lack jurisdiction to consider Martinez’s due process claim that the translation at his immigration hearing was inadequate, because he did not exhaust this contention before the BIA. See Barron v. Ashcroft, 358 F.3d 674, 678 (9th Cir. 2004) (court lacks jurisdiction to consider issues that have not been administratively exhausted). PETITION FOR REVIEW DENIED in part; DISMISSED in part. 3 12-72743 

571 P.2d 862 (1977) Alvin CURTIS, Appellant, v. CIA MACHINERY, INC., a Foreign Corporation, Duane Stewart, and Reed Tool Company, a Foreign Corporation, Appellees. No. 49386. Court of Appeals of Oklahoma, Division No. 2. July 26, 1977. Rehearing Denied August 17, 1977. Certiorari Denied October 19, 1977. Released for Publication October 20, 1977. Berry, Nesbitt & Berry, Oklahoma City, for appellant. Paul F. Fernald, Keller & Fernald, Oklahoma City, for appellees. Certiorari to Court of Appeals Denied October 19, 1977. Released for Publication by Order of Court of Appeals October 20, 1977. *863 BRIGHTMIRE, Presiding Judge. Assailed here is the dismissal of plaintiff's action for damages against a nonresident seller of an allegedly defective drilling rig. The order was grounded on the conclusion that there was shown to be a lack of relevant "minimum contact" by defendant seller, CIA Machinery, Inc., which would allow the courts of this state to exercise in *864 personam jurisdiction over it. We hold there was sufficient contact and reverse. I In March 1974 plaintiff entered into a conditional sales contract with CIA for the purchase of a Texoma model 500-30 hydraulic drilling unit. The machinery soon proved to be unsatisfactory and when other means of redress failed plaintiff filed this damage suit and caused CIA to be served in Dallas, Texas pursuant to the provisions of 12 O.S. 1972 Supp. § 187 — our so-called long arm statute. CIA appeared specially and objected to the jurisdiction of the Oklahoma County District Court. In support of its plea CIA attached two affidavits of its president, Raymond Delle, stating that all negotiations leading to the sale took place in Dallas, Texas and it was there plaintiff, Alvin Curtis, had executed the March 13, 1974 contract. He further said that at no time did Oklahoma City resident, Duane Stewart, act as an authorized agent for CIA, but "was merely being a mutual friend to both Alvin Curtis and me, by suggesting to Alvin Curtis that he call me ... ." CIA also attached an affidavit of Stewart who swore he at no time has ever "been an `authorized agent' or employee of CIA ... ." Plaintiff countered with affidavits saying that Stewart acted as a salesman for CIA and on its behalf helped negotiate the sales contract in question receiving [as his commission] therefor the partial down payment made by plaintiff on the equipment. Plaintiff also stated that he talked with CIA officials in Dallas by telephone in furtherance of the negotiations. According to Stewart CIA officials also talked to him in Oklahoma City via telephone several times with reference to the prospective sale. At an evidentiary hearing held January 29, 1976 plaintiff testified that Stewart was out at his house in Oklahoma City one day and during a conversation about a new drilling rig Stewart said he thought he knew where he could get one. Later Stewart contacted plaintiff and brought him some literature — a flyer on a Texoma 500 Holedigger — to which was affixed a business card displaying the name of Duane Stewart. The latter denied attaching the card to the advertising piece or writing the price information visible at the bottom thus raising the inference that CIA personnel did both and gave the exhibit to Stewart for submission to plaintiff in Oklahoma. In discussing the matter Stewart told Curtis that the rig was in Delle's yard in Dallas where it could be seen and inspected. The two men discussed CIA's proposal and "made the deal there" in plaintiff's yard which, among other things, incorporated Stewart's suggestion of using plaintiff's Ford rig as a trade-in. Stewart suggested further that he and plaintiff go to Dallas so plaintiff could see the equipment and talk with Delle. Before going, however, plaintiff talked to Delle on the telephone and apparently received confirmational approval of the preliminary negotiations because he did go on to Dallas and close the deal he had made through Stewart — an agreement that included the acceptance by CIA of plaintiff's Ford rig as a part of the down payment on the new rig with the stipulation that it be transferred to Stewart in Oklahoma City as a part of the latter's sales commission. And it was. CIA's president testified he knew Stewart, had talked to him about the rig in question being for sale, and, when the sale was consummated, an invoice was prepared showing Stewart was to get "credit for it." The witness said also that CIA later paid the salesman an additional $3,500. II Did the trial court err in dismissing the Texas corporation? We think he did. The wording of our long arm statute is such as to make manifest a legislative intent to extend it to the outermost permissible limits of federal due process.[1] The *865 United States Supreme Court has concluded that a state may constitutionally exercise in personam jurisdiction over nonresidents so long as the prospective defendant has made certain "minimum contacts" within the territory of the forum. Although the phrase "minimum contacts" is not definable with precision the intercourse contemplated must be of such a nature that maintenance of the suit does not offend "traditional notions of fair play and substantial justice." McGee v. International Life Ins. Co., 355 U.S. 220, 78 S.Ct. 199, 2 L.Ed.2d 223 (1957); International Shoe Co. v. Washington, 326 U.S. 310, 66 S.Ct. 154, 90 L.Ed. 95 (1945). Under the authority of these cases the Oklahoma Supreme Court has demonstrated a willingness to enforce the legislative policy we mentioned earlier. Gregory v. Grove, Okl., 547 P.2d 381 (1976) — a case in which it was held that a nonresident making "a telephone call and writing some five letters to" a state resident were sufficient contacts to satisfy the requirements of both due process and the long arm statute. Here we are of the opinion that plaintiff has shown CIA's contact in Oklahoma exceeded the minimum necessary to invoke the jurisdiction of its state courts. An "agency" relationship may arise under certain circumstances even where the parties may not have intended to create one. In its essential nature the relationship results from the express or implied consent of one person for another to act on his behalf with regard to some transaction, and if the latter performs the contemplated act he does so as the agent of the former regardless of what he is called. Farmers Nat'l Grain Corp. v. Young, 187 Okl. 298, 102 P.2d 180 (1940). The relationship may arise from a single transaction. Benham v. Selected Inv. Corp., Okl., 313 P.2d 489 (1957). Whether Stewart was formally appointed by CIA as an "authorized agent" is not decisive. All that is necessary is that there be evidence that Stewart was engaged in trying to sell the drill rig for CIA with its knowledge and consent, express or implied. If he was then under Benham and Farmers Nat'l Grain Corp. he was acting as a special commission agent for CIA with regard to the holedigger in question. And evidence there is upon which to base such a finding though circumstantial it might be. CIA made an agreement with Stewart to pay him a commission if the sale was consummated. It gave Stewart advertising literature on the holedigger for presentation to plaintiff in Oklahoma obviously for the purpose of furthering Stewart's sales efforts. The "deal" proposed by Stewart in Oklahoma appears to be substantially the one accepted by CIA, indicating that Stewart had received prior authority to make it. Finally the invoice prepared by CIA bore the name of Stewart which CIA's president said was intended to designate him as the person entitled to credit for making the sale. Under these circumstances we believe neither fair play nor substantial justice is affronted by having CIA respond in Oklahoma to charges that it supplied plaintiff with a defective product. This factual situation is distinguishable from those in cases cited by CIA, namely Architectural Bldg. Components Corp. v. Comfort, Okl., 528 P.2d 307 (1974); Crescent Corp. v. Martin, Okl., 443 P.2d 111 (1968). The order of dismissal is vacated and the cause remanded for further proceedings against CIA. BACON and NEPTUNE, JJ., concur. NOTES [1] Title 12 O.S. 1972 Supp. § 187 reads in part: "(a) Any person, firm, or corporation . . who does ... any of the acts hereinafter enumerated, whether in person or through another, submits himself ... to the jurisdiction of the courts of this State ...: (1) the transaction of any business within this STATE; (2) the commission of any act within this State ...."