Datasets:

suolyer

/

pile_freelaw

like 0

587 F.Supp. 289 (1984) Danny DOZIER v. J.A. JONES CONSTRUCTION COMPANY, INC. and the Aetna Casualty and Surety Company. Civ. A. No. 83-1190. United States District Court, E.D. Louisiana. May 15, 1984. *290 Michael D. Meyer, New Orleans, La., for plaintiff. Robert E. Couhig, Jr., E. Peter Dewey, Henry Leon Sarpy, New Orleans, La., Roger J. Larue, Jr., Metairie, La., for defendant. OPINION McNAMARA, District Judge. Before the court are Motions for Judgment Notwithstanding the Verdict brought on behalf of J.A. Jones Construction Co., Inc. (Jones), its insurer, The Aetna Casualty and Surety Co., and Metropolitan Erection Co., Inc. (Metropolitan) and its insurers, Fidelity and Guaranty Insurance Co., and Mission National Insurance Company.[1] This litigation arises out of an accident that occurred on January 31, 1983, at the construction site of the Canal Place II development in downtown New Orleans. Danny Dozier, an ironworker directly employed by Metropolitan at the time of the accident, sustained serious injuries in the accident and consequently sued Jones, the principal contractor on the project. Seeking to recover for their loss of consortium, Mrs. Dozier and the Dozier children joined in the suit. Jones impleaded Metropolitan on the basis of an indemnity provision contained in a *291 subcontract between the parties. Jones further asserts that it is the statutory employer of Danny Dozier within the meaning of La.R.S. 23:1061, and thus is entitled to the concomitant tort immunity afforded by La.R.S. 23:1032. After a three-day jury trial, the jury returned a verdict favorable to the Doziers. The comparative fault of the parties was attributed 65% to Jones, 5% to Mr. Dozier and 30% to Metropolitan.[2] STATUTORY EMPLOYER DEFENSE The jury answered the following special interrogatories in regard to the statutory employer defense negatively: 5. Has J.A. Jones proved, by a preponderance of the evidence, that it customarily does the type of work being performed by Metropolitan on Canal Place II construction project? 6. Has J.A. Jones proved, by a preponderance of the evidence, that the type of work Metropolitan was doing at the Canal Place II construction project is an integral part of the business of J.A. Jones? These interrogatories were extracted from the test set forth in the seminal case of Blanchard v. Engine & Gas Compressor Services, Inc., 613 F.2d 65 (5th Cir. 1980). In Chavers v. Exxon Corp., 716 F.2d 315 (5th Cir.1983), the Blanchard test was summarized in this fashion: [T]he court "should first consider whether the particular principal involved in the case customarily does the type of work performed by the contractor." If that answer is in the affirmative, the principal is a statutory employer with resulting workmen's compensation obligations and a concomitant liability shield. If the answer is negative, the court must continue the inquiry "to determine if others engaged in businesses similar to that of the principal customarily do this type of work or if it is an integral part of their businesses." If this query results in an affirmative response the principal is a statutory employer. In sum, the core inquiry is whether the employees of the principal or employees of other employers engaged in similar operations customarily perform the work at issue. In either instance, the principal will be deemed a statutory employer. Id. at 317 (citations deleted).[3] However, the Motion of Jones for Judgment Notwithstanding the Verdict does not attack the factual findings of the jury as reflected in the answers to Interrogatories 5 and 6. Instead, Jones asserts that as a matter of law it is a statutory employer of Mr. Dozier. In this regard Jones relies on the underscored portion of R.S. 23:1061 appearing below: Where any person (in this section referred to as principal) undertakes to execute any work, which is a part of his trade, business, or occupation or which he had contracted to perform, and contracts with any person (in this section referred to as contractor) for the execution by or under the contractor of the whole or any part of the work undertaken by the principal, the principal shall be liable to pay to any employee employed in the execution of the work or to his dependent, any compensation under this Chapter which he would have been liable to pay if the employee had been immediately employed by him; ... Reading R.S. 23:1061 in the disjunctive, Jones contends that it is entitled to a judgment because there is no dispute that it undertook to perform the work with the owners of Canal Place II and, in turn, contracted with Metropolitan for the execution of a portion of the work undertaken. Under the "disjunctive" approach, it is unnecessary to establish the objective of the *292 Blanchard test, i.e., that the work performed by the contractor is part of the trade, business, or occupation of the principal. This argument finds support in the decisions of several Louisiana appellate courts. Richard v. Weill Construction Co., Inc., 446 So.2d 943, 945 (La.App. 3rd Cir.1984); Barnhill v. American Well Service & Salvage, Inc., 432 So.2d 917, 920 (La.App. 3rd Cir.1983); Melancon v. Tassin Amphibious Equipment Corp., 427 So.2d 932, 936 (La.App. 4th Cir.), cert. denied, 433 So.2d 166 (La.1983); Fultz v. McDowell, 344 So.2d 410, 412 (1st Cir.1977). On at least two occasions the Louisiana Supreme Court has spoken on the issue. In Duvalle v. Lake Kenilworth, Inc., 396 So.2d 1268 (La.1981) a Motion for Summary Judgment on the statutory employer defense was affirmed upon a factual determination by the appellate court that Lake Kenilworth, the aspiring statutory employer, had contracted with its tenants to provide pest control and a legal conclusion that the language of R.S. 23:1061 was disjunctive. 383 So.2d 408, 409 (La.App. 4th Cir.1980). The Supreme Court reversed and remanded, but it did so only on a factual basis, stating: "Nor is it without debate that Lake Kenilworth had contracted with its tenants to provide the services or work performed by [plaintiff's immediate employer]." Duvalle, 396 So.2d at 1269. In Lewis v. Exxon Corp., 441 So.2d 192 (La.1983) the Court gave a more explicit indication of its position on the issue. Writing for the majority on rehearing, Chief Justice Dixon explained: A principal can, however, be a statutory employer even if the project, during which an employee is injured, is not one of regularity or custom for the principal. Whenever a principal contracts to perform work for another — even if it is the first and only time that the principal plans to engage in such a project — he is, for the purposes of injuries resulting from that project, engaged in that trade, business or occupation. R.S. 23:1032. Id. at 198. Although the Lewis court's statement regarding the pertinent issue is technically dictum,[4] I am persuaded that Lewis is a reliable indication that the highest court of Louisiana is in accord with the jurisprudence emanating from the lower Louisiana courts. Absent a strong showing to the contrary, I am Erie -bound to follow the dictates of the state tribunals. Taylor v. Jim Walter Corp., 731 F.2d 266, 267 (5th Cir.1984); C. Wright, Law of Federal Courts § 58 (4th Ed.1983). Notwithstanding this court's role as an Erie court, the federal jurisprudence does not, as Plaintiffs and the Intervenor suggest, mandate a different result. Specifically, Plaintiffs contend that the disjunctive analysis was implicitly rejected in Le Blanc v. Goldking Production Co., 706 F.2d 149 (5th Cir.1983). One may conclude from a broad reading of LeBlanc that an absolute prerequisite to a statutory employment relationship is a finding that the work contracted out was part of the principal's usual and customary practice. However, I decline to read LeBlanc in such a fashion. A fair reading of that case reveals that the Fifth Circuit was concerned only with whether or not the work contracted out was customarily performed by contractors or the direct employees of the subject principal (or the direct employees of others engaged in businesses similar to the principal), and not the issue at bar. Cf., Hodges v. Exxon Corp., 727 F.2d 450 (5th Cir.1984); Penton v. Crown Zellerbach, 699 F.2d 737 (5th Cir.1983); Forno v. Gulf Oil Corp., 699 F.2d 795 (5th Cir.1983); Williams v. Shell Oil Co., 677 F.2d 506 (5th Cir.1982). Contrary to the Plaintiff's contentions, the Fifth Circuit, while not directly confronting the issue, has not rejected a disjunctive statutory employment analysis. In Blanchard, the Fifth Circuit relied, in *293 part, on Professor Larson in rejecting the "essential to business" test for determining statutory employer status: "The test (except in cases where the work is obviously a subcontracted fraction of a main contract) is whether this indispensable activity is, in that business, normally carried on through employees rather than independent contractors." (Emphasis added). 613 F.2d at 70 quoting A. Larson, The Law of Workmen's Compensation, § 49.12, at 9-23 to 9-24 (1973). INDEMNITY CONTRACT Despite the existence of tort immunity for Jones, a resolution of the third-party demand is necessary because the indemnity between the parties includes attorney's fees. The indemnity clause in question recites: Subcontractor agrees to defend, indemnify and hold harmless, Contractor and Owner, and their agents and employees from and against any claim, cost, expense or liability (including attorneys' fees), attributable to bodily injury, sickness, disease or death, or to damage to or destruction of property (including loss of use thereof), caused by, arising out of, resulting from or occurring in connection with the performance of the Work by Subcontractor, its subcontractors, or their agents or employees, whether or not caused in part by the active or passive negligence or other fault of a party indemnified hereunder; provided, however, Subcontractor's duty hereunder shall not arise if such injury, sickness, disease, death, damage or destruction is caused by the sole negligence of a party indemnified hereunder. Subcontractor's obligation hereunder shall not be limited by the provisions of any workmen's compensation or similar act. It is apparent from the express terms of this provision that Jones is not entitled to indemnity if it is solely at fault. Conversely, if Jones is not solely at fault, Metropolitan owes indemnity, including attorney' fees, to Jones. As an unambiguous contract, it forms the law between the parties and is entitled to judicial enforcement. La.Civ.Code art. 1945. Since the jury found that Jones was not solely at fault, Metropolitan owes Jones attorney's fees pursuant to the indemnity provision. Nevertheless, Metropolitan argues that the contract in question does not apply to the work performed by Metropolitan at the time of Mr. Dozier's accident. The issue of nonapplicability was raised for the first time at trial. In the Pre-Trial Order, it was stipulated by all parties that Plaintiff's work activities at the time of the accident herein were being performed pursuant to the contract between Jones and Metropolitan. Under the heading "Material Facts Claimed by the Parties" Metropolitan itself stated: Prior to the accident, Metropolitan Erection Company, Inc. had entered into Subcontract No. 14-81-01-495 with J.A. Jones Construction Company, Inc. for the "Installation of the Bracing Material", which contained provision No. 12 titled "Indemnity". Pursuant to this Subcontract and subsequent addenda or change orders, Metropolitan Erection Company, Inc. furnished labor for the installation of bracing material and for the removal of existing braces. On the day of his injury, Mr. Dozier was performing duties pursuant to Change Order No. Four (4) to Subcontract No. 14-81-01-495. (See Exhibit "A", Subcontract No. 14-81-01-495). Further, it has been stipulated by all parties that Subcontract No. 14-81-01-495 was in effect between J.A. Jones Construction Company, Inc. and Metropolitan Erection Company, Inc. on the date of Mr. Dozier's accident. (See Exhibit "A", deposition of Wade John LeBrun at pages 8 and 9). The same statement again appears under the heading "Uncontested Material Facts" to which all parties agreed as evidenced by their signature on the Pre-Trial Order. Consistent with these pre-trial written stipulations, there was no discussion whatsoever at the Pre-Trial Conference with the court to even suggest that the applicability of the contract in question to the work *294 being performed by Mr. Dozier was an issue in this case. Federal Rule of Civil Procedure 16(e) permits a final pre-trial order to be modified "only to prevent manifest injustice." Such a showing has not been made. Metropolitan has by-passed every opportunity up to this point, including its pre-trial summary judgment motion that focused on the language of the contract, to assert this last ditch defense to the claim of Jones. To permit Metropolitan to advance this post-trial argument would, in fact, be manifestly unjust to Jones. See Flannery v. Carroll, 676 F.2d 126, 131 (5th Cir.1982); United States v. First National Bank of Circle, 652 F.2d 882, 886-87 (9th Cir.1981). Thus, the court will follow the Pre-Trial Order and honor the stipulation of the parties. CLAIM FOR LOSS OF CONSORTIUM Mrs. Dozier and the Dozier children seek to recover for loss of consortium under La.Civ.Code, art. 2315. Since the court finds that Mr. Dozier is a statutory employee of Jones, La.R.S. 23:1032 limits not only his recovery to worker's compensation, but also limits any remedy his "dependents" may have. Accordingly, IT IS ORDERED that the Motion for Judgment Notwithstanding the Verdict of J.A. Jones Construction Co., Inc. and The Aetna Casualty and Surety Company be and it is hereby GRANTED. The remaining Motions before the court are DENIED. Within thirty (30) days counsel for Jones is to submit a proposed Judgment consistent with this Opinion which includes an award to Jones, and against Metropolitan for the attorney's fees incurred by Jones in defending Plaintiff's suit against it. The parties are to attempt to reach a stipulation on the appropriate amount of attorneys' fees. If they are unable to do so, counsel for Jones will notify the court within fifteen (15) days and the court will notice a hearing to determine the amount of attorney's fees to be awarded. NOTES [1] These same parties also move for a mistrial on the basis of a perceived violation by Plaintiff of the "Golden Rule." The motion has already been denied in open court. [2] Although La.R.S. 23:1032 shielded Metropolitan from responding to the Doziers in tort, an adjudication of Metropolitan's negligence was necessary to determine the effect of the indemnity provision. See page 293 infra. [3] Since there was no evidence on the issue of whether or not other companies engaged in businesses similar to that of J.A. Jones customarily do the type of work performed by Metropolitan in this case, that aspect of the Blanchard inquiry was withheld from the jury. [4] See the concurrence of Justice Dennis, 441 So.2d at 200, wherein he criticizes the majority for noting this "debatable proposition" when it is unnecessary for a decision. Ironically, Justice Dennis authored the Duvalle opinion. 396 So.2d at 1268.

779 F.Supp.2d 76 (2011) Ben JACOBS, Plaintiff, v. FEDERAL BUREAU OF PRISONS, Defendant. Civil Action No. 09-2134(RLW). United States District Court, District of Columbia. April 26, 2011. *77 Ben Jacobs, Pine Knot, KY, pro se. Tyler James Wood, U.S. Attorney's Office For D.C., Washington, DC, for Defendant. MEMORANDUM OPINION ROBERT L. WILKINS, District Judge. Plaintiff, a federal prisoner, brought this action under the Freedom of Information Act ("FOIA"), see 5 U.S.C. § 552, against the Federal Bureau of Prisons ("BOP"), alleging that it failed to respond to three FOIA requests sent in March 2008 to its *78 Washington, D.C. headquarters office. The Court granted in part the BOP's first dispositive motion, see Jacobs v. Fed. Bureau of Prisons, 725 F.Supp.2d 85, 91 (D.D.C.2010), finding that the agency's search for records responsive to plaintiff's requests was adequate. However, because the BOP did not demonstrate its full compliance with the FOIA in any other respect, its motion was denied in part without prejudice. See id. at 92. Now before the Court are the BOP's renewed motion for summary judgment and plaintiff's motion for fees and costs. For the reasons discussed below, the Court will grant the former and deny the latter. I. Plaintiff Failed to File a Timely Opposition to the BOP's Renewed Motion for Summary Judgment The BOP filed a renewed motion for summary judgment on October 1, 2010. On that same date, the Court issued an Order informing plaintiff of his obligation to respond to the BOP's motion and warned him that the Court would treat the motion as conceded if he failed to file a timely opposition. On plaintiff's motions, the opposition deadline was extended twice, to January 24, 2011, and most recently to March 23, 2011. To date, plaintiff neither has filed an opposition nor has requested more time to do so. The Court treats the BOP's motion as conceded. See LCvR 7(b). II. Plaintiff Is Not Entitled to an Award of Fees and Costs Plaintiff "respectfully requests ... this Court to order Defendant [to] pay $350.00 in cost incurred by the Plaintiff in this matter." Pl.'s Mot. for Fees & Cost at 1. The FOIA permits a district court to "assess against the United States ... other litigation costs reasonably incurred in any case ... in which the [plaintiff] has substantially prevailed." 5 U.S.C. § 552(a)(4)(E)(i). A party substantially prevails if he "has obtained relief through either ... a judicial order, or an enforceable written agreement or consent decree[,] or ... a voluntary or unilateral change in position by the agency, if the complainant's claim is not insubstantial." 5 U.S.C. § 552(a)(4)(E)(ii). The latter provision "essentially codifies the so-called `catalyst theory' for determining a fee request against the United States, under which a plaintiff is deemed to have `substantially prevailed' for purposes of § 552(a)(4)(E) if the `litigation substantially caused the requested records to be released.'" N.Y.C. Apparel F.Z.E. v. U.S. Customs and Border Protection Bureau, 563 F.Supp.2d 217, 221 (D.D.C.2008) (quoting Chesapeake Bay Found. v. Dep't of Agric., 11 F.3d 211, 216 (D.C.Cir.1993), abrogated in part on other grounds by Buckhannon Bd. & Care Home, Inc. v. W. Va. Dep't of Health & Human Resources, 532 U.S. 598, 601-02, 121 S.Ct. 1835, 149 L.Ed.2d 855 (2001)); see Judicial Watch, Inc. v. FBI, 522 F.3d 364, 370 (D.C.Cir. 2008) (finding that the requester substantially prevailed when it secured court orders requiring the government to disclose requested documents). "The catalyst theory assumes that a voluntary or unilateral change in an agency's position is induced by the complainant's lawsuit." Wildlands CPR v. U.S. Forest Serv., 558 F.Supp.2d 1096, 1098 (D.Mont.2008). "[A] FOIA plaintiff who substantially prevails becomes eligible for attorney's fees [and litigation costs]; whether the plaintiff is actually entitled to a fee award is a separate inquiry that requires a court to consider a series of factors." Edmonds v. FBI, 417 F.3d 1319, 1327 (D.C.Cir.2005) (internal quotation marks, brackets and citations omitted) (emphasis in original). The decision to award attorneys' *79 fees and costs is left to the Court's discretion. See Nationwide Bldg. Maint., Inc. v. Sampson, 559 F.2d 704, 705-06 (D.C.Cir.1977) (commenting that the § 552(a)(4)(E) "contemplates a reasoned exercise of the courts' discretion taking into account all relevant factors"). In making this decision, the Court considers "(1) the public benefit derived from the case; (2) the commercial benefit to the plaintiff; (3) the nature of the plaintiff's interest in the records; and (4) the reasonableness of the agency's withholding of the requested documents." Davy v. CIA, 550 F.3d 1155, 1159 (D.C.Cir.2008) (citations omitted). "No one factor is dispositive, although the [C]ourt will not assess fees when the agency has demonstrated that it had a lawful right to withhold disclosure." Id. Plaintiff produced certified mail receipts to show that he submitted his FOIA requests to the BOP in March 2008. The BOP, however, claimed to have received the requests only after this litigation commenced. Upon receipt of the requests, the BOP conducted searches for responsive records and disclosed them to plaintiff approximately three months later. Its response to the requests reasonably can be considered "a voluntary or unilateral change in position by the agency" after a lawsuit was filed. 5 U.S.C. § 552(a)(4)(E)(ii). An award of costs is warranted, however, only if plaintiff's claim is not "insubstantial." 5 U.S.C. § 552(a)(4)(E)(ii). The Court presumes, and plaintiff makes no argument to the contrary, that plaintiff filed this action in order that the BOP release information intended for his personal use only. It does not appear that plaintiff derives a commercial benefit from the requested records, or that the public benefits in any way from their release. Moreover, if the BOP had no record of receipt of the requests, it hardly is surprising that it failed to respond promptly. For these reasons, the Court concludes that plaintiff's claim is insubstantial, and his request for fees and costs will be denied. See Poett v. U.S. Dep't of Justice, No. 08-0622, 2010 WL 3892249, at *6-7 (D.D.C. Sept. 30, 2010) (denying award of fees and costs to requester where "the lack of a public benefit inherently illuminates the fact that Plaintiff's relationship to the disclosed document is of a private and personal nature"); Contreras v. U.S. Dep't of Justice, 729 F.Supp.2d 167, 171 (D.D.C. 2010) ("denying request for fees and costs where requester's FOIA claim was too broad and ... insufficiently identified the requested documents," and "there was no causal connection between the suit and the release of documents"); White v. Lappin, 725 F.Supp.2d 203, 206 (D.D.C.2010) (denying request for fees and costs where the BOP had no record of receipt of FOIA request, the requester sought information for his personal use only and derived no commercial benefit, and where the BOP promptly arranged for the release of the requested records when it became aware of the request). An Order is issued separately.

TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN NO. 03-08-00391-CR Donald Leonard Wilcox Sr., Appellant v. The State of Texas, Appellee FROM THE DISTRICT COURT OF BELL COUNTY, 264TH JUDICIAL DISTRICT NO. 60520, HONORABLE MARTHA J. TRUDO, JUDGE PRESIDING MEMORANDUM OPINION Appellant Donald Leonard Wilcox Sr., pleaded guilty to the offense of possession of a controlled substance with intent to deliver over four grams but less than two hundred grams. See Tex. Health & Safety Code Ann. § 481.112 (West 2003). Wilcox seeks to appeal from the judgment of conviction. The district court has certified that this is a plea-bargain case, and the defendant has no right of appeal. Accordingly, we dismiss the appeal. See Tex. R. App. P. 25.2(a)(2), (d). __________________________________________ Bob Pemberton, Justice Before Chief Justice Law, Justices Puryear and Pemberton Dismissed Filed: July 22, 2008 Do Not Publish 

838 S.W.2d 790 (1992) TRISON INVESTMENT COMPANY, Appellant, v. Emilynn B. WOODARD, Appellee. No. 05-92-00003-CV. Court of Appeals of Texas, Dallas. August 31, 1992. Rehearing Denied October 9, 1992. *791 Doug K. Butler and Julie H. Roberson, Dallas, for appellant. Molly W. Bartholow and Troy C. Vinson, Dallas, for appellee. Before ENOCH, C.J., KAPLAN, J., and T.C. CHADICK[1], J. Retired (Sitting by Assignment). OPINION ENOCH, Chief Justice. Trison Investment Company (Trison) appeals the trial court's judgment granting an implied vendor's lien under a divorce agreement, and awarding interest, attorneys' fees, and costs to Emilynn Woodard. We sustain Trison's first point of error, reverse the judgment of the trial court, and render judgment in Trison's favor. FACTS During their marriage, Max and Emilynn Woodard purchased 631.14 acres of real property located in Anderson County, Texas, known as the "Windfall Farm" (the Farm). On February 26, 1985, the Woodards executed a decree of divorce in which Max received the Farm and other real and personal property. To equalize the values in the division of the community estate, Max agreed to pay Emilynn $1,500,000— $1,000,000 was to be paid in quarterly installments of $50,000 each beginning April 30, 1985, and $500,000 was to be paid on February 26, 1986 or when the Farm was sold, whichever occurred first. About five months after the divorce, Max borrowed $2,000,000 from MBank Dallas, N.A. (MBank) securing the note with a deed of trust on the Farm. On February 25, 1987, Max filed for protection under federal bankruptcy laws after defaulting on his payments to Emilynn. Emilynn filed a proof of claim in Max's bankruptcy proceeding alleging that she had an implied vendor's lien on the Farm. On February 1, 1988, the bankruptcy court granted relief from the stay, allowing Emilynn to pursue her claim in state court. In February, 1988, MBank foreclosed its lien on the Farm after Max defaulted on the $2,000,000 promissory note. MBank subsequently sold the Farm to Jeffrey and Nancy Marcus. On May 3, 1988, the Marcuses conveyed the Farm to Trison. The trial court's order of December 6, 1990, granted Emilynn's motion for partial summary judgment embracing her entire claim against Trison with the exception of *792 attorneys' fees, interest, and costs, and denied Trison's motion for summary judgment. Emilynn subsequently filed motions for partial summary judgment on the issues of attorneys' fees and prejudgment interest. The court granted her motions and then entered final judgment on September 4, 1991. The total relief granted to Emilynn included an implied vendor's lien on an undivided one-half interest in the Farm, prejudgment interest, postjudgment interest, attorneys' fees, and costs. SUMMARY JUDGMENT STANDARD OF REVIEW In its first point of error, Trison contends that the trial court erred in granting Emilynn's motion for summary judgment and denying Trison's motion for summary judgment because, as a matter of law, no implied vendor's lien arose from the divorce agreement. We first set out the applicable standard of review as follows: 1. The movant for summary judgment has the burden of showing that there is no genuine issue of material fact and that it is entitled to judgment as a matter of law. 2. In deciding whether there is a disputed material fact issue precluding summary judgment, evidence favorable to the non-movant will be taken as true. 3. Every reasonable inference must be indulged in favor of the non-movant and any doubts resolved in its favor. Nixon v. Mr. Property Management Co., 690 S.W.2d 546, 548-49 (Tex.1985). Rule 166a of the Texas Rules of Civil Procedure provides a method of summarily ending a case that involves only a question of law and no genuine fact. Tex. R.Civ.P. 166a; Spencer v. City of Dallas, 819 S.W.2d 612, 615 (Tex.App.-Dallas 1991, no writ). The trial court's duty is to determine if there are any fact issues to try, not to weigh the evidence or determine its credibility and try the case on affidavits. Gulbenkian v. Penn, 151 Tex. 412, 252 S.W.2d 929, 931 (1952). The purpose of rule 166a is to eliminate patently unmeritorious claims or untenable defenses. The rule is not meant to deprive the litigants of their right to a full hearing on the merits of any real issue of fact. Spencer, 819 S.W.2d at 615. To be entitled to summary judgment, defendants must either disprove an essential element of the plaintiff's cause of action as a matter of law or establish all the elements of its defense as a matter of law. Id. IMPLIED VENDOR'S LIEN A vendor's lien is a lien for purchase money. McGoodwin v. McGoodmn, 671 S.W.2d 880, 881 (Tex.1984) (op. on reh'g). An implied vendor's lien exists to secure the payment of purchase money when no express lien is reserved in a contract or deed and the purchase money is not paid. Id. at 882. A lien arises by implication as "a natural equity" that creates a constructive trust so that a vendee cannot keep the estate of another without paying for it. White, Smith & Baldwin v. Downs, 40 Tex. 225, 231 (1874) (op. on reh'g). When a contract provides for the payment of consideration partly for land and partly for personal property, an implied vendor's lien does not arise on the land unless it can be shown what part of the consideration was given for the land. Sutton v. Sutton, 39 Tex. 549, 552 (1873); see generally Annotation, Vendor's or Vendee's Lien Against Realty in Case of Combined Sale of Realty and Personalty, 88 A.L.R. 92, 93 (1934) (most jurisdictions hold that when realty and personalty are sold simultaneously for gross consideration and the consideration is not allocated between the realty and personalty, the implied vendor's lien is destroyed). When the consideration recited in a deed is for the conveyance of real estate and personal property and there is no apportionment of the consideration between the real and personal property, an implied vendor's lien cannot attach to the real estate in favor of the seller. Goodwin v. Smith, 84 S.W.2d 827, 829-30 (Tex.Civ.App.—Beaumont 1935, writ dism'd). A settlement agreement incorporated into a divorce decree is treated as a contract in Texas, and its *793 meaning is governed by the law of contracts. McGoodwin, 671 S.W.2d at 882. The divorce agreement provides: 3.02. Husband's Property. Husband shall own, possess and enjoy, free from any claim of Wife, the property listed in Schedule 2, and Wife hereby partitions, quitclaims and assigns to Husband all that property, together with any insurance policies covering that property and any escrow accounts that relate to that property. * * * * * * 8.01. Cask Payment. In order to equalize values and to effect the division of the community estate of the parties, Husband shall pay to wife the sum of One Million Five Hundred Thousand Dollars ($1,500,000) as follows: (a) The sum of $50,000 per quarter commencing on April 31, 1985, and thereafter on July 31, October 31, and January 31 for nineteen (19) consecutive quarters until the aggregate sum of $1,000,000 has been paid to Wife by Husband. (b) The sum of $500,000 paid to Wife by Husband on or before one (1) year from the date of divorce in this cause or upon the sale of Windfall Farm, whichever occurs first. In schedule one of the divorce agreement, Emilynn received real and personal property as provided for in thirteen enumerated paragraphs. Max received personal and real property in twenty-five enumerated paragraphs in schedule two. On the date of their divorce, Emilynn conveyed the Farm by special warranty deed to Max in consideration of ten dollars "and in further consideration of the Agreement Incident to Divorce...." A promissory note was executed on January 21, 1986, to memorialize Max's obligation. It reads: "This Note has been executed and delivered in conditional satisfaction of the terms of Section 8.01(b)" of the divorce agreement. Emilynn concedes that numerous items changed hands as a result of the divorce. Nonetheless, Emilynn urges that the $500,000 note specifically related to the Farm. She points out that at the time of their divorce, the Farm was appraised at $1,000,000 and, therefore, her half interest in it would equal $500,000. Trison responds that the $500,000 note represents an equalization factor not tied to any specific property. Trison notes that in an earlier draft of the divorce agreement, Emilynn would have received cash payments of $1,000,000 instead of $1,500,000.[2] The final draft of the divorce agreement reflects the latter sum because Max received more Lear Petroleum stock than previously agreed upon. Trison argues that "if the $500,000 is specifically attributable to anything, it is the reduction in the number of shares of the Lear Petroleum stock which Emilynn Woodard was to receive." The record also includes a deposition excerpt as part of Trison's summary judgment proof in which Emilynn testified that the cash payment of $1,500,000 was for community property, and not specially allocable to any particular asset. She also stated that she and Max intended to divide the community estate fifty-fifty. Emilynn primarily relies on three cases, McGoodwin, supra, Stapler v. Stapler, 720 S.W.2d 271 (Tex.App.—Fort Worth 1986, no writ), and Colquette v. Forbes, 680 S.W.2d 536 (Tex.App.—Austin 1984, no writ), to support her argument that she is entitled to an implied vendor's lien. In McGoodwin, the court found that an implied vendor's lien arose from a divorce agreement awarding the husband a particular piece of real estate, the husband's homestead, in consideration of payment to the wife of $22,500. McGoodwin, 671 S.W.2d at 881-82. Since the husband failed to pay the $22,500 as agreed, the wife was awarded a lien of an undivided one-half interest in the property. Id. at 882. In Stapler, the divorce decree awarded the wife real property and obligated her to assume responsibility for certain debts, including a debt to the Internal Revenue Service. Stapler, 720 S.W.2d at 272. The court held that the husband retained an implied vendor's lien although the divorce decree did not specify that the payment of *794 the debts was the consideration for the real estate. Id. The judgment obtained in a bench trial, where no findings of fact were filed, was supported by evidence that the husband would not sign the divorce agreement unless the wife assumed the debts and that "each gave things to the other in return for what they got under the decree." Id. The husband was allowed to foreclose on the implied vendor's lien so that the proceeds could be divided between the wife and the Internal Revenue Service. Id. at 271-72. In Forbes, the wife received the husband's interest in their home in return for an unsecured note due five years after the divorce or immediately upon the wife's remarriage or cohabitation with an unrelated adult male. Forbes, 680 S.W.2d at 537. The husband sued the wife for the amount due under the note when she cohabitated with an adult male. Id. at 537-38. The court held that an implied vendor's lien arose because the note and divorce agreement provided that the "`note is for the husband's ownership interest in [the house].'" Id. at 538. McGoodmn, Stapler, and Forbes involve divorce agreements involving a particular piece of property for which a spouse agreed to pay consideration, but failed to do so. In each of these cases, specific consideration was attributable to specific real estate. Here, the consideration of $1,500,000 was attributed to an equalization of values and to effect the community estate division. In this division, Emilynn also received personal property including stock, furniture, jewelry, and a car. She also received a home in Highland Park, and interest in Garland property. Max received a house in Glenlakes, real property in Colorado, the Farm, and personal property including stock, furniture, livestock, horses, a car, motorcycle, and jewelry. Of the $1,500,000 due to Emilynn, $500,000 was to be paid a year after the divorce or upon sale of the Farm, whichever event occurred first. The $500,000 was not attributable to ownership of the Farm—whether the Farm was sold or not, the $500,000 debt remained due. The sale of the Farm merely provided a way to accelerate the due date of the $500,000 debt. "It is well settled that a mere promise to pay a debt out of a particular fund does not alone constitute an assignment of the fund." White v. Cooper, 415 S.W.2d 246, 248 (Tex.Civ.App—Amarillo 1967, no writ). In this case, no specific consideration is attributable to specific real estate. There is no apportionment of the consideration between real and personal property. The divorce agreement specifies that Max "shall own, possess and enjoy, free from any claim of Wife, the property listed in Schedule 2" including the Farm. We hold that an implied vendor's lien cannot attach to the Farm in favor of Emilynn as a matter of law. The trial court erred in granting Emilynn's motion for summary judgment asserting her entitlement to a vendor's lien. Further, the trial court erred in denying Trison's motion for summary judgment because Trison has satisfied its burden of showing that there is no genuine issue of material fact and that it is entitled to judgment as a matter of law. Accordingly, we sustain Trison's first point of error. In view of our disposition of Trison's first point of error it is unnecessary to address the remaining points of error. The judgment of the trial court is reversed and judgment is rendered in favor of Trison. NOTES [1] The Honorable T.C. Chadick, Justice, Supreme Court of Texas, Retired, sitting by assignment. [2] The earlier version of the divorce agreement completely omits section 8.01(b).

720 F.2d 682 Meadv.Eby-Brown Co. of Joliet 81-2904 UNITED STATES COURT OF APPEALS Seventh Circuit 9/28/83 1 N.D.Ill. AFFIRMED

658 F.2d 1312 Peter Gabriel John McMULLEN, Petitioner,v.IMMIGRATION AND NATURALIZATION SERVICE, Respondent. No. 80-7580. United States Court of Appeals,Ninth Circuit. Argued and Submitted May 13, 1981.Decided Oct. 13, 1981. Bill Ong Hing, Nancy Howard, Lynn Sonfield San Francisco, Cal., for petitioner. Daniel E. Fromstein, Washington, D. C., for respondent. Petition from the Board of Immigration Appeals. Before CHOY, HUG and SCHROEDER, Circuit Judges. CHOY, Circuit Judge: I. Introduction 1 Peter Gabriel John McMullen, an alien, claimed that he should not be deported to the Republic of Ireland1 because he would be persecuted for his political beliefs if he returned there. The immigration judge agreed and granted McMullen's application for withholding of deportation. Upon appeal by the Immigration and Naturalization Service (INS), the Board of Immigration Appeals (the Board) reversed the decision of the immigration judge, concluding that McMullen had not shown sufficient likelihood of persecution. We grant McMullen's petition for review on the ground that the Board's decision was not supported by substantial evidence. II. Factual Background 2 The following facts are substantially undisputed: McMullen was born in Northern Ireland and reared in Great Britain. He is a Catholic of Irish descent, but he was not politically or emotionally involved with the Irish independence movement during his youth in Great Britain. He joined the British Army and eventually entered a paratrooper unit. McMullen was sent to Northern Ireland in 1969 as part of British peace-keeping efforts. 3 During the 1960's, the Catholic minority in British-controlled Northern Ireland became increasingly vocal in its civil rights claims. The Irish republican movement called for independence from Great Britain and unification of Northern Ireland and the southern Republic of Ireland. 4 McMullen began to feel that the British Army was anti-Catholic. He claims that he became personally aware of army torture of prisoners and of army plans to use armed force against unarmed civilian demonstrators in order to provoke and draw out an underground group, the PIRA. 5 The PIRA, or the Provisional Irish Republican Army, is an off-shoot of the para-military Irish Republican Army (IRA). These groups arose out of the republican movement. They are not officially supported by any government. They purport to protect the Catholic population from the British Army, and to work, with violence if necessary, toward the unification and independence of Ireland. The PIRA, also referred to as the "provisionals," formed in protest to the perceived inefficacy of the IRA. 6 When McMullen learned of the Army's plan to confront civilian demonstrators, he deserted the British Army and joined the PIRA. He participated in a bombing of army barracks, and became well known for his attempts to forestall the attack against the demonstrators. The confrontation in fact took place, and 13 civilians were killed in what became known as Bloody Sunday. 7 McMullen participated actively in PIRA operations until the group became, in his view, extremist, terroristic and out of touch with the civilian populace. In September of 1974, he formally resigned from the PIRA. The following month, McMullen was arrested by the Garda, or Republic of Ireland police, in connection with his past PIRA activities. He was imprisoned for three years, during which time he was held in the maverick wing, segregated from PIRA-member prisoners. 8 Upon his release in 1977, McMullen was asked to help the PIRA, but he declined to assist them. After repeated PIRA intimidation, including an incident in which he claims he was kidnapped at his place of employment and driven to a remote area, McMullen agreed to help. He occasionally housed PIRA members in his home and made trips to the United States, apparently to obtain guns. But when the PIRA ordered McMullen to plan and execute the kidnapping of an American bar owner, he refused. A PIRA court of inquiry reviewed McMullen's conduct, and, McMullen testified, a friend warned him that he would be murdered for his disobedience. McMullen then fled to the United States, using an assumed name to obtain a visa. When he arrived, he contacted the Bureau of Alcohol, Tobacco & Firearms, hoping to obtain asylum in exchange for sharing his knowledge of PIRA activities. He cooperated with the Bureau and with Scotland Yard investigators in the United States. 9 The INS then brought deportation proceedings against McMullen. McMullen testified at the proceedings, explaining that the PIRA was aware of his cooperation with authorities, and that he was considered a traitor who should be executed. McMullen submitted over 100 pages of exhibits consisting of newspaper and magazine articles, scholarly reports, and other publications documenting PIRA terrorist activities. The immigration judge found that McMullen was not deportable because "the Government of the Republic of Ireland is unable to control the activities of the PIRA and that if (he) were to be returned to that country he would suffer persecution within the meaning of the (United Nations) Convention, Protocol, and section 243(h) (of 8 U.S.C. § 1253(h))." The immigration judge further found that McMullen was not a security risk to the United States and that therefore deportation should be withheld. 10 On October 1, 1980, the Board of Immigration Appeals reversed, finding that McMullen had not shown a sufficient likelihood that he would suffer persecution upon deportation to Ireland. This petition followed. III. Issues The questions this court must answer are: 11 1. What is the appropriate standard of review of a Board of Immigration Appeals finding of no likelihood of persecution under the Refugee Act of 1980? 12 2. Was the Board's finding that McMullen did not show a likelihood of persecution supported by the evidence viewed under the appropriate standard of review? IV. Discussion 13 McMullen admits that he entered the United States illegally, and that but for the provisions of the Refugee Act of 1980, he would be deportable. The Government agreed to presume that the Act has retroactive effect. Thus the only issue below was whether or not McMullen was entitled to the protection of the Act, which reads in relevant part: 14 (h)(1) The Attorney General shall not deport or return any alien ... to a country if the Attorney General determines that such alien's life or freedom would be threatened in such country on account of race, religion, nationality, membership in a particular social group, or political opinion. 15 (2) Paragraph (1) shall not apply to any alien if the Attorney General determines that 16 (A) the alien ordered, incited, assisted, or otherwise participated in the persecution of any person on account of race, religion, nationality, membership in a particular social group, or political opinion; 17 (B) the alien, having been convicted by a final judgment of particularly serious crime, constitutes a danger to the community of the United States; 18 (C) there are serious reasons for considering that the alien has committed a serious nonpolitical crime outside the United States prior to the arrival of the alien in the United States; or 19 (D) there are reasonable grounds for regarding the alien as a danger to the security of the United States. 20 Refugee Act of 1980, § 243(h), 8 U.S.C. § 1253(h) (Supp. 1 1981) (hereinafter " § 243(h)"). 21 The elements necessary to withholding of deportation of McMullen are: 22 1. A likelihood of persecution; i. e., a threat to life or freedom. 23 2. Persecution by the government or by a group which the government is unable to control.2 24 3. Persecution resulting from the petitioner's political beliefs. 25 4. The petitioner is not a danger or a security risk to the United States. 26 The immigration judge found here all four of these elements. The Board found that the first two elements were not proved and therefore it did not reach the remaining two. The instant petition calls upon us to review only the Board's findings that McMullen was not likely to suffer persecution by the government of the Republic of Ireland or by the PIRA. A. Standard of Review 27 We must first determine the appropriate standard of review applicable to a Board finding that no likelihood of persecution exists under § 243(h). Because the statute was significantly amended in 1980, this question is one of first impression. 28 Prior to enactment of the present § 243(h), withholding of deportation was at the discretion of the Attorney General. The former section read: 29 The Attorney General is authorized to withhold deportation of any alien within the United States to any country in which in his opinion the alien would be subject to persecution on account of race, religion, or political opinion and for such period of time as he deems to be necessary for such reason. (Emphasis added.) 30 Immigration and Nationality Act, Pub.L. No. 82-414, § 243(h), 8 U.S.C. § 1253(h), 66 Stat. 212 (1952). Decisions under the former section were subject to very limited review. This court gave extreme deference to the Attorney General's decision, searching only for a lack of due process or an abuse of discretion, and refusing to apply substantial-evidence review to a Board finding of ineligibility for § 243(h) relief. See, e. g., Kasravi v. Immigration and Naturalization Service, 400 F.2d 675, 677 (9th Cir. 1968); Asghari v. Immigration and Naturalization Service, 396 F.2d 391, 392 (9th Cir. 1968); Namkung v. Boyd, 226 F.2d 385, 388-389 (9th Cir. 1955). 31 The INS argues that the abuse-of-discretion standard, which the Ninth Circuit previously applied in § 243(h) cases, remains applicable, and that therefore this court should defer to the Board's no-likelihood-of-persecution finding. McMullen, on the other hand, argues that the new, mandatory language of § 243(h) justifies replacing the abuse-of-discretion standard with the substantial-evidence standard. 32 We agree with McMullen. The role of the reviewing court necessarily changes when the charge to the agency changes from one of discretion to an imperative. In past cases, this court recognized that its limited role was a direct result of the discretionary language of the statute. In Kasravi v. INS, supra, we stated: 33 By finding that the petitioner is not "statutory eligible" for relief it might appear that the special inquiry officer was making a finding of fact based upon an evaluation of the record before him. If such a finding of fact were required by the statute, the decision of the Attorney General would be subject to review in order to determine whether such finding were supported by reasonable, substantial and probative evidence. Title 8 U.S.C. § 1105a(a)(4). However, Congress has made it abundantly clear by the express wording of the statute that no such finding is contemplated or required. It left to the broad discretion of the Attorney General the authority to suspend deportation in such cases .... (Emphasis added.) (Footnote omitted.) 34 400 F.2d at 677. The new § 243(h) removes the absolute discretion formerly vested with the Board. A factual determination is now required, and the Board must withhold deportation if certain facts exist. This change requires judicial review of the Board's factual findings if the 1980 amendment to § 243(h) is to be given full effect. Agency findings arising from public, record-producing proceedings are normally subject to the substantial-evidence standard of review. See Citizens to Preserve Overton Park, Inc. v. Volpe, 401 U.S. 402, 414, 91 S.Ct. 814, 822, 28 L.Ed.2d 136 (1971). The INS does not cite any portion of the legislative history of the 1980 amendment which suggests that, contrary to normal principles of administrative law, § 243(h) factual findings are discretionary. 35 We conclude that factual findings under § 243(h) are subject to review under the substantial-evidence test. Because this conclusion follows from legislative changes in the section it does not conflict with prior Ninth Circuit precedent and, contrary to the argument of the INS, it is not necessary to consider this question en banc. Indeed, our prior cases recognized that the substantial-evidence test applies when agency factual findings are required. See Kasravi v. INS, 400 F.2d at 677. 36 Application of the substantial-evidence test does not mean, of course, that the reviewing court must review the facts de novo. The principle of deference to agency expertise is still applicable, and our inquiry is limited to a review of the record to determine whether the agency's determination is substantially supported. B. Likelihood of Persecution 37 Having determined the appropriate standard of review, we now ask whether the Board's finding of no likelihood of persecution in McMullen's case was supported by substantial evidence. Our review of the record convinces us that it was not. See Calhoun v. Bailer, 626 F.2d 145, 148 (9th Cir. 1980) ("the substantial evidence test is quintessentially a case-by-case analysis requiring review of the whole record"). 38 Evidence supporting McMullen's claims consisted of his lengthy and detailed personal testimony, both written and delivered in hearings under direct and cross-examination; letters from family members; newspaper and magazine articles; book excerpts; investigative reports; and transcripts of related proceedings. The evidence may be categorized according to the elements McMullen sought to prove: first, that the PIRA systematically tortures and murders traitors; second, that McMullen is perceived as a traitor; and, finally, that the government of the Republic of Ireland is not able to control the PIRA. McMullen also attempted to prove that the Republic of Ireland through its police force the Garda would persecute him directly as a former PIRA member. 39 The INS attacks McMullen's case by noting, correctly, that the burden of proof was upon McMullen to prove a likelihood of persecution. The Board found that McMullen's personal testimony was not credible because it was self-serving, and that the articles and reports generally documenting PIRA terrorism were irrelevant because they did not refer specifically to persecution directed at McMullen. The INS did not submit evidence of its own which indicated that any of McMullen's exhibits were inaccurate, nor did it submit independent evidence showing McMullen's lack of credibility. 40 McMullen concedes that the burden is on the alien to prove likelihood of persecution and submits that he met this burden. We agree. 41 We begin with a review of McMullen's testimony that the PIRA has specifically threatened his life, that he resigned without permission from the PIRA and refused to carry out its orders, that he has given information about the PIRA to the United States Government and to Scotland Yard, and that the PIRA considers him a traitor. This testimony is supported by the record. McMullen was for a time in protective custody of the Bureau of Alcohol, Firearms and Tobacco, and Scotland Yard agents were present at his initial deportation proceedings. McMullen's activities, including that which would classify McMullen as an informer, have been reported by the press in the United States and abroad.3 When McMullen was imprisoned in the Republic of Ireland, he was segregated from PIRA prisoners, and the public record in McMullen's extradition proceedings further characterizes McMullen as a PIRA defector. The INS points to one article out of the many submitted by McMullen which cites an unidentified IRA source's denial of "interest" in McMullen. The general thrust of this San Francisco Chronicle article supports McMullen's story that he defected from the PIRA, and it states that the PIRA considers McMullen a "criminal element." At best, the article can be characterized as ambiguous. 42 The INS submits no evidence contradicting McMullen's claim that he refused to carry out the PIRA's orders, and indeed, it never seriously disputed the truth of McMullen's claimed history of PIRA association and defection. The INS argues simply that McMullen's testimony is inherently unbelievable not because it is internally inconsistent or lacking in the ring of truth but because a petitioner in a deportation case is motivated to lie in support of his own case. We note that the immigration judge, who heard McMullen testify and observed his demeanor, found McMullen's testimony credible. When the immigration judge and the Board conflict, we may properly consider the judge's finding. Cf. Universal Camera Corp. v. NLRB, 340 U.S. 474, 496, 71 S.Ct. 456, 468, 95 L.Ed. 456 (1951) (recognizing that in applying the substantial-evidence test in the labor context that "evidence supporting a conclusion may be less substantial when an impartial, experienced examiner who has observed the witnesses and lived with the case has drawn conclusions different from the Board's"). We examine also the nature of the sworn testimony its considerable length; its reference to specific dates, places, incidents, details, and motivations; and its consistency under cross-examination which indicates that McMullen is either an elaborate and skilled liar, or that he was telling the truth. While our role is not to make an independent finding of credibility, we must review McMullen's evidence to determine whether the Board's rejection of it was reasonably supported. See Carter Products Inc. v. Federal Trade Commission, 268 F.2d 461, 493 (9th Cir.), cert. denied, 361 U.S. 884, 80 S.Ct. 155, 4 L.Ed.2d 120 (1959) (reviewing court applying substantial-evidence test must consider evidence contravening the agency's determination). 43 Given the nature of McMullen's testimony, the immigration judge's finding of credibility, and the absence of any significant contradictory evidence, we are convinced that McMullen met his burden of showing that the PIRA considers him a traitor, and that any finding to the contrary would be unsupported. 44 We next consider McMullen's documentation of PIRA practices. McMullen's exhibits4 confirm that the PIRA regularly maims and executes informers and persons it considers disloyal. The exhibits specify names, dates and places of these incidents which clearly indicate a pattern in the PIRA's activity. This evidence, which is nowhere contradicted in the record, indicates that the PIRA is a clandestine, terroristic organization which is not subject to government control. Evidence of a pattern of uncontrolled PIRA persecution of defectors is relevant in determining whether McMullen is likely to face persecution upon deportation. 45 We consider now the remaining reasons submitted by the INS for rejecting McMullen's claim. The INS argues that since McMullen chose deportation to the Republic of Ireland over deportation to the United Kingdom in earlier proceedings, he must not have had a genuine fear of persecution in the Republic of Ireland. McMullen testified that as a tactical matter he chose Ireland over England where he would face certain persecution. His first choice, however, was always to stay in the United States and to seek protective custody. We agree that in light of the overwhelming evidence supporting McMullen's claims, the designation of the Republic of Ireland in earlier proceedings has little or no probative value. 46 The INS further notes that McMullen's family apparently resides unharmed in the Republic of Ireland. McMullen's exhibits indicate that the PIRA operates under its own well-developed code of "justice" and that it is very specific in its choice of victims, with particular punishments reserved for particular offenses.5 There is no evidence that family members of informers are also attacked. The fact that McMullen's family is safe does not refute McMullen's claims. 47 Finally, the INS would discount the letters from family members as prompted by McMullen. There is no independent evidence that the letters are false, and they do indicate that McMullen spoke of the threats to his life prior to his arrival in the United States; i. e., that his story is not a recent fabrication. While the inference exists that family members would tend to write whatever they believe will help McMullen, in a case of this sort it is difficult to imagine what other forms of testimony the petitioner could present other than his own statement and those of family members. Members of the underground PIRA obviously would not testify or otherwise make public their intentions, and McMullen was not likely to share his fears and plans of escape with many people. The PIRA's terrorist practices are also likely to discourage testimony from knowledgeable and sympathetic third parties, such as the friend who McMullen claims told him of the PIRA's plan to execute McMullen. Further, even if the letters are ignored, we find that the remainder of McMullen's uncontroverted evidence is sufficient to prove his case. 48 The Board rejected McMullen's evidence without suggesting what further proof it would require in a case of alleged persecution by a clandestine, terrorist group. If McMullen, a well known former PIRA member with an extensively documented claim of probable persecution, failed to present sufficient proof, then it appears close to impossible for anyone in McMullen's position to make out a § 243(h) case. Cf. United Nations High Commissioner for Refugees Handbook on Procedure and Criteria for Determining Refugee Status, P 196, p. 47 (1979) (noting that refugees fleeing political persecution are often limited in the evidence they can submit to support their claims). 49 We conclude that the Board's reasons for rejecting McMullen's extensive and persuasive testimony and exhibits are unconvincing, and that the Board's decision was not supported by substantial evidence on the record viewed as a whole. V. Conclusion 50 We hold that a Board finding of no likelihood of persecution under § 243(h) is subject to review to determine whether it is supported by substantial evidence. The Board's finding here does not meet this test. 51 The question of whether McMullen's break from the PIRA because of philosophical differences represents a political belief within the meaning of § 243(h), and the question of whether McMullen represents a danger to the United States are not presently before us. We decide only that insofar as the question of likelihood of persecution by the PIRA6 is concerned, McMullen's petition is GRANTED. 1 McMullen claims citizenship in both the United Kingdom and the Republic of Ireland, but the Board decision under review here deals only with the question of deportability to the Republic of Ireland. The parties apparently agree that the INS is free to bring subsequent proceedings for deportation to the United Kingdom should it fail in the instant case 2 The Government concedes that persecution within the meaning of § 243(h) includes persecution by non-governmental groups such as the PIRA, where it is shown that the government of the proposed country of deportation is unwilling or unable to control that group 3 The record contains, inter alia, specific references to McMullen's PIRA-related activities in the Hibernia Review, the San Francisco Sunday Examiner & Chronicle, and the Irish Times 4 McMullen's extensive exhibits contain, inter alia, reports of PIRA executions and torture of informers and opponents from The London Sunday Times, Time Magazine, The Informer, Newsweek, The Los Angeles Times, the New York Times; a study by the Institute for Military Studies, University of Lancaster, England; the Amnesty International reports on the Republic of Ireland; and Deutsch and Magowan, Northern Ireland 1968-74, A Chronology of Events. The INS did not challenge the accuracy of these reports 5 For example, informers are "knee-capped" or killed; women guilty of fraternization are tarred and feathered. Knee-capping is crippling by shooting into or crushing the victim's knees 6 We need not and do not reach the question of whether the Board's rejection of McMullen's alternate claim that he will be persecuted by the official Republic of Ireland police the Garda or Gada is supported by substantial evidence

404 P.2d 125 (1965) 75 N.M. 295 Charles A. COOPER, John H. McDowell, Thomas Hall, Clair Miller, L.E. Meyer, Otis Campbell, Trustees of the New Mexico Pipe Trades Welfare Trust Fund, Plaintiffs-Appellees, v. ALBUQUERQUE NATIONAL BANK, a banking corporation, Defendant-Appellant. No. 7540. Supreme Court of New Mexico. July 12, 1965. *126 Knight, Sullivan & Hurley, Albuquerque, for appellees. Modrall, Seymour, Sperling, Roehl & Harris, Daniel A. Sisk, Albuquerque, for appellant. CHAVEZ, Justice. This is an appeal from a judgment in favor of plaintiffs-appellees in the sum of $52,000. Appellees filed suit alleging that from October 14, 1953, to March 15, 1958, certain checks drawn in favor of appellees in the total amount of $119,551.35 were paid by appellant Bank on forged, unauthorized, unlawful, fraudulent, or irregular endorsements; that appellees had no knowledge thereof until October 28, 1958, but that appellant knew or should have known thereof prior to said date. Appellant's answer denied both the alleged amount of such checks and that the endorsements on such checks were forged, unauthorized, unlawful, fraudulent or irregular. Appellant also denied that it had knowledge of any such checks having been wrongfully endorsed and that appellees did not have knowledge thereof. As a separate and alternative defense, appellant alleged that appellees were estopped from maintaining the action because the conduct of appellees and their predecessors was the proximate cause of their loss; that appellees' loss resulted proximately from their own negligence; that appellees' loss resulted solely and proximately from the breach by appellees or their predecessors of their fiduciary duties as Trustees of the New Mexico Pipe Trades Welfare Trust Fund; and that appellees were guilty of laches. Appellant further alleged, as an alternative defense, that it had no knowledge of any breach of fiduciary obligation to appellees by any *127 fiduciary of appellees, and that it had no duty to make inquiry in that regard. The parties stipulated the following facts: "1. That during the period from October 14, 1953, to March 13, 1958, various persons and firms, for valuable consideration, executed checks drawn upon various banks, payable to New Mexico Pipe Trades Welfare Trust Fund, which checks were delivered to John A. Peke, who was Administrator of said trust and who was also General Manager of Associated Plumbing, Heating and Piping Contractors of New Mexico, Inc. "2. That the said John A. Peke endorsed said checks by rubber stamp endorsement in the following form: `NEW MEXICO PIPE TRADES WELFARE TRUST FUND 118 Cedar N.E. Albuquerque, N. Mex.' which endorsement was immediately followed by another stamp endorsement in the following form: `Pay to the Order of ALBUQUERQUE NATIONAL BANK Albuquerque, New Mexico FOR DEPOSIT ONLY All prior endorsements guaranteed A-254 Associated Plumbing A-254 Heating & Piping Contractors of New Mexico, Inc. 118 N. Cedar.' That attached hereto is a copy of a check handled and endorsed in the aforementioned manner. "3. That the said John A. Peke presented the said checks to the Albuquerque National Bank for deposit in the account of Associated Plumbing, Heating and Piping Contractors of New Mexico, Inc., and said checks were deposited in said account. "4. All facts heretofore admitted in the pleadings and in the interrogatories are incorporated herein and made a part hereof by reference. "5. That the allegations of the complaint and answer herein are limited to those checks drawn, endorsed and deposited in the manner and form set forth herein, the total sum of which checks has not at this time been established." The trial court found that appellees are trustees of the New Mexico Pipe Trades Welfare Trust Fund, a legal entity established for the purpose of administering a trust for the benefit of certain designated persons employed by members of the Associated Plumbing, Heating and Piping Contractors of New Mexico, Inc., hereinafter referred to as the "Association;" that John A. Peke was general manager of the Association and administrator of the New Mexico Pipe Trades Welfare Trust Fund, hereinafter referred to as the "Trust Fund," which two legal entities maintained and operated a joint office for the purpose of transacting the business of both organizations; that the Association administered the Trust Fund and paid all bills and salaries of employees of the Trust Fund, for which administrative services the Association was paid a certain agreed percentage of the receipts of the Trust Fund; that the members of the Association were required to pay, weekly or monthly, certain sums to the Trust Fund to be used for Trust Fund purposes; that the following written contracts were entered into between appellees and defendant Bank: "Signature card dated November 30, 1953, containing the following: `RESOLVED, that xxxxx Two Signatures Required, President ______, *128 Vice-President, or Harold Troyer, Secretary John Peke, Administrator of this corporation may, and they are hereby authorized to sign checks and drafts for and on behalf of this corporation, and that each of them be and is hereby authorized to endorse for and on behalf of this corporation, checks and other instruments for deposit, encashment or otherwise; and that the Albuquerque National Bank, Albuquerque, New Mexico, be, and it is hereby authorized to pay on account of this corporation any and all checks and other instruments signed and/or endorsed in accordance herewith.' "Signature card dated January 30, 1956, containing the following: `RESOLVED, that either _______, President, or ________, Vice-President, or Thomas W. Hall, Secretary-Treasurer, Secretary, John Peke, Administrator of this corporation may, and they are hereby authorized to sign checks and drafts for and on behalf of this corporation, and that each of them be and is hereby authorized to endorse for and on behalf of this corporation, checks and other instruments for deposit, encashment or otherwise; and that the Albuquerque National Bank, Albuquerque, New Mexico, be and it is hereby authorized to pay on account of the corporation, any and all checks and other instruments signed and/or endorsed in accordance herewith.' "This Resolution was amended by the following notation under Special Instructions: `2 (Two) Signatures required.'" that Thomas W. Hall, the trustee whose name appears on the Trust Fund signature card dated January 30, 1956, never endorsed any of the Trust Fund checks, and that none of the persons whose names appear on either of the two signature cards ever endorsed by signature any of the Trust Fund checks; that the actual authority of John A. Peke was expressed as per the written instructions of appellees to appellant in that two (2) signatures were required for encashment of any checks or the endorsement thereof; that John A. Peke did not have the authority to endorse the checks payable to the Trust Fund which he presented to appellant for deposit in the Association's account, and that the deposit thereof by appellant was contrary to the agreement of the parties as evidenced by the signature cards existing as legal contracts between the parties; that by virtue of the signature cards furnished to appellant by appellees, appellant had actual knowledge that John Peke did not have authority to endorse the checks payable to the Trust Fund and presented to appellant for deposit into the account of the Association; that the accounting firm now known as Robertson and Summers was employed by the Trust Fund to help set up a bookkeeping system which included a systematic journal to reflect under different headings the various receipts, deposits and disbursements of the Trust Fund, and that said journal admitted in evidence herein, was kept in the joint office of the Trust Fund and the Association and was available to appellees at any time; that at meetings of appellees it was the custom and practice that minutes of the previous meeting were read, approved and signed by the chairman, and that copies of said minutes admitted in evidence constitute the complete, authentic and accurate minutes of the meetings of appellees during all times material hereto; that the monthly bank statements admitted in evidence, pertaining to the checking account of the Trust Fund throughout the period in question and furnished by appellant to appellees, reflect that all of the receipts of the Trust Fund, as shown by its journal, were not being deposited in its said checking account in appellant Bank; that appellees made demand upon appellant for the amount due to them for checks received by *129 appellant for the benefit of appellees, but withheld from appellees by appellant, which demand was refused by appellant; and that appellant wrongfully withholds from appellees the amount of the judgment that has been stipulated herein in the amount of $52,000. Under its first point appellant contends that John A. Peke had actual authority from the Trust Fund to deposit a part of the receipts of the Trust Fund directly to the account of the Association, and appellant had no duty to make inquiry with regard to breach by Peke of his fiduciary obligations to the Trust Fund and is not chargeable with notice of any such breach. Appellant argues that the evidence clearly establishes that Peke had actual authority from appellees to deposit part of the receipts of the Trust Fund directly to the Association's account, and that express authority was given by the minutes of the November 20, 1953, meeting of the Trust Fund, which are in part as follows: "Meeting called to order at 2 p.m. by Chairman Smith; those present were Mark Gray, Harry Driver, John McDowell, Charles Cooper and Earl Smith. "* * * "The manager asked for permission to engage T.D. Smith of the firm of Robertson & Drummond to help in setting up an accounting system and a method of establishing individual cards for those insured. Motion by Gray that permission be granted, seconded by Cooper, to the Manager to make arrangements with Mr. Smith to not only install, but to supervise the system, help the Manager in any way possible in combining the Trust Fund with the activities of the Association, that it is to be understood that John Peke is, of course, an employee of the Association and that his services as Manager of the Trust are to be construed as a Manager of another program of the Association, carried. "Gray brought up for discussion the problem of the Association being paid for the operation of the Trust in that it might jeopardize the Association's tax exemption status. Peke called Smith by phone and he promised to have an answer for the next meeting. Gray offered a motion that the Manager and T.D. Smith be given the authority to get legal advice and to establish whatever method is necessary in making payment or depositing of funds to the Association that are due it as custodian of the Trust Fund, protecting the Association's tax status that either the Manager or Mr. Smith, who is the Association auditor, make necessary deposits, this in case the Manager should be out of town, seconded by Cooper, carried. "Chairman Smith asked the Manager, if in his opinion, the work of handling the Trust would require more than half of his time. Peke suggested that as the Trust would grow that it might require more time and everyone should keep in mind that it would also take the full time of one girl bookkeeper. Gray stated that Peke was aware that the custodianship of the Trust Fund belonged to the Association and should he leave the employ of the Association, he could not take the Trust Fund custodianship to some other office or organization. Driver suggested that this being true, the Association should pay all bills and salaries, thus saving social security and employment taxes, that this would solve the problem of jeopardizing the Association's tax exemption question, just deposit whatever monies are due the Association directly to the Association's bank account and avoid any misunderstanding, then there would be no question of payment for services, rentals or expenses. Trustees agreed that this was a good proposal and that the *130 manager should follow the suggestions as outlined. "* * * "Meeting adjourned by the Chairman, 5:30 p.m. "/s/ Earl E. Smith Chairman" From the above minutes it is apparent that on November 20, 1953, Peke was given authority to deposit whatever monies were due the Association directly to the Association's account. However, no method is set forth in the minutes stating how Peke was to make the deposits; instead, the minutes specifically state that Peke and T.D. Smith were given authority to "establish whatever method is necessary in making payment or depositing of funds to the Association." Appellant argues that Peke's breach of his fiduciary duties occurred when he deposited more of the Trust Fund receipts than they in fact owed to the Association. With regard to Peke's authority in this situation, we quote from Restatement of the Law, Agency 2d, Ch. 1, § 7(c), p. 29, Express and implied authority, as follows: "* * * "It is possible for a principal to specify minutely what the agent is to do. To the extent that he does this, the agent may be said to have express authority. But most authority is created by implication. * * *" and from Ch. 3, § 35, p. 123, When Incidental Authority is Inferred: "Unless otherwise agreed, authority to conduct a transaction includes authority to do acts which are incidental to it, usually accompany it, or are reasonably necessary to accomplish it." and from Ch. 3, § 76, p. 195, When Authority is Inferred: "Unless otherwise agreed, an agent is not authorized to execute or to endorse negotiable paper unless such execution or endorsement is usually incident to the performance of the acts which he is authorized to perform for the principal." In 37 A.L.R.2d, p. 461, we find the following: "From an a priori standpoint it is difficult to see how the authority of an agent to indorse commercial paper can arise from any source other than (1) actual authority, or (2) apparent or ostensible authority. "When a principal expressly authorizes his agent to indorse commercial paper, there would seem to be little question that an actual authority is involved. And, it would seem that when the principal gives the agent certain duties or responsibilities from which it may be inferred that he intended the agent to have the authority to indorse, an actual authority is intended. The difference between the two situations appears to be one of degree, rather than one of kind." From the authorities quoted above we are of the opinion that on November 20, 1953, Peke was given the necessary authority to endorse the checks payable to the Trust Fund, the endorsement being necessarily incidental to his authority to make the deposits in the Association's account. Appellees contend, however, that this authority was revoked or superseded by the contractual transactions, i.e., by both signature cards, specifically the one dated November 30, 1953, and the one dated January 30, 1956. There is no dispute that the subsequent signature cards signed by the trustees and officers were contractual obligations, and that both cards are identical in form and substance except for the signatures required, such difference being brought about by a change in appellees' officers. Since the signature card agreements were entered into after the aforementioned minutes, one on November 30, 1953, and the other on January 30, 1956, the dates during the period that Peke was depositing incorrect amounts to the benefit of the Association, appellees argue that the signature cards contained "exclusively" *131 the only signatures which appellant could recognize as authorized to make the deposits. Appellees argue that, since none of the signatures on the signature cards were used in making the deposits, appellant wrongfully cashed the checks and is liable to appellees for the stipulated amount. Appellees cite no direct authority to support their statement that the signature cards revoked or superseded the authority previously given to Peke to deposit checks made out to the Trust Fund to the Association's account. In the absence of any authority to support this contention and in view of the facts hereinafter set forth, we are of the opinion that Peke had the necessary authority, at all material times to the issue presented, to deposit Trust Fund checks directly to the Association's account. We find no evidence and none has been called to our attention that Peke's authority was ever revoked or superseded. Furthermore, it is clear that the trustees feared that the avowed purpose of avoiding the loss of the Association's tax exempt status would have been defeated, had all of the receipts of the Trust Fund been first deposited in its own account and then paid to the Association for the management services earned by the Association. In Glens Falls Indemnity Co. v. Palmetto Bank (W.D.S.C. 1938), 23 F. Supp. 844, the court discussed the reasons for and the effect of signature cards in bank transactions. This excellent opinion also disposes of appellees' contention in the instant case that appellant failed to follow reasonable banking standards by depositing the checks which were endorsed only by means of a rubber stamp. In the Glens Falls case one C.L. Link, Jr. embezzled $15,840.80 from Watts Mills, a corporation, by endorsing checks payable to Watts Mills and cashing them himself. Link was the secretary, assistant treasurer and the active executive in charge of the business and affairs of the mill. Defendant Bank had on file a signature card with Link's name and the name of the president of the company stating "either signature and only one signature necessary." Link embezzled the funds by endorsing the checks with a rubber stamp and receiving the money from the bank. The court decided the issue in favor of the bank, despite plaintiff's protestations that, because the signature card required a signature of either Link or the president, the bank was negligent in cashing checks which were endorsed with a rubber stamp which, not being a signature, obviously did not comply with the provisions of the signature card. The court stated: "But plaintiff contends that the signature card was an express limitation of authority of which the bank had actual notice. It is true that where a party dealing with the agent knows the extent of the agent's powers, the principal is not bound by an act beyond the scope of the express authority conferred. It is always competent for a principal to limit the authority of his agent, and if such limitations have been brought to the attention of the party with whom the agent is dealing, the power to bind the principal is defined by the limitation. The mill did not notify the bank of any limitation of authority placed upon Link or Henry. The board of directors by resolutions did not limit the manner in which Link should cash or deposit checks. The by-laws of the corporation contained no such provisions. Link and Henry signed the signature card at the request of the bank. They, by so doing, did not attempt to limit the authority of either, but merely furnished the bank with their signatures as officers of the mill who were authorized to do business with the bank. The signature card did not, nor did it purport, to state the extent of the authority of either Henry or Link in dealing with the bank. "A signature card is executed for the benefit of the bank to help detect forgeries, to obtain the signatures of the parties authorized to draw checks on the account at the bank and to ascertain *132 what persons are authorized to check on the account. In this case it served a twofold purpose (1) it was to obtain the authorized signatures of the officers with whom the bank was empowered to do business, and (2) it carried by implication, at least, a representation that the individuals whose signatures were signed thereto were the authorized agents of the mill to transact any business with the bank. "The signature card is what its name imports, a card containing authorized signatures. It does not say that that is the only way in which the payment of the funds on the account could be made, or the transaction of other business on the account could be handled. Henry could have stamped a check `Watts Mills by R.E. Henry, President and Treasurer' and lawfully received the cash for Watts Mills without signing his name. Link could have done likewise and rightfully received the cash for the mill. "If plaintiff's contention is correct, then the rubber stamp indorsement `For deposit account of Watts Mills, Laurens, S.C. — C.S. Link, Jr., Assistant Treasurer' was not within the limitations of the signature card, because it was not signed by either Link or Henry; it was not, therefore, an authoritative restrictive indorsement. If this contention of plaintiff is sound, the rubber stamp indorsement was a nullity. I do not construe the signature card to mean that no business could be transacted with the bank without the signature of either Link or Henry. If this were true no money could have been deposited in the bank unless some instrument were signed by one or the other. If Link received a check payable to Watts Mills and deposited this check, this would constitute a transaction of business on the mill's account with the bank. He could have done this without signing anything." The Glens Falls case was affirmed by the fourth circuit court of appeals, 104 F.2d 671, stating: "The point is made that the authority of Link must be held limited by the signature card filed with the bank and that the cashing of the checks was unauthorized because they were not indorsed in the handwriting of Link and in the form set forth in the signature card. We think this contention entirely without merit. The purpose of the signature card was to prevent forgeries and to indicate to the bank what officers of the mill were authorized to draw checks against its account or transact other business with the bank. It was in no sense a limitation upon the power of the mill's officers. As we have seen, the cashing of the checks by Link was within his authority; and there is no question as to the fact that he himself indorsed and cashed them. To hold that the bank is not protected in paying funds to an officer of a corporation authorized to receive them, merely because such officer does not indorse the instrument upon which collection is made in a particular form, would be carrying technicality to an extreme not warranted by any decision of which we have knowledge." Brady on Bank Checks, 2d Ed., § 48, Form of indorsement, p. 73, states: "* * * a rubber stamp indorsement is valid and sufficient to transfer title to the instrument indorsed, when made by one having authority, * * *." Appellees cite Industrial Plumbing & Heating Supply Co. v. Carter County Bank, 25 Tenn. App. 168, 154 S.W.2d 432, for the opposite conclusion than that reached in the Glens Falls case. That case is distinguishable from the instant case because the employee, the company's bookkeeper, had no authority to endorse checks and no issue of actual authority was presented in that case. In the Industrial Plumbing & Heating case the court said that the bank cannot establish *133 a custom and confer apparent authority upon an unauthorized agent, by recognizing the unauthorized agent's act over a period of time and then rely upon this custom as conferring apparent authority in the absence of knowledge of the custom to the principal. A further point arises from the fact that, in the instant case, the signature card contracts stated, in addition to the wording hereinbefore set out, that: "Below will be found duly authorized signatures which are to be recognized in the payment of funds or the transaction of other business on this account, and all rules and regulations of the Bank are hereby subscribed to." In the fact situation before us there was no transaction of business with regard to the account referred to in the signature cards. The checks were payable to the Trust Fund but were never deposited in the Trust Fund's account. The transaction actually bypassed the Trust Fund account and went directly to the Association's account. The signature cards were meant to cover transactions on the Trust Fund's account. The Authority given to Peke to deposit checks directly to the Association's account covered only those transactions. The minutes of the November 20, 1953, meeting and the signature cards were entirely compatible with each other because they covered different situations. Appellees argue that Chairman Smith did not sign the minutes of the meeting until Peke brought in a bundle of old minutes for his signature and that he signed them in a hurry. Appellees submitted no evidence to show that the November 20, 1953, minutes were in the bundle that Smith signed, but they rely on an inference that the November 20, 1953, minutes were included in the bundle signed by Smith, since Smith did not remember the matters discussed in the November 20, 1953, minutes. Because of this appellees contend that the minutes of the November 20, 1953, meeting were at the very least tainted. Appellees' contention is without merit because the trial court found: "19. That the copies of the minutes of the Pipe Trades Trust Fund admitted in evidence herein constitute the complete, authentic and accurate minutes of the meetings of the trustees of the Pipe Trades Trust Fund during all times material hereto." Appellees have not cross-appealed from the trial court's decision and the rule is that findings of fact unfavorable to appellee, not attacked by cross-appeal, must stand. Desmet v. Sublett, 54 N.M. 355, 225 P.2d 141. Sections 33-1-1 to 33-1-12, N.M.S.A., 1953 Comp., constitute the Uniform Fiduciaries Act of New Mexico. Section 33-1-4 provides in part: `* * * if any negotiable instrument payable or endorsed to his principal is endorsed by a fiduciary empowered to endorse such instrument on behalf of his principal, the endorsee is not bound to inquire whether the fiduciary is committing a breach of his obligation as fiduciary in endorsing or delivering the instrument, and is not chargeable with notice that the fiduciary is committing a breach of his obligation as fiduciary unless he takes the instrument with actual knowledge of such breach or with knowledge of such facts that his action in taking the instrument amounts to bad faith. * * *" The Uniform Fiduciaries Act expressly includes an "agent" in its definition of "fiduciary." Section 33-1-1, supra. In view of our decision that Peke had authority to deposit checks made out to the Trust Fund directly to the Association's account, and in view of §§ 33-1-1 and 33-1-4, supra, we hold that the lower court's decision was incorrect in holding that appellant is liable for Peke's deposits of more than the amount due to the Association. Appellees contend that appellant had actual notice of Peke's breach of his authority because of the signature cards signed for *134 the Trust Fund. In view of our holding that Peke had authority to make the deposits, regardless of the signature cards, and there being no further allegations or evidence of any knowledge on the part of appellant which would amount to bad faith, it follows that appellant was not put upon inquiry as to the amount Peke was authorized to deposit, and we hold that appellant is not responsible for the amount deposited by Peke which exceeded what he was authorized to deposit. Compare Transport Trucking Company v. First National Bank, 61 N.M. 320, 300 P.2d 476. The judgment of the district court is reversed and remanded with direction to set aside the judgment heretofore entered and enter a judgment dismissing appellees' complaint. It is so ordered. CARMODY, C.J., and MOISE, J., concur.

UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 07-7677 LEON JACKSON, JR., Petitioner - Appellant, v. AL HAYNES; KIM WHITE, Regional Director Mid-Atlantic Region; HARRELL WATTS, Respondents - Appellees. Appeal from the United States District Court for the Northern District of West Virginia, at Martinsburg. John Preston Bailey, Chief District Judge. (3:06-cv-00091-JPB) Submitted: July 22, 2008 Decided: July 24, 2008 Before WILKINSON, MOTZ, and SHEDD, Circuit Judges. Affirmed by unpublished per curiam opinion. Leon Jackson, Jr., Appellant Pro Se. Helen Campbell Altmeyer, Assistant United States Attorney, Wheeling, West Virginia, for Appellees. Unpublished opinions are not binding precedent in this circuit. PER CURIAM: Leon Jackson, Jr., a federal prisoner, appeals the district court’s order accepting the recommendation of the magistrate judge and denying relief on his 28 U.S.C. § 2241 (2000) petition. We have reviewed the record and find no reversible error. Accordingly, we affirm for the reasons stated by the district court. Jackson v. Haynes, No. 3:06-cv-00091-JPB (N.D.W. Va. Oct. 2, 2007). We dispense with oral argument because the facts and legal contentions are adequately presented in the materials before the court and argument would not aid the decisional process. AFFIRMED - 2 - 

337 F.3d 175 Randolph PARSAD, Petitioner-Appellant,v.Charles GREINER, Superintendent, Sing Sing Correctional Facility, Eliot Spitzer, Attorney General of New York, Respondents-Appellees. Docket No. 02-2275. United States Court of Appeals, Second Circuit. Argued: March 4, 2003. Decided: July 21, 2003. COPYRIGHT MATERIAL OMITTED Lawrence T. Hausman, The Legal Aid Society, New York, N.Y. for Petitioner-Appellant Randolph Parsad. Anne C. Feigus, Assistant District Attorney, Kings County District Attorney's Office (Charles J. Hynes, District Attorney, and Leonard Joblove and Victor Barall, Assistant District Attorneys, on the brief), Brooklyn, N.Y. for Respondents-Appellees. Before: McLAUGHLIN, JACOBS, POOLER, Circuit Judges. POOLER, Circuit Judge. 1 Randolph Parsad ("petitioner") appeals from the March 29, 2002 order of the United States District Court for the Eastern District of New York (Carol Bagley Amon, District Judge) denying his petition for a writ of habeas corpus, pursuant to 28 U.S.C. § 2254. We granted a certificate of appealability to determine whether the state court erred in holding that the admission of certain inculpatory statements did not violate petitioner's rights under the Fifth Amendment and Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966). For purposes of this appeal, we assume that petitioner was in custody when he made his initial, pre-Miranda statements and therefore assume that the detectives should have administered Miranda warnings earlier than they did. We hold, however, that petitioner's subsequent statements, which followed properly administered Miranda warnings, were both voluntary and cumulative of his initial statements. On this basis, we affirm the district court's decision. BACKGROUND 2 On the morning of June 5, 1994, in response to a 911 call, police officers discovered the severely beaten body of Krzystof Minicz at an abandoned construction site. Detective Jerome Geiger, who was assigned to investigate the case, learned that Minicz was a homeless man who frequented the construction site with two other homeless men, petitioner and Robert James. Upon locating petitioner and James, who were then drinking beer and rum, Detective Geiger and three other officers identified themselves and indicated that they wished the two men to come to the 63rd Precinct station. Petitioner and James stood and walked to the officers' vehicles without speaking. The officers then drove to the station, and upon arriving at approximately 5:50 p.m., they escorted petitioner and James to separate rooms. About ten minutes later, Detective Geiger told petitioner about the investigation and asked whether he knew Minicz. Petitioner responded that "he didn't want to talk about it [and that] he didn't want to say anything." Detective Geiger then asked petitioner whether he made the 911 call, and petitioner denied making the call. Geiger testified, however, that petitioner had identified himself by name during the 911 call. 3 At that point, Detective Geiger left petitioner alone, uncuffed, in the unlocked squad room. The detective returned between 6:30 p.m. and 6:45 p.m. and subsequently gave petitioner coffee and food. Detective Geiger testified that petitioner was not yet a suspect, but that he was becoming a suspect. Detective Geiger, knowing that petitioner had lied about making the 911 call, continued to question him and asked whether he had fought with Minicz. Sometime before 8:00 p.m., petitioner admitted that he and Minicz fought on June 4, 1994. 4 At approximately 8:00 p.m., Detective Geiger again left the squad room to question James, who claimed that petitioner struck Minicz with a "two-by-four." Detective Geiger returned to the squad room and, without informing petitioner of his Miranda rights, asked petitioner about "what happened Sunday morning." Petitioner said that he left the construction site that morning to go to his sister's house to take a shower and change his clothes. Petitioner also said that he had been wearing a blue shirt and gave the detectives permission to retrieve it from his sister's house. Detective Douglas Hopkins went to the house, and petitioner's sister gave him a flowered print shirt with blood stains on it. Detective Hopkins then returned to the police station and asked petitioner about the blood-stained shirt. Petitioner admitted that it was the same shirt he wore when he fought with Minicz. 5 The detectives administered Miranda warnings and petitioner subsequently made a statement at approximately 9:15 p.m. Petitioner stated that he, along with Minicz and James, went to the construction site between 10 p.m. and 11 p.m. on June 4, 1994. Petitioner said that he and Minicz subsequently got into an argument, during which Minicz punched him in the stomach. Petitioner admitted that he then hit Minicz about the face and body with a piece of wood that was two to three inches wide. Petitioner also said that he punched Minicz. Petitioner said that he and James then "pushed" Minicz down to the basement of the abandoned building and went to sleep. Petitioner admitted that he placed the 911 call the next morning. 6 The detectives reduced petitioner's statement to writing, which he signed.1 The detectives again advised petitioner of his Miranda rights, and he gave another statement at 2:00 a.m., which was videotaped. Petitioner admitted in the video that he hit Minicz with a stick and then punched and kicked him. At no time during the interview was petitioner handcuffed or did he ask to leave. 7 When petitioner arrived at the police station, he had been wearing a pair of blue pants that had a dark stain on them. Detective Geiger testified that he was not sure whether the stain was blood, so he sent petitioner's pants to the lab for analysis. The record is unclear whether petitioner voluntarily surrendered his pants or the detectives ordered him to remove them, and exactly when petitioner removed his pants. The district court concluded only that petitioner removed his pants prior to his final statement, because the video showed him wearing a different pair of pants. 8 After his indictment, petitioner moved to suppress his statements, arguing that the detectives conducted a custodial interrogation without initially advising him of his Miranda rights. Following a suppression hearing, the trial court denied the motion while making detailed findings of fact and conclusions of law. The trial court found that petitioner and James voluntarily accompanied the officers to the police station. Specifically, the trial court found that Detective Geiger "invited" the two men "to go to the 63rd Precinct" and that the men were not placed in handcuffs. The trial court also gave "full credence" to the testimony of Detectives Geiger and Hopkins. Detective Geiger testified at the suppression hearing that he asked petitioner and James whether they would accompany the officers without indicating that they were required to do so. However, Detective Geiger also testified on direct examination that the officers "went to the scene and ... told [petitioner that they were] going to take him to the precinct regarding Krzystof Minicz, and ... put him in the car and drove him back to the precinct." Detective Geiger also testified that since petitioner fit the description of the individual the officers sought, "[they] just took him." It is undisputed that the detectives never informed petitioner that he was not required by law to accompany them to the police station. 9 The trial court found that although Petitioner had been drinking when the officers initially approached him, he "seemed to understand what was going on." Specifically, the court found that "it appeared that [petitioner] had a tolerance for his drinking, which is very possible from all the drinking he had been doing over the years...." The court also found that petitioner "was able to answer where his sister lived, he was able to state where his clothing was, that he left the clothing in the house, [and] he was able to discuss the set up of the building." The trial court concluded that "although he may have had beers and drank rum that day, when he was questioned he was not in such a state of intoxication that he could not understand what he was doing." 10 Petitioner went to trial, and on March 2, 1995, the jury convicted him of Murder in the Second Degree. The court sentenced petitioner to twenty years to life imprisonment. Petitioner appealed his conviction based upon the trial court's denial of his motion to suppress, and the New York Supreme Court, Appellate Division, Second Department ("Appellate Division") affirmed the ruling, concluding that petitioner had voluntarily accompanied the officers to the police station, and that he was not in custody prior to receiving Miranda warnings. See People v. Parsad, 243 A.D.2d 510, 662 N.Y.S.2d 835, 836 (2d Dep't 1997). The Appellate Division also concluded that "[a]lthough [petitioner] had been drinking alcohol when the officers initially approached him, the evidence establishes that [he] clearly understood the reason for and purpose behind the police investigation and was able to walk and articulate appropriate responses to the detectives' questions." Id. at 837. However, one justice dissented on the grounds that petitioner had been in custody and that "[his] confessions were the involuntary product of a custodial interrogation conducted in the absence of constitutional safeguards." Id. at 838 (Friedmann, J., dissenting). A judge of the New York Court of Appeals denied petitioner leave to appeal on March 4, 1998. People v. Parsad, 91 N.Y.2d 944, 671 N.Y.S.2d 724, 694 N.E.2d 893 (1998). 11 Petitioner filed a petition for a writ of habeas corpus, pursuant to 28 U.S.C. § 2254, arguing that the state court erred in holding that the admission of his inculpatory statements did not violate his rights under the Fifth Amendment and Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966). The United States District Court for the Eastern District of New York denied his petition on March 29, 2002. The district court held that although "the question of custody is a close one," the state court's decision that petitioner was not in custody when he made his pre-Miranda statements was not unreasonable, given the deferential standard of review applicable to state court adjudications under the Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA"), codified in 28 U.S.C. § 2254. Even assuming that the pre-Miranda portion of the interview constituted a custodial interrogation, however, the district court held that petitioner's post-Miranda statements were nonetheless admissible, as they were not the product of coercion, and that the admission of petitioner's pre-Miranda statements was therefore harmless error. We granted a certificate of appealability, and this appeal followed. LEGAL STANDARDS 12 I. The Deferential Standard of 28 U.S.C. § 2254 13 We review a district court's denial of a petition for a writ of habeas corpus de novo. See Kennaugh v. Miller, 289 F.3d 36, 42 (2d Cir.), cert. denied, 537 U.S. 909, 123 S.Ct. 251, 154 L.Ed.2d 187 (2002). Under AEDPA, the standard governing federal habeas review depends upon whether the petitioner's claims have been previously "adjudicated on the merits" by a state court. 28 U.S.C. § 2254(d); see also Cotto v. Herbert, 331 F.3d 217, 229-30 (2d Cir.2003). We have held that a state court "adjudicates" a petitioner's federal constitutional claims "on the merits" if "it (1) disposes of the claims on the merits and (2) reduces its disposition to judgment." Cotto, 331 F.3d at 229-30 (internal quotation marks omitted). See also Ryan v. Miller, 303 F.3d 231, 246 (2d Cir.2002). 14 In the instant case, both the trial court and the Appellate Division determined that petitioner was not in custody. Accordingly, with respect to this determination, we apply the deferential standard of review prescribed by AEDPA. Specifically, the statute provides that: 15 [a]n 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 — 16 (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. 17 28 U.S.C. § 2254(d). The Supreme Court has interpreted 28 U.S.C. § 2254(d)(1) as giving independent meaning to both the "contrary to" and "unreasonable application" clauses. Williams v. Taylor, 529 U.S. 362, 404-05, 120 S.Ct. 1495, 146 L.Ed.2d 389 (2000). A state court decision is "contrary to" Supreme Court precedent if it 1) arrives at a conclusion that contradicts that reached by the Supreme Court on a question of law; or 2) confronts facts that are materially indistinguishable from those of relevant Supreme Court precedent and arrives at a contrary result. Id. at 405, 120 S.Ct. 1495. A decision is an "unreasonable application" of clearly established Supreme Court law if a state court "identifies the correct governing legal principle from [the Supreme Court's] decisions but unreasonably applies that principle to the facts of [a] prisoner's case." Id. at 413, 120 S.Ct. 1495. "[C]learly established Federal law, as determined by the Supreme Court," refers to the "holdings, as opposed to the dicta, of [the Court's] decisions as of the time of the relevant state-court decision." Id. at 412, 120 S.Ct. 1495. 18 "[A] determination of a factual issue made by a State court shall be presumed to be correct." 28 U.S.C. § 2254(e)(1). The petitioner bears the burden of "rebutting the presumption of correctness by clear and convincing evidence." Id.; see also McKinney v. Artuz, 326 F.3d 87, 101 (2d Cir.2003). This presumption of correctness is particularly important when reviewing the trial court's assessment of witness credibility. Cotto, 331 F.3d at 233-34; Miller-El v. Cockrell, 537 U.S. 322, 123 S.Ct. 1029, 1040-41, 154 L.Ed.2d 931 (2003). However, "[e]ven in the context of federal habeas, deference does not imply abandonment or abdication of judicial review.... A federal court can disagree with a state court's credibility determination and, when guided by AEDPA, conclude that decision was unreasonable or that the factual premise was incorrect by clear and convincing evidence." Miller-El, 123 S.Ct. at 1041. In sum, "[d]eference does not by definition preclude relief." Id. 19 Having found that petitioner was not in custody, neither the trial court nor the Appellate Division determined whether his post-Miranda statements were voluntary.2 Thus, we review the record de novo to resolve this issue. See Aparicio v. Artuz, 269 F.3d 78, 93 (2d Cir.2001). 20 II. Miranda v. Arizona in the Context of 28 U.S.C. § 2254 21 A suspect is entitled to Miranda warnings only if he or she is interrogated while "in custody." Thompson v. Keohane, 516 U.S. 99, 102, 116 S.Ct. 457, 133 L.Ed.2d 383 (1995). The Supreme Court has held that two discrete inquires are involved in determining whether a person was "in custody." First, we consider "the circumstances surrounding the interrogation." Id. at 112, 116 S.Ct. 457. As this is purely an issue of fact, see Tankleff v. Senkowski, 135 F.3d 235, 243 (2d Cir. 1998), we presume that the state courts' findings are correct. See 28 U.S.C. § 2254(e)(1). We then determine whether, given those circumstances, a reasonable person would have felt "at liberty to terminate the interrogation and leave," which is a mixed question of fact and law. Thompson, 516 U.S. at 112-13, 116 S.Ct. 457; see also Cruz v. Miller, 255 F.3d 77, 80 (2d Cir.2001); Tankleff, 135 F.3d at 243. DISCUSSION 22 I. Was Petitioner in Custody? 23 We first consider whether petitioner was in custody when he made his initial statement, during which he 1) lied about making the 911 call, 2) admitted that he fought with Minicz on June 4, 1994, and 3) admitted that he wore the bloody shirt that Detective Hopkins recovered from his sister's house. Petitioner made these statements before the detectives advised him of his Miranda rights. 24 The record raises concerns about the custodial nature of petitioner's encounter. The finding that petitioner voluntarily accompanied the officers to the police station is suspect, as Detective Geiger provided contradictory testimony. On direct examination, Detective Geiger testified that the officers "told [petitioner that they were] going to take him to the precinct regarding Krzystof Minicz, and ... put him in the car and drove him back to the precinct." Detective Geiger also testified that since petitioner fit the description of the individual the officers sought, "[they] just took him." 25 Even assuming that petitioner voluntarily accompanied the officers to the police station, whether the interview was converted into a custodial interrogation by virtue of petitioner surrendering his pants is a close question. Though not binding on this Court, the New York Court of Appeals has held that a defendant was not in custody where he voluntarily removed both his pants and undershorts during questioning. See People v. Yukl, 25 N.Y.2d 585, 307 N.Y.S.2d 857, 861-62, 256 N.E.2d 172 (1969). Many individuals would not feel free, or even able, to leave a police station without their pants. Moreover, it is unclear whether petitioner voluntarily surrendered his pants, as Detective Geiger testified only that he "recovered" some blue trousers from petitioner's body. Although the Appellate Division concluded that petitioner was not in custody prior to receiving Miranda warnings, that decision is unreasonable and not entitled to deference pursuant to 28 U.S.C. § 2254(d)(2), because the majority failed to consider whether petitioner was placed in custody by virtue of the detectives' seizure of his pants. Cf. People v. Parsad, 243 A.D.2d 510, 662 N.Y.S.2d 835, 838 (1997) (Friedmann, J., dissenting) (dissenting partly because, "[a]t some point during the questioning, Geiger removed the defendant's blue pants" and the defendant "was partially stripped"). At the same time, however, the record reflects that the detectives provided petitioner with another pair of pants sometime prior to his videotaped statement. 26 Thus, even given the deferential AEDPA standard, the circumstances of petitioner's encounter with the officers raise questions concerning whether it was custodial. As our disposition of this appeal does not require resolution of this issue, however, we will assume, without deciding, that petitioner was in custody when he made his pre-Miranda statements.3 27 II. Were Petitioner's Post-Miranda Statements Coerced? 28 Although we assume that petitioner made his initial inculpatory statements while in custody, and in the absence of Miranda warnings, petitioner's subsequent inculpatory statements, which occurred after the detectives advised him of his Miranda rights, are not necessarily inadmissible as "fruit" of the original Miranda violation. In Oregon v. Elstad, 470 U.S. 298, 105 S.Ct. 1285, 84 L.Ed.2d 222 (1985), the Supreme Court held 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" with respect to subsequent statements that the suspect makes after receiving Miranda warnings. Id. at 314, 105 S.Ct. 1285. Rather, "the admissibility of any subsequent statement should turn in these circumstances solely on whether it [was] knowingly and voluntarily made." Id. at 309, 105 S.Ct. 1285. Therefore, we must consider whether the circumstances surrounding petitioner's unwarned confession were so coercive as to prevent him from making a subsequent knowing and voluntary waiver of his rights, thereby requiring the suppression of his post-Miranda confession. See id. at 309-14, 105 S.Ct. 1285; see also Tankleff, 135 F.3d at 244. While all custodial interrogations inherently involve "serious pressures," id., in determining the voluntariness of petitioner's post-Miranda confessions, we must examine the totality of the circumstances. See Tankleff, 135 F.3d at 245. Specifically, these circumstances include 1) the accused's characteristics, 2) the conditions of the interrogation, and 3) the conduct of the police. United States v. Anderson, 929 F.2d 96, 99 (2d Cir.1991). 29 Petitioner argues that his pre-Miranda statements were involuntary because he was an alcoholic and had been drinking prior to his interrogation. However, the trial court made detailed findings of fact on this issue. The court found that petitioner "seemed to understand what was going on," as he was able to answer the officers' questions coherently. The trial court also found that "although [petitioner] may have had beers and drank rum that day, when he was questioned he was not in such a state of intoxication that he could not understand what he was doing." The Appellate Division concluded that "[a]lthough [petitioner] had been drinking alcohol when the officers initially approached him, the evidence establishes that [he] clearly understood the reason for and purpose behind the police investigation and was able to walk and articulate appropriate responses to the detectives' questions." Parsad, 662 N.Y.S.2d at 837. 30 Petitioner challenges the state courts' findings, arguing that Detective Geiger testified that petitioner was "intoxicated." However, the detective refused to characterize petitioner as being drunk: 31 Q: And when you come upon them, would it be fair to say that both of them were intoxicated? 32 A: I would say they were drinking, yes, sir. 33 Q: All right. Well, again — were they drunk? A: I don't know, sir. I don't know the gentlemen's' level how alcohol they could take. [sic] 34 Accordingly, petitioner cannot demonstrate that the state courts' findings on this issue are clearly erroneous, the standard we apply in our de novo review of an issue that the state courts left unresolved. The mere fact that petitioner is an alcoholic is insufficient to render his pre-Miranda statements involuntary. 35 The conditions of petitioner's interrogation were not so coercive as to render his post-Miranda statements involuntary. Upon arriving at the police station at approximately 5:50 p.m., the detectives escorted petitioner to the squad room, where he sat in a "sofa-chair," and not to an interrogation room. The room was unlocked throughout the interrogation, and the detectives did not handcuff petitioner prior to his actual arrest. Moreover, the detectives did not subject petitioner to extended periods of questioning without interruption. Upon arriving at the police station, the detectives talked with petitioner for approximately ten minutes. Afterwards, the detectives left him alone in the squad room until 6:30 p.m. to 6:45 p.m., when they brought him some coffee and food. The detectives resumed the questioning, and before 8:00 p.m., petitioner admitted to fighting with Minicz on the day in question. Shortly after 8:00 p.m., petitioner informed the detectives that he had gone to his sister's house after the fight to shower and change his clothes, and he gave them permission to retrieve his clothes. Approximately one hour later, at 9:15 p.m., petitioner admitted to wearing the bloody shirt that Detective Hopkins recovered from his sister's house. Thus, prior to receiving Miranda warnings, petitioner was at the police station from 5:50 p.m. to 9:15 p.m., and the detectives questioned him only intermittently. Based upon the atmosphere of the interrogation, we cannot conclude that petitioner's pre-Miranda statements were coerced. 36 Finally, petitioner does not establish that the detectives employed coercive or improper tactics during their interrogation. Petitioner argues that the detectives ignored his initial statement that he did not wish to say anything concerning Minicz's death. The mere fact that police officers improperly question a suspect after he invokes his right to remain silent during a custodial interrogation does not render his subsequent statements the product of coercion. Rather, the Supreme Court recognizes that such statements may, in fact, be voluntary. For example, statements taken in violation of Miranda, though inadmissible as part of the prosecution's case-in-chief, are nevertheless admissible for impeachment purposes where they are also voluntary and uncoerced. See Oregon v. Hass, 420 U.S. 714, 722-24, 95 S.Ct. 1215, 43 L.Ed.2d 570 (1975); Harris v. New York, 401 U.S. 222, 224-26, 91 S.Ct. 643, 28 L.Ed.2d 1 (1971). Whether statements taken in violation of Miranda are the product of coercion entails an analysis that goes beyond the mere fact that the statement violates Miranda. Compare Hass, 420 U.S. at 722, 95 S.Ct. 1215 (holding that statements taken in violation of Miranda are admissible for impeachment purposes where "the trustworthiness of the evidence satisfies legal standards" (internal quotation marks omitted)), with Mincey v. Arizona, 437 U.S. 385, 399-402, 98 S.Ct. 2408, 57 L.Ed.2d 290 (1978) (holding that statements taken in violation of Miranda are not admissible for any purpose where they were involuntary or the product of coercion). Thus, the mere fact that a police officer takes a statement after a suspect invokes his right to remain silent does not, standing alone, render that statement the product of coercion.4 37 Petitioner argues that the detectives were increasingly hostile towards him, as they accused him of lying and confronted him with evidence linking him to the crime. However, petitioner's initial representations were contradicted by the evidence. For example, although petitioner initially denied making the 911 call, he identified himself by name during that call. Petitioner also told the detectives that he wore a blue shirt on the day he fought with Minicz, but his sister gave Detective Hopkins a flowered shirt. Therefore, the detectives were reasonable in exposing these inconsistencies and asking petitioner to explain them. Regardless, all custodial interrogations inherently involve pressure, and officers routinely confront suspects with incriminating evidence. Although such conduct, if excessive, could render a suspect's confession involuntary, we find that petitioner's statements were not the product of coercion. 38 Petitioner also contends that the police officers mistreated him. In his videotaped statement, petitioner alleged that "a detective had punched him in the right eye and tried to force him to talk." Petitioner also argues that the detectives mistreated him by seizing his clothes. There is no evidence, however, that the detectives assaulted petitioner. During the videotaped statement, the detectives "zoomed in" on petitioner's face, and his eyes showed no indication of abuse. Even assuming that the officers seized petitioner's pants without his consent, the record is clear that they provided him another pair of pants. Accordingly, we cannot conclude that the detectives mistreated petitioner in an effort to coerce a confession. 39 In sum, the totality of the circumstances surrounding petitioner's interrogation do not suggest that his statements to the police were involuntary. Therefore, we presume that the state courts' findings that petitioner was competent to be interrogated, and that neither the conditions of the pre-Miranda portion of the interrogation nor the detectives' corresponding actions were unlawfully coercive, are correct. 40 III. Was the Error Harmless? 41 Having assumed that petitioner was in custody, we must also assume that the trial court erred in admitting petitioner's initial inculpatory statements, as the detectives had not yet informed him of his Miranda rights. We conclude, however, that the error was harmless, as petitioner's post-Miranda statements, which we have held were properly admitted, were cumulative of his pre-Miranda statements. See Campaneria v. Reid, 891 F.2d 1014, 1022 (2d Cir.1989).5 42 Prior to receiving Miranda warnings, petitioner admitted that he fought with Minicz on June 4, 1994. In both his written and videotaped statements, petitioner admitted to fighting with Minicz on the day in question and described the fight in greater detail than he did in his pre-Miranda statements. The trial court gave "full credence" to Detective Hopkins's testimony that petitioner admitted during his first post-Miranda statement that he beat Minicz "about the face and body" with "a piece of wood." According to Detective Hopkins, petitioner admitted that he then beat Minicz with his fists and dragged him "head first" down to the basement of the building. During the subsequent videotaped statement, petitioner stated that he pushed Minicz, who fell and hit his head on a foundation block. Moreover, petitioner again admitted to striking Minicz with a stick and then punching and kicking him.6 43 Petitioner also stated prior to receiving Miranda warnings that he went to his sister's house the morning after the fight to shower and change his clothes. After the detectives retrieved petitioner's clothes, he admitted that he had been wearing the bloody shirt on the day he fought with Minicz. In his videotaped statement, petitioner reiterated that he had gone to his sister's house after the fight to shower and change his clothes, and he again stated that he had been wearing a flowered shirt. It is unclear whether petitioner, after receiving Miranda warnings, admitted to wearing the particular shirt that Detective Hopkins recovered from his sister's house. This would not entitle petitioner to relief, however, given his admission that he beat Minicz and the fact that the prosecution could have linked him to the shirt without his express admission to having worn that particular shirt. CONCLUSION 44 Based upon the foregoing, the judgment of the United States District Court for the Eastern District of New York is affirmed. Notes: 1 Petitioner argues that Detective Hopkins did not afford him an opportunity to read the statement before he signed it 2 New York courts do not recognize the holding ofOregon v. Elstad, 470 U.S. 298, 105 S.Ct. 1285, 84 L.Ed.2d 222 (1985) that Miranda warnings remove the taint of coercion. See Tankleff v. Senkowski, 135 F.3d 235, 246 (2d Cir.1998) ("[T]he New York Court of Appeals has declined on state constitutional grounds to follow the rule of [Elstad]."). 3 Although petitioner initially informed police that "he didn't want to talk about [Minicz's death]" and that "he didn't want to say anything," he has not previously argued that Detective Geiger's continued questioning in the face of his desire to remain silent constituted an independent violation of the Fifth AmendmentSee Michigan v. Mosley, 423 U.S. 96, 100-01, 96 S.Ct. 321, 46 L.Ed.2d 313 (1975). Petitioner expressly informed the district court that he does not raise this issue as part of "a freestanding claim that in and of itself entitles [him] to suppression of all statements." Rather, petitioner argued only that Detective Geiger's failure to acknowledge his intention to remain silent meant that he was not, in fact, free to terminate the session and leave the police station. Accordingly, to the extent petitioner's brief asserts an independent claim based upon the detective's failure to honor his request to remain silent, we decline to consider it. See Singleton v. Wulff, 428 U.S. 106, 120-21, 96 S.Ct. 2868, 49 L.Ed.2d 826 (1976). 4 That is not to say, however, that police officers may freely disregard a suspect's exercise of his right to remain silent during a custodial interrogation. As discussed, petitioner did not raise such a claim before the district court 5 We find that the error was harmless, regardless of whether theChapman v. California, 386 U.S. 18, 87 S.Ct. 824, 17 L.Ed.2d 705 (1967) or the Brecht v. Abrahamson, 507 U.S. 619, 113 S.Ct. 1710, 123 L.Ed.2d 353 (1993) standard of review applies to post-AEDPA habeas cases. See Ryan, 303 F.3d at 253-54. 6 Petitioner argues that the videotaped statement was not cumulative of his pre-Miranda statements because he stated in the video that he hit Minicz only once with a stick. However, according to Detective Hopkins, petitioner admitted during his written post-Miranda statement that he beat Minicz with a piece of wood. Regardless, a single discrepancy concerning the number of times petitioner hit Minicz with a stick is insufficient to warrant relief, given the voluminous and inculpatory nature of his remaining post-Miranda statements.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION This opinion shall not "constitute precedent or be binding upon any court." Although it is posted on the internet, this opinion is binding only on the parties in the case and its use in other cases is limited. R.1:36-3. SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION DOCKET NO. A-0792-15T4 CAMERON SMITH, Plaintiff-Appellant, v. WALMART STORES, INC., WAL-MART STORES EAST, INC., WAL-MART STORES EAST I, LP, WAL-MART STORES, INC., WALMART STORE NUMBER 2569, and WALMART, INC., Defendants-Respondents. ________________________________________________ Submitted December 20, 2016 – Decided July 31, 2017 Before Judges Suter and Guadagno. On appeal from the Superior Court of New Jersey, Law Division, Morris County, Docket No. L-126-13. James C. DeZao, attorney for appellant. Cottrell Solensky, P.A., attorneys for respondents (Edward Solensky, Jr. and Mark M. Makhail, on the brief). PER CURIAM Plaintiff Cameron Smith appeals from a Law Division order entered on September 23, 2015, denying plaintiff's motion for reconsideration of an order entered on May 8, 2015, which granted summary judgment to defendant Wal-Mart Stores, Inc. and dismissed plaintiff's complaint with prejudice.1 On appeal, plaintiff argues that the motion judge erred in granting summary judgment without considering evidence of defendant's failure to exercise reasonable care in inspecting the premises. Plaintiff also argues that the mode-of-operation doctrine applies. On January 19, 2011, at approximately 9:45 p.m., plaintiff was shopping in a store owned and operated by defendant in Flanders. Plaintiff testified that it had rained earlier that day and, as she entered the store, she noticed eight to ten buckets "strategically" placed to catch dripping rainwater near the entrance. As plaintiff was walking through the store, she slipped and fell, landing on her right hip and sustaining injuries. Plaintiff was accompanied by her boyfriend, Mark Garofalo, but he did not take the exact same path through the store. 1 Plaintiff's brief suggests she is appealing from both orders, however, her notice of appeal indicates she is appealing only from the September 23, 2015 order. Thus, we consider only the order designated in the notice of appeal. 1266 Apartment Corp. v. New Horizon Deli, Inc., 368 N.J. Super. 456, 459 (App. Div. 2004) (citing Sikes v. Twp. of Rockaway, 269 N.J. Super. 463, 465-66 (App. Div.), aff'd o.b., 138 N.J. 41 (1994)). 2 A-0792-15T4 Plaintiff testified she slipped on "something wet" and when Garofalo picked her up, her right side where she landed was wet. When plaintiff returned home, she felt sore and applied ice to her buttocks and right hip. The following day, plaintiff went to a hospital where she was diagnosed with a broken coccyx. Plaintiff filed a complaint seeking damages for personal injuries, alleging defendant caused a dangerous condition to exist. Plaintiff submitted a report by Michael G. Natoli, P.E., who concluded that the wetness on the floor at the time of plaintiff's accident was an unsafe condition and defendant's failure to mitigate the wetness was the cause of plaintiff's injury. After engaging in discovery, defendant moved for summary judgment, arguing plaintiff failed to establish that defendant had notice of the condition. Plaintiff opposed the motion relying on Natoli's report, defendant's answers to interrogatories, depositions of two of defendant's employees, and an unpublished 2010 slip and fall case.2 During oral argument on defendant's motion before Judge Donald S. Coburn, plaintiff's counsel focused on the water 2 Unpublished cases have no precedential value. R. 1:36-3. 3 A-0792-15T4 dripping into the buckets near the entranceway and suggested that customers entering the store may have "transferred" that water to the area where plaintiff fell, approximately twenty feet away. Judge Coburn noted that no evidence supported this theory and granted the motion to dismiss plaintiff's complaint. Plaintiff moved for reconsideration and submitted a second expert report by Alex J. Balian, identified in his report as a Retail Industry Consultant. Balian found that the maintenance procedure at defendant's store, requiring hourly floor inspection and floor sweeping three times per day, did not change when inclement weather occurred. From this premise, Balian deduced that defendant's failure to increase the frequency of inspections and sweeps on January 19, 2011, "leads to the conclusion that the water where [plaintiff] fell in was there long enough that it should have been detected or there for an unreason[able] length of time." During oral argument, Judge Coburn refused to consider the Balian report because a new expert report cannot be submitted on a motion for reconsideration and plaintiff had not explained why the report could not have been submitted at the summary judgment motion. Even if he were to consider the report, the judge found it to be "a blatantly net opinion." 4 A-0792-15T4  Plaintiff's counsel then raised the mode-of-operation doctrine for the first time.3 Judge Coburn rejected that argument finding the mode-of–operation doctrine did not apply to these facts. "A motion seeking reconsideration of a prior order is governed by Rule 4:49-2, which requires the movant to explicitly identify the grounds for the motion to fit within that 'narrow corridor' in which reconsideration is appropriate." Palombi v. Palombi, 414 N.J. Super. 274, 288 (App. Div. 2010) (quoting D'Atria v. D'Atria, 242 N.J. Super. 392, 401 (Ch. Div. 1990)). Plaintiff's motion for reconsideration was based on an expert report which was properly excluded. The mode-of- operation doctrine was never argued during the motion for summary judgment and plaintiff's attempt to raise the doctrine for the first time on the motion for reconsideration was improper. Moreover, the mode-of-operation doctrine is inapplicable to the facts in this case. Affirmed. 3 Plaintiff's counsel initially conceded that she had not argued the mode-of-operation doctrine, but then stated she believed she had. Our review of the transcript reveals no mention of the doctrine. 5 A-0792-15T4 

CARMEN DURRANT ELLIS V. STATE OF TEXAS0 NO. 07-00-0315-CR   IN THE COURT OF APPEALS   FOR THE SEVENTH DISTRICT OF TEXAS   AT AMARILLO   PANEL C   NOVEMBER 30, 2000   ______________________________   CARMEN DURRANT ELLIS,                   Appellant v.   THE STATE OF TEXAS,                  Appellee _________________________________ FROM THE 179TH DISTRICT COURT OF HARRIS COUNTY;   NO. 816,456; HON. J. MICHAEL WILKINSON, PRESIDING   _______________________________   Before QUINN and REAVIS and JOHNSON, JJ. Carmen Durrant Ellis (appellant) appeals from a judgment under which he was convicted of aggravated robbery.  Prior thereto he had entered an open plea of guilty.  His sole point of error involves the effectiveness of his allegedly retained appellate attorney, Tandra Charles.  The allegations concerning why Charles was ineffective are conclusory and rambling.  Nevertheless, we construe them as involving her purported failure to secure a timely hearing on appellant’s first motion for new trial and to timely amend the original motion to allege new grounds supposedly warranting another trial.   We affirm. Point of Error The standard of review applicable to claims of ineffective assistance of counsel is well-known and will not be repeated here.  It is sufficient to merely refer the litigants to Thompson v. State , 9 S.W.3d 808 (Tex. Crim. App. 1999) and Beck v. State , 976 S.W.2d 265 (Tex. App.–Amarillo 1998, pet. ref’d) for an explanation of same. Failure to Obtain a Hearing The record illustrates that the trial court pronounced sentence in open court on February 2, 2000.  Appellant then moved for a new trial on March 2, 2000.  Through the motion, appellant contended that his trial counsel had denied him effective assistance because trial counsel failed to present evidence which would have allegedly mitigated his punishment.  A hearing on the motion was set for April 11, 2000, a time well within the period allowed by the rules of appellate procedure.   See Tex. R. App. P . 21.8(a) (stating that the trial court must rule on a motion for new trial within 75 days of imposing or suspending sentence in open court).   On April 11 th , appellant, via Charles, filed an amended motion for new trial.  Through it, appellant sought to add a claim that his guilty plea was uninformed and involuntary to his prior allegations.  After the amendment was filed, the trial court postponed the April 11 th hearing to May 2, 2000, a date more than 75 days after sentence was imposed.   See Tex. R. App. P . 21.8 (stating that a motion which is not ruled on within 75 days of sentencing is deemed denied).  We do not know whether the court rescheduled the hearing on the first motion sua sponte , at the insistence of Charles or appellant, or because appellant’s mother (who apparently retained Charles) attempted to discharge Charles as attorney of record on the day of the hearing. (footnote: 1) Nevertheless, we see that Charles moved for new trial and that she presented the motion to the trial court as required by Texas Rule of Appellate Procedure 21.6 because the court set the matter for hearing.  Given the lack of evidence on the reason the hearing was postponed, we are unable to attribute to Charles any wrong emanating from the failure to have a hearing.  And that would have to be a prerequisite to our holding that her conduct was deficient in some way.  Simply put, this particular claim of ineffectiveness is not “firmly founded in the record” as mandated by Thompson .   Thompson v. State , 9 S.W.3d at 813. Failure to Timely Amend Motion and Secure Hearing on Same Like the foregoing topic, nothing of record illustrates why Charles amended the motion for new trial on April 11 th as opposed to earlier.  Without such evidence we are unable to say that she did anything wrong.  For instance, it could be that appellant withheld the information upon which the amended motion was based from her.  Or, it could be that she merely neglected to include it in the first motion.  Yet, either circumstance may be as likely as the other given the dearth of evidence as to the actual motive or reason.  And, it is that dearth of evidence that prevents us from holding Charles’s actions ineffective.  In other words, this particular claim is also not “firmly founded in the record” as mandated by Thompson . According to Thompson “[r]arely will a reviewing court be provided the opportunity to make its determination on direct appeal with a record capable of providing a fair evaluation of the merits of” an ineffective assistance claim.   Thompson v. State , 9 S.W.3d at 813.  The cause before us falls within that category.  This does not mean that appellant is without recourse for habeas relief that may be available to him.   Id. at 814.  It simply means that we cannot grant such relief. Accordingly, we overrule appellant’s point of error and affirm the judgment.   Brian Quinn   Justice Do not publish. FOOTNOTES 1:According to a letter attached to Charles’s motion to withdraw, appellant not only acquiesced in the discharge but believed his mother had done so on April 11th.

840 F.2d 10Unpublished 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.Marvin HILL, Plaintiff-Appellant,v.Phillip G. DANTES, Parole Commissioner for the State ofMaryland, Defendant- Appellee. No. 87-6103. United States Court of Appeals, Fourth Circuit. Submitted Dec. 28, 1987.Decided Feb. 19, 1988. Marvin Hill, appellant pro se. Before DONALD RUSSELL, CHAPMAN, and WILKINSON, Circuit Judges. PER CURIAM: 1 Marvin Hill, a Maryland inmate, appeals the judgment of the district court dismissing his civil action brought pursuant to 42 U.S.C. Sec. 1983. The crux of Hill's claim is that he is not the person who committed the crime for which he is incarcerated. As relief Hill seeks his release. This claim is, for all intents and purposes, the same claim that Hill has raised in a number of federal habeas corpus petitions and Sec. 1983 civil actions. The only variation is in the party named as respondent or defendant to the action. Hill did not obtain any relief on the habeas petitions because he has never proven to the satisfaction of the district court that he has exhausted his state remedies as required by 28 U.S.C. Sec. 2254(b). Hill has also failed to obtain release when he has brought the claim under Sec. 1983. Regardless of how it is styled the claim seeks habeas corpus relief and exhaustion of state remedies is required. Hamlin v. Warren, 664 F.2d 29 (4th Cir.1981), cert. denied, 455 U.S. 911 (1982). 2 In Hill v. Ward, No. 86-6684(L) (4th Cir. Dec. 2, 1987) (unpublished), this Court vacated the judgments of the district court dismissing with prejudice a number of underlying Sec. 1983 actions. In those cases Hill raised essentially the same claim that he presents in this case. The district court dismissed those cases on the basis that Hill had waived his right to seek habeas corpus relief because he had failed to follow the district court's explicit directions regarding the steps that he must take in order to exhaust his state remedies, and on the basis that the doctrine of res judicata barred Hill from relitigating the claims in the Sec. 1983 actions. 3 Our remand in Hill v. Ward, removes the basis on which the district court dismissed this case. The doctrine of res judicata does not apply to requests for habeas corpus relief. Sanders v. United States, 373 U.S. 1 (1963). The district court may deny a request for habeas corpus relief based upon a previous adverse determination only if (1) the same ground presented in the subsequent application was determined adversely to the petitioner; (2) the prior determination was on the merits; and (3) the ends of justice would not be served by reaching the merits of the subsequent application. 373 U.S. at 15-17. 4 Accordingly, we vacate the judgment of the district court and remand with instructions to dismiss the case without prejudice. Because the dispositive issues recently have been decided authoritatively, we dispense with oral argument. 5 VACATED AND REMANDED.

193 Or. 401 (1951) 238 P.2d 780 MUSGRAVE ET UX. v. LUCAS ET UX. Supreme Court of Oregon. Argued November 14, 1951. Reversed December 12, 1951. *403 W.C. Winslow and Roy Harland, both of Salem, argued the cause and filed a brief for appellants. Wallace P. Carson, of Salem, argued the cause for respondents. With him on the brief were Ralph E. Moody and Allan G. Carson, both of Salem. *404 Before BRAND, Chief Justice, and LUSK, LATOURETTE, WARNER and TOOZE, Justices. REVERSED. TOOZE, J. This is an action for damages for alleged fraud, brought by Walter Musgrave and Evelyn L. Musgrave, as plaintiffs, against Edward J. Lucas and Caroline Lucas, as defendants. A demurrer and a motion to strike certain portions of the complaint were filed by defendants. Plaintiffs filed an amended complaint. Defendants moved to strike certain parts thereof. The motion was sustained in part, and the matters so stricken were obliterated. Defendants then demurred on the ground that the amended complaint did not state facts sufficient to constitute a cause of action against them. The demurrer was sustained. Plaintiffs refused to plead further, and, on motion of defendants, judgment on the pleadings was entered in favor of defendants. Plaintiffs appeal. We shall set forth the amended complaint as it stood before the parts successfully moved against were obliterated, noting, however, by parentheses, the portions stricken. Omitting formal parts, the amended complaint alleges: "I "That on or about the 2nd day of April, 1948, plaintiffs purchased from defendants a sand and gravel operation, including bunkers for loading the same and the deposit of sand and gravel, located on real property more particularly described as follows: [Here follows a description by metes and bounds of 5.31 acres of land.] for the full purchase price of $5,000.00. "II "That said tract of land is situated adjacent to the Willamette River, the east line thereof extending into the river at high water. That the former *405 bank of the Willamette River close to said east line has been excavated or washed away. That the center portion of said tract has been removed fro [sic] gravel, sand and soil sales to a depth of approximately 15 feet. That during high water the said river fills said excavated portion of said premises and washes against the west boundary thereof. That a short distance to the west and north from said tract is an old slough running north. That said river is threatening to form a new channel across said tract and thence into said slough, and that further removal of soil, sand or gravel from said premises would alter and modify the course, location and condition of the channel of said river, and that such work has never been and will not be recommended by the Chief of Engineers, or authorized by the Secretary of War. (Italics ours.) "III "(That defendants herein, in their operation of said sand and gravel business on said premises, had never received or obtained a permit or authorization from the Secretary of War to excavate thereon nor to remove soil, sand, or gravel therefrom.) "IV "That on November 22, 1946, the War Department of the United States of America ordered the defendants herein to discontinue the removal of sand and gravel from said premises, by mailing to the defendants a letter, a copy of which is in words and figures as follows: "WAR DEPARTMENT OFFICE OF THE DISTRICT ENGINEER PORTLAND DISTRICT 628 Pittock Block Portland, Oregon "Address Reply to THE DISTRICT ENGINEER (Not to individuals) "NPPVL *406 "Refer to file No. PO 616.4 (Will. R.)-4 November 22, 1946 "Mr. E.J. Lucas, 555 N. Liberty, Salem, Oregon. "Dear Sir: "This office has received a complaint against certain sand and gravel removal operations being conducted in the immediate vicinity of the property of Mr. James Imlah, who resides on R.F.D. No. 1. "This matter has been under investigation for the last several weeks, and it is found that the above-mentioned operations are being conducted by yourself and your partner. It is also found that the gravel removal operations are creating very serious conditions in that locality. It is noted that the top soil is being removed from an area to a depth of approximately 8 feet for a distance of 400 feet, paralleling and adjacent to the river bank. It is certain that should the bank be opened by virtue of the continued sand and gravel operations in that locality, it would not only in all probability seriously change the channel of the river but it would also endanger some 20,000 acres of bottom land below the point where the operations are being conducted. "Your operations at that point are definitely in violation of Federal law, in that you have no valid permit issued by this department therefor. In this connection, your attention is invited to Section 10 of the River and Harbor Act approved March 3, 1899, which provides in part `that it shall not be lawful to excavate or fill or in any manner to alter or modify the course, location, or condition of the channel of any navigable water of the United States, unless the work has been recommended by the Chief of Engineers and authorized by the Secretary of War prior to beginning the same.' (33 U.S.C. 403) "Therefore, you are hereby directed to discontinue your sand and gravel removal operations *407 in that locality at once. In the event you fail to comply with this directive, it will most certainly be necessary to refer the matter to the United States Attorney for the protection of the interests of the Federal Government. "Very truly yours, (Sgd.) O.E. Walsh, Colonel, Corps of Engineers, District engineer "V "That at the time of said sale as alleged above, defendants herein, for the purpose of injuring and defrauding plaintiffs, wrongfully, unlawfully and fraudulently represented to the plaintiffs that they knew of no reason why plaintiffs should not continue the operation of said sand and gravel business, that said property was a suitable property for a sand and gravel business; (and that said defendants fraudulently concealed from and failed to disclose to plaintiffs that they had been stopped in their operations upon said premises by the War Department of the United States of America, as disclosed by the letter set forth above, or that they had received any such letter). That said representations were false and fraudulent, and known to the defendants to be false and fraudulent, in this, that said defendants knew of the conditions set forth above and knew that on account thereof further operations would change the course, location or condition of the channel of said river. That said defendants received said letter from said War Department and withheld the information contained therein from plaintiffs in order to induce plaintiffs to purchase said property. "VI "That plaintiffs herein, relying upon the representations of defendants, believing the same to be true, (and having no information to the effect that said operations had been stopped by the War Department), or that said premises could not be used *408 for the further removal of soil, sand and gravel, purchased said premises as aforesaid. "VII "(That on account of the matters and things herein set forth and alleged, plaintiffs have been and are unable to use said premises for the purpose for which the same were purchased, to-wit; for a sand and gravel business, or to remove any sand, gravel or soil therefrom.) "VIII "That at the time of said sale by defendants to plaintiffs there was [sic] located upon said premises approximately 265,000 cubic yards of topsoil, sand and gravel, of the reasonable value of 15 cents per cubic yard. "IX "That on account of the false and fraudulent representations aforesaid, plaintiffs have been and are damaged in the sum of $39,750.00." 1. The principal question for decision is whether this complaint states a cause of action against defendants. Where, as here, the complaint is challenged by a demurrer, it is to be construed strongly against the pleader. Aune v. Oregon Trunk Railway, 151 Or 622, 626, 51 P2d 663; Brosius v. Hazelwood, 127 Or 635, 637, 271 P 992. 2. However, a demurrer admits as true all facts well pleaded and all the intendments and inferences therefrom that can properly and reasonably be drawn. Mattoon v. Cole, 172 Or 664, 669, 143 P2d 679; Lothstein v. Fitzpatrick, 171 Or 648, 662, 138 P2d 919; Wills v. Nehalem Coal Co., 52 Or 70, 76, 96 P 528. 33 USC § 403 (1940) (River & Harbor Act), in part provides: "* * * and it shall not be lawful to excavate or fill, or in any manner to alter or modify the *409 course, location, condition, or capacity * * * of the channel of any navigable water of the United States, unless the work has been recommended by the Chief of Engineers and authorized by the Secretary of War prior to beginning the same." 33 USC § 406 (1940), provides: "Every person * * * that shall violate any of the provisions of sections 401, 403, and 404 of this title or any rule or regulation made by the Secretary of War in pursuance of the provisions of said section 404, shall be deemed guilty of a misdemeanor, and on conviction thereof shall be punished * * *." 33 USC § 413 (1940), charges the Department of Justice with the duty of conducting all legal proceedings necessary to the enforcement of the provisions of § 403, as well as other sections of the River & Harbor Act; and for the better enforcement of the law and to facilitate the detection and bringing to punishment of such offenders, the officers and agents of the United States in charge of river and harbor improvements, and the assistant engineers and inspectors employed under them by the authority of the Secretary of War, as well as other officials, are vested with power and authority to swear out process, and to arrest and take into custody, with or without process, any person or persons who may commit any of the prohibited acts, although arrests without process are prohibited except where the offense is committed in the presence of the arresting officer. 33 USCA § 540 (June 20, 1938, c. 535, § 1, 52 Stat. 802, amended July 26, 1947, c. 343, Title II, § 205 (a), 61 Stat. 501.), provides that federal investigations of rivers, harbors, and other waterways "shall be under the jurisdiction of and shall be prosecuted by *410 the War Department under the direction of the Secretary of War and the supervision of the Chief of Engineers * * *." The Willamette river is a navigable water of the United States within the purview of these statutes. 3. Comprehensively stated, the elements of actionable fraud consist of: (1) a representation; (2) its falsity; (3) its materiality; (4) the speaker's knowledge of its falsity or ignorance of its truth; (5) his intent that it should be acted on by the person and in the manner reasonably contemplated; (6) the hearer's ignorance of its falsity; (7) his reliance on its truth; (8) his right to rely thereon; (9) and his consequent and proximate injury. Conzelmann v. N.W.P. & D. Prod. Co., 190 Or 332, 350, 225 P2d 757. To state a good cause of action, it is necessary that each and every one of the essential elements of fraud be alleged. 4. Actionable fraud may be committed by a concealment of material facts as well as by affirmative and positive misrepresentations. In 37 CJS, Fraud, 244, § 16 a., it is said: "An exception to the rule that mere silence is not fraud exists where the circumstances impose on a person a duty to speak and he deliberately remains silent. It is well settled that the suppression of a material fact which a party is bound in good faith to disclose is equivalent to a false representation. Where the law imposes a duty on one party to disclose all material facts known to him and not known to the other, silence or concealment in violation of this duty with intent to deceive will amount to fraud as being a deliberate suppression of the truth and equivalent to the assertion of a falsehood." *411 See also Palmiter v. Hackett, 95 Or 12, 17, 185 P 1105, 186 P 581. Bearing in mind the statutory provisions referred to and the legal principles stated, we proceed to a consideration of the facts alleged in the complaint which are well pleaded, together with all the intendments and inferences that can properly and reasonably be drawn therefrom. By their demurrer, what do defendants admit as being true? In the first place, they admit that they were selling and plaintiffs were purchasing a sand and gravel operation, including equipment necessary to the conduct of such a business. The land itself was important only as the source from which the sand and gravel was to be secured. Defendants also admit that further sand and gravel operations on the land in question will alter or modify the course, location and condition of the channel of the Willamette river, the doing of which, unless previously recommended by the Chief of Engineers and authorized by the Secretary of War, would constitute a crime. 5, 6. Defendants further admit "that such work has never been and will not be recommended by the Chief of Engineers, or authorized by the Secretary of War." The fact that such operations, which admittedly would change the channel of the river in violation of law, were never recommended or authorized is a statement of an ultimate and material fact, a fact peculiarly within the knowledge of defendants. Although the allegation that such work "will not be recommended * * * or authorized * * *" might, on its face, appear to be purely speculative, nevertheless, it is an allegation of an ultimate fact. No motion was directed to the same. Under the theory of the complaint it is *412 a material averment. We are not concerned with plaintiffs' ability to prove that fact or any other fact alleged. 7. In the light of the allegations of paragraphs I and II, we believe the allegations of paragraph III of the complaint, which were stricken by the trial court, are material. In paragraph III it is alleged, and defendants admit, that they had never received a permit or authorization to excavate on the land in question, nor to remove soil, sand, or gravel therefrom. This becomes important in view of the notice of an alleged violation of the law on their part, which they received, as alleged in paragraph IV. The fact that defendants received such notice, together with the fact that they had not complied with the law, refers to material matters connected with the sale and purchase of this sand and gravel business. 8. We agree with defendants that the letter pleaded at length in paragraph IV is no evidence of the existence of the substantive facts therein set forth. That is to say, the contents of this letter are not competent to establish the alleged fact that the sand and gravel operations will alter or modify the channel of the river, nor that defendants had violated or were violating the federal statutes as claimed. As substantive evidence of those facts, the letter is inadmissible. Ebbert v. First Nat. Bank of Condon, 131 Or 57, 67, 68, 69, 279 P 534. However, the receipt of this letter by defendants does serve a useful and material purpose in this case. It directed their attention to the fact that the District Engineer, who, under the law, is charged with the duty of investigating such matters and of assisting in the Act's enforcement, had made an investigation of their operations and, based thereon, demanded that such *413 acts be discontinued if prosecution was to be avoided. Their right to operate had been directly challenged by competent authority. 9. Manifestly, the mere giving of such notice to defendants is, of itself, a highly important and material fact. Whether, in truth, the conduct of their business would actually change the channel of the river, or otherwise be in violation of law, is not the material consideration as respects the matter now under discussion. The pertinent thing is that defendants had been threatened with litigation of a serious nature, by a responsible official of the federal government. Obviously, in selling the business to plaintiffs, good faith demanded, and it was the positive duty of defendants to make, a full disclosure of these facts. Instead, as alleged, defendants, "for the purpose of injuring and defrauding plaintiffs," affirmatively and "fraudulently represented to the plaintiffs that they knew of no reason why plaintiffs should not continue the operation of said sand and gravel business." (Paragraph V of the complaint.) 10. We notice the other allegation of paragraph V, which was stricken by the trial court, to-wit; "and that said defendants fraudulently concealed from and failed to disclose to plaintiffs that they had been stopped in their operations upon said premises by the War Department of the United States of America, as disclosed by the letter set forth above, or that they had received any such letter." (Italics ours.) We need not decide whether the foregoing allegation is equivalent to charging that defendants were actually stopped in their operations by the War Department. A positive allegation to that effect would, of course, be material. But aside from that, it is evident that concealment of the fact that "they had *414 received any such letter" is quite material, and defendants, by their demurrer, admit they concealed this information with fraudulent intent and purpose. 11, 12. It is elementary that when a motion to strike is directed against a particular part of a pleading, and any portion of the matter moved against is material, the motion should be denied. This is true, even though a part of the allegation in question is wholly immaterial and, on proper motion, would be stricken. Tested by this rule, the order of the court striking the entire allegation was error. We, therefore, treat the allegation as remaining in the complaint. 13. The defendants, by their demurrer, further admit that "said representations were false and fraudulent, in this, that defendants knew of the conditions set forth above and knew that on account thereof further operations would change the course, location or condition of the channel of said river. That said defendants received said letter from said War Department and withheld the information contained therein from plaintiffs in order to induce plaintiffs to purchase said property." (Italics ours.) 14. The allegation that "defendants knew of the conditions set forth above" refers to all the conditions alleged in the prior paragraphs of the complaint, including the allegations of paragraphs I, II, III, and IV, in particular. The allegation that defendants knew that their operations, if continued, would change the course, location, or condition of the channel of the river, is material and important. Presumably, with the knowledge that their continued operations would violate the federal statute, defendants discontinued them. It cannot be presumed that they knowingly persisted in performing unlawful acts. 15. The trial court struck from paragraph VI all *415 that part thereof reading as follows: "and having no information to the effect that said operations had been stopped by the War Department." In the absence of a direct allegation in the complaint that such operations had actually been stopped by the War Department, it would have been proper to strike that portion of the allegation referring to the same. However, the words "and having no information" in the stricken portion have reference not only to the matters regarding the War Department, but also to the proper allegation "that said premises could not be used for the further removal of soil, sand and gravel." It follows, therefore, that the words "and having no information" in the stricken allegation were material and should not have been stricken. In the light of what has been said above, we treat the whole allegation as remaining in the complaint. Lack of knowledge on the part of plaintiffs as alleged is largely, if not wholly, the basis of their right to rely upon the representations made. 16. In paragraph VII it is alleged that, on account of the matters pleaded, plaintiffs have been and are unable to use said premises for the purpose for which the same were purchased. This paragraph was stricken by the trial court. The court erred. This is an ultimate fact that plaintiffs will be required to establish by evidence. Clearly, plaintiffs cannot recover in this action unless they are able to prove that their operation of the premises for the purposes in question has been and is prevented. That is the very essence of their cause of action. 17. The remaining allegations of the complaint refer to alleged damages. We are of the opinion that the complaint states a cause of action; every essential *416 element of actionable fraud is pleaded. The trial court erred in sustaining the demurrer. Additional assignments of error were argued in this court, but the conclusion reached respecting the trial court's error in sustaining the demurrer renders unnecessary a consideration of the other matters. Judgment reversed, and cause remanded for further proceedings.

Order entered November 19, 2014 In The Court of Appeals Fifth District of Texas at Dallas No. 05-13-00958-CV LAKEITH AMIR-SHARIF, Appellant V. TEXAS DEPARTMENT OF FAMILY & PROTECTIVE SERVICES, Appellee On Appeal from the 255th Judicial District Court Dallas County, Texas Trial Court Cause No. DF-09-7655 ORDER We DENY appellant’s November 7, 2014 motion to vacate October 16, 2014 order and motion to strike appellee’s brief. /s/ CRAIG STODDART JUSTICE 

383 F.2d 527 Reverend Negil L. McPHERSON, Appellant,v.TAMIAMI TRAIL TOURS, INC. and Ned C. Boutwell, Appellees. No. 23452. United States Court of Appeals Fifth Circuit. July 6, 1967, Rehearing Denied Oct. 18, 1967, Rehearing EnBanc Denied Oct. 18, 1967. Howard Moore, Jr., Atlanta, Ga., Jack Greenberg, James M. Nabrit, III, Michael Meltsner, Charles Stephen Ralston, New York City, for appellant. Melburne D. McLendon, Bryan, Carter, Ansley & Smith, Atlanta, Ga., for appellees. Before TUTTLE, Chief Judge, WISDOM, Circuit Judge, and BREWSTER, District Judge. TUTTLE, Chief Judge: 1 This is an appeal from a denial of motions for directed verdict and for judgment notwithstanding the verdict or, in the alternative, for a new trial in a civil action for damages brought in the District Court for the Northern District of Georgia. 2 As the appellant recognizes, he has a heavy burden to carry when seeking to have an issue of negligence withdrawn from the jury in the Federal Court. 3 'In ruling on the motion for directed verdict or for judgment now, it is the duty of the trial court to take that view of the evidence most favorable to the party against whom the motion is made, and from that evidence, and the inferences reasonably and justifiably to be drawn therefrom, determine whether or not, under the law, a verdict might be found for him.' 6 Moore's Federal Practice, Sec. 59.08(5) at 3814. Professor Wright says: 4 'The evidence must be viewed in the light most favorable to the party against whom the motion is made, he must be given the benefit of all legitimate inferences which may be drawn in his favor from that evidence, and the motion must be denied if, so viewed, reasonable men might differ as to the conclusions of fact to be drawn.' Wright Federal Courts, Sec. 95 at 370. 5 The appellant here, not challenging these principles, states in his brief that 'The evidence must be construed in the light most favorable to the party against whom the motion is made,' and 'If reasonable men could differ as to the conclusions of fact to be drawn,' the motion should be denied, but then says that, taking all of the evidence as to the historical events that occurred at the time of the unprovoked attack on the appellant by a fellow passenger on the appellee's bus, as testified to by the witnesses for the appellee, the story thus related demanded a finding by the jury that the Tamiami Trail Tours, Inc. and its driver had failed to discharge that exceptionally high degree of care owed by them to a passenger, and that the failure of the jury to find accordingly required the entry of a judgment notwithstanding the verdict by the trial court. 6 This case, although not presenting as extreme a situation as that depicted in the opinion of this court in Bullock v. Tamiami Trail Tours, Inc., 266 F.2d 326, 5th Cir., resembled the earlier case in many respects. It arose out of an unprovoked, vicious attack by a white man on a Negro passenger sitting in the forward part of a bus owned and operated by the appellee in the State of Georgia just at the period of time when the issue of public transportation desegregation was at its highest emotional pitch.1 7 It is without dispute that the bus company's version of the facts, wherever this version differs from that of the plaintiff below, must be accepted for the purpose of the motion for judgment notwithstanding verdict. We here outline the facts which the jury was warranted in believing in its consideration of the question whether Tamiami Trail Tours, Inc. breached its duty owed to the plaintiff. 8 The plaintiff, the Rev. Negil L. McPherson, was a Negro minister, a native and citizen of the Commonwealth of Jamaica, then residing in Springfield, Illinois. He had been in Georgia and in Tennessee for part of his stay of several years in the United States and was somewhat familiar with the problem of segregation as then practiced in the Southern states in this country. 9 When he first came to the attention of the defendant, Boutwell, the driver of the bus, which he sought to board on September 22, 1961, at the Trailways Station in Atlanta, he offered his ticket to board the bus after pushing ahead of other passengers, including some women. The bus operator delayed his boarding the bus until after five or six other passengers had been permitted to enter. At this time, the bus driver heard someone make statements such as, 'I will take care of him', of 'He should be taken care of,' but he did not know or attempt to find out who made these remarks. McPherson boarded the bus and took either the third, fourth or fifth seat on the righthand side of the bus. Shortly after this, the driver came onto the bus and, we here quote from the brief of the appellee: 'Upon entering the bus, the driver noted there were several people seated in the first few seats of the bus, including the appellant who was seated on the right side in the third seat. The driver, while not necessarily expecting any trouble, remembered the complaining outside the bus; and, noting that the appellant was sitting in the midst of those passengers who had already entered the bus, recognized the possibility that the complaining person might well be on the bus, but he had no idea who it might have been. Recognizing it as a delicate situation, the bus driver in a normal voice suggested to the appellant that he move to the other side of the bus, one or two seats further back.2 10 McPherson refused to move and the driver went outside the bus to admit other persons, then later came into the bus again and asked McPherson again if he was going to take the other seat. The passenger declined to do so and asked the driver why he should move, to which the driver responded, 'Well, I asked you to.' As the driver walked back to the front of the bus again, McPherson asked him again why he should move and the driver said that he had 'answered him the first time he asked me.' Thereafter, McPherson asked him again why he should move and the bus driver said that after he had gotten back up to the front of the bus, 'I finally told him for his own safety.' Just before the bus started, one of two men who were sitting across the aisle one seat behind that occupied by appellant, tapped him on the shoulder and asked him, 'Why don't you do as the man said?' Receiving no answer, he then said, 'Where are you going?' McPherson did not answer this and the man said, 'You may not reach where you are going.' By this time the passengers had got on and the bus driver came in and the bus left the depot. McPherson did not tell the bus driver that the man had spoken to him. After the bus left the depot and got out on the highway toward Griffin, the white man, who in the meantime had asked the bus driver if he could get off the bus at any place and had received the reply that all he had to do was to pull the cord, moved over and sat down in the seat where McPherson was sitting. He said, 'Why didn't you do as the bus driver and I told you?' McPherson said, 'I am sitting here, I am not bothering anyone.' And he also said, 'In my country we sit wherever there is a vacant seat.' To this the other replied, 'You are not in your country now and I am going to kill you.' He clenched his fist and began hitting McPherson in the head and on his face.3 McPherson called the bus driver and pulled the cord. The bus stopped. The bus driver was disturbed over the fact that a lady with a small child wished to get off and he stepped out on the ground and then came back in and saw the assailant strike McPherson one blow. In the meantime, a white passenger named Hicks, sitting at the rear of the bus, had come up and undertaken to separate the assailant and McPherson, but when the bus driver came down the aisle, the assailant spun him around and pushed him out the aisle and out of the bus. He then disappeared. Boutwell, the bus driver, made no inquiry of the injured man and made no effort to obtain the names of witnesses until after he had made his regular stop at Jonesboro and then moved on towards Griffin. Then he stopped on the open highway and obtained the names of some of the passengers. The bus proceeded to Griffin, at which point McPherson left the bus and went to the hospital in that city where he was treated for his injuries. 11 Of course, McPherson's testimony as to the occurrence differed somewhat from that which is outlined above. He testified that the bus driver initially had refused to take his ticket, although he had not crowded ahead of anyone. He also testified that the bus driver spoke to the two men sitting across the aisle from him, when one of them inquired as to whether he could get off at any point and thereafter said to McPherson, 'I don't care who jumps you,' when McPherson asked him why he should move. McPherson's testimony does not contain any statement that he heard the driver respond finally to the inquiry as to why he should move his seat by saying, 'For your safety.' There is no evidence that this remark when the driver was back at his seat in the front of the bus was heard by McPherson.4 12 Boutwell made no report either at Jonesboro or at Griffin to any police officers concerning the attack made on his passenger. He made no inquiry of McPherson as to his condition or whether his injuries were slight or serious. Upon leaving the bus at Griffin, McPherson said, 'Thank you.'5 13 Here there was no attempt by the appellant to question the right of the jury to pass upon the historical facts that occurred on the afternoon of September 22, 1961. We have, rather, the contention of appellant that taking the facts as testified to by the appellee and on its behalf, the trial court should have concluded, as a matter of law, that the bus company did not meet the standard of care which it owed to its passenger. If this proposition is established, it of course, falls within the purview of proper judicial review. As stated by this court in Cole v. Usry, 5 Cir., 294 F.2d 426, 'We appreciate the extremely limited scope of review by this court of the judgment entered on the jury's verdict. Nevertheless, this court owes a duty not as a mere automation, but as a judicial function to determine whether there is really a rational basis for a jury's verdict. See Reuter v. Eastern Air Lines, 5 Cir., 1965, 226 F.2d 443, 445.' 14 Then, after discussing the facts of that case (tried to a jury) dealing with the question whether real estate sold by a taxpayer was sold as a capital asset or was a sale of property held for sale to customers in the ordinary course of business, this court said: 15 'Somewhat paradoxically in the present case, a clearer view can be had of the reasonableness of the answer to the ultimate question, than of whether different conclusions could reasonably be reached on any one or more of the factors to be considered in answering that question. Considering the case in its entirety, it seems clear to us that the controlling facts are so extreme as to make it utterly unreasonable to hold that the property here involved was held by the taxpayers primarily for sale to their customers in the ordinary course of their trade or business. Unless every jury verdict in cases of this kind is to be upheld, this one should be set aside, and judgment for the plaintiffs should be entered notwithstanding the verdict.' 294 F.2d 426, 430. 16 And now, the question here is whether the fact that the bus driver, within the hearing of the man who subsequently attacked him, told McPherson to move to the rear of the bus, and, when asked the reason for such a request, said: 'Well, I asked you to,' at a time when the driver had heard someone near the entrance of the bus make threats against the passenger which he did not communicate to the passenger in order to give him an opportunity to exercise his judgment whether such threats presented him with a serious danger,6 (all of which facts are undisputed on this record.), constituted a failure of the driver to use that degree of care which, under the laws of the State of Georgia is owed to a passenger. 17 The Georgia standard of care owed by a common carrier to its passenger is as strict as any that can be imagined short of insuring the safety of the passenger. The Georgia Supreme Court has expressed it in these terms: 18 'A railroad company is bound to use extraordinary care and diligence to protect its passengers, while in transit, from violence, injury, or outrage and humiliation by third parties. Brunswick & Western R.R. Co. v. Ponder, 117 Ga. 63, 43 S.E. 430, 60 L.R.A. 713, 97 Am.St.Rep. 152. This duty applies whether the passenger is white or colored. This protection must be afforded by the conductor to the extent of all the power with which he is clothed by the company or by the law, and his failure to afford it, when he has knowledge that there is occasion for his interference, will subject the company to liability and damages.' Hillman v. Ga. R.R. & Banking Co., 126 Ga. 814, 817, 56 S.E. 68, 69. 19 In Yellow Cab Co. of Atlanta v. Carmichael, 33 Ga.App. 364, 126 S.E. 269, it was stated as follows: 20 'A common carrier of passengers for hire is bound to use extraordinary care and diligence to protect its passengers in transit from violence or injury by third persons; and whenever a carrier through its agents and servants, knows, or has opportunity to know of a threatened injury to a passenger from third persons, whether such persons are passengers or not, or when the circumstances are such that an injury to a passenger from such a source might reasonably be anticipated, and proper precautions are not taken to prevent the injury, the carrier is liable for damages resulting therefrom.' 21 In the case of Bullock v. Tamiami Trail Tours, Inc., 5th Cir., 266 F.2d 326, a Florida case in which the standard of care was no greater than is required under the Georgia decisions, dealt with what constituted 'proper precaution.' This Court found as a matter of law that the failure to warn the passenger of facts endangering the passenger known to the driver required the setting aside of a judgment in favor of the carrier and required the entry of a judgment favoring the plaintiff on the issue of liability. In that case, the conversation of the bus drivers in the restaurant at the bus stop was thought to be responsible for the person who later became the assailant to get on the bus and attack the couple. The court explained that among the other failures to comply with the standard of care required were the following: 22 'The next question is whether or not Tamiami, so charged with the duty of foreseeing danger to its passengers, took proper precautions to avoid such danger by the 'utmost care and diligence of a very cautious person.' (Footnote citing Pelot v. Atlanta Coast Line R.R. Co., 1911, 60 Fla. 159, 53 So. 937, 938.) We think that Tamiami failed to exercise this care in several ways. It should have instructed its agency in Jamaica to advise Negroes applying for passage through the southern part of the United States of the South's tradition of segregation. (This is not applicable here.) It should have instructed its drivers to advise Negroes who were obviously foreigners, here known to be such, of segregation customs. (This is probably not applicable here.) The driver should have explained to the Bullocks his reason for wanting them to move. Above all, the driver should not, either wilfully or negligently, have informed the assailant of the Bullocks' position on the bus and of their apparent color and lack of color.' (Not applicable here except for the request made by the bus driver of McPherson in the presence of the other passengers that he move farther back in the bus.) 23 Although the Bullock case was an appeal from a trial by a court without a jury, we think the standard of care set up and the measure of the duty owed by the bus company is to be uniformly applied whether in the trial before a court without a jury or in a jury trial. The court did not merely reverse that case for application of the proper standard; we reversed for entry of a judgment on liability against the carrier. 24 We cannot say that if Boutwell had explained to the passenger that he thought it would be better for him to move to the back of the bus because he had overheard threats against him outside the bus that McPherson would have moved and would thus have satisfied the pettiness of the self-appointed guardian of the tradition of segregation. Certain it is, however, that the formula used by the driver to cause McPherson to protect himself was the least likely to accomplish this purpose. At the very time that the issue was being tested out on common carriers throughout the South, Boutwell could hardly have chosen a less fortunate method of requesting the passenger to move than to say in effect: 'I want you to move because I told you to.' If it was true, as we said in Bullock, that, 'The driver should have explained to the Bullocks his reason for wanting them to move,' so it is true in this jury case that 'The driver should have explained to McPherson his reasons for wanting him to move.' 25 Instead, his request that McPherson move, ostensibly to anyone overhearing the request, for the purpose of maintaining the pattern of segregation, may well have been taken by the passengers as an open invitation to take direct action, as one of them did. 26 The standard of care owed by a carrier is high. No higher standard can be envisioned than that announced by the Supreme Court of Georgia as far back as 1906 when it says that this protection 'must be afforded by the conductor to the extent of all the power with which he is clothed, by the company or by the law.' Hillman v. Ga. R.R. & Banking Co., supra. 27 There is no dispute on this record that driver Boutwell failed to exercise this degree of care when he asked the Negro passenger to move to the rear of the bus, because 'I asked you to,' without informing the passenger at the same time that he had heard someone near the bus entrance make threats against him. The fact that Boutwell testified that he thought the hard feeling exhibited at the bus entrance was due to what he described as McPherson's effort to get ahead of some ladies to get on the bus or that he didn't really expect any danger does not lessen the obligation owed by the carrier once the passenger has been accepted and is brought within the care of the driver. This obligation, we said in Bullock, included informing the passenger of the facts which brought about the request to move to the rear of the bus. 28 We conclude that the principle laid down in the Bullock case dealing with the duty of the bus company to acquaint a passenger of any threat of danger known to it requires a reversal of the order of the trial court denying the judgment notwithstanding the verdict. 29 The judgment is reversed and the case is remanded to the trial court for their entry of a judgment in the issue of liability and for further proceedings not inconsistent with this opinion. ON PETITION FOR REHEARING ORDER PER CURIAM: 30 The petition for rehearing is denied. BREWSTER, District Judge: 31 I dissent for the reasons set out in my dissenting opinion. ON PETITION FOR REHEARING EN BANC 32 The Court having been polled at the request of one of its members on the question of whether this case should be reheard before the court en banc, and a majority of the circuit judges who are in regular active service not having voted in favor of it, Rule 25a, subparagraphs (a) and (b), the petition for rehearing en banc is denied. BREWSTER, District Judge (dissenting): 33 I respectfully dissent. 34 If the issue before us were whether the assault on the appellant by the bus passenger was unjustified, there would be no dissent among the members of this panel; and this dissent does not condone the attack in any way. Our problem, however, is to determine whether the evidence requires that money be taken away from the appellee bus company and given to the appellant on account of the injuries resulting to him from that incident. The only way such relief can be given the appellant, in the fact of the jury verdict against him, is for us to hold as a matter of law both that the bus driver was negligent and that such negligence was a proximate cause of appellant's injuries. Modern Coach Corp. v. Faver, 87 Ga.App. 221, 73 S.E.2d 497 (1957); Atlanta Transit System v. Allen, 96 Ga.App. 622, 101 S.E.2d 134 (1959). The quotations just below are taken from those cases. 35 Faver, 73 S.E.2d at 502: '* * * It is a jury question whether the defendant bus driver was negligent in the particulars alleged, and if so, whether his negligence caused the injury.' 36 Allen, 101 S.E.2d at 144: '* * * The rule in negligence cases is that each must stand on its own bottom, and that where reasonable minds might differ, either as to the proximate cause, the degree of the negligence of the defendant, or the contributory negligence of the plaintiff, such case should be decided by a jury and not by the court. (citing cases).' 37 It is my opinion that both negligence and proximate cause were questions of fact for the jury under the evidence in this case, and that the Court has no right to override its decisions on either of those matters. 38 Hardware Mutual Ins. Co. v. Lukken, 10 Cir., 372 F.2d 8, 10 (1967), contains a recent statement of the universally accepted rule for determining whether a jury verdict in a negligence case should be set aside. The Court there said: 39 'Hardware first complains of the court's refusal to direct a verdict or grant judgment n.o.v. in its favor. This means, of course, that Hardware has the heavy burden of convincing us that actionable negligence is the only permissible inference which can be drawn from the established facts. Christopherson v. Humphrey, 10 Cir., 366 F.2d 323. See High Voltage Engineering Corp. v. Pierce, 10 Cir., 359 F.2d 33; United States v. Hess, 10 Cir., 341 F.2d 444; Chicago, Rock Island and Pacific Railroad Co. v. Hugh Breeding Line, 10 Cir., 232 F.2d 584; Lussan v. Grain Dealers Mutual Ins. Co., 5 Cir., 280 F.2d 491. The facts were susceptible of more than one inference, and therefore the issue of negligence was for the jury.' 40 The outline of the evidence in the majority opinion is accurate. That evidence has been interpreted, however, in some important instances more in the light of the inferences that the majority would have drawn, or would like to have seen drawn, rather than of the inferences most favorable to the appellees the law requires us to draw. It will be more feasible to set out the version I consider the jury could have permissibly accepted than to try to point out singly those instances of disagreement. My judgment is that when the evidence is viewed objectively in the light most favorable to the appellees, we must say that the jury could have drawn the inferences that follow, regardless of how we would have found if we had been the trier of facts. 41 At the time of the incident in question, the appellant was thoroughly familiar with the practice of racial segregation in the South generally and with the hostile attitude of the die-hard element towards all attempts to end it. It is true that he was a citizen of Jamaica; but he came to this country on a student visa in the year the decision in Brown v. Board of Education was handed down, and has lived continuously in Tennessee and Georgia during the seven racially turbulent years that followed in each of those and other southern states. He had spent those seven years getting a college education and studying for the ministry. He had degrees from American Baptist Seminary and Fisk University, both predominantly Negro institutions in Nashville, Tennessee, and was just beginning his second year at Interdenominational Theological Center at the time of the incident on the bus. During his last two years in Nashville, he went with a young woman he had met at Fisk University. She had grown up in her native state of South Carolina. She went to Griffin, Georgia, on August 28, 1961 to teach school, and married appellant on the September 10th following. He went to school in Atlanta from Monday to Friday, and spent the weekends at his home in Griffin. Unless he got a ride with friends, he commuted on the bus; and he had ridden the Tamiami bus back or forth between Atlanta and Griffin about six times before the trip that gave rise to this suit. 42 On September 22, 1961, the Interstate Commerce Commission entered an order forbidding racial discrimination in operations of motor carriers of passengers. That was on a Friday when the appellant was going from Atlanta to his home in Griffin on the bus leaving at 5:45 P.M., a time of day when he could expect the bus to be crowded. There was a number of people ahead of him on the bus loading platform when the time came to board, but he pushed his way ahead of at least five of them, including some women, and offered his ticket. The bus driver followed the established practice of taking tickets from those who were nearest the door, and accepted the appellant's in the order he would have presented it if he had not shoved ahead of the others. The appellant boarded the bus and took the third seat from the front on the right side. The appellant's conduct in pushing ahead of the women had provoked some 'rumbling and grumbling' among persons in the crowd on and around the loading platform. The bus driver did not know exactly what was said, who said it, or whether the person or persons grumbling got on the bus. Conduct of that kind was commonplace in connection with racial problems in those days, and the driver had never seen it result in any trouble. He did not consider that the appellant was in any danger. However, when he went on the bus to assist a woman passenger with her luggage, he noticed that appellant was seated in a group of white passengers, and out of utmost precaution said to him in a normal, conversational tone, 'How about taking a seat over on this other side?' He pointed to a seat on the other side of the bus only one or two seats back, and made no effort to get appellant to move to the back of the bus. The appellant's answer was that he was going to sit where he was, and the driver could not make him move. He then asked why he should move, and the driver's answer was, 'Well, I asked you to.' Even though the driver made no further effort to get appellant to change his seat, the appellant continued to ask over and over why he should move. The driver finally told him he was asking him to do it for his own safety. The appellant did not move, and the driver went back to the platform to continue the loading of passengers. 43 While the driver was then taking tickets on the loading platform, a male passenger already on the bus tapped appellant on the shoulder and asked him why he did not move. There was no answer, and the man then inquired as to where appellant was going. Again, the appellant gave no answer; and the man said to him, 'You may not reach where you are going.' That took place around fifteen minutes to twenty minutes before the bus left Atlanta, and the appellant did not move to another seat. He did not report the incident to anyone, and the driver knew nothing about it. 44 The bus left the station, and was proceeding south along the four lane expressway between Atlanta and Jonesboro when the trouble happened. After the bus was a few miles beyond the city limits of Atlanta, someone pulled the cord to stop it. A large, young white man started beating the appellant around the head with his fists at about the time the bus was stopping; but the driver did not know it as his attention was occupied with getting the bus on the shoulder and stopping it, and his view of the passenger section was obstructed by the presence of several people standing in the aisle near the front of the bus waiting to get off. It was nothing unusual for the bus to unload passengers between cities as it stopped anywhere the stop cord was pulled. A woman and her small child were among the passengers standing near the front to get off. The child was subject to having convulsions and the driver knew from previous trips that she had been very ill. He helped the woman and child off, and got back on as soon as the other passengers standing near the door had dismounted. As he got in the bus, he saw the white man slap the appellant. That was the first time he knew of any trouble. 45 One of the passengers on the bus was a Mr. Hicks who had theretofore been a police officer in Atlanta. He was seated in the back, but went forward promptly and tried to stop the assailant. Mr. Hicks, like the driver, was an average size man, and was having difficulty handling the powerful, younger man. As soon as the driver saw there was trouble, he also intervened to try to stop it. The assailant told the driver to stay out of it, as it was no affair of the driver, and drew back his fist to hit the driver. a woman screamed for him not to strike the driver and he did not do it. Hicks and the driver together finally pulled the assailant off the appellant; and the assailant grabbed the driver and shoved him ahead and out of the bus. When the assailant hit the ground, he left. Hicks took the appellant by the arm and led him to the back seat on the bus. No one connected with the case knew the identity of the assailant. 46 The appellant made no complaint of any injury. He did not get off the bus at Jonesboro. As he left it at Griffin, he thanked the bus driver. At his wife's insistence, he went to a doctor in Griffin. The doctor found no permanent or serious injuries. 47 The majority says that it was established as a matter of law that the bus driver heard someone on or near the bus loading platform 'make such statements as, 'I will take care of him', or 'He should be taken care of'.' It further says as a matter of law that the failure of the bus driver to advise the appellant particularly of such statements was negligence and a proximate cause of his injuries. From my understanding of the case, there were permissible inferences, other than those drawn by the majority, as to whether either of those remarks was made, as to which one, if any, was made, as to the interpretation to be put on such remark as was made, as to whether the bus driver was negligent in failing to communicate to appellant whatever remarks were actually made, and as to whether such negligence, if any so found, was a proximate cause of appellant's injuries. 48 It would unduly lengthen this opinion to go into the detailed discussion necessary to point out that the jury was not bound as a matter of law to conclude that the remarks that are the foundation of the majority's holding of actionable negligence were actually made. The only evidence on this matter was the bus driver's testimony given on examination by opposing counsel.1 While it was certainly susceptible of the interpretation that he heard specific remarks, the jury could have reasonably concluded that he heard only rumbling and grumbling and that the 'remarks' in question were only figments of the imagination of opposing counsel. They appear only in questions of that counsel, and those questions were not so framed as to get a direct response from the witness as to whether he heard such remarks. The questions usually focused the witness' attention on something besides answering directly that the remarks were or were not made. The very fact that counsel himself could not settle on which remark was made shows that there was enough uncertainty about the matter that we cannot foreclose it as a matter of law. 49 Assume, however, that the bus driver heard a specific remark, rather than just mumbling or grumbling. We cannot say as a matter of law that it was, 'I will take care of him', or 'He should be taken care of.' The least that we can say is that it was a question of fact for the jury to determine which one was made. The two remarks are susceptible of entirely different implications. The first one is in the nature of a specific threat by a person speaking for himself. The second one could be construed merely as an observation carrying no intention of action. It is the kind of statement that could have been made by one of the women whom the appellant was trying to push ahead of to be one of the first passengers on the bus. Under the rule that we must decide this question on the basis of the permissible inferences most favorable to the appellees, we must assume that the jury concluded that the milder of the two remarks was the one that was made, and that it gave such remark the most harmless inference possible under the evidence. 50 Even if there were no question about the majority's premise as to the 'remarks', negligence was still a question of fact for the jury under this evidence. The generally accepted rule in negligence cases is that where the evidence shows that substantial care was used, the question of whether that care was sufficient to meet the required standard of prudence is one of fact for the jury. Wichita Valley Ry. Co. v. Fite, Tex.Civ.App., 78 S.W.2d 714, 716, no writ history; Texas & N.O.R. Co. v. Pettitt, Tex.Civ.App., 290 S.W.2d 730, no writ history; Merlino v. Southern Pac. Co., 132 Cal.App.2d 58, 281 P.2d 583; Balthrop v. Atchison, Topeka & Santa Fe Ry. Co., 167 Cal.App.2d 437, 334 P.2d 1041, 1043; Redwing Carriers, Inc. v. Helwig, Fla.App., 108 So.2d 620; Langston v. Chicago & N.W. Ry. Co., 330 Ill.App. 260, 70 N.E.2d 852, 860. This is not a case where the bus driver used no care whatever, as in Bullock v. Tamiami Trail Tours, Inc., cited in the majority opinion. The majority admits that there was evidence from which the jury could have permissible concluded that the bus driver did everything that could have been expected of him except to go back and tell the appellant that he had heard someone on the loading platform 'make statements such as, 'I will take care of him,' or 'He should be taken care of'.' My opinion is that it was for the jury to say whether this one omission, if it occurred, was a failure to use the required extraordinary diligence. 105 Georgia Code Annotated, Section 202, defines 'extraordinary diligence' as 'that extreme care and caution which very prudent and thoughtful persons exercise under the same or similar circumstances.' When the permissible inferences most favorable to the appellees are accepted, we must say that a very prudent person in the position of the bus driver would have acted under these circumstances: (1) The slightest effort to get a Negro to move from his chosen seat on that day when the I.C.C. Regulation abolishing segregated seating on interstate carriers became effective would be likely to get the bus company sued under the Civil Rights Act. (2) The appellant seriously resented a suggestion made by the bus driver that he move, not to the rear of the bus, but just to the other side a few seats back from the group around him, even though he was told that the suggestion was for his own safety. (3) It was not known whether the person doing the mumbling or grumbling or making the remarks was at the loading platform waiting to get on the bus or was merely standing by to see a relative or friend off. (4) It was not known whether the assailant had any connection with the making of the remarks or whether he even heard them. (5) Whether the remarks on the loading platform could be definitely identified or were just mumbling and grumbling, they were the kind frequently heard when the racial issue came up in connection with bus travel, and the bus driver had never known them to result in trouble. (6) The bus driver's judgment of the likelihood of damages from the remarks was corroborated by the weight the appellant attached to much more serious statements made to him by a fellow passenger after they got on the bus. The statement by the large, white man, who later became the assailant, made in a hostile manner, that, 'You may not reach where you are going', was a much more serious threat than the 'remands', whatever they were, on the loading platform. There was no question about who made the threat, about the fact that he was a passenger on the bus, or about the fact that he was big enough to try to carry out the threat. The appellant did not regard the likelihood of danger to be great enough to report the matter to the bus driver or to anyone in the bus station, even though he had 15 or 20 minutes to do so before departure time. Under these and the other circumstances supported by permissible inferences from the evidence, the jury was acting within its authority in concluding that the bus driver in this case went just as far as an extraordinarily prudent person in his position would have gone under the circumstances. 51 We have an anomalous situation here where the majority says that the bus driver did not do enough to get the appellant to move his seat, and the appellant says that he did too much. The complaint in this case contained not only a count for personal injuries based on allegations of negligence, but also one for damages predicated on allegations that the bus driver violated appellant's civil rights in trying to get him to move from the seat he had chosen. When the judge was discussing the charge with the lawyers before their arguments, the appellant strenuously insisted that he was entitled to damages on the civil rights count separate from those for his personal injuries. He still urges on appeal that the driver's suggestion that he move was done under color of state law,2 and that the mere request that he move was 'discrimination per se' which 'subjected him to the humiliation and degradation of segregation.' That the appellant himself does not sincerely contend that the bus driver should have done more to get him to move is evidenced by the following statement in his brief: 'The fact that this act of taking the first unoccupied and convenient seat was 'offensive and provocative' can in no way legally explain or justify the bus driver's direction to move further to the rear.' His brief here asks us to hold as a matter of law that the bus driver violated his civil rights in going as far as he did to get him to move.3 I hardly see how we can go to the other extreme and say as a matter of law that the bus driver did not do enough by merely failing to tell the appellant that he heard some specific threats, when nobody knows what the threats were, and the bus driver did tell him that the move should be made for his safety. 52 The premise of the majority opinion that the failure of the driver to inform the appellant particularly of the 'remarks' in question was actionable negligence is not sound unless we can say as a matter of law that such failure was a proximate cause of appellant's injuries. To do that, we must hold that beyond question the appellant would have changed his conduct if he had had such information. While that is one possible inference that can be drawn from the evidence, it is not the only one, and it is not the one most favorable to the appellees. The jury could have permissibly inferred that the appellant was determined to remain where he was, as he had a right to do, regardless of what anyone said. His whole conduct indicates that. The majority opinion predicates its view of the causal issue on the fact that appellant did finally move to the rear of the bus. That conduct is no criterion because it took place after the appellant had been mauled by his assailant. The jury could have legitimately drawn the conclusion that, until he was actually attacked, the appellant was convinced that there would be nothing more than just mouthing about his taking a seat in the forward part of the bus. When the jury took into consideration that appellant not only refused to move, but also made some issue out of his right to remain in his seat, even after he had been told that the suggestion to move just a few seats back was for his safety, it could well have legitimately inferred that he would have remained in his seat even if the bus driver had told him what he heard while on the loading platform. Such an inference would have been strongly supported by the fact that the appellant did not move when the man seated behind him made the more serious threat that has been discussed above. Under Georgia law, proximate cause is a question of fact for the jury and 'will not be determined by the courts as a matter of law except in palpably clear, plain and undisputed cases.' Swift & Co. v. Morgan & Sturdivant, 5 Cir., 214 F.2d 115, 49 A.L.R.2d 924 (1954); Stanaland v. Atlantic Coast Line R. Co., 5 Cir., 192 F.2d 432 (1951); Southern Ry. Co. v. United States, 5 Cir., 197 F.2d 922 (1952). This is a case where it is possible for reasonable men in an impartial exercise of their judgment to draw inferences favorable to the appellees on the issue of proximate cause, and that matter was therefore a question of fact for the jury. 53 The Bullock case cited by the majority is no authority for overriding the jury verdict in the present case. It went further than any Georgia case had ever gone in its holding that there was actionable negligence as a matter of law where no violation of a statute or official regulation was involved. The majority opinion in this case now goes even further, because it admits that we do not here have 'as extreme a situation' as that depicted in the Bullock case. There are several grounds upon which the Bullock case can be distinguished, but these will suffice: (1) Beyond question, the bus driver in Bullock intentionally provoked the difficulty. (2) There was no evidence that the bus driver used any care whatever. 54 The record in this case would impress anyone experienced in litigation with the fact that the appellant received a most fair trial, and that his claims were given serious and deliberate consideration both by the able trial judge and by the jury. I conscientiously believe that this is not a case for judicial surgery, and that the judgment should be affirmed. ON PETITION FOR REHEARING EN BANC 55 GRIFFIN B. BELL, Circuit Judge, with whom GEWIN, Circuit Judge, joins (dissenting from order denying petition for en banc rehearing): 56 I respectfully dissent from the action of the majority of the court in denying the petition of appellee Tamiami Trail Tours, Inc. for en banc rehearing. This dissent is based on the firm view that appellee has been deprived of its right to jury trial with respect to disputed questions of fact relating to negligence and proximate cause on the part of the bus driver and whether and to what extent the plaintiff himself may have been negligent. 57 These issues and the facts surrounding them do not seem to differ from those presented in any run of mine negligence case and the application of the usual standard for directing verdicts is demanded. That standard has consistently been stated to be that the trial judge may grant a directed verdict only when there is no evidence which, if believed, would authorize a verdict against the movant. It is the duty of the trial court to accept as true all of the facts which the evidence tends to prove and to draw against the party making the motion all reasonable inferences most favorable to the party opposing the motion. If the evidence is of such a character that reasonable men in an impartial exercise of their judgment may reach different conclusions, then the case should be submitted to the jury. Hogan v. United States, 5 Cir., 1963, 325 F.2d 276; Turner v. Atlantic Coast Line R. Co., 5 Cir., 1961, 292 F.2d 586; Swift & Co. v. Morgan & Sturdivant, 5 Cir., 1954, 214 F.2d 115, 49 A.L.R.2d 924; 2B Barron and Holtzoff (Wright ed.), Federal Practice and Procedure, 1075; and 5 Moore's Federal Practice, 50-50.12 (2d ed.). 58 It seems apparent that the majority decision in this case departs from this standard and does deprive appellee of its right to jury trial. No court is empowered to suspend the operation of the Seventh Amendment even where there are overtones of civil rights. While any mistreatment of plaintiff is to be regretted, his claim for damages does not rise above that of any other citizen. His claim, like that of others, must be asserted within constitutional standards including the Seventh Amendment. It is to be emphasized that he has not been awarded a new trial; he has been awarded a directed verdict on liability. 59 The precedent of this decision will seriously erode Seventh Amendment rights if it is applied to all. It is a mere fiat if it is not to be applied to all. 1 It is a coincidence that September 22, 1961, the date on which the Rev. Mr. McPherson was attacked is the very date on which the Interstate Commerce Commission order forbidding future discrimination in operations of interstate motor carriers of passengers ICC No. Mc-C-3358 was promulgated 2 When cross-examined about this, the bus driver gave the following testimony: 'Q. Why would moving to the other side of the bus protect him? 'A. He would have been two or three seats further back. 'Q. What effect would that have had on his alleged assailants? 'A. Well, you know, all of this desegregation had just begun to start a little after that and you know how the people of the South were still feeling about that time. I knew, you knew and he knew. All precautions you could take to keep anything down would probably be best.' 3 The narration of this exchange between the assailant and McPherson is based on the latter's testimony, but it is not disputed. It is partially supported by a defense witness who was sitting just behind the driver and overheard the white man, 'kept telling him to move back, and he didn't move, and so then the boy (a man she later said appeared to be between 28 and 35 years old) just got up and started beating him.' 4 In an effort to impeach the driver as to the point, it was brought out that on giving his original deposition touching on his request that McPherson move, Boutwell had made no comment about his request being for the passenger's safety 5 In his testimony he explained this by saying: 'For the treatment I had received and with no help from Mr. Boutwell, I said to him, 'Thank you.' 'Q. Were you grateful to him? Is that the reason you said, 'Thank you.'? 'A. We don't say 'Thank you' always for gratefulness. If something- this particular time they say to you you should pray for those who despitefully use you, and upon this basis I said 'Thank you' to him. 'Q. Are you suggesting that perhaps it was sarcasm rather than for appreciation? 'A. I could not have appreciated getting beaten and getting my head swollen and my nose broken and have a headache.' 6 It will be noted that after the passenger Hicks intervened and stopped the beating, McPherson did accept Hicks' suggestion that he move to the back of the bus, for his further safety 1 The bus driver was called by appellant as an adverse witness. The following testimony given by him on examination by counsel for appellant is all the evidence there is about the 'remarks' in question: 'Q. Tell this Court and jury why you asked the plaintiff to move. 'A. I asked him to move because I had heard some rumbling and grumbling on the outside of the bus before- excuse me- before the other folks got on that since he had walked in front of some other people and seemed to upset some of them, I didn't look up to see who was grumbling or anything, but at the point I didn't know where the grumbling party or the parties, whichever it was, had already boarded the bus, whether they were still outside or not. 'Q. Now- 'A. And so I figured if they had boarded the bus, since the ones that were on were up around the front of the bus, I figured it would be a good idea if they were grumbling about him, and which I thought at the time they were, because of what he had done outside, I figured maybe it would be a good idea to get him away from this few people that was already on there and out of their area right around in there, to quell things as much as I could, if anything possible could arise from what I had overheard outside. 'Q. All right. So, you knew when you first got on the bus to help the lady with the suitcase the Plaintiff was in danger, didn't you? 'A. No, I didn't know he was in danger. 'Q. You knew when you first got on the bus, didn't you, that there had been some rumbling and there was likely to be some harm to the plaintiff? 'A. I knew there had been some rumbling, but I wasn't sure there would be any harm to anybody. 'Q. Now, at the time you spoke to the plaintiff on the bus, the first time when you got on there, you had overheard some white men outside say the following words, didn't you: 'I will take care of him,' or 'He should be taken care of', you had heard those words? 'A. Whether they were white men or colored men, I don't know. 'Q. There were no other colored men in the line other than the Reverend McPherson, were there? 'A. I couldn't definitely say to that. 'Q. So you don't know whether there were colored men in the line, or not, do you? 'A. I definitely do not. 'Q. And you never investigated to find out who made that remark, did you? 'A. No; I didn't. I couldn't very well investigate the whole crowd because I had no idea who might have said it. 'Q. And you never investigated the people on the bus either, did you? 'A. There was no reason to investigate the people on the bus, I didn't think. 'Q. Didn't you suspect something was going to happen? 'A. No; I didn't know at the present time. I was just trying to make sure that nothing did happen. 'Q. You were making sure something didn't happen, and, yet, you didn't suspect anything would happen? 'A. I didn't suspect anything would happen. 'Q. Now, you didn't tell the plaintiff that you overheard these men outside saying these words, 'I'll take care of him', or 'He should be taken care of', did you? 'A. No. 'Q. And, so, Mr. Boutwell, when you heard this remark you decided you would go in the bus and take care of the plaintiff, didn't you? 'A. Not take care of him. As I stated before, I felt like it would be a good idea, if someone has said it, or the ones, had already gotten on the bus, it would be a good idea to get him out of the area. 'Q. You never thought it was- and if he hadn't gotten on the bus; then there was nothing I could do about where he sat. 'Q. You never thought it was a good idea to ascertain where these people were that made the remark, did you? 'A. I couldn't determine that anyway outside because the remark came out of the crowd. 'Q. But you could have determined it inside, couldn't you? 'A. No; I couldn't, because it wasn't made inside. 'Q. You never warned anybody who was getting on that bus that they couldn't cause any disturbance or incident on the bus, did you? 'A. No. You don't normally do that. 'Q. You suspected an incident would happen, didn't you? 'A. I didn't suspect it. 'Q. You didn't? Mr. Boutwell, you didn't ever tell the plaintiff, did you, that he was in danger? 'A. I didn't think he was in danger. 'Q. But, yet, you asked him to move? 'A. That's correct; in order to make sure the remarks I had heard outside would be quieted down then and nothing else to it. 'Q. That is, if he gave up his seat- 'A. Not necessarily gave up his seat. That is not why I asked him to move. 'Q. You asked him to move because of remarks you had heard outside, is that right? 'A. That's correct.' 'Q. Don't you think you should have inquired? 'A. No. 'The Witness: I would like to give an answer to that. 'The Court: Yes, sir; you can. 'The Witness: I didn't think there was any reason to inquire, because, like I said, I wasn't definite as to who had the remarks or grumbling outside, or whatever it was, and whether the man was on the bus at the time or still outside. I didn't know and I couldn't go around and point everybody out and ask him if he was going to cause any trouble on my bus.' 'Q. Did you hear any additional rumbling while you were out taking up tickets? 'A. Not after the first. 'Q. Now, after you took up the tickets you got on the bus and drove away; is that correct? 'A. After I had finished loading. 'Q. You didn't report this to the station superintendent, did you? 'A. No; I didn't have anything to report. 'Q. You didn't report it to the policeman on duty at the station, did you? 'A. We don't have a regular policeman on duty at the station. 'Q. You never considered it your duty to perhaps call one, did you? 'A. No; because I didn't have anything to report. 'Q. You weren't- you didn't have anything to report? And yet you feared for the plaintiff safety? 'A. I didn't fear for his safety. I just asked him to take another seat just in case. 'Q. In case of what? 'A. Just in case those remarks that I had heard outside, that that man was getting on my bus or whether he was passing by. 'Q. You didn't- you just didn't bother to find out whether he was on your bus or just passing by? 'A. There is no way I could have found out. 'Q. When you say there is no way you could find out, what you mean is you didn't do anything to find out? 'A. I done all possible. 'Q. And that was ask the plaintiff to move? 'A. That's right.' 'Q. In any event, before leaving the station you didn't report the incident or the remarks to the station superintendent, did you? 'A. No, I didn't, because you hear remarks all the time, and so far those remarks you hear have never meant anything. 2 Georgia Code Annotated, Section 68-616 3 'The right herein involved is the right to travel upon an intrastate bus without being segregated. Morgan v. (Com. of) Virginia, 328 U.S. 373 (66 S.Ct. 1050, 90 L.Ed. 1317); Boynton v. (Com. of) Virginia, 364 U.S. 454 (81 S.Ct. 182, 5 L.Ed.2d 206). Appellees deprived McPherson of the right to be free of discrimination or segregation because of his race or color while traveling upon an intrastate bus. The seat which appellant first selected was convenient, comfortable, and safe (R. 185, 186). The fact that this act of taking the first unoccupied and convenient seat was 'offensive and provocative' can in no way legally explain or justify the bus driver's direction to move farther to the rear. See Nesmith v. Alford, 318 F.2d 110, 121 (5th Cir. 1963). In the context of this case, the act of directing appellant to move to the rear to state the racial preferences of white passengers is discrimination per se. Merely informing the appellant that his place was in the back of the bus subjected him to the humiliation and degradation of segregation, whether or not he was actually forced to move, for the primary effect of segregation is not so much physical placement as it is the resulting state of mind of the person discriminated against. See Brown v. Board of Education, 347 U.S. 483 (74 S.Ct. 686, 98 L.Ed. 873) (1954). The rear of the bus is the traditional place for the segregated Negro.'

154 U.S. 570 14 S.Ct. 1215 19 L.Ed. 712 OTIS H. WEED et al.v.JOHN H. CRANE. No. 123. April 4, 1870. J. B. Robb, for plaintiffs in error. F. A. Brooks, for defendant in error. Mr. Chief Justice CHASE delivered the opinion of the court. 1 On looking into the record of this cause we find no exception to any ruling of the court upon the trial, nor any exception to the report of the assessor, nor to any ruling of the court in relation to it. There is nothing, therefore, in the record which can be reviewed here upon error, and the judgment of the circuit court must be affirmed.

263 S.W.3d 475 (2007) Ronald Ray TRYON, Appellant, v. STATE of Arkansas, Appellee. No. CR 06-801. Supreme Court of Arkansas. September 27, 2007. *478 Knutson Law Firm, by: Gregg A. Knutson, Little Rock, AR, for appellant. Dustin McDaniel, Att'y Gen., by: LeaAnn J. Irvin and Farhan A. Khan, Ass'ts Att'y Gen., for appellee. JIM HANNAH, Chief Justice. A Sebastian County jury convicted appellant Ronald Tryon of possession of a controlled substance (methamphetamine) with intent to deliver, possession of drug paraphernalia, and theft by receiving, for which he was sentenced, as a habitual offender, to life imprisonment, fifteen years, and thirty years, respectively, in the Arkansas Department of Correction. On appeal, he challenges the circuit court's denial of his motion for directed verdict regarding all three counts, the circuit court's denial of his motion to suppress evidence, the circuit court's denial of his motion to suppress his custodial statement, and the circuit court's failure to grant a mistrial or curative instruction regarding the State's closing argument during sentencing. As this is a criminal appeal in which a sentence of life imprisonment has been imposed, our jurisdiction is pursuant to Ark. Sup.Ct. R. 1-2(a)(2). *479 We find no error and, accordingly, we affirm. At trial, Alvin Trusty testified that, on March 16, 2004, he observed a man driving a small, white pickup truck pull up to the home of his neighbor, Louis Wofford. Trusty testified that he saw the man going around to all the doors of the Wofford residence and barn building. He stated that when the truck arrived, the truck bed appeared to be empty, but that when it left, it "[h]ad quite a bit in it." Trusty described the driver of the truck as a "white male, short, dirty looking, wearing a ball cap." Wofford testified that on March 16, while he and his wife were at work, his wife received a phone call from Mrs. Trusty, stating that something suspicious was going on at the Wofford home. When Wofford got home, he found the back door to his barn kicked in and discovered that most of the items of value had been taken out. Wofford made a list of items taken, including a Craftsman air compressor, a 75-foot air hose, a Lincoln 225 arc welder, a Delta electric compound miter saw, and various other items valued at a total of approximately $1,615. Deputy Ron Morris of the Sebastian County Sheriff's Office testified that he responded to Wofford's residence in March 2004 regarding a break in. Deputy Morris stated that he was familiar with the description of the driver and of the truck given by Trusty, so he contacted Deputy Chandler Garrett to ask him to check Tryon's residence. Deputy Garrett testified that as he pulled up to Tryon's residence, he saw a white truck, matching the description given by Morris, in the backyard. Further, Garrett stated that he saw an air compressor in the back of the truck. As he participated in a search of the truck and residence, Garrett saw several items matching the description of the stolen items. He noticed that there was a license plate clipped over the license plate belonging to the vehicle, and he said that when he ran the VIN number of the truck, it registered as belonging to Tryon. Claude Ridge, Tryon's neighbor, testified that he saw Tryon leaving his residence alone on the morning of March 16, 2004, in his white Mazda truck. Ridge said that the bed of the truck appeared to be empty when Tryon left, but, when Tryon returned, the truck "had a lot of stuff in the back." Suzanne Bobbitt, a parole officer with the Department of Community Corrections, conducted a search of Tryon's truck and residence on March 16, 2004. Bobbitt searched Tryon's truck and found a black coat in the passenger seat. She located a match box containing a blue baggy with methamphetamine inside the pocket of the coat. Bobbitt then searched Tryon's residence and found, in plain view in the southeast bedroom, a spoon with grayish residue, a set of scales on a table, a light bulb altered for smoking methamphetamine, plastic baggies with the corners cut out, and a razor blade. Bobbitt stated that these items would have been noticeable to someone who lived in the residence. Benjamin Peacock, a forensic chemist with the Arkansas State Crime Laboratory, testified that he tested the items seized by Bobbitt in the search of Tryon's residence and truck. The off-white substance in the plastic baggy weighed 1.6512 grams and tested to be 17.4% methamphetamine. Peacock testified that the dilution of methamphetamine with cutting agents was a common practice used so the methamphetamine could be distributed for more money. He also stated that sometimes cutting agents are used so that the methamphetamine *480 will not be as potent when users shoot it into their veins. Sergeant Brandon McCaslin, with the Sebastian County Sheriff's Office, testified that he arrived at Tryon's residence on March 16, 2004, after Deputies Garrett and Morris had arrived. After Tryon waived his Miranda rights, McCaslin conducted a taped interview with Tryon during which Tryon stated that he received the tools found at his residence from Wes Bradley. Tryon stated that Bradley borrowed his truck to get a compressor that Tryon was thinking about buying. Tryon said that when Bradley returned in the truck, he had a compressor, a welder, a crate with hand tools, and a skill saw. Tryon stated that Bradley wanted $275 for these items. Tryon admitted that he knew that the property "either had to be stolen or traded for drugs." He told McCaslin that the property was "illegal" and that paying $275 for all the property "was a heck of a buy." Tryon denied any knowledge of the methamphetamine found in his truck or items of paraphernalia found in his residence. Tryon argues that the circuit court erred in denying his motions for directed verdict regarding the charges of possession of a controlled substance (methamphetamine) with intent to deliver, possession of drug paraphernalia, and theft by receiving. We treat a motion for directed verdict as a challenge to the sufficiency of the evidence. Coggin v. State, 356 Ark. 424, 156 S.W.3d 712 (2004). When reviewing the sufficiency of the evidence, we determine whether there is substantial evidence to support the verdict, viewing the evidence in a light most favorable to the State. Stone v. State, 348 Ark. 661, 74 S.W.3d 591 (2002). Substantial evidence is that which is of sufficient force and character that it will, with reasonable certainty, compel a conclusion one way or the other, without resorting to speculation or conjecture. Tillman v. State, 364 Ark. 143, 217 S.W.3d 773 (2005). Possession of Methamphetamine and Drug Paraphernalia Except as authorized by law, "it is unlawful for any person to manufacture, deliver, or possess with intent to manufacture or deliver a controlled substance." Ark.Code Ann. § 5-64-401(a) (Supp.2003). "Any person who violates this subsection with respect to [a] controlled substance classified in Schedules I or Schedule II, which is a narcotic drug or methamphetamine, and by aggregate weight, including an adulterants or diluents, is less than twenty-eight grams (28 g.), is guilty of a felony and shall be imprisoned for not less than ten (10) years nor more than forty (40) years, or life, and shall be fined an amount not exceeding twenty-five thousand dollars ($25,000)." Ark.Code Ann. § 5-64-401(a)(1)(i) (Supp.2003). "It is unlawful for any person to use, or to possess with intent to use, drug paraphernalia to plant, propagate, cultivate, grow, harvest, manufacture, compound, convert, produce, process, prepare, test, analyze, pack, repack, store, contain, conceal, inject, ingest, inhale, or otherwise introduce into the human body a controlled substance" in violation of statutory law. Ark.Code Ann. § 5-64-403(c)(1)(A)(i) (Supp.2003). Tryon first argues that the circuit court erred in denying his motion for directed verdict for possession of a controlled substance (methamphetamine)[1] and possession of drug paraphernalia, when the items *481 were found in a place jointly occupied or accessible by others, and there were not other factors to link him to the items found. Tryon claims that he was not in possession of the methamphetamine that was found in the truck on his property. He states that he was not in the truck when the methamphetamine was discovered. Further, Tryon refers to his custodial statement that he loaned his truck to Wes Bradley the day that the methamphetamine was found. Tryon states that it is possible that Bradley left the coat containing methamphetamine in the truck. In addition, he points out that he shared his house with his wife; thus, he did not have exclusive control over the items in the house and vehicle. The State argues that, although it appears that Tryon makes a joint-occupancy claim regarding the methamphetamine found in the truck, the argument must fail because there is simply no evidence, other than Tryon's own statement, that anyone, other than Tryon, had possession or control of the truck. Further, the State contends that Tryon and Bradley were not found in the truck together, hence, there was a lack of joint occupancy. The State's argument is well taken. See Malone v. State, 364 Ark. 256, 217 S.W.3d 810 (2005) (factors to be considered in cases involving vehicles occupied by more than one person); see also Jones v. State, 355 Ark. 630, 144 S.W.3d 254 (2004) (factors to be considered when the contraband is in the joint control of the accused and another). The State also contends that there is substantial evidence that Tryon possessed the methamphetamine found in the truck. It is not necessary for the State to prove an accused physically held the contraband in order to sustain a conviction if the location of the contraband was such that it can be said to be under the dominion and control of the accused. Heard v. State, 316 Ark. 731, 876 S.W.2d 231 (1994). Possession may be implied when the contraband is found in a place that is immediately and exclusively accessible to the accused and subject to his dominion and control. Jones, supra. We must determine whether there is substantial evidence to show that Tryon was in constructive possession of the contraband found in the truck and residence. In the present case, Deputies Morris and Garrett both testified that Tryon was the registered owner of the white truck found in his backyard and that no other person was found at Tryon's residence or in his yard. Trusty testified that he observed a white male matching Tryon's description at Wofford's residence. Trusty also stated that the man was driving a white truck. Tryon's neighbor, Claude Ridge, testified that he saw Tryon leave his residence in the white truck. Ridge stated that when Tryon left, the bed of the truck was empty, but when Tryon returned, the bed of the truck was full. Bobbitt testified that she found the coat with methamphetamine in Tryon's truck in Tryon's backyard. As the State points out, when the truck was searched, it was immediately and exclusively accessible to Tryon, and he was in close proximity to the methamphetamine. As previously noted, the only evidence submitted by Tryon to refute any ownership or possessory interest in the truck was Tryon's own statement that Bradley had borrowed his truck. Clearly, the jury rejected Tryon's explanation. This court does not attempt to weigh evidence or assess the credibility of the witnesses, as that determination lies within the province of the trier of fact. See, e.g., Williams v. State, 338 Ark. 178, 992 S.W.2d 89 (1999). The jury may resolve questions of conflicting testimony and inconsistent evidence and may choose to believe *482 the State's account of the facts rather than the defendant's. Ross v. State, 346 Ark. 225, 57 S.W.3d 152 (2001). Based on the foregoing, we believe there is substantial evidence that Tryon was in possession of methamphetamine. As to his conviction for possession of drug paraphernalia, Tryon contends that there was an absence of evidence for the jury to infer that he had joint possession and control over the drug paraphernalia discovered in his home. Neither exclusive nor actual physical possession is necessary to sustain a charge of possessing contraband. See Stanton v. State, 344 Ark. 589, 42 S.W.3d 474 (2001). Here, Tryon relies upon Ravellette v. State, 264 Ark. 344, 571 S.W.2d 433 (1978), and like cases, for the rule that where there is joint occupancy of the premises there must be some factor in addition to the joint control to link the accused with the controlled substance. In Ravellette, there was no such evidence. There the co-defendant admitted that the marijuana found in the residence was his and exonerated the appellant of any knowledge of its presence or control. In this case, Tryon's wife, with whom he shared the residence, did not testify. Here, there are facts connecting Tryon with the drug paraphernalia. Tryon lived in the residence, and at no point did he deny an ownership or possessory interest in the residence. Tryon was home alone when officers searched the residence. Testimony established that items of paraphernalia, the spoon with residue, the light bulb, the scales, and the plastic baggies were found in plain view in the southeast bedroom and that the items would have been noticeable to anyone who lived in the residence. Still, Tryon contends that in his own recorded statement to police, he expressed surprise that methamphetamine was found in his house or in his truck. The record reveals that, at trial, Tryon's statement was read aloud by the deputy prosecuting attorney; thus, the jury had an opportunity to hear Tryon's contention that he had no knowledge of the methamphetamine or drug paraphernalia. The jury was free to determine the credibility of Tryon's statement and disregard Tryon's account of the events. See Ross, supra. We hold that there is substantial evidence to sustain a conviction for possession of drug paraphernalia. Intent to Deliver For his second point for reversal, Tryon argues that the circuit court erred in denying his motion for directed verdict when there was insufficient evidence of his intent to deliver methamphetamine. Tryon moved for a directed verdict at the close of the State's case, claiming that there was insufficient evidence to establish the element of intent to deliver, notwithstanding Detective Darrell Miner's testimony.[2] The circuit court denied Tryon's motion for a directed verdict. Tryon renewed his motion at the close of all evidence, arguing that there was no evidence, in the absence of Detective Miner's testimony, of any trafficking. The circuit court again denied the directed-verdict motion, noting that the question of whether the 1.6512 grams of methamphetamine was for personal use or distribution was for the jury to determine, at which time Tryon argued that the statutory presumptive quantity would unconstitutionally shift the burden of proof and violate his right to due process.[3] This *483 argument was also rejected by the circuit court. On appeal, Tryon argues that there was no proof, even assuming that the methamphetamine was his, of his intent to distribute it. Specifically, Tryon argues that there was no evidence presented that the scales found in his home were for weighing methamphetamine and that there was evidence presented that the methamphetamine was cut with agents so it would be less potent for personal use. The State argues that Tryon's arguments are not preserved for appellate review. We agree. Tryon moved for directed verdict, making a general claim that the State had not met its burden to prove intent to deliver, notwithstanding Detective Miner's testimony. However, Tryon did not explain how Miner's testimony failed to establish Tryon's intent to deliver. A directed-verdict motion is a challenge to the sufficiency of the evidence and requires the movant to apprise the trial court of the specific basis on which the motion is made. See, e.g., Campbell v. State, 319 Ark. 332, 891 S.W.2d 55 (1995). Arguments not raised at trial will not be addressed for the first time on appeal, and parties cannot change the grounds for an objection on appeal, but are bound by the scope and nature of the objections and arguments presented at trial. See id. Here, Tryon's motion for directed verdict, while timely, did not identify particular or specific elements of proof. Moreover, Tryon's arguments on appeal relating to the scales and the cutting agents used in the methamphetamine were not part of Tryon's directed-verdict motion at trial. Consequently, Tryon's arguments are not preserved for review. Theft by Receiving Tryon next argues that the circuit court erred in denying his motion for directed verdict on the charge of theft by receiving when there was no evidence that he knew or had reason to know that the tools purchased from Wes Bradley were stolen. A person commits the offense of theft by receiving if he or she receives, retains, or disposes of stolen property of another person, knowing that the property was stolen or having good reason to believe that the property was stolen. Ark. Code Ann. § 5-36-106(a) (Supp.2003). The acquisition by a person of property for a consideration known to be far below its reasonable value shall give rise to a presumption that a person knows or believes that the property was stolen. Ark.Code Ann. § 5-36-106(c) (Supp.2003). In his statement to Sergeant McCaslin, Tryon stated that Bradley wanted $275 for several items, including an air compressor, a welder, a crate with several hand tools, and a saw. Tryon also admitted that he knew that the property "either had to be stolen or traded for drugs." He stated that the property was likely "[o]btained in illegal ways." He also agreed that buying all of the property for $275 was a "heck of a buy." Wofford, the victim of the theft, testified that the items taken from his home and found at Tryon's residence were valued at approximately $1615. Tryon's own statement that he knew the property was stolen or obtained illegally and that he paid $275 for the property, which was valued at $1615, is substantial proof that Tryon knew the items purchased from Bradley were stolen. As such, the circuit court did not err in denying Tryon's motion for directed verdict regarding the charge of theft by receiving. *484 Motion to Suppress Evidence Tryon argues that the circuit court erred in denying his motion to suppress evidence found in his backyard and residence because the evidence was found during an illegal search located in a place that was afforded protection by the Fourth Amendment and Article 2, § 15 of the Arkansas Constitution. He also argues that the evidence seized should be suppressed as fruit of the poisonous tree. In reviewing the denial of a motion to suppress, we conduct a de novo review based on the totality of the circumstances, giving respectful consideration to the findings of the trial judge. Blanchett v. State, 368 Ark. 492, 247 S.W.3d 477 (2007). We will reverse a circuit court's ruling denying a motion to suppress only if the ruling is against the preponderance of the evidence. See Hart v. State, 368 Ark. 237, 244 S.W.3d 670 (2006). At the suppression hearing, Deputy Garrett testified that he was the first to arrive at Tryon's residence. Garrett stated that Deputy Morris called him and told him that a large air compressor and some other tools had been taken from Wofford's residence. Morris related to Garrett that a witness had observed a white male in a small, white pickup truck taking the property. Because they had "dealt with [Tryon] in incidents past," and because Garrett knew that Tryon drove a small, white pickup, they decided that Garrett should go to Tryon's residence. Garrett testified that he drove to Tryon's house, and that from the road, and when he first pulled onto the driveway, he had a view of the backyard. In the backyard, Garrett saw a white truck with an air compressor in the truck bed that matched the description he had gotten from Morris. Next, Garrett observed a short, white male with shaggy hair appear from the back of the residence. Garrett said the man looked at him and then took off running. Garrett then got out of his car and went behind the house. Later, the man, identified as Tryon, approached Garrett. Garrett testified that Tryon told him he did not break into anything and that Garrett could look at anything he wanted. Garrett also testified that, while in the backyard, he saw, in plain view through an open door, tools in a shed on Tryon's property. After the air compressor and other tools were discovered, Tryon was placed under arrest. Bobbitt, the parole officer, was contacted; she came to Tryon's residence and conducted a search of his truck and residence. Bobbitt's search resulted in the seizure of methamphetamine and drug paraphernalia. At the suppression hearing, Tryon argued that, based on Garrett's testimony, the air compressor was not in plain view because Garrett said that he had to go into the backyard to look inside the bed of the truck to verify what type of air compressor was located there. Tryon contended that Garrett's entry into the backyard constituted a search and that Garrett never informed Tryon that he had a right to refuse consent. Further, Tryon argued that, even if Bobbitt's search was authorized because he was on parole, the search would still be fruit of the poisonous tree because it was so linked in time to the initial illegal intrusion. The circuit court concluded that the stolen items were in plain view. Further, the circuit court found that the search of Tryon's truck and residence, conducted by parole officer Bobbitt, was constitutional. Accordingly, the circuit court denied Tryon's motion to suppress evidence. One's dwelling and curtilage have consistently been held to be areas that may normally be considered free from government intrusion. McDonald v. State, 354 Ark. 216, 119 S.W.3d 41 (2003). Driveways and walkways used *485 to approach a residence are portions of the curtilage as traditionally defined; however, the expectation of privacy in such areas is not generally considered reasonable. Id. Whether an area outside of one's home is private as opposed to public, for purposes of the Fourth Amendment, is not controlled by the common law of property. Id. Indeed, what a person knowingly exposes to the public is not a subject of Fourth Amendment protection. Id. Deputy Garrett testified that he could see Tryon's truck, with an air compressor in the truck bed, from the road. He made these observations from a lawful vantage point. Tryon had no reasonable expectation of privacy in the road leading to his residence, nor did he have a reasonable expectation of privacy in his driveway. Deputy Garrett's observation of the truck and air compressor did not amount to a search because those items were in plain view. Consequently, there was no violation of the Fourth Amendment, nor was there a violation of Article 2, § 15 of the Arkansas Constitution. Further, Deputy Garrett did not violate Tryon's constitutional rights by merely walking into the backyard after he saw Tryon take off running. See, e.g., Vidos v. State, 367 Ark. 296, 312, 239 S.W.3d 467, 479 (2006) (concluding that a police officer did not violate appellant's Fourth Amendment right to be free from searches and seizures when, after knocking at the residence and discovering that no one was home, he walked around the house to see if someone was in the backyard). In addition, Deputy Garrett's actions do not invoke the protections of Article 2, § 15 of the Arkansas Constitution. While in the backyard, Deputy Garrett observed, in plain view through an open door, tools in Tryon's shed. In this case, it is clear that the circuit court found credible testimony that the truck, air compressor, and tools were in plain view. We defer to the superior position of the trial court to pass upon the credibility of witnesses. See, e.g., Holsombach v. State, 368 Ark. 415, 246 S.W.3d 871 (2007). Our determination that Deputy Garrett did not conduct a search because the evidence at issue was in plain view makes it unnecessary to address Tryon's claim that evidence seized by parole officer Bobbitt should have been suppressed as fruits of an illegal search. Bobbitt, who searched the interior of the truck and inside Tryon's house, conducted a warrantless parole search. Tryon does not contest the advance-consent terms to his release. As a parolee, Tryon was required to sign and initial a Conditions of Release form. Among the terms to which Tryon was required to consent was the following provision: Search and Seizure. You must submit your person, place of residence, and motor vehicles to search and seizure at any time, day or night, with or without a search warrant, whenever requested to do so by any Department of Community Punishment officer. The record reveals that Tryon signed and initialed the form upon his parole. The United States Supreme Court has held that parolees are subject to suspicionless, warrantless searches at any time. See Samson v. California, 547 U.S. 843, 126 S.Ct. 2193, 165 L.Ed.2d 250 (2006) (holding that suspicionless searches permitted by consent conditions of California parolees do not violate the Fourth Amendment). This court has recognized that "[t]he special needs of the parole process call for intensive supervision of the parolee making the warrant requirement impractical." Cherry v. State, 302 Ark. 462, 467, 791 S.W.2d 354, 357 (1990). When the consent to the terms of release is valid, the *486 only remaining question is whether the search was carried out under those terms. Id. at 467, 791 S.W.2d at 357. In this case, Tryon does not argue that the searches conducted by Bobbitt were carried out in violation of the terms of his release. The evidence seized prior to Bobbitt's arrival was in plain view, and the evidence seized by Bobbitt resulted from a valid search of a parolee. We hold that the circuit court did not err in denying Tryon's motion to suppress. Motion to Suppress Custodial Statement Tryon argues that the circuit court erred in denying his motion to suppress his custodial statement as "fruit of the poisonous tree" because it was obtained as a result of the primary illegal search without a warrant or valid consent. In his motion to suppress statement, Tryon argued that his statement was given in violation of the Fourth, Fifth, Sixth, and Fourteenth Amendments to the Constitution. He did not raise his fruit-of-the-poisonous-tree argument in his motion. After a suppression hearing, the circuit court denied Tryon's motion to suppress statement. The State argues that Tryon's argument is not preserved for review because the circuit court did not rule on, or apparently even consider, the claim that Tryon now makes on appeal—that his statements were fruit of an illegal search under the Fourth Amendment. We agree. It is well settled that an appellant must raise and make an argument at trial in order to preserve it on appeal. See, e.g., Raymond v. State, 354 Ark. 157, 118 S.W.3d 567 (2003). This is true even when the issue raised is constitutional in nature. See id. If a particular theory was not presented at trial, the theory will not be reached on appeal. See id. We add that, because we have concluded that there was no illegal search, there is no merit to Tryon's argument that his custodial statement should be suppressed as fruit of an illegal search. This court has noted that, where the tree is not "poisonous," neither is the fruit. See Langford v. State, 332 Ark. 54, 65, 962 S.W.2d 358, 364 (1998). Closing Argument Tryon argues that the circuit court erred in denying his motion for mistrial or refusing to offer a curative instruction to the jury when the prosecutor made improper closing arguments during sentencing that included references to matters that were not in evidence and matters that inflamed the passions of the jury. Tryon's counsel objected to several remarks made by the deputy prosecuting attorney during sentencing. Following are the remarks at issue, as well as a colloquy between the circuit court, defense counsel, and the deputy prosecuting attorney: DEPUTY PROSECUTING ATTORNEY: I want to talk you to you also about one of your Instructions. On the possession of meth with intent, you're told that the sentence is ten to life in prison. I want you to know that it's your decision on that. You can sentence the Defendant to any number of years, anywhere from ten up to life and that can be thirty, forty, fifty, seventy, eighty. I just want you to be aware of that and consider that. There are several reasons to give a person consideration on sentencing, but I don't know that this Defendant is deserving of that. You read his statement and it is on the statement to Brandon McCaslin of the Sheriff's Office, he told him he was not employed but he basically made his living by being a career criminal stealing from other people. *487 It is not just stealing that I want you to take into consideration. It's the violation of a person's safety and their feeling of well being in their own home. It's inconvenient to this victim, to Mr. Wofford, who had to take time off work the day this happened. He and his wife both, they had to leave work. They had to go home. They had to go in and take their own time to talk to the Sheriff's Office and give a statement about what happened. Mr. Wofford had to take off from work yesterday and he had to take off work again today to come to Court. He's not paid to be here to give his time and to give his testimony. So, I ask you, how many crimes does this Defendant have to commit before he is sent off for the maximum amount of time allowed by law? Is eleven not enough in this case? I urge you to give this Defendant the maximum amount of time on each charge that you've convicted him of and I also urge you to recommend that his sentences be run consecutive. I will also let you know that in my years as a Prosecutor and in my career as a Prosecutor, I have never stood before a Jury and I have never asked— DEFENSE COUNSEL: Your Honor, we would object. THE COURT: Overruled. I'm going to permit the argument. DEPUTY PROSECUTING ATTORNEY: Okay. As I was saying, I have never stood before a Jury and I have never asked a Jury to sentence a Defendant to the maximum time and I have never asked the Jury to run a sentence consecutively; but I truly feel that in this case, that sentence is warranted. I've never seen a person with such a total disregard for— DEFENSE COUNSEL: Your Honor, may we approach? THE COURT: Sure. DEFENSE COUNSEL: I am going to object and, Your Honor, we would ask for a mistrial and if the Court doesn't grant a mistrial, then probably we would ask the Court to tell the Jury to disregard the last statement. THE COURT: State your specific objections. DEFENSE COUNSEL: Because Ms. Houston, she said she had never seen a Defendant with a total disregard for these things that would be erroneous because we could have some people that she's seen that could be worse. DEPUTY PROSECUTING ATTORNEY: Your Honor, that's just argument. THE COURT: I am going to deny your motion for mistrial and I'm not going to instruct the Jury, but your exceptions are certainly—you're on the record. DEFENSE COUNSEL: Thank you, Your Honor. THE COURT: Go ahead. DEPUTY PROSECUTING ATTORNEY: So I can go ahead with that? THE COURT: Yes. DEPUTY PROSECUTING ATTORNEY: As I was saying, the reason why I said, that is, that the statute in this case is warranted and with this Defendant, that particular sentence is warranted and, as I said, I have never seen a person with a total disregard for the law as Ronald Tryon. And we thank you very much for your deliberations. Specifically, Tryon objects to the deputy prosecuting attorney's remark that she never saw a defendant with such disregard for the law and that she felt Tryon deserved the maximum sentence available *488 under the law. Tryon also objects to counsel's statement that he told Brandon McCaslin that he made his living by being a career criminal stealing from other people. We have stated many times that the trial court is given broad discretion to control counsel in closing arguments, and we do not interfere with that discretion absent a manifest abuse of discretion. Leaks v. State, 339 Ark. 348, 5 S.W.3d 448 (1999); Noel v. State, 331 Ark. 79, 960 S.W.2d 439 (1998); Lee v. State, 326 Ark. 529, 932 S.W.2d 756 (1996). Closing remarks that require reversal are rare and require an appeal to the jurors' passions. Leaks, supra; Lee, supra. Furthermore, the trial court is in the best position to evaluate the potential for prejudice based on the prosecutor's remarks. Leaks, supra; Noel, supra. Closing arguments must be confined to questions in issue, the evidence introduced during trial, and all reasonable inferences and deductions which can be drawn therefrom. Leaks, supra. It is the trial court's duty to maintain control of the trial and to prohibit counsel from making improper arguments. Id. The decision to grant or deny a motion for mistrial is within the sound discretion of the trial court and will not be overturned absent a showing of abuse or manifest prejudice to the appellant. Johnson v. State, 366 Ark. 8, 233 S.W.3d 123 (2006). A mistrial is a drastic remedy and should only be declared when there is error so prejudicial that justice cannot be served by continuing the trial, and when it cannot be cured by an instruction to the jury. See Holsombach, supra. We have also stated that an argument is not objectionable merely because it expresses an opinion. See, e.g., Neff v. State, 287 Ark. 88, 696 S.W.2d 736 (1985). The State argues that the prosecutor's statement of opinion that she had never "seen a person with a total disregard for the law" is not reversible error. Further, the State argues that, to the extent the prosecutor's opinion encapsulated a sentencing recommendation, it was proper as a permissible call for the jury to enforce the law. This court has affirmed rulings allowing prosecutors to convey "send a message" themes during closing arguments. See, e.g., Lee, supra; Muldrew v. State, 331 Ark. 519, 963 S.W.2d 580 (1998); Love v. State, 324 Ark. 526, 922 S.W.2d 701 (1996); Hill v. State, 253 Ark. 512, 487 S.W.2d 624 (1972). Further, we have stated that it is not improper for the State's attorney to argue for the maximum punishment. See, e.g., Holloway v. State, 268 Ark. 24, 594 S.W.2d 2 (1980); House v. State, 192 Ark. 476, 92 S.W.2d 868 (1936). While the circuit court did not provide a curative instruction to the jury, the court had, of course, already instructed the jury that closing arguments were not evidence. The circuit court did not abuse its discretion in denying Tryon's motion for mistrial or in failing to admonish the jury upon Tryon's objection. We do not reach Tryon's argument that it was improper for the deputy prosecuting attorney to state that Tryon had told Brandon McCaslin that he made his living by being a career criminal stealing from other people. Tryon did not make this argument below; thus, it is not preserved for appellate review. 4-3(h) Review In compliance with Ark. Sup.Ct. R. 4-3(h), the record has been examined for all objections, motions, and requests made by either party that were decided adversely *489 to Tryon, and no prejudicial error has been found. Affirmed. NOTES [1] While Tryon was convicted of possession of a controlled substance (methamphetamine) with intent to deliver, he argues the intent-to-deliver element of the conviction in a separate point on appeal. [2] Detective Miner of the Greenwood Police Department testified regarding his knowledge of narcotics and how methamphetamine is used and distributed. [3] Tryon does not renew his constitutional challenge on appeal.

Case: 13-12349 Date Filed: 03/19/2014 Page: 1 of 6 [DO NOT PUBLISH] IN THE UNITED STATES COURT OF APPEALS FOR THE ELEVENTH CIRCUIT ________________________ No. 13-12349 Non-Argument Calendar ________________________ D.C. Docket No. 2:10-cv-00783-CSC CHARLES G. CHRENKO, Plaintiff-Appellant, versus BOB RILEY, Governor, in his individual and official capacity, TROY KING, Attorney General, in his individual and official capacity, J. CHRISTOPHER MURPHY, Colonel, in his individual and official capacity, RICHARD ALLEN, Commissioner, in his individual and official capacity, KATHY HOLT, Dir. of Central Records, in her individual and official capacity, et al., Defendants-Appellees.  Case: 13-12349 Date Filed: 03/19/2014 Page: 2 of 6 ________________________ Appeal from the United States District Court for the Middle District of Alabama ________________________ (March 19, 2014) Before CARNES, Chief Judge, WILSON and ANDERSON, Circuit Judges. PER CURIAM: Charles Chrenko, a former Alabama prisoner, sued six Alabama state officials, alleging that the defendants’ enactment, application, and enforcement of the Alabama Community Notification Act (ACNA) violated his rights under the U.S. Constitution and a variety of federal laws. He sought declaratory and injunctive relief, as well as damages from the defendants in their official and individual capacities under 42 U.S.C. § 1983. The defendants moved for summary judgment on all claims, which the magistrate judge hearing the case granted.1 On appeal, Chrenko challenges only the magistrate judge’s grant of summary judgment as to his claims for damages. 2 1 The parties consented to have the magistrate judge conduct all proceedings and enter a final judgment in this case. See 28 U.S.C. § 636(c)(1). 2 In granting summary judgment to the defendants, the magistrate judge determined that Chrenko’s claims for declaratory and injunctive relief were moot because the ACNA had been repealed before the magistrate judge issued his decision. Chrenko does not challenge that determination on appeal, and he has therefore abandoned the issue. See, e.g., Timson v. Sampson, 518 F.3d 870, 874 (11th Cir. 2008) (noting that “issues not briefed on appeal by a pro se litigant are deemed abandoned”). 2  Case: 13-12349 Date Filed: 03/19/2014 Page: 3 of 6 Chrenko contends that the enactment and enforcement of the ACNA, Alabama’s now-repealed sex offender registration statute, violated his rights under the First and Eighth Amendments. 3 He argues that he suffered harassment and discriminatory treatment from the public because the ACNA required him to notify the public of his sex offender status. He claims that the notification requirements violated his Eighth Amendment rights because it is cruel and unusual punishment to require him to notify the public of his sex offender status and, consequently, endure harassment from a hostile public. He claims that the Act violated his First Amendment right to assemble because he could not go out in public without being harassed. I. We review de novo the magistrate judge’s grant of summary judgment, and we review the judge’s factfindings for clear error. Levinson v. Reliance Standard Life Ins. Co., 245 F.3d 1321, 1325 (11th Cir. 2001). 3 He also claims that the Act’s requirements violated his rights under the Privileges and Immunities Clause of the Fourteenth Amendment. We do not evaluate that argument on appeal because Chrenko never raised it before the magistrate judge. See, e.g., Access Now, Inc. v. Sw. Airlines Co., 385 F.3d 1324, 1331 (11th Cir. 2004) (“This Court has repeatedly held that an issue not raised in the district court and raised for the first time in an appeal will not be considered by this court.”) (quotation marks omitted). 3  Case: 13-12349 Date Filed: 03/19/2014 Page: 4 of 6 In September 2003 Chrenko was convicted of two counts of attempted first- degree rape of a child under the age of twelve and sentenced to fifteen years imprisonment. He initially served two years and six months in prison and had the remainder of his sentence suspended. As a convicted sex offender, Chrenko was subject to the notification requirements of the ACNA during the time he was out of prison on probation. In 2008 Chrenko’s probation was revoked and he returned to prison to serve out the remainder of his sentence. In granting summary judgment to the defendants on Chrenko’s § 1983 claims, the magistrate judge found that “the record . . . fails to demonstrate that the provisions of the ACNA were ever applied to [Chrenko].” That finding was clearly erroneous. Chrenko submitted an affidavit with his complaint, stating that he received threats of bodily harm and suffered harassment in 2006 when he was subject to the ACNA’s notification provisions while on probation. The defendants did not submit any evidence to contradict that statement in Chrenko’s affidavit, and they did not provide any evidence that would establish that Chrenko was never subject to the ACNA. As a result, the magistrate judge’s grant of summary judgment relied on a clearly erroneous finding of fact. However, we may still affirm the magistrate judge’s decision “if there exists any adequate ground for doing so, regardless of whether it is the one on which the [magistrate judge] relied.” Fitzpatrick v. City of Atlanta, 2 F.3d 1112, 1117 (11th 4  Case: 13-12349 Date Filed: 03/19/2014 Page: 5 of 6 Cir. 1993). That is the case here. In order to prevail on his § 1983 claims, Chrenko must show that he was deprived of a federal right by a person acting under color of state law. Griffin v. City of Opa-Locka, 261 F.3d 1295, 1303 (11th Cir. 2001). Because he has shown no cognizable violation of the First or Eighth Amendments, the defendants were entitled to summary judgment on the § 1983 claims. Chrenko’s contention that his First Amendment right to assemble was violated amounts to a claim that the ACNA impeded his right to social association because its registration requirements led to his harassment by the public. The Supreme Court has stated, however, that the right to “social association” is not protected by the First Amendment. See City of Dallas v. Stanglin, 490 U.S. 19, 25, 109 S.Ct. 1591, 1595 (1989) (“[W]e do not think the Constitution recognizes a generalized right of social association . . . .”) (quotation marks omitted); see also City of Chicago v. Morales, 527 U.S. 41, 53, 119 S.Ct. 1849, 1857 (1999) (noting that a gang loitering ordinance’s “impact on the social contact between gang members and others does not impair the First Amendment right of association that our cases have recognized”) (quotation marks omitted). Therefore, Chrenko has not asserted a deprivation of his First Amendment rights and the defendants were entitled to summary judgment on that § 1983 claim. 5  Case: 13-12349 Date Filed: 03/19/2014 Page: 6 of 6 The defendants were also entitled to summary judgment on Chrenko’s § 1983 claim alleging a deprivation of his Eighth Amendment rights. “In non- capital cases, the Eighth Amendment encompasses, at most, only a narrow proportionality principle,” United States v. Raad, 406 F.3d 1322, 1323 (11th Cir. 2005), and “it forbids only extreme sentences that are grossly disproportionate to the crime.” United States v. Farley, 607 F.3d 1294, 1341 (11th Cir. 2010). That is a difficult standard to meet, and the harassment that Chrenko allegedly suffered because of the ACNA does not satisfy the high threshold for cruel and unusual punishment. See, e.g., United States v. Juvenile Male, 670 F.3d 999, 1010 (9th Cir. 2012) (holding that the federal sex offender registration law did not violate the Eighth Amendment given that “[t]he bar for cruel and unusual punishment is high”); see also Harmelin v. Michigan, 501 U.S. 957, 111 S.Ct. 2680 (1991) (plurality opinion); Hutto v. Davis, 454 U.S. 370, 102 S.Ct. 703 (1982) (per curiam). Accordingly, the defendants were entitled to summary judgment on Chrenko’s § 1983 claim alleging a violation of his Eighth Amendment rights. For the reasons stated above, the magistrate judge’s grant of summary judgment in favor of the defendants is AFFIRMED. 6 

84 Cal.App.3d 184 (1978) 148 Cal. Rptr. 315 In re ELEANOR A., a Person Coming Under the Juvenile Court Law. COUNTY OF SAN DIEGO, Plaintiff and Respondent, v. COUNTY OF SAN BERNARDINO, Defendant and Appellant; ELEANOR A., Real Party in Interest and Respondent. Docket No. 16989. Court of Appeals of California, Fourth District, Division One. August 23, 1978. *186 COUNSEL Alan K. Marks, County Counsel, and Richard Wm. Strong, Deputy County Counsel, for Defendant and Appellant. Donald L. Clark, County Counsel, and Arlene Prater, Deputy County Counsel, for Plaintiff and Respondent. Appellate Defenders, Inc., under appointment by the Court of Appeal, Paul Bell and Dennis Finn for Real Party in Interest and Respondent. OPINION STANIFORTH, J. The Juvenile Court, San Diego County, found its 15-year-old ward Eleanor A. to be a resident of San Bernardino County. Based upon this factual finding the juvenile court ordered the transfer of Eleanor A.'s cause to San Bernardino County. On appeal the County of San Bernardino challenges this finding and the order of transfer based thereon. San Bernardino's appeal is authorized by statute (Welf. & Inst. Code, § 379) and case authority (Lassen County v. Superior Court, 158 Cal. App.2d 74 [322 P.2d 49]). San Bernardino points out that Eleanor was placed in San Bernardino County by an order of the San Diego County Juvenile Court. She did not enter that county voluntarily, nor did she establish a legal residence in San Bernardino County. Eleanor was not present and not represented at the juvenile court hearing. She here contends she was entitled to counsel, for the hearing involved her welfare. She seeks reversal on those grounds. (Welf. & Inst. Code, § 317.) FACTS Eleanor A. is a 15-year-old (born Oct. 3, 1962) developmentally disabled girl. She has been determined to have an I.Q. between 18 and 30. Eleanor also has physical disabilities. She is unable to communicate verbally or nonverbally. She does not dress herself or care for her personal hygiene. She does feed herself and is toilet trained. Prognosis for her improvement is poor. She will probably be living for the rest of her life in an institutional setting. Her current placement facility is geared to children in Eleanor's I.Q. range and will in the near future be caring for *187 adults as well as children. The San Diego County Department of Public Welfare felt Eleanor's placement could best be supervised by the County of San Bernardino. Eleanor's father died in July of 1972 and her mother is an alien illegally in the United States who left California at an undetermined date and is now thought to be in the State of Washington. Eleanor was originally declared a dependent child of the San Diego County Juvenile Court in 1966 under Welfare and Institutions Code section 600, subdivision (a). She was placed in a foster home from 1966 through 1970 and then placed in various institutions. From October 1972 until August 1974 Eleanor was placed at the Arrowhead Home for Exceptional Children in San Bernardino County. In August 1974 she was placed at the Intercommunity Exceptional Children's Home in Bloomington, California, where she remains at the present. ISSUES The general rules governing residence of a minor are found in California Government Code sections 243 and 244, subdivisions (d) and (e).[1] More specific and controlling here is Welfare and Institutions Code section 17.1 which provides: "Unless otherwise provided under the provisions of this code, to the extent not in conflict with the federal law, the residence of a minor person shall be determined by the following rules: "(a) The residence of the parent with whom a child maintains his or her place of abode or the residence of any individual who has been appointed legal guardian or the individual who has been given the care or custody by a court of competent jurisdiction, determines the residence of the child. "(b) Wherever in this section it is provided that the residence of a child is determined by the residence of the person who has custody, `custody' means the legal right to custody of the child unless that right is held *188 jointly by two or more persons, in which case `custody' means the physical custody of the child by one of the persons sharing the right to custody. "(c) The residence of a foundling shall be deemed to be that of the county in which the child is found. "(d) If the residence of the child is not determined under (a), (b), (c) or (e) hereof, the county in which the child is living shall be deemed the county of residence, if and when the child has had a physical presence in the county for one year. "(e) If the child has been declared permanently free from the custody and control of his or her parents, his or her residence is the county in which the court issuing the order is situated." San Diego argues a literal reading of Welfare and Institutions Code section 17.1, subdivision (d) determines the residence of Eleanor to be in San Bernardino County, where the child had "physical presence in the county [San Bernardino] for one year." San Bernardino disputes the applicability of 17.1, subdivision (d) and contends that 17.1, subdivision (e) applies — making San Diego the county of residence — where a San Diego court order is issued declaring a child "permanently free from the custody and control of his or her parents." The Juvenile Court of San Diego County, on October 10, 1972, ordered "that said minor's [Eleanor's] custody be taken from her parent or guardian pursuant to Section 726(c)...." San Diego argues that the word "permanently" excludes the taking of a ward or dependent child from the physical custody of her parents or guardian under section 726 of the Welfare and Institutions Code but rather "refers to the civil proceedings to declare a minor permanently free from the custody and control of her parents" pursuant to Civil Code section 232. San Diego's reasoning is not persuasive. In the first place, neither Welfare and Institutions Code section 726 nor Civil Code section 232 speak in terms of "permanently" depriving the parents of custody and control or of physical custody of a child. More persuasive is the fact that the express language of section 17.1 precludes determination of the minor's residence by reference to the Civil Code section 232 free from custody proceedings. Section 17.1 states: "Unless otherwise provided *189 under the provisions of this code ... the residence of a minor person shall be determined by the following rules...." (Italics added.) We interpret this declarative statement to require resolution of a residence question within section 17.1 of the Welfare and Institutions Code. (1a) Therefore, we look first for an answer to the residence question within the four corners of section 17.1 and note that section 17.1, subdivision (e) determines the residence to be the county in which the juvenile court issued the order declaring the child permanently free from custody and control of her parents. The term "permanently" has been defined as "fixed," "continuing," "lasting," "stable," "enduring," and generally opposed in the law to "temporary," but not always meaning "perpetual." (Black's Law Dict. (4th ed.) pp. 1297-1298.) "Permanent" is not the equivalent of perpetual or unending or lifelong or unchangeable (Soule v. Soule, 4 Cal. App. 97 [87 P. 205]) or existing forever (Hasman v. Union High School, 76 Cal. App. 629 [245 P. 464]). (2) Thus, the word "permanent" or "permanently" when used in an order giving "permanent custody" of a child found by a court to be a dependent child, means exclusive care from the date of the order to the end of the child's minority, unless the order is earlier modified. (Ex parte Walters 92 Okla. Crim. 1 [221 P.2d 659, 663-664]; Parrish v. Hainlen 124 Colo. 229 [236 P.2d 115, 118].) We conclude that the term "permanently" as used in section 17.1, subdivision (e) means "fixed" and "abiding" for such period of time as is necessary to the accomplishment of the objective of the free from custody order. It is an antonym of "temporary," but does not necessarily mean perpetual or forever. A parental loss of custody under section 726, subdivision (c) is a nonconclusive or nonperpetual loss (In re Norma M., 53 Cal. App.3d 344, 346 [125 Cal. Rptr. 721]), yet it is a permanent order. Our conclusion as regards the legislative intent expressed in section 17.1, subdivision (e), vis-a-vis section 17.1, subdivision (d), is buttressed by these further facts and applicable law. Eleanor's placement in San Bernardino County by the San Diego court was authorized by section 380 of the Welfare and Institutions Code, which provides: "Any person adjudged to be a dependent child of the juvenile court may be permitted by order of the court to reside in a county other than the county of his legal residence, and the court shall retain jurisdiction over such person. *190 "Whenever a dependent child of the juvenile court is permitted to reside in a county other than the county of his legal residence, he may be placed under the supervision of the probation officer of the county of actual residence, with the consent of such probation officer. The dependent child shall comply with the instructions of such probation officer and upon failure to do so shall be returned to the county of his legal residence for further hearing and order of the court." (Italics added.) Until placed in an institutional facility by order of the San Diego court, Eleanor had no connection with the County of San Bernardino. The specific retentions of jurisdiction under Welfare and Institutions Code section 380, by the Juvenile Court of San Diego County over Eleanor, indicates an unmistakable legislative intent that a child placed out of the county for therapeutic purposes by order of the juvenile court does not thereby, and the passage of one year, cease to be a legal resident of the county of origin and become a resident of the county where lodged. (1b) San Bernardino County accepted Eleanor's placement solely as an accommodation and with the specific statutory assurance that jurisdiction would remain in the County of San Diego as provided in the orders of placement. The Legislature did not intend that one county could relieve itself of its duties of care toward a resident indigent dependent child by placing the minor in a different county, under Welfare and Institutions Code section 380, and after the passage of one year, permanently transferring the minor and the accompanying duty of care to a different county. Such a construction of section 17.1, subdivision (d) and 17.1, subdivision (e) in light of Welfare and Institutions Code section 380 would certainly result in an immediate termination of permissive placements out of county under section 380 even under circumstances where the minor would substantially benefit from placement in a special facility in another county. We do not presume such a destructive intent upon the part of the Legislature. In In re Ramona S., 64 Cal. App.3d 945, 952 [134 Cal. Rptr. 881], the court observed: "Of course, it is proper for the juvenile court of one county to `place' a minor ward of the court in another county when such placement is found to be in the best interest of the minor. [Citation.] But it is patently contrary to sound policy and the relevant statutes to permit one county to shift the administrative and financial burden of a juvenile court wardship to another county, at a time when the minor's residence remains in the former county according to either of the criteria of Welfare and Institutions Code section 17.1." *191 We conclude that the order of October 10, 1972, "permanently" removed Eleanor from the custody and control of her parents within the meaning of section 17.1, subdivision (e). Therefore, her county of residence is San Diego County, "the county in which the court issuing the order is situated." (Welf. & Inst. Code, § 17.1, subd. (e).) There is no evidence of Eleanor's intent to become a resident of the County of San Bernardino, nor did she derive residence there through her parents. Her only living relatives are thought to be in the State of Washington. In view of the reversal required, for the benefit of the court on return of this matter for further proceedings, we point out that the interests of Eleanor are very much in the crucible in these proceedings. (3) We hold that it is error in a matter of such grave and long-term importance to the child to fail to appoint counsel to protect her interest. (In re Richard E., 21 Cal.3d 349 [146 Cal. Rptr. 604, 579 P.2d 495].) Judgment reversed. Brown (Gerald), P.J., and Welsh, J.,[*] concurred. NOTES [1] Government Code section 244, subdivisions (d) and (e) provide in pertinent part: "(d) The residence of the parent with whom an unmarried minor child maintains his or her place of abode is the residence of such unmarried minor child. "(e) The residence of an unmarried minor who has a parent living cannot be changed by his or her own act." [*] Assigned by the Chairperson of the Judicial Council.

253 F.3d 272 (7th Cir. 2001) Fred J. Hart, Plaintiff-Appellant,v.Schering-Plough Corporation, Defendant-Appellee. No. 00-3689 In the United States Court of Appeals For the Seventh Circuit Argued April 2, 2001Decided June 7, 2001 Appeal from the United States District Court for the Northern District of Illinois, Eastern Division. No. 98 C 0814--David H. Coar, Judge. Before Bauer, Cudahy, and Easterbrook, Circuit Judges. Easterbrook, Circuit Judge. 1 Alarm bells went off when we read the jurisdictional statement of Fred Hart's brief: "Amount in controversy: $72,436.62 plus Plaintiff's attorney's fees, to be assessed by the court, should plaintiff prevail, pursuant to 705 ILCS sec.225/1." Oops. "The district courts shall have original jurisdiction of all civil actions where the matter in controversy exceeds the sum or value of $75,000, exclusive of interest and costs" and the parties are of diverse citizenship. 28 U.S.C. sec.1332(a). The Illinois statute on which Hart relies defines attorneys' fees as part of costs, making it hard to see how this case belongs in federal court, for diversity of citizenship is its only jurisdictional foundation. 2 Schering-Plough Corp., the defendant, recognized that something is amiss. The jurisdictional statement in its brief asserts: "The amount in controversy is $90,000 plus attorney fees." Why the difference? Hart contends that he is entitled to one year's pay as a severance benefit, and according to the complaint his annual salary at the time of his discharge was $90,000. But this does not mean that the amount in controversy is $90,000, because Schering-Plough made a severance payment of $17,463.38 when it let Hart go. The amount in controversy is whatever is required to satisfy the plaintiff's demand, in full, on the date suit begins. See Gardynski-Leschuck v. Ford Motor Co., 142 F.3d 955, 958-59 (7th Cir. 1998). The controverted amount--the stake of this case--is Hart's annual salary, less what Schering-Plough already has paid. So Hart was right to deduct the severance payment, and the jurisdictional problem remains. (If the severance payment were due under a welfare-benefit plan, then the claim would arise under federal law and the amount in controversy would not matter. But the claim rests on a contract negotiated in Australia; neither side contends that this contract creates a plan covered by ERISA.) 3 At oral argument we directed the parties to file supplemental memoranda on subject-matter jurisdiction. Schering- Plough's response relies on the attorneys' fees authorized by 705 ILCS sec.225/1 in the event an employee obtains fringe benefits though litigation. Although that statute defines fees as part of costs, and sec.1332(a) says that the amount in controversy must exceed $75,000 "exclusive of interest and costs", we know from Missouri State Life Insurance Co. v. Jones, 290 U.S. 199 (1933), that the division between "damages" and "costs" in sec.1332 depends on federal law. It is therefore possible in principle for attorneys' fees under 705 ILCS sec.225/1 to count toward the amount in controversy, just as Jones held that attorneys' fees under the state law in question were treated as part of damages. If, for example, Hart had incurred fees pursuing his demand before filing suit, and if these were compensable under 705 ILCS sec.225/1, they might propel the amount in controversy over $75,000. See Sarnoff v. American Home Products Corp., 798 F.2d 1075, 1078 (7th Cir. 1986); Ross v. Inter-Ocean Insurance Co., 693 F.2d 659 (7th Cir. 1982). But neither Hart nor Schering-Plough relies on this possibility. Instead Schering-Plough contends that legal expenses incurred after filing count toward the amount in controversy. That submission can't be reconciled with Gardynski-Leschuck or the proposition that jurisdiction depends on events that exist on or before the date of filing. If the defendant can extinguish the plaintiff's entire claim by tendering $75,000 or less at the outset, then the amount "in controversy" does not exceed $75,000. (To the extent Sarnoff, Ross, and Batts Restaurant, Inc. v. Commercial Insurance Co. of Newark, 406 F.2d 118 (7th Cir. 1969), imply that attorneys' fees incurred during the federal litigation count toward the jurisdictional minimum, they have been superseded by Gardynski-Leschuck. None of the earlier opinions dealt with the question how fees yet to be incurred could be "in controversy" on the date the complaint is filed, and none can be deemed a holding on a point that was assumed but not decided. Gardynski- Leschuck squarely addresses that question and represents this circuit's resolution of it.) 4 As it happens, however, Hart's salary was more than $90,000 per year. Hart's jurisdictional memorandum states that "[d]uring discovery, it developed that . . . [Hart's] annual salary, at the time of his termination, was in fact $99,972.80". Actually it was higher still. The document to which Hart's memorandum referred us shows that his salary for 1996 was $109,472.80, of which $9,500 was contributed to a retirement plan but must be included in the base for purposes of severance pay. Surely Hart did not need discovery to learn his own salary. Much pain could have been avoided had Hart's complaint correctly identified the stakes. But the fact remains that the amount in controversy on the date of fil ing was $91,910.42 ($109,472.80 $17,562.38). Even on appeal the parties may amend their pleadings under 28 U.S.C. sec.1653 to show the true jurisdictional facts when the litigation began. Newman- Green, Inc. v. Alfonzo-Larrain, 490 U.S. 826, 831 (1989). Hart's jurisdictional memorandum implies a motion to amend the pleadings under sec.1653, and we grant that motion. Jurisdiction is secure. 5 Pitman-Moore employed Hart as a scientist in Australia, his native land. Knowing that his position was about to be reorganized out of existence, Hart agreed to accept a transfer to Pitman-Moore's facilities in the United States. He signed a contract, which the parties called a "Foreign Assignment Agreement", providing for 12 months' employment, plus an option to extend this period for an extra six months. Pitman-Moore promised to add substantial housing benefits, an automobile allowance, and a cost-of- living allowance to Hart's annual salary of $54,000. The agreement wraps up with this termination clause: 6 Should your employment be involuntarily terminated by Pitman- Moore, Inc., other than for cause as defined in the Policy Manual, or there is no assignment available in Australia at the end of your twelve (12) month assignment, the Company will provide you with a severance payment of one (1) year's salary in effect at the time of termination. 7 Hart moved to the United States in January 1994 and went to work at Pitman- Moore's facility in Mundelein, Illinois. At the end of that year Pitman-Moore (which renamed itself Mallinckrodt Veterinary, Inc., in March 1994) exercised its option to extend the agreement for six months. In July 1995 Hart could have taken advantage of the termination clause and demanded a transfer home or severance pay if no position then was available in Australia. Instead he agreed to stay on at Mallinckrodt, which substantially increased his base salary but withdrew the allowances and other benefits required by the Foreign Assignment Agreement. Mallinckrodt also sponsored Hart for permanent residence under U.S. immigration laws. That status, once granted, allowed Hart to take any job available in the U.S. (a privilege he did not possess under the visa obtained to carry out the Foreign Assignment Agreement). Schering-Plough acquired Mallinckrodt in July 1997 and promptly told Hart that his services were no longer required. It paid Hart a severance benefit appropriate under its own policies; Hart replied with this suit demanding the rest of one year's salary under the Foreign Assignment Agreement-- though Hart did not return to Australia, using his permanent-residence status to take a new position in Connecticut. After a bench trial, the district judge found that the termination provision of that Agreement expired in July 1995 and entered judgment for Schering-Plough. 2000 U.S. Dist. Lexis 13879 (N.D. Ill. Sept. 20, 2000). 8 For reasons that are not entirely clear, the parties have agreed that Illinois law rather than Australian law governs the interpretation of the Foreign Assignment Agreement. But it is hard to see how choice of law could matter, or for that matter why a trial was necessary. Both the Agreement and its termination clause are clear: the assignment lasts for 18 months at most. Work after the end of June 1995 was governed by new terms. The Agreement had lapsed, and Hart forewent his opportunity to return home (or be paid in lieu of reemployment). What the trial added is confirmation that the parties behaved in accordance with this straightforward reading of the Foreign Assignment Agreement and did not extend its duration by conduct. See Foster v. Springfield Clinic, 88 Ill. App. 3d 459, 410 N.E.2d 604 (4th Dist. 1980). When the Agreement ran out, they forged a new arrangement: the fringe benefits specified by the Agreement vanished, the base salary rose, and Hart's visa status changed. He became a permanent resident, no longer exposed to the risks attendant on visas linked to particular jobs and therefore no longer in need of special protection should that job come to an end. The district judge found that the parties' conduct in mid-1995, and later, confirmed the natural-language reading of the Agreement and its termination clause. No extrinsic ambiguity turned up. Hart stresses that the Agreement was to last for the period of the "assignment," but the Agreement also shows (and the parties' conduct confirms) that the "assignment" was to run a maximum of 18 months; the word "assignment" in this contract was not a synonym for "employment." None of the district court's findings or conclusions is clearly erroneous. Affirmed

18 B.R. 18 (1981) In the Matter of Robert T. MADDEN and Michelle Madden, his wife, Debtors. Bernard LEVINE and Barbara Levine, his wife, Plaintiffs, v. Robert T. MADDEN and Michelle Madden, his wife, Defendants. Bankruptcy No. 81-06002, Adv. No. 81-0970. United States Bankruptcy Court, D. New Jersey. November 25, 1981. Lehman & Wasserman by Steven Z. Jurista, Millburn, N.J., for defendants. Ravin, Katchen & Greenberg by Jack M. Zackin, Walder, Steiner & Sondak by Leonard H. Berkeley, Newark, N.J., for plaintiffs. OPINION VINCENT J. COMMISA, Judge. On October 7, 1981 the debtors herein, Robert T. Madden and Michelle Madden, *19 filed a petition for relief under Chapter 13 of the Bankruptcy Code. Immediately thereafter, a motion to dismiss the petition was filed by Bernard and Barbara Levine. In the alternative, the Levines seek relief from the automatic stay. The Levines' sole objective is to consummate the purchase of residential property obtained at a Sheriff's sale. The plaintiff Levines' allege the defendant-debtors' Chapter 13 petition was filed in bad faith, in an attempt to delay and frustrate an Order of the Superior Court of New Jersey. The pertinent facts are as follows: On April 30, 1981, Judgment in Foreclosure was entered by the Superior Court of New Jersey, Chancery Division, Essex County (Docket No. F 2202-80). The action was instituted by the Summit Federal Savings and Loan Association (mortgagee) against Robert T. Madden and Michelle Madden (mortgagors) with respect to residential property located at 88 West Road, Millburn, New Jersey. On September 3, 1981 the defendant-debtors applied to the Superior Court for an Order to Show Cause staying the scheduled Sheriff sale. The request was denied. However, the Superior Court did grant an additional twenty (20) days' right of redemption giving the debtors the right to redeem the property until 4:00 p.m. on October 7, 1981. On September 8, 1981, Bernard and Barbara Levine purchased the subject property, at the Sheriff's sale for the sum of $143,000.00. The plaintiffs deposited 20% of the purchase price with the Sheriff. On October 7, 1981, the thirtieth (30) day following the Sheriff's sale, the defendants filed a petition with this Court seeking relief under Chapter 13 of the Bankruptcy Code. The Bankruptcy estate is comprised of all legal and equitable interests in property, of the debtors as of the filing of a Bankruptcy petition. 11 U.S.C. §§ 541(a) and 1306(a). Under New Jersey law, the debtors had a right to redeem the Millburn property on the day the Chapter 13 petition was filed. Hardyston National Bank v. Tartamella, 56 N.J. 508, 267 A.2d 495 (1970). Under Section 541(a), the debtors' right of redemption is part of the Bankruptcy estate. The automatic stay imposed by Section 362(a) restrains "any act to obtain possession of property of the estate." The automatic stay has prevented the plaintiffs from consummating their purchase of the Millburn property. The plaintiffs contend the automatic stay should be lifted because the underlying Bankruptcy petition was not filed in good faith. The Court agrees, the equities of this case favor granting the relief requested by the plaintiffs. The facts of this case do not evidence a legitimate attempt by the debtors to work themselves out of financial difficulty. Rather, the record indicates that this petition was filed with the intent to delay and frustrate the Order of the Superior Court. To illustrate, the Court will review the debtors' actions. On October 7, 1981, only hours before the debtors' right of redemption was to expire, the debtors filed a joint petition expressing their intention to file a plan pursuant to Chapter 13. On October 26, 1981, one day before the hearing of this matter, the debtors filed a Chapter 13 statement. To date, no formal Chapter 13 plan has been filed. Bankruptcy Rule 13-201 provides that the debtor may file a plan with his petition or within ten (10) days thereafter. The rule further provides that such time shall not be further extended except for cause shown and on such notice to such persons as the Court may direct. The debtors' own testimony, at the hearing held before this Court on October 27, 1981, leaves no doubt in the Court's mind that this petition was filed in bad faith. At the hearing, Mr. Madden, one of the debtors, disclosed the existence of two bank accounts and a trust fund not listed in the Chapter 13 statement (Transcript, pp. 85, 86). The debtors' statement list the value of the subject property at $180,000.00, notwithstanding his admitted intention to sell the property on October 9, 1981 for $167,000.00. Finally, the information provided *20 on the debtors' income was clearly inadequate. The debtors' petition states no weekly, monthly or periodic income, but, while testifying Mr. Madden "guessed" his income to be "somewhere around $25,000.00." The Court is also mindful of the fact that the debtor admits to not paying any income tax for a "few years." Section 1307(c) provides that upon the request of a party in interest after notice and hearing, the Court may dismiss a case under Chapter 13, for cause. Based upon the debtors' failure to comply with the requirements of Bankruptcy Rule 13-201 and upon a specific finding that this petition for relief under Chapter 13 was not filed in good faith, the plaintiffs shall be granted the relief requested. The Chapter 13 petition of the debtors shall be dismissed. Submit an Order in accordance with the above.

Filed 10/28/14 by Clerk of Supreme Court IN THE SUPREME COURT STATE OF NORTH DAKOTA 2014 ND 187 Byron Ruddell, Petitioner and Appellant v. State of North Dakota, Respondent and Appellee No. 20140073 Appeal from the District Court of Burleigh County, South Central Judicial District, the Honorable Thomas J. Schneider, Judge. AFFIRMED. Per Curiam. Mark Taylor Blumer, P.O. Box 7340, Fargo, ND 58106, for petitioner and appellant; submitted on brief. Julie Ann Lawyer, Assistant State’s Attorney, 514 East Thayer Avenue, Bismarck, ND 58501, for respondent and appellee; submitted on brief. Ruddell v. State No. 20140073 Per Curiam. [¶1] Byron Ruddell appeals a district court judgment denying his application for postconviction relief from a conviction by a jury of possession of methamphetamine with intent to deliver within 1000 feet of a school, a class AA felony, and possession of drug paraphernalia, a class A misdemeanor.  Ruddell argued he was denied effective assistance of counsel because his attorneys failed to file a motion to suppress, contact potential witnesses, obtain video evidence from the scene of the offense, conduct depositions of the officers and request DNA and fingerprint analysis of the evidence.  Ruddell also argues false statements by officers violated his procedural due process rights.  After an evidentiary hearing, the district court denied his application for postconviction relief.  Ruddell argues the district court erred in denying the application for postconviction relief.  We summarily affirm under N.D.R.App.P. 35.1(a)(2), concluding the district court’s findings of facts are not clearly erroneous and the court did not err in determining Ruddell failed to establish ineffective assistance of counsel. [¶2] Gerald W. VandeWalle, C.J. Daniel J. Crothers Lisa Fair McEvers Carol Ronning Kapsner Dale V. Sandstrom

374 F.Supp. 639 (1974) Sylvia MEEK et al., Plaintiffs, v. John C. PITTENGER, as Secretary of Education of the Commonwealth of Pennsylvania and Grace M. Sloan, as Treasurer, Defendants, Jose Diaz et al., Intervening Parties Defendants. Civ. A. No. 73-269. United States District Court, E. D. Pennsylvania. February 11, 1974. *640 *641 *642 Wolf, Block, Schorr & Solis-Cohen, by William P. Thorn, Philadelphia, Pa., Leo Pfeffer, New York City, for plaintiffs. J. Justin Blewitt, Jr., Deputy Atty. Gen., for defendants. Ball & Skelly by William B. Ball, Joseph G. Skelly, Harrisburg, Pa., for intervenors, Powell and Watson. Ronal, Stevens & Young, by C. Clark Hodgson, Jr., Philadelphia, Pa., for intervenors, Diaz, Zimmerspitz and Hassall. Duane, Morris & Heckscher by James E. Gallagher, Jr., Henry T. Reath, Jane Elliott, Philadelphia, Pa., for intervenors Chesick, Boozer, Pennsylvania Association for Independent Schools and Springside School. Before GIBBONS, Circuit Judge, and HIGGINBOTHAM and BECHTLE, District Judges. *643 OPINION GIBBONS, Circuit Judge. In this action the plaintiffs challenge the constitutionality of two Pennsylvania statutes, Act 194, July 12, 1972, Pa. Stat. tit. 24, ง 9-972 and Act 195, July 12, 1972, Pa.Stat. tit. 24, ง 9-972. Both are claimed to transgress the first amendment in two separate respects, set forth as separate counts in the complaint. The First Count alleges that the statutes violate the establishment clause. The Second Count alleges that the statutes constitute compulsory taxation for the support of religion or religious schools and thereby interfere with the plaintiffs' free exercise of their religion in violation of the free exercise clause. In both counts the complaint seeks an injunction against the expenditure of any funds pursuant to either statute. A three-judge district court was convened pursuant to 28 U.S.C. งง 2281-2284. The case is before that court on final hearing. I. THE PARTIES There are three individual and four organizational plaintiffs. The individual plaintiffs are Sylvia Meek, Bertha G. Myers and Charles A. Weatherley, each of whom is a resident taxpayer of the Commonwealth of Pennsylvania. The organizational plaintiffs, American Civil Liberties Union, National Association for the Advancement of Colored People, Pennsylvania Jewish Community Relations Council, and Americans United for Separation of Church and State, each has members who are taxpayers of the Commonwealth. The original defendants are John C. Pittinger, Secretary of Education of the Commonwealth and Grace M. Sloan, Treasurer of the Commonwealth. A number of parties having varying interests were permitted to intervene as defendants. The individual intervening defendants include parents of children who are receiving benefits under one or both statutes. Of these, the defendants John P. Chesick, Mrs. Robert Boozer, Seth W. Watson, Jr. and Anne P. Watson are parents of beneficiary children who attend nonpublic nonsectarian schools in Pennsylvania. The defendants Jose Diaz, Enilda Diaz, William Zimmerspitz, Nancy Zimmerspitz, Thomas J. Hassall, Marie Hassall, Daniel F. X. Powell and Anna T. Powell are parents of beneficiary children attending nonpublic church-related schools in Pennsylvania. One minor child of two of the intervening defendants is a mentally retarded child attending a church-related school for exceptional children. The defendant Pennsylvania Association of Independent Schools is an organization of nonpublic nonsectarian schools attended by students who qualify as beneficiaries under the challenged acts. The defendant Springside School is a nonpublic nonsectarian school attended by students who qualify as beneficiaries under the challenged statutes. II. THE PLEADINGS AND THE RECORD Under the Court's supervision the parties engaged in extensive pretrial negotiations which led to the entry of a joint final pretrial order containing twenty-eight stipulations of fact, a list of exhibits which were ultimately received in evidence, and a list of potential witnesses. At a hearing on plaintiffs' motion for a preliminary injunction on September 10, 1973 the testimony of some of these witnesses was received. Pursuant to Rule 65(a)(2) the Court directed that the trial of the action on the merits be advanced and consolidated with the hearing on that application. The plaintiffs were afforded the opportunity to supplement the testimony offered on September 10, 1973, but elected to rest on that record. Thus the case is before us on final hearing on the pleadings, the stipulations set forth in the joint final pretrial order and the evidence received at the hearing on September 10, 1973. This opinion comprises our findings of fact and conclusions of law. *644 III. THE STATUTES INVOLVED Acts 194 and 195, both of which became law on July 12, 1972, are amendments to the Pennsylvania Public School Code of 1949, Pa.Stat. tit. 24, งง 1-101 to 27-2702, which embodies the Commonwealth's comprehensive scheme for educating all children of elementary and secondary school age. The Code defines compulsory school age as not later than eight years and until seventeen years of age. Pa.Stat. tit. 24, ง 13-1326. It provides: Every parent, guardian, or other person having control of charge of any child or children of compulsory school age is required to send such child or children to a day school in which the subjects and activities prescribed by the standards of the State Board of Education are taught in the English language. Pa.Stat. tit. 24, ง 13-1327. The Code recognizes that the requirements of the compulsory attendance law may be met at a nonpublic school so long as the subjects and activities in such school meet the standards of the State Board of Education and are taught in the English language. Id. The only exceptions to compulsory school attendance are those set forth in Pa.Stat. tit. 24, ง 13-1330. These include certain children fourteen years of age or older to whom employment certificates have been issued under authority of the Superintendent of Public Education, and children who have been found, after examination, to be so mentally retarded as to be unable to profit from further school attendance. The Commonwealth imposes the requirements of licensing and inspection by a State Board of Private Academic Schools on the nonpublic schools here involved, except for those operated by or under the authority of bona fide religious institutions. Pa. Stat. tit. 24, งง 2731-2743. It imposes on principals and teachers in all schools, public and nonpublic, nonsectarian or religious, the duty of reporting to the district school superintendent the names and addresses of all children enrolled, and any failure of the children to attend school in compliance with the compulsory attendance law. Pa.Stat. tit. 24, ง 13-1332. This reporting provision is enforced by a criminal sanction. Pa. Stat. tit. 24, ง 13-1355. The Code evidences the strong public policy of the Commonwealth that every child of compulsory school age be educated for functional adult citizenship to the level of minimum state standards. Under various provisions of the Code the Commonwealth has provided to pupils attending public schools, through several levels of state and local officials, certain auxiliary services aimed at the achievement of such a minimum level of educational achievement. To the same end, under other provisions of the Code it furnishes to pupils attending public schools textbooks, instructional materials and instructional equipment. Act 194 provides that acting through the same state and local officials as in the case of pupils attending public schools, the Commonwealth will provide auxiliary services . . . to all children who are enrolled in grades kindergarten through twelve in nonpublic schools wherein the requirements of the compulsory attendance provisions of this act may be met and which are located within the area served by the intermediate unit, such auxiliary services to be provided in their respective schools. The Intermediate Units referred to are established by another part of the Code. All public school districts in the Commonwealth are assigned to one of twenty-nine such units which have the function of furnishing auxiliary services to such school districts. Pa.Stat. tit. 24, งง 9-951 to 9-971. These services include but are not limited to curriculum development and instructional improvement services, educational planning services, instructional materials services, continuing professional education services, State and Federal agency liaison services, management services, classes and schools for exceptional children, audio-visual libraries and instructional materials *645 centers. Pa.Stat. tit. 24, ง 9-964. The Commonwealth finances these services. Pa.Stat. tit. 24, งง 9-957, 9-970. Act 194, section 1(b), defines auxiliary services as: guidance, counseling and testing services; psychological services; services for exceptional children; remedial and therapeutic services; speech and hearing services; services for the improvement of the educationally disadvantaged (such as, but not limited to, teaching English as a second language), and such other secular, neutral, non-ideological services as are of benefit to nonpublic school children and are presently or hereafter provided for public school children of the Commonwealth. All the auxiliary services listed in section 1(b) are presently provided for public school children at public expense either through the Intermediate Units or through local public school districts. Act 195, section 1(c) provides: Loan of Textbooks. The Secretary of Education directly, or through the intermediate units, shall have the power and duty to purchase textbooks and, upon individual request, to loan them to all children residing in the Commonwealth who are enrolled in grades kindergarten through twelve of a nonpublic school wherein the requirements of the compulsory attendance provisions of this act may be met. Such textbooks shall be loaned free to such children subject to such rules and regulations as may be prescribed by the Secretary of Education. Textbooks are defined in section 1(b): "Textbooks" means books, reusable workbooks, or manuals, whether bound or in looseleaf form, intended for use as a principal source of study material for a given class or group of students, a copy of which is expected to be available for the individual use of each pupil in such class or group. Such textbooks shall be textbooks which are acceptable for use in any public, elementary, or secondary school of the Commonwealth. Section 1(d) limits the state's obligation to purchase textbooks for loan to nonpublic school students to a total amount not exceeding ten dollars multiplied by the number of children enrolled in nonpublic schools. Act 195, section 1(e) provides: Purchase of Instructional Materials and Equipment. Pursuant to requests from the appropriate nonpublic school official on behalf of nonpublic school pupils, the Secretary of Education shall have the power and duty to purchase directly, or through the intermediate units, or otherwise acquire, and to loan to such nonpublic schools, instructional materials and equipment, useful to the education of such children, the total cost of which, in any school year, shall be an amount equal to but not more than twenty-five dollars ($25) multiplied by the number of children residing in the Commonwealth who on the first day of October of such school year, are enrolled in grades kindergarten through twelve of a nonpublic school in which the requirements of the compulsory attendance provisions of this act may be met. Instructional materials and instructional equipment are defined in section 1(b): "Instructional materials" means books, periodicals, documents, pamphlets, photographs, reproductions, pictorial or graphic works, musical scores, maps, charts, globes, sound recordings, including but not limited to those on discs and tapes, processed slides, transparencies, films, film-strips, kinescopes, and video tapes, or any other printed and published materials of a similar nature made by any method now developed or hereafter to be developed. The term includes such other secular, neutral, non-ideological materials as are of benefit to the instruction of nonpublic school children and are presently or hereafter provided *646 for public school children of the Commonwealth. "Instructional equipment" means instructional equipment, other than fixtures annexed to and forming part of the real estate, which is suitable for and to be used by children and/or teachers. The term includes but is not limited to projection equipment, recording equipment, laboratory equipment, and any other educational secular, neutral, non-ideological equipment as may be of benefit to the instruction of non public school children and are presently or hereafter provided for public school children of the Commonwealth. Both acts have an identical severability clause: If any part of this act is invalid, all valid parts that are severable from the invalid part remain in effect. If a part of this act is invalid, in one or more of its applications, the part remains in effect in all valid applications that are severable from the invalid applications. Thus each program under both statutes must be considered separately, both facially and as applied. We are dealing, then, with four separate programs: 1. The auxiliary services program, under which public employees of the Intermediate Units furnish to children attending nonpublic schools the same auxiliary services as are furnished to children attending public schools. 2. The textbook loan program, under which the Commonwealth loans to children attending nonpublic schools textbooks for their individual use which are acceptable for use in public schools. 3. The instructional materials loan program, under which the Commonwealth loans to nonpublic schools the same instructional materials as are furnished for public school children. The difference between the textbook loan program and the instructional materials loan program is that the latter covers materials not intended for individual use, either because, in the case of certain audio-visual materials, group use is more appropriate, or because unlike books, the materials are not readily portable, or because equipment is required for their use, or because unlike books they can readily be used by more than one student. 4. The instructional equipment loan program, under which the Commonwealth loans to nonpublic schools instructional equipment which like the instructional materials is not suitable for loan to individual students. IV. PLAINTIFFS' CONTENTIONS Plaintiffs contended, prior to the conclusion of final hearing, that each of the four programs was facially unconstitutional both under the establishment clause and under the free exercise clause, and that each of the programs as applied was unconstitutional under both clauses. After both sides had rested, however, plaintiffs moved to amend the complaint to limit it to an attack on the statutes on their face, so as to eliminate any res adjudicata effect of a judgment insofar as the acts were construed and applied by the Commonwealth defendants. We permitted both sides to file briefs on that motion. We conclude that it would be improper, the case having been fully tried, to permit what would amount to a voluntary dismissal of a major part of it, at that stage. See Fed.R.Civ.P. 41(a)(2); Fed.R.Civ.P. 15(a). Thus we must dispose of plaintiffs' contentions both of facial unconstitutionality and of unconstitutionality as applied, and both of violation of the establishment clause, Count I, and of interference with plaintiffs' free exercise of religion, Count II. V. STANDING ISSUES The defendants challenge the standing, both of the individual and of *647 the organizational plaintiffs. The individual plaintiffs are taxpayers of the Commonwealth. As such they have standing to challenge a Commonwealth expenditure of funds which they contend is prohibited by the establishment clause. Flast v. Cohen, 392 U.S. 83, 88 S.Ct. 1942, 20 L.Ed.2d 947 (1968). The organizational plaintiffs all have members who are taxpayers of the Commonwealth. Though their standing is not as clear as that of the individual plaintiffs, we conclude that they have standing, by virtue of the their members' status as taxpayers, to challenge a Commonwealth expenditure of funds which they contend is prohibited by the establishment clause. See, e. g., Sierra Club v. Morton, 405 U.S. 727, 92 S.Ct. 1361, 31 L. Ed.2d 636 (1972); Association of Data Processing Service Organizations, Inc. v. Camp, 397 U.S. 150, 90 S.Ct. 827, 25 L. Ed.2d 184 (1970). Thus both the individual plaintiffs and the organizational plaintiffs have standing to proceed with the first count. The factual allegation upon which the second count is predicated is in paragraph 9 of the complaint: 9. It is against the religious conscience of each of the plaintiffs to be forced by the operation of the taxing power to contribute to the propagation of religion in general and to religions to which he does not adhere in particular, or for the support or maintenance of sectarian schools or places of worship. The count then alleges: 12. . . . Each of the Acts on its face and as construed and applied by the defendants, violates the First Amendment to the United States Constitution in that it prohibits the free exercise of religion on the part of the plaintiffs by reason of the fact that it constitutes compulsory taxation for the support of religion or religious schools. The relief requested is not against collection of the tax, but against the expenditure of funds. Compare this with Murdock v. Pennsylvania, 319 U.S. 105, 63 S.Ct. 870, 87 L.Ed. 1292 (1943). There is no allegation as to the effect on conscience of members of any of the organizational plaintiffs, none of which claims to be of a religious character. The allegations of paragraph 9, quoted above, can refer only to individuals, since only they, and not the organizations, have consciences and exercise religions. Thus we conclude that the complaint does not allege facts which would permit the organizational plaintiffs to assert a free exercise claim. As to the individuals, the issue of their standing to assert a free exercise claim is intertwined with the merits of the second count, and will be discussed when we reach the disposition of that count. VI. THE ESTABLISHMENT COUNT A. The Governing Standards The cumulative criteria developed by the Supreme Court for judging state expenditure for education against the prohibition of the establishment clause are clear in expression if not in operation. First, the statute must have a secular legislative purpose; second, its principal or primary effect must be one that neither advances nor inhibits religion . . .; finally, the statute must not foster "an excessive government entanglement with religion." Lemon v. Kurtzman, 403 U.S. 602, 612, 91 S.Ct. 2105, 2111, 29 L.Ed.2d 745 (1971). The plaintiffs acknowledge that the Pennsylvania legislature had a legitimate secular purpose in enacting both Act 194 and Act 195.[1] The first criteria *648 is not an issue as to any of the four programs. Thus we turn to a separate consideration of each program under the two remaining criteria, primary effect and undue entanglement. Since the Court began in Board of Education v. Allen, 392 U.S. 236, 88 S. Ct. 1923, 20 L.Ed.2d 1060 (1968), to refine what became its cumulative tripartite test it has held statutes authorizing expenditures for education unconstitutional on the primary effect ground in Levitt v. Committee for Public Education & Religious Liberty, 413 U.S. 472, 93 S.Ct. 2814, 37 L.Ed.2d 736 (1973), in Committee for Public Education & Religious Liberty v. Nyquist, 413 U.S. 756, 93 S.Ct. 2955, 37 L.Ed.2d 948 (1973), and in Sloan v. Lemon, 413 U.S. 825, 93 S.Ct. 2982, 37 L.Ed.2d 939 (1973). It found no primary effect defect in the statutes involved in Board of Education v. Allen, supra, and in Hunt v. McNair, 413 U.S. 734, 93 S.Ct. 2868, 37 L.Ed.2d 923 (1973). Cf. Walz v. Tax Commission, 397 U.S. 664, 90 S.Ct. 1409, 25 L. Ed.2d 697 (1970), involving an exemption from taxation. In Tilton v. Richardson, 403 U.S. 672, 91 S.Ct. 2091, 29 L.Ed.2d 790 (1971), it sustained a federal statute after excising a minor feature found to involve an impermissible primary effect. The Court did not reach the primary effect issue in Lemon v. Kurtzman, supra. What amounts to an impermissible primary effect must, therefore, be gleaned by contrasting Levitt v. Committee for Public Education & Religious Liberty, Committee for Public Education & Religious Liberty v. Nyquist, and Sloan v. Lemon on the one side, with Board of Education v. Allen, Walz v. Tax Commission, Tilton v. Richardson and Hunt v. McNair, on the other. Three New York programs were invalidated in Nyquist, the "maintenance and repair" provision, the tuition reimbursement provision, and the tax credit provisions. The "maintenance and repair" statute authorized grants totaling $30 to $40 per pupil directly to sectarian schools with no effective restriction on the use to which the maintenance and repair funds could be put. The Court held that the "effect [of these grants], inevitably, is to subsidize and advance the religious mission of sectarian schools". 413 U.S. at 779-780, 93 S.Ct. at 2969. The tuition reimbursement program provided unrestricted grants to parents to reimburse them for tuition paid at sectarian schools. The Court observed that such grants could not have been given directly to the sectarian schools in the absence of restrictions which would guarantee separation between the secular and the religious functions of the schools. It held that the unrestricted reimbursement of tuition had the effect of providing direct aid to sectarian schools by providing a *649 direct incentive to parents to send children to such schools. As to the tax credits, it held these to be practically similar to the tuition reimbursement program. This direct incentive, too, was found to be insufficiently restricted to secular purposes. The Pennsylvania tuition reimbursement program invalidated in Sloan v. Lemon was found to be indistinguishable from the New York program invalidated in Nyquist. Justice Powell wrote in Sloan v. Lemon: The State has singled out a class of its citizens for a special economic benefit. Whether that benefit be viewed as a simple tuition subsidy, as an incentive to parents to send their children to sectarian schools, or as a reward for having done so, at bottom its intended consequence is to preserve and support religion-oriented institutions. 413 U.S. at 832, 93 S.Ct. at 2986. Levitt involved a New York statute providing for direct payments to private schools for expenses incurred in examination and inspection in connection with testing, maintenance of enrollment records, maintenance of pupil health records, and recording of personnel qualifications and characteristics. The payments were calculated on a per pupil basis. As with the maintenance and repair funds considered in Nyquist, there was no effective restriction as to the use to which the funds could be put, no duty to account for or refund sums not expended for state mandated secular purposes, and no differentiation between tests including religious content and tests which were purely secular. The Court held that "the aid that will be devoted to secular functions is not identifiable and separable from aid to sectarian activities," and that therefore the statute had the impermissible primary effect of aiding religion. Id. at 480, 93 S.Ct. at 2819. From these cases we conclude that state expenditures will be held to violate the primary effect aspect of the tripartite standard if 1. the payment is made directly to a sectarian school and is not effectively restricted to use by that school for secular nonreligious purposes, or 2. the payment is made directly to parents as a reimbursement for expenses incurred in sending children to a sectarian school and the payment is not effectively restricted to reimbursement for expenses for identifiable secular nonsectarian pupil activities or needs. Board of Education v. Allen, supra, upheld against a primary effect challenge New York's textbook loan statute. That case relied heavily on Everson v. Board of Education, 330 U.S. 1, 67 S.Ct. 504, 91 L.Ed. 711 (1947), which had upheld New Jersey's statute providing for reimbursement to parents of expenses incurred in busing children to sectarian schools. Tilton v. Richardson, supra, upheld against a primary effect challenge the Federal Higher Education Facilities Act of 1963, 20 U.S.C. งง 711-58, which authorizes direct grants to institutions of higher education for academic facilities. The Act permits grants to sectarian institutions, but only for facilities that will be used for defined secular purposes. It expressly prohibits the use of the facilities for religious instruction, training, or worship. The Court held invalid, however, a section of the statute which imposed a twenty-year limitation on the federal government's remedy of recapture of a facility's present value if this prohibition is violated. Hunt v. McNair, supra upheld against a primary effect challenge the validity of the South Carolina Educational Facilities Act, S.C.Code Ann. ง 22-41 et seq. (Cum.Supp.1971), which permitted secular institutions to finance the construction of buildings and facilities from the proceeds of revenue bonds issued by a State authority. As with the federal act upheld in Tilton v. Richardson, supra, the revenue bond device could not be used for facilities used for sectarian instruction or religious worship. The agreements between the State authority and the institution *650 all contained inspection and reconveyance provisions to enforce the prohibition. From these cases we conclude that state expenditures for education will be held not to have the primary effect of advancing religion 1. if, although the payment is made directly to a parent, it reimburses the parent for an expense of a pupil activity clearly identifiable as secular or nonreligious, or 2. if, although a property or service is furnished directly to a student, it is clearly identifiable as a secular or nonreligious property or service, or 3. if, although a payment or service is furnished directly to a secular institution, its use is effectively restricted to the secular nonreligious activities of the institution. The excessive entanglement refinement first appeared in Walz v. Tax Commission, supra, as a justification for the obvious benefit conferred upon religious institutions exempted by New York law from property taxation. Chief Justice Burger wrote: The test is inescapably one of degree. Either course, taxation of churches or exemption, occasions some degree of involvement with religion. Elimination of exemption would tend to expand the involvement of government by giving rise to tax valuation of church property, tax liens, tax foreclosures, and other direct confrontations and conflicts that follow in the train of these legal processes. 397 U.S. at 674, 90 S.Ct. at 1414. What started in Walz as a justification for exemption from taxation, however, became in Lemon v. Kurtzman, supra, the third criterion of the Court's tripartite limitation upon expenditures. Statutes authorizing educational expenditures were held to be unconstitutional on the ground of excessive entanglement in that case, which involved Rhode Island and Pennsylvania enactments. Challenges to educational expenditure statutes on entanglement grounds were rejected in Tilton v. Richardson, supra, and Hunt v. McNair, supra. Board of Education v. Allen, supra, was decided before the excessive entanglement criterion became explicit, but the Allen Court implicitly rejected an attack on that ground. See, e.g., 392 U.S. at 245, 88 S.Ct. 1923. What amounts to an impermissible entanglement of government in religion must, therefore, be gleaned by contrasting Lemon v. Kurtzman on the one side, with Board of Education v. Allen, Tilton v. Richardson and Hunt v. McNair, on the other.[2] Significantly, in no educational expenditure case decided on entanglement grounds has the Court ruled that the statute in question was facially unconstitutional. In the case of the Rhode Island statute there was a lengthy evidentiary hearing which resulted in extensive findings by the district court on the potential for excessive entanglement from comprehensive, extensive and continuing state surveillance. See 403 U.S. at 615, 91 S.Ct. 2105. In the case of the Pennsylvania statute the Court had before it a complaint which had been dismissed for failure to state a claim for relief. The allegations of the complaint described a statute and a religious school system similar to that of Rhode Island. The dismissal was reversed and the case remanded for further proceedings.[3] In Tilton v. Richardson, *651 supra, the appeal arose after an evidentiary hearing in which a three-judge district court made findings respecting the relationship between the religious institutions and the government. The Court looked at the record facts and concluded that considering the nature of the institutions, the nonideological character of the aid, the minimal surveillance required for enforcement of the prohibition against use of facilities for religious purposes, and the noninvolvement of the government in the day-to-day financial decisions of the institutions, no excessive involvement could be found. Hunt v. McNair also involved a case in which a record had been developed in the trial court. Looking at that record the Court reached the same conclusion as in Tilton v. Richardson. In Board of Education v. Allen, the Court said: We are unable to hold, based solely on judicial notice, that this statute results in unconstitutional involvement of the State. . . . 392 U.S. at 248, 88 S.Ct. at 1929. From these cases it seem clear to us that a decision on the entanglement criterion will in most if not all cases require a factual inquiry rather than a resort to examination of the face of the statute in issue or to judicial notice about how it may be expected to operate. And as the Court makes clear in Hunt v. McNair, the burden of establishing the facts rests with the plaintiff challenging the expenditure. The Rhode Island and Pennsylvania statutes considered in Lemon v. Kurtzman, supra, both involved payments either directly to religious schools or directly to teachers employed in such schools for teaching secular subjects. In the Rhode Island case it was found, and in the Pennsylvania case alleged, that the teacher salary supplements would be paid to teachers in schools in which an effort was made to create a pervasive religious atmosphere. The teachers were found, or alleged to be, under religious control or discipline. Religious hierarchical authority was found or alleged to pervade the school system. As Chief Justice Burger wrote with respect to Rhode Island: The teacher is employed by a religious organization, subject to the direction and discipline of religious authorities, and works in a system dedicated to rearing children in a particular faith. These controls are not lessened by the fact that most of the lay teachers are of the Catholic faith. Inevitably some of the teacher's responsibilities hover on the border between secular and religious orientation. 403 U.S. at 618, 91 S.Ct. at 2114. Because of these findings (Rhode Island) or allegations (Pennsylvania) about the nature of the schools and the character of the teachers, the direct subsidies for teacher salaries involved in Lemon v. Kurtzman presented for the states an acute problem in assuring that only secular and not religious instruction and activities was being supported. As Chief Justice Burger observed: A comprehensive, discriminating and continuing state surveillance will inevitably be required to ensure that these restrictions are obeyed and the First Amendment otherwise respected. Unlike a book, a teacher cannot be inspected once so as to determine the extent and intent of his or her personal beliefs and subjective acceptance of the limitations imposed by the First Amendment. These prophylactic contacts will involve excessive and enduring entanglement between state and church. Id. at 619, 91 S.Ct. at 2114. He also observed that the financial limitations of the Rhode Island program required that the state examine the school's records to determine how much of its total expenditures is attributable to secular education and how much to religious activity. He wrote: This kind of state inspection and evaluation of the religious content of a religious *652 organization is fraught with the sort of entanglement that the Constitution forbids. Id. at 620, 91 S.Ct. at 2115. Contrasting Lemon v. Kurtzman with Board of Education v. Allen, Tilton v. Richardson and Hunt v. McNair, we conclude that a statute authorizing expenditures for education will be held to involve undue entanglement between government and religion if (a) it authorizes the payment of money or the furnishing of materials or facilities to a religious institution, and (b) the purpose of the payment or the nature of the materials or the facilities, and the character of the institution, are such that the government, in order to assure only secular use of the payment, materials or facilities, will be required to be involved in the internal operations of the institution, both religious and secular, on a continuing basis. But a statute authorizing expenditure for education will not be held to involve undue entanglement between government and religion even though it authorizes the payment of money or the furnishing of materials, equipment or facilities to a religious institution, if the expenditure is limited to secular uses and if from the character of the institution, the purpose of the payment and the nature of the materials or facilities, we find that it will not be necessary, in order to assure only secular use, for government to be involved in the internal operations of the institution, secular and religious, on a continuing basis. Application of the entanglement criterion, in short, requires a discrete analysis of each program to determine to what extent intrusion and surveillance will be required. Justice Powell in Nyquist referred to "the Scylla and Charybdis of `effect' and `entanglement.'" 413 U.S. at 788, 93 S. Ct. at 2973. The Straits of Messina does, however, provide a channel for the careful seaman. We do not assume that the Court has made the arms of its primary effect test so long or the currents of its entanglement whirlpool so wide that it has forever frozen the permissible forms of governmental educational expenditure. The plaintiffs' position as to facial unconstitutionality of each of the four programs depends upon an opposite conclusion. One additional factor must be taken into account. That factor is the constitutional status of the relationship between the Commonwealth, children, and parents. It is clear that the Commonwealth has an interest in the health and education of children that in many respects is superior to the interests of parents or the wishes of children. The compulsory school attendance law, Pa.Stat. tit. 24, ง 13-1327, is a manifestation of that interest. So, too, are laws requiring medical and dental examinations, and other mandatory health programs. E.g., Pa.Stat. tit. 24, งง 14-1401 to 14-1422; see Law of March 10, 1949, P.L. 30, art. XII, ง 1303 (repealed 1972) (smallpox vaccination). At the same time some liberty to choose in the matter of education has been recognized as constitutionally protected. E.g., Pierce v. Society of Sisters, 268 U.S. 510, 45 S.Ct. 571, 69 L.Ed. 1070 (1925). Whether that liberty is a corollary of the free exercise clause of the first amendment or is one of the rights retained by the people to which the ninth amendment refers, or is one of those rights deemed fundamental but not the subject of an express guarantee, is of little moment. If the personal liberty of choice in education is constitutionally protected, the state must show a compelling state interest for restricting it, and the restriction may go no further in restricting it than is required for the protection of that interest. See Wisconsin v. Yoder, 406 U.S. 205, 92 S.Ct. 1526, 32 L.Ed.2d 15 (1972); cf. Doe v. Bolton, 410 U.S. 179, 93 S.Ct. 739, 35 L.Ed.2d 201 (1973); Roe v. Wade, 410 U.S. 113, 93 S.Ct. 705, 35 L.Ed.2d 147 (1973); Eisenstadt v. Baird, 405 U.S. 438, 92 S. Ct. 1029, 31 L.Ed.2d 349 (1972); Shapiro v. Thompson, 394 U.S. 618, 89 S.Ct. 1322, 22 L.Ed.2d 600 (1969); Griswold v. Connecticut, 381 U.S. 479, 85 S.Ct. 1678, 14 L.Ed.2d 510 (1965); Aptheker *653 v. Secretary of State, 378 U.S. 500, 84 S.Ct. 1659, 12 L.Ed.2d 992 (1964). Thus in legislating upon the education of children the state's choice of means for the achievement of its educational objectives is not restricted only by the establishment clause, and a court considering a constitutional challenge to a state's program must be mindful that the balance struck may be one as to which the alternatives for the achievement of those objectives are limited. B. APPLICATION OF STANDARDS 1. The Auxiliary Services Program The Pennsylvania Department of Education has issued guidelines for the implementation of Act 194. From these guidelines (Exhibit P-1) and from the testimony of witnesses a clear picture of the operation of the act emerges. The Intermediate Units have been designated as the responsible agencies for providing services and assignment of staff for such services to nonpublic school children within the geographic boundaries of the respective Units. The program of any Intermediate Unit for providing auxiliary services is subject to periodic evaluation by the Department of Education. The services provided must conform to the School Laws of Pennsylvania, the Regulations of the State Board of Education and procedures of the Department of Education. The staff providing the services is employed by the Intermediate Units. Provision of services is defined as ". . . the delivery of auxiliary services requested by nonpublic school representatives, to children, through the providing of qualified personnel (whether through the use of staff members of the Intermediate Unit, or through the Intermediate Unit's contracting with other public agencies or individuals), and through the supplying of supportive materials, equipment, and personnel, necessary to the proper rendering of such services." (Exhibit P-1, ง 1.3). The auxiliary services listed in Act 194 are defined in the guidelines as follows: 1.5 Guidance, counseling, and testing means (but is not limited to) such services as are delineated in Title 22, Pennsylvania Code, Section 7.13. 1.6 Psychological services shall mean those diagnostic and evaluative services for children, consultation and counseling with students, parents and members of the professional staff relative to understanding the dynamics existent in a student, class, or school. 1.7 Exceptional children shall mean "children of school age who deviate from the average in physical, mental, emotional or social characteristics to such an extent that they require special education facilities or services." (Section 1371, School Laws of Pennsylvania) 1.8 Services for exceptional children means such educational and other services for exceptional children which are generally recognized to be of particular benefit to exceptional children enrolled in nonpublic schools. 1.9 Remedial and therapeutic services shall mean those corrective services applied following identification, including, but not limited to medical, psychological, and psychiatric as well as remedial measures. 1.10 Speech and hearing services shall mean those services provided to children whose speech or hearing deviates from accepted standards of their individual social and cultural community in such a way as to interfere with the communication process. 1.11 Services for the improvement of the educationally disadvantaged shall include but are not limited to those services necessary to assist a student to perform at the grade level for his age and potential. *654 Each of these services is rendered not as a part of the nonpublic school's general instructional program, but on an individualized basis to specific children determined to be in need of educational services beyond that available in a general instructional program. Nor is the program open ended. As both the statute and the guidelines make clear, only such auxiliary services are available as are provided for public school children. The Commonwealth's interest in providing such individualized auxiliary services to children attending nonpublic schools is strikingly illustrated by the evidence with respect to speech and hearing services. Since 1949 the Commonwealth has required that every child of school age be given, at specified intervals, a hearing test by a school nurse or medical technician. Pa.Stat. tit. 24, ง 14-1402(a) (2); see Law of March 10, 1949, P.L. 30, art. XIV, ง 1422. A summary of the audiometric testing program in the School District of Philadelphia in the school year 1967-68 (Exhibit D-19) discloses: Pupils Pupils Unable to Tested Failed % Test [*] Public 108,139 5,319 4.7 164 0.2 Parochial 68,448 3,561 5.2 49 0.8 Private 2,356 107 4.2 10 0.4 Martin School 221 213 96.4 8 3.6 Archbishop Ryan Memorial Institute 66 54 81.8 12 18.2 There is no reason to believe that these results would be untypical of other Intermediate Units. P. D. Stopper, a speech therapist employed by the Carbon-Lehigh Intermediate Unit to render speech therapy services pursuant to Act 194 testified as follows: Q Very well. As a professional speech therapist, is it your observation that there are many children who have speech problems? A I think with that question I should answer it giving you what our professional journals say. The American Speech and Hearing Association publishes a journal or several of them and in that they have indicated that there are between five and up to ten per cent of the public school population that have speech problems. The reason I emphasize "public school" is because that's where the research was done. Now, when I took this job, out of simple professional interest, I decided to find out what types or what percentages my schools had in relation to what my profession says there should be. In some schools I found it rather high. There was one up to 19 per cent which I thought was extreme. There was one around 15. There were several around 11 per cent. The average was above what the American Speech and Hearing Association said there should be, and I thought that was an interest of the profession. Q What schools are they, public or non-public, to which you are referring now? A I work in the non-public schools. *655 Q Now, therefore, you find that there are children who need speech therapy in both public and non-public schools? A That is correct. I do find, though, that there is a greater need in the non-public schools, and the reason I say that is because it is almost like a frontier. There have not been servicesโ€”well, there haveโ€”let's say there have been services, but they haven't been adequate in any way. For instance, out of the children that I have seen screened in my schools, I have located approximately 350 children that could use speech therapy, but when I went into those schools, the only children that had been receiving speech therapy was the No. 17. There were 17 that were being taken from the parochial school into the public school to get their speech therapy. Q To what do you attribute this lack of service, to what do you attribute the fact that only 17 had had the speech therapy? A I have read what was published by my Intermediate Unit as the guidelines for accepting children from a parochial or non-public school into a public school speech program. That guideline said that it was up to the speech therapist's time and discretion whether to accept the children in their programs or not. One of the problems there was, I think it was mentioned by the psychologist, transportation for one, but discretion of the speech therapist was also important, I found. Q What do you mean by "the discretion of the speech therapist"? A Well, if she could fit it into her case load, that was the major one, if she could fit it in, and if she already had a full case load, many times the children were refused. Q Was it your observation that she did or did not often have a full case load of public school children? A I would say many times that she had a full one, but I would also say that there was one that I know of specifically who came in. She was a public school therapist. And she came in a half hour earlier to take some children from a parochial school. So it depended on the therapist. (Tr. 35-37) Dr. D. A. Horowitz, Associate Superintendent for Schools For Special Services of the Philadelphia School District,[4] testified with respect to auxiliary services: Q Are these auxiliary services under Act 194 part of the ordinary regular school curriculum or program? A In the public or non-public schools, sir? Q Well, in the non-public school? A Are they? Generally not, to my best knowledge. They have existed in a rather spotty way and I say this only from second-hand information. (Tr. 45-46) . . . . . . Q Now, Mr. Horowitz, in your professional opinion, focusing now on services under Act 194, in your opinion, can such services be afforded non-public school children at public centers? A At public schools? Q Yes. A No, I don't think so. Q Why is that? A Well, for many reasons, and depending on the specific, you know, item to which you are referring, where this equipment is being used, it is being fully utilized and cannot carry additional service or service time given to additional *656 pupils who might come in plus the logistical problems of bringing in children or groups of children for a specific piece of an instructional program at a given time of the day and given weeks of the year. Logistically it just isn't possible. (Tr. 49) Thus, taking hearing problems as an example, the Commonwealth was confronted with the reality that a very substantial number of nonpublic school children were suffering from untreated hearing deficiencies; deficiencies which are critical impediments to the entire learning process. The logistical problems of providing the services at public centers were at least formidable, if not insurmountable. The legislature chose to meet the problem by sending the therapists to the pupils. The same reality applied to the other learning auxiliary services listed in Act 194. We hold that none of the specific auxiliary services listed in Act 194 has the primary effect of aiding religion. Each has the primary effect of meeting the state's primary objective of assuring that individual students receive those individualized services, outside the general program of instruction of their school, necessary for their individual progress in learning. It is true, of course, that a child with vision defects, provided glasses, will be enabled to read the Bible, as a child with hearing defects, provided a hearing aid, will be enabled to hear the word of God, and as an emotionally disturbed child, given psychological or medical therapy, may become receptive to religious training. But the benefit to religion in such instances is clearly secondary, and such secondary benefit exists no less for children attending public than for children attending nonpublic schools. Plaintiffs focus, however, not so much on the specific auxiliary services listed in Act 194, but on the phrase ". . . such other secular, neutral, non-ideological services as are of benefit to nonpublic school children and are presently or hereafter provided for public school children of the Commonwealth." This phrase, they suggest, makes the act so open ended that it will permit the Commonwealth to furnish teachers for the general instructional programs of the nonpublic schools. This, they urge, is prohibited by Lemon v. Kurtzman, supra. Lemon v. Kurtzman did not deal with public employees. But we need not here decide if that difference is critical. We do not believe Act 194 is subject to the open ended construction plaintiffs suggest. First, it was not written in a vacuum. The Intermediate Units were already providing auxiliary services to public schools, and these did not include furnishing teachers for the general instructional programs of the school districts. Second, the guidelines issued by the Pennsylvania Department of Education (Exhibit P-1) disclose no intention to apply Act 194 in an open ended manner. The guidelines suggest, rather, an ejusdem generis construction. Third, the plaintiffs have produced no evidence from which we could infer any likelihood of the open ended construction they suggest. We note that John Jarvis, headmaster of Lancaster County Day School, a private nonsectarian school, testified: Q And I show you this pamphlet marked D-24 which I have already identified. Would you hold that up to the members of the court and explain what that is and what services are available to you now that were not heretofore which were also available to the public schools in your area? A Well, this has just been an opening up of certain opportunities for us that we really have not had before. There are a series of very excellent workshops being planned by Lancaster-Lebanon Intermediate Unit in which we are invited to participate. Not only are we invited, but secondly, we now would be able to apply under Act *657 194 for funds to cover the expenses of these workshops. (Tr. 85) It is not at all clear that Act 194 authorizes auxiliary services to teachers in the nature of continuing professional education. The guidelines of the Pennsylvania Department of Education do not mention programs for teachers. It is clear that Intermediate Units are authorized by another statute to provide such services to teachers in public schools. Pa. Stat. tit. 24, ง 9-964. If Mr. Jarvis is correct that nonpublic school teachers will by virtue of Act 194 be admitted to the continuing professional education programs conducted by the Intermediate Units, we see no primary effect difficulty. The content of the programs obviously will be secular since they are entirely within the control of the Intermediate Units. Assistance to the religious mission of the sectarian schools is at least as remote and secondary in effect as when the Commonwealth permits potential teachers in such schools to attend its Commonwealth-supported universities. Plaintiffs urge that Act 194 fails the entanglement test because it provides ". . . such auxiliary services to be provided in their respective schools." The act does require contact between personnel of the Intermediate Units and personnel of sectarian schools. The Commonwealth, recognizing the logistical realities, provided for traveling therapists rather than traveling pupils. There is no evidence whatsoever that the presence of the therapists in the schools will involve them in the religious missions of the schools. The degree of interference by the Commonwealth in the general instructional mission of the religious schools would be greater, not less, if instead of sending therapists to the schools it required that pupils needing auxiliary services be dismissed from school and transported to public centers. The degree of contact between the religious teachers and the personnel of the Intermediate Units would be approximately the same. Unlike the programs considered in Lemon v. Kurtzman, supra, no continuing audit of the nonpublic schools' general instructional program or of their finances is necessary to insure that the services provided remain secular and nonideological. The notion that by setting foot inside a sectarian school a professional therapist or counselor will succumb to sectarianization of his or her professional work is not supported by any evidence. Pennsylvania has for many years sent public health nurses into nonpublic schools to carry out its mandatory student health program. Pa.Stat. tit. 24, ง 14-1402. We are sure that if the professionals in this program had become tainted by religion, evidence of the taint would have been produced. The Intermediate Units will exercise the same controls over its professional employees serving nonpublic school children as they exercise over public school employees generally. This is not a case of potential interference with the general instructional program of a religious institution. If Act 194 permits teachers from sectarian schools to attend continuing education workshops conducted by the Intermediate Units, we find no entanglement danger. The Intermediate Units may not conduct programs of instruction in religion. If admitted, religious teachers may attend or not, but their attendance will involve no actual or potential interference by the Commonwealth with the instructional program or the financing of religious institutions. We find that Act 194, both facially and as thus far applied (1) does not have the primary effect of advancing religion, and (2) does not involve the Commonwealth in an impermissible entanglement with religion. 2. The Textbook Loan Program The textbook loan provisions of Act 195 are for first amendment purposes indistinguishable from the 1965 New York textbook loan statute upheld in Board of Education v. Allen, supra. Since 1885 Pennsylvania children attending public schools have been furnished *658 textbooks for use in those schools free of cost. Law of June 25, 1885, P.L. 173, ง 1 (now Pa.Stat. tit. 24, ง 8-801). The textbook loan provisions of Act 195 confer the same benefit on children attending nonpublic schools at which they can comply with the compulsory attendance law. The loan of textbooks under each statute is upon individual request. The textbooks, under each statute, must be books antecedently approved for use in the public schools. Under neither statute may religious texts be obtained, and the decision as to which texts qualify as secular, nonideological and neutral rests with the public authorities. The expenditure is for a clearly identifiable secular purpose. The only contact between the nonpublic schools and the Commonwealth authorities is the minimal contact involved in correspondence over processing the individual student book requests to those authorities, and in maintaining an inventory of the textbooks.[5] This contact in no way involves the Commonwealth with the religious mission of a school, with the content of its general program of instruction, or with its finances. The textbook loan program is controlled by Board of Education v. Allen, supra, and Cochran v. Louisiana State Board of Education, 281 U.S. 370, 50 S.Ct. 335, 74 L.Ed. 913 (1930). We find that the textbook loan provisions of Act 195 both facially and as thus far applied (1) do not have the primary effect of advancing religion, and (2) do not involve the Commonwealth in an impermissible entanglement with religion. 3. The Instructional Materials Loan Program The instructional materials loan program of Act 195 differs from the textbook loan program (1) in the nature of the materials loaned, and (2) in the recipient of the loan. The guidelines of the Pennsylvania Department of Education provide: General Provisions 3.1 Intermediate units are hereby designated as the responsible agencies for providing instructional materials . . . to children in the nonpublic schools within the geographic boundaries of the intermediate units Each intermediate unit shall comply with the appropriate procedures and regulations of the Department of Education and the appropriate sections of the Public School Code of Pennsylvania of 1949 as amended. . . . . . . Program Operation 3.9 The implementation of the Instructional Materials . . . portion of Act 195 of 1972 shall conform to the School Laws of Pennsylvania, Regulations of the State Board of Education, and procedures of the Department of Education. . . . . . . 3.15 Purchasing of Instructional Materials a. Each nonpublic school or the appropriate chief administrator shall submit a loan request on or before October 31 of the initial year and on or before March 15 thereafter for desired "Instructional Materials" not to exceed 80 percent of their total allocation for "Instructional Equipment" and "Instructional Materials" to the intermediate *659 unit administering the provisions of Act 195. b. The intermediate unit shall consolidate the loan requests and order the desired "Instructional Materials" in accordance with the Public School Code of Pennsylvania of 1949 as amended. c. The intermediate unit shall develop a plan for inventory control. 3.16 Inventory of Instructional . . . Materials a. Instructional materials loaned to the nonpublic schools shall be maintained on an inventory by both the nonpublic and the appropriate intermediate unit. b. It is presumed that instructional materials on loan to nonpublic schools after a period of time will be lost, missing, obsolete or worn out. These items should be so noted on an annual inventory. . . . . . . d. Each nonpublic school shall submit to the local intermediate unit an inventory of all instructional materials . . . on loan on or before June 1 of each fiscal year. Each intermediate unit should submit to the Secretary of Education a composite inventory of all instructional materials . . . on loan, on or before June 30 of each fiscal year. To distinguish the primary effect of the instructional materials loan provisions from the textbook loan provisions we would be required to attach constitutional significance either to the difference between textbooks and such materials or to the fact that the schools rather than individual students became the bailees. As to the nature of the materials, there are no distinctions of constitutional significance between secular, neutral, nonideological textbooks, on the one hand, and secular, neutral, nonideological "books, periodicals, documents, pamphlets, photographs, reproductions, pictorial or graphic works, musical scores, maps, charts, globes, sound recordings, . . . processed slides, transparencies, films, filmstrips, kinescopes, and videotapes" on the other. If the public authorities can be trusted with selecting secular, neutral, nonideological textbooks for use by students in religious schools, they can be trusted to make the same judgment with respect to those instructional materials which in this nonsequential age have to some extent replaced textbooks as teaching media. As with textbooks, this statute is, from the point of view of primary effect, largely self-enforcing since by hypothesis the instructional materials will be the same as are made available in the public schools. Nor can we attach constitutional significance to the fact that the schools, rather than individual students, become the bailees of the materials. No evidence has been presented from which we may infer that secular, neutral, nonideological instructional materials such as audio-visual materials, intended for group rather than individual use, are any more susceptible of diversion to a religious purpose than are textbooks. The expenditure is for a clearly identifiable secular purpose. The school is the custodian out of practical necessity because such materials are designed for group or multi-student use. Tilton v. Richardson, supra, and Hunt v. McNair, supra, teach that the religious institution's possession of the property granted under a school aid statute is not alone significant. No greater entanglement is required by the operation of the instructional materials loan program than by the textbook loan program. We find that the instructional materials loan provisions of Act 195 both facially and as thus far applied (1) do not have the primary effect of advancing religion and (2) do not involve the Commonwealth in an impermissible entanglement with religion. 4. The Instructional Equipment Loan Program Loans of instructional equipment are authorized by the same subsection of Act 195 as authorizes *660 loans of instructional materials. One obvious purpose of the equipment provision is to make useable that instructional material which for use requires equipment โ€” slide projectors for slides, for example. But other equipment is authorized as well. As with textbooks and instructional materials, selection of the equipment is in the hands of Commonwealth authorities. Thus the equipment starts out quite clearly as secular in purpose. But while textbooks and instructional materials self-police, in that starting as secular, nonideological and neutral, they will not change in use, some equipment is not of the self-policing variety. We can set to one side, and treat like instructional materials, equipment which from its nature is incapable of diversion to a religious purposeโ€”laboratory equipment and gymnasium equipment, for example. Giving free rein to the imagination one could, perhaps, visualize a religious teacher storing holy water in a chemistry laboratory beaker, but as stated in Tilton v. Richardson, supra, 403 U.S. at 679, 91 S.Ct. at 2096: A possibility always exists, of course, that the legitimate objectives of any law or legislative program may be subverted by conscious design or lax enforcement. . . . But judicial concern about these possibilities cannot, standing alone, warrant striking down a statute as unconstitutional. Other equipment, however, like the buildings in Tilton v. Richardson, supra, and Hunt v. McNair, supra, is capable of diversion to sectarian purposes. A projector, for example, could be used to show a religious film. To the extent that Act 195 authorizes the loan of equipment capable of such diversion, a primary effect issue arises. We must look, then, at whether the Commonwealth has effectively restricted use of such equipment to secular purposes. The guidelines of the Pennsylvania Department of Education (Exhibit P-1) provide: 3.14 Purchasing of Instructional Equipment a. Each nonpublic school or the appropriate chief administrator shall submit a loan request on or before October 31 of the initial year and on or before March 15 thereafter for the desired instructional equipment not to exceed 80 per cent of the total allocation for "Instructional Materials" and "Instructional Equipment" to the designated intermediate unit in whose extended service area the nonpublic school is located. b. The designated intermediate unit shall consolidate the loan requests and order the desired equipment in accordance with those sections of the Public School Code of Pennsylvania of 1949 as amended. . . . . . . 3.16 Inventory of Instructional Equipment . . . . . . c. Instructional equipment loaned to nonpublic schools shall be maintained on an inventory by both nonpublic school and the appropriate intermediate unit. After a period of 10 years these items shall be declared unserviceable and the disposal of such shall be at the discretion of the Secretary of Education. d. Each nonpublic school shall submit to the local intermediate unit an inventory of all instructional . . . equipment on loan on or before June 1 of each fiscal year. Each intermediate unit should submit to the Secretary of Education a composite inventory of all instructional . . . equipment on loan, on or before June 30 of each fiscal year. *661 In Tilton v. Richardson the statute, 20 U.S.C. ง 751 (a) (2), explicitly excluded a grant for any facility to be used for sectarian instruction or as a place for religious worship. The statute here is not quite so explicit. It refers to the equipment as "secular, neutral, non-ideological" and "presently or hereafter provided for public school children of the Commonwealth." But the Commonwealth defendants insist that properly construed and as construed by them, the statute means that "secular, neutral, non-ideological" applies not only to the nature of the equipment but also to its use. In Tilton v. Richardson the statute, 20 U.S.C. ง 754(b)(2), provided that the United States could, if statutory restrictions as to use of the facility were violated "recover an amount equal to the proportion of the facility's present value that the federal grant bore to the original cost." 403 U.S. at 682, 91 S.Ct. at 2098. The statute here has no explicit provision for repossession of the loaned equipment, and no provision for recovery of its cost, if it is used for a religious purpose. Assuming, as the Commonwealth contends, that the statute properly construed permits recapture of the equipment if it is used for a religious purpose, a difficult surveillance problem remains as to which the Commonwealth has shown no simple solution. A slide or movie projector, television and broadcasting equipment, copying, printing and reproduction equipment may begin as neutral but can easily be adapted to a religious use. The key is predictability. Where, either from the statutory provisions or from the nature of the equipment, there is a means for the public officials to chart a lawful and administratively simple course, the loan may be constitutional. But where the equipment is not from its nature of the self-policing character, the Commonwealth may not, as the intervenors suggest, rely on the good faith of the bailees. We find, then, that insofar as they permit the loan of instructional equipment which can be easily diverted to a religious use, the equipment loan provisions of Act 195, as applied, either have the primary effect of advancing religion or may involve the Commonwealth in an impermissible entanglement with religion. Insofar as the statute permits the loan of instructional equipment such as gymnasium equipment, laboratory equipment and the like which from its nature cannot be used for any but secular purposes, as applied Act 195 neither has the primary effect of advancing religion nor involves the Commonwealth in an impermissible entanglement with religion. The two categories of equipment are severable. As a separate ground for their attack upon Acts 194 and 195 under the establishment clause the plaintiffs allege that each act "gives rise to and intensifies political fragmentation and divisiveness along religious lines." Complaint, para. 11. The plaintiffs introduced no evidence in support of this allegation. The defendants introduced the deposition of Carmen Bruto, a legislative correspondent of long experience, which contains his expert opinion that appropriations to carry out Acts 194 and 195 will not significantly involve legislative discussion of religion. We have no occasion to rely on that opinion. If plaintiffs' allegation is treated as one of fact, we hold that it simply has not been proven. Undoubtedly, however, what plaintiffs have in mind is a rule of law that any statute providing aid to nonpublic school children and requiring annual appropriations will be presumed to be politically divisive along religious lines. The potential for divisiveness in statutes providing for aid to nonpublic school children was touched upon in Lemon v. Kurtzman, 403 U.S. at 622, 91 S.Ct. 2105, 29 L.Ed.2d 745, and in Committee for Public Education and Religious Liberty v. Nyquist, 413 U.S. at 797-98, 93 S.Ct. at 2978 where the Court said: [W]hile the prospect of such divisiveness may not alone warrant the invalidation of state laws that otherwise survive the careful scrutiny required by decisions of this Court, it is certainly *662 a "warning signal" not to be ignored. We have given the statutes the careful scrutiny which the standards announced in the opinions of the Supreme Court require, and they have survived. In making that scrutiny we were aware of the potential for political divisiveness along religious lines from a decision either way on their constitutionality. We are not ready to assume, as the plaintiffs are, that an important social issue will become less divisive because an article III court has spoken upon it. The lessons of history are clearly to the contrary. The Court's pronouncement on school prayer, School District of Abington Township v. Schempp, 374 U.S. 203, 83 S.Ct. 1560, 10 L.Ed.2d 844 (1963), for example, is still the subject of heated debate. See, e.g., N.Y. Times, Sept. 25, 1973, ง 1, at 34, cols. 1-2. The divisiveness of the issues decided in Brown v. Board of Education, 347 U.S. 483, 74 S.Ct. 686, 98 L.Ed. 873 (1954), has continued unabated since the Court's pronouncement. Those issues continued to boil and fester under Plessy v. Ferguson, 163 U.S. 537, 16 S.Ct. 1138, 41 L. Ed. 256 (1896), for fifty-eight years until the Court reversed that decision. The nature of the issues involved in the whole area of choice in education are so complex and controversial that no pronouncement by a court will make them somehow go away. VII. THE FREE EXERCISE COUNT We held in discussing standing that as this complaint is drafted only the individual plaintiffs have standing to assert an interference with the free exercise of their religion. Of these, only plaintiff Meek testified. It was stipulated that the testimony of Weatherley would be the same. Since the free exercise claim was put in issue by the defendants there is a failure of proof as to all plaintiffs other than Meek and Weatherley. As to them, we find from her testimony that their objection to the Commonwealth's program is essentially political and social rather than religious, and that the impact of whatever miniscule burden of taxation which results to them from the expenditures in question has no effect upon the free exercise of their religion. See Tilton v. Richardson, supra, 403 U.S. at 689, 91 S.Ct. 2091; cf. Board of Education v. Allen, supra, 392 U.S. at 248-249, 88 S.Ct. 1923. Since we find that their objection to the programs is essentially political and social rather than religious there is no occasion to pass upon the issue whether a plaintiff has standing to challenge a governmental expenditure on free exercise rather than on establishment grounds. Compare Wisconsin v. Yoder, supra; Murdock v. Pennsylvania, supra. VIII. CONCLUSION The plaintiffs' application for a preliminary and a final injunction against the expenditure of Commonwealth funds pursuant to Act 194 will be denied. The plaintiffs' application for a preliminary and final injunction against the expenditure of Commonwealth funds pursuant to Act 195 will be granted to the extent that the Commonwealth defendants will be enjoined from loaning instructional equipment which from its nature can be diverted to religious purposes. The parties shall meet with Judge Bechtle on Monday, February 25, 1974 at 9:30 A.M. in Room 2106, United States Courthouse, Philadelphia, Pennsylvania for a conference at which he will receive suggestions as to the precise provisions of the injunction. If the parties are unable to agree on the form of an injunction, a hearing as to scope of relief will be held before this three-judge court on a prompt date to be fixed. HIGGINBOTHAM, District Judge (concurring in part and dissenting in part). I. Introduction Seven decades ago, Mr. Justice Holmes reminded us that: "Great cases, like hard cases, make bad law. For great cases are called *663 great, not by reason of their real importance in shaping the law of the future, but because of some accident of immediate overwhelming interest which appeals to the feelings and distorts the judgment. These immediate interests exercise a kind of hydraulic pressure which makes what previously was clear seem doubtful, and before which even well settled principles of law will bend." [Dissenting Opinion in Northern Securities Company v. United States, 193 U.S. 197, 400-401, 24 S.Ct. 436, 468, 48 L.Ed. 679 (1904)] (Emphasis added.) The current financial hardships, the plight and in fact the possible survival of many of Pennsylvania's nonpublic schools make the instant matter both a "great" and a "hard" case. Certainly, there is a tugging appeal to one's humanitarian feelings and interest over the difficulties which will confront nonpublic schools if these appropriations are constitutionally precluded,[1] and one is mindful that, unfortunately, the financial crisis is perhaps most crucial to the Roman Catholic parochial schools which have contributed so much in educating so many at such relatively low costs.[2] I am not unaware of the grave concern that more public funds would have to be spent if nonpublic schools were closed thereby transferring the educational burden almost totally to the public arena; however, for me the constitutional test is not one of fiscal load, since the argument on fiscal grounds embraces the type of interest which in the words of Justice Holmes could appeal to the feelings and distort the constitutional judgment.[3] *664 But today, just as when the First Amendment was written almost two centuries ago, we must be vigilant to not let the "immediate interest" at hand cause the federal courts to bend or deviate from the well-settled principles of law embraced within the boundaries of the Establishment and Free Exercise Clauses of the First Amendment. It is now too late in the day to move backwards the hands of our forefathers' constitutional clock. Thus, I concur with the majority of the Court today only insofar as they uphold the provisions of Act 195 pertaining to the loaning of secular textbooks to the nonpublic school pupils. Furthermore, I concur with the majority opinion's conclusion that those portions of Act 195 which authorize the loaning of projection equipment and recording equipment must be invalidated, but I respectfully dissent from the Court's conclusion that equipment of that nature can be severed from the overall instructional equipment loan program and otherwise approved. Reiterating my position, I believe only the loaning of secular textbooks can be constitutionally permitted under the First Amendment, and the remaining aid programs, including the auxiliary services program of Act 194, the instructional materials program of Act 195, and the instructional equipment program of Act 195 must be stricken down in toto and be held unconstitutional. In many respects, this case vividly illustrates and typifies the unswerving persistence and perseverance of state legislatures throughout the nation in continually seeking to alleviate the increasing financial plight and monetary strain of nonpublic secondary and elementary schools. Each successive legislative scheme, heeding the sage admonitions reflected in the growing number of Supreme Court pronouncements, becomes inevitably more sophisticated and refined as it endeavours to approach as close as feasible to the "verge"[4] of the constitutional precipice and yet not overstep the boundaries of the Establishment and Free Exercise Clauses of the First Amendment. Recognizing that "we can only dimly perceive the lines of demarcation in this extraordinarily sensitive area of constitutional law," Lemon v. Kurtzman, 403 U.S. 602, 612, 91 S.Ct. 2105, 2111, 29 L.Ed.2d 745 (1971) (Burger, Ch.J.), it is my judgment that, adhering to the constitutional standards and guidelines announced heretofore, the only component of Acts 194 and 195 which substantially complies with the First Amendment strictures is the loaning of secular textbooks to nonpublic school pupils. The majority of the Court has today adopted a position that in my view exalts form over substance, ignoring and obscuring a fundamental reality that the subsidizing and sponsorship of secular education in nonpublic secondary and elementary schools ineluctably will eventuate in spawning the fostering and promotion of religion violative of the Establishment Clause of the First Amendment. The constitutional guarantees traditionally subsumed under and secured by the Establishment Clause have today unquestionably been seriously if *665 not irreparably eroded and eviscerated. As a likely aftermath of the Court's affixing its imprimatur to this legislation, one can forecast dire portents for Church-State relations. Most assuredly, this action will not go unnoticed in other states whose steadfast hopes of being able to financially assist nonpublic schools have still not been dashed and who remain undaunted and confident that they ultimately will prevail. I recognize that my most able and distinguished colleagues speak with equal sincerity and conviction for the views which they have espoused in the majority opinion. Yet, with all due respect and esteem I feel that I would be utterly remiss (from my perspective of the constitution) if I did not register my firmest protest against what I regard as a perilous departure from the teachings of the First Amendment. The instant decision is not merely a latent, minute crack in the constitutional bulwark; instead it smashes the constitutional floodgates. It sanctions the potential inundation of ominous policies which could leave the constitution a mere shell of what the Founding Fathers envisioned and it creates dangers which the founders so fervently and zealously sought to avoid.[4a] The First Amendment as it assures freedom of religion and prohibits governmental establishment of religion, comes almost directly and primarily from the authorship of James Madison and his prior efforts in writing A Bill For Establishing Religious Freedom as finally enacted by the General Assembly of Virginia on January 19, 1786. In pointed language that provision noted: "Well aware that Almighty God hath created the mind free; * * * that to compel a man to furnish contributions of money for the propagation of opinions which he disbelieves, is sinful and tyrannical; "We, the General Assembly, do enact, That no man shall be compelled to frequent or support any religious worship, place, or ministry whatsoever, nor shall be enforced, retrained, molested, or burthened in his body or goods, nor shall otherwise suffer on account of his religious opinions or belief." (Emphasis added) We have clearly turned the constitutional clock backwards here. Madison, as author of the First Amendment, was concerned that not even a "three pence" contribution be exacted from any citizen in the aid or establishment of a religion. (See third paragraph of Memorial and Remonstrance Against Religious Assessments). Here the majority sanctions almost seventy million dollars exacted from taxpayers in one state. Tragically, there is no suggestion that the end to this escalating magnitude is ever in sight if sophisticated nomenclature and adroit bookkeeping mechanisms are used. II. Relevant Financial and Religious Characteristics of Acts 194 and 195 Before focusing on the constitutional questions the financial dimensions of this legislation should be highlighted, particularly noting and emphasizing the sectarian and denominational affiliations of most of the recipients of these governmental subsidies. In administering Acts 194 and 195 the Commonwealth has adopted the position that it will not inquire about the religious characteristics *666 of the nonpublic schools requesting monies provided in accordance with this legislation. The only criterion apparently imposed in determining eligibility is that the nonpublic school complies with and fulfills the Commonwealth's compulsory school attendance requirements. Thus even if a nonpublic school maintains religious restrictions on pupil admissions, that school would not be precluded from participating in the programs challenged here. Along the same lines, Robert J. Czekoski, Coordinator of Nonpublic School Services and the chief administrator of Acts 194 and 195, testified at the final hearing on plaintiffs' application for a preliminary injunction that it was of no relevance in implementing the programs and thus the Commonwealth would not inquire whether any school compelled attendance for instruction in theology and religious doctrine or required participation in religious worship. Nor would the Commonwealth question if the nonpublic school was an integral part of the religious mission of the sponsoring church, has as a substantial or dominant purpose the inculcation of religious values, imposes religious restrictions on faculty appointments, or attaches religious restrictions on what the faculty might teach. (See generally N.T. of September 10, 1973 at 8-18 particularly 13-17.) In answers to interrogatories propounded by the plaintiffs it was ascertained that of the 1,320 nonpublic schools in the Commonwealth which comply with the compulsory attendance laws, at least 986 or roughly 75 per cent were Roman Catholic Diocesan schools. To further clarify those statistics, the aggregate number of individuals attending nonpublic schools was 453,699, but 400,932 or approximately 88 per cent represented pupils attending Roman Catholic Diocesan schools. The record does not provide a more specific religious delineation for the remaining nonpublic schools.[5] For the 1972-1973 school year the Commonwealth budgeted $14,280,000.00 for the implementation of Act 194 and $16,660,000.00 for Act 195. The respective figures appropriated for the 1973-1974 school term are $17,880,000.00 and $17,560,000.00. Under Act 195, during the 1972-1973 school year $4,670,000.00 of the sum budgeted for that year had been expended for the acquisition of textbooks for loan to nonpublic school children. At least two observations can be readily gleaned from the foregoing statistics: First, the sums allocated by the Commonwealth for the implementation of Acts 194 and 195 can by no means be regarded as insubstantial or insignificant. Secondly, nonpublic schools having a recognized and dominant sectarian character are the primary and principal beneficiaries of the legislative enactments. The presence of the latter feature has notably contributed to several courts ruling that statutes of this nature were essentially class legislation and thus constitutionally suspect under the First Amendment. See, e. g., Sloan v. Lemon, 413 U.S. 825, 93 S.Ct. 2982, 2986, 37 L.Ed.2d 939 (1973); Public Funds for Public Schools of N. J. v. Marburger, 358 F.Supp. 29, 33-36 (D. N.J.1973); Wolman v. Essex, 342 F. Supp. 399, 412 (S.D.Ohio 1972), aff'd, 409 U.S. 808, 93 S.Ct. 61, 34 L.Ed.2d 69 (1972); Kosydar v. Wolman, 353 F. Supp. 744, 753-755 (S.D.Ohio 1972), aff'd sub nom., Grit v. Wolman, 413 U. S. 901, 93 S.Ct. 3062, 37 L.Ed.2d 1021 (1973). *667 III. Act 195 and the Secular Textbook Loan Program The providing of secular textbooks to nonpublic school children under Act 195, 24 P.S. ง 9-972, is the one section of these two acts which might best withstand a First Amendment attack and pass constitutional muster. One of my reservations about this program, and generally for that matter a fatal reservation regarding the other three programs, pertains to the wording of the statute itself as it is particularly embodied and expressed in its legislative findings and declaration of legislative policy. The legislative drafting accentuates the special class appearance which permeates the entire statutory framework. Everson v. Board of Education of Ewing Tp., 330 U.S. 1, 67 S.Ct. 504, 91 L. Ed. 711 (1947) and Board of Education of Cent. Sch. Dist. No. 1. v. Allen, 392 U.S. 236, 88 S.Ct. 1923, 20 L.Ed.2d 1060 (1968) are the two authorities enunciating the relevant criteria most apposite here.[6] In Everson the Court found it to be constitutionally permissible for the state to offer free access to public transportation to and from school for all school children, including those in attendance at nonpublic schools. The Allen ruling extended Everson to immunize the loaning of secular textbooks to all children throughout the state for designated grades, encompassing both nonpublic and public school children. For each statute there was no question that the general benefits provided thereunder would inure to all the children in the state, thus avoiding any inference that a certain class had been singled out to receive state aid. The Everson statute specifically stated: "Whenever in any district there are children living remote from any schoolhouse, the board of education of the district may make rules and contracts for the transportation of such children to and from school, including the transportation of school children to and from school other than a public school, except such school as is operated for profit in whole or in part. "When any school district provides any transportation for public school children to and from school, transportation from any point in such established school route to any other point in such established school route shall be supplied to school children residing in such school district in going to and from school other than a public school, except such school as is operated for profit in whole or in part." 330 U.S. at 3, 67 S.Ct. at 505 n.1. The text of the Allen statute substantially tracked the wording of Everson: "In the several cities and school districts of the state, boards of education, trustees of such body or officers as perform the function of such boards shall have the power and duty to purchase and to loan upon individual request, to all children residing in such district who are enrolled in grades seven to twelve of a public or private school which complies with the compulsory education law, textbooks. Textbooks loaned to children enrolled in grades seven to twelve of said private schools shall be textbooks which are designated for use in any public, elementary or secondary schools of the state or are approved by any boards of education, trustees or other school authorities. Such textbooks are to be loaned free to such children subject to such rules and regulations as are or may be prescribed by the board of regents and such boards of education, trustees or other school authorities." 392 U.S. at 239, 88 S.Ct. at 1924 n.3. *668 Juxtaposing Act 195, 24 P.S. ง 9-972(a), under attack here to the Everson and Allen statutes, one can contrast the legislative drafting technique employed: "9-972. Loan of textbooks, instructional materials and equipment, nonpublic school children. "(a) Legislative Findings: Declaration of Policy. The welfare of the Commonwealth requires that the present and future generations of school age children be assured ample opportunity to develop to the fullest their intellectual capacities. To further this objective, the Commonwealth provides, through tax funds of the Commonwealth, textbooks and instrumental materials free of charge to children attending public schools within the Commonwealth. Approximately one-quarter of all children in the Commonwealth, in compliance with the compulsory attendance provisions of this act, attend nonpublic schools. Although their parents are taxpayers of the Commonwealth, these children do not receive textbooks or instructional materials from the Commonwealth. It is the intent of the General Assembly by this enactment to assure such a distribution of such educational aids that every school child in the Commonwealth will equitably share in the benefits thereof." Though the intent of the legislature in each instance was obviously and undoubtedly identical, that is, to extend some basic secular services to all children irrespective of the school attended, the Pennsylvania statute is more susceptible to a constitutional challenge than its predecessors. See also Marburger, supra, 358 F.Supp. at 35-36 and other cases cited on page 666 supra. A more troublesome aspect of this program is the potential for excessive entanglement of Church and State. Lemon v. Kurtzman, 403 U.S. 602, 612-613, 91 S.Ct. 2105, 2111, 29 L.Ed.2d 745 (1971) articulated the three-prong test courts should follow in analyzing the multifarious legislative schemes adopted. "First, the statute must have a secular legislative purpose; second, its principal or primary effect must be one that neither advances nor inhibits religion, Board of Education v. Allen, 392 U.S. 236, 243, 88 S.Ct. 1923, 1926, 20 L.Ed.2d 1060 (1968); finally, the statute must not foster `an excessive government entanglement with religion.' Walz, supra, at 674, 90 S.Ct. at 1414." The plaintiffs concede that the Acts 194 and 195 evince a secular legislative purpose. Passing over for the moment the second requirement that the statute not be such that its primary or principal effect either advances or inhibits religion, I will consider the third criterion commanding that there be no excessive entanglement of the government and religion. The Court's decision to consolidate the hearing on plaintiffs' motion for a preliminary injunction pursuant to Fed.R. Civ.P. 65(a) (2) necessitates that any analysis should not be restricted solely to facial unconstitutionality but additionally should examine whether the application, implementation, or construction of the statute is constitutionally repugnant. In the case at bar the Commonwealth has promulgated "Guidelines for the Administration of Acts 194 and 195," and therefore I can scrutinize the regulations in conjunction with the statutes. Allen preceded Walz v. Tax Commission of City of New York, 397 U.S. 664, 90 S.Ct. 1409, 25 L.Ed.2d 697 (1970) and thus the entanglement requirement introduced in Walz was not directly raised or considered in Allen. Lemon v. Kurtzman, 403 U.S. at 613-614, 91 S.Ct. at 2111-2112, held constitutionally infirm a Pennsylvania statute on the ground of excessive entanglement without reaching whether the scheme was equally violative under the "effect" test. On the other hand, the Court struck down the Pennsylvania and New York statutes on the primary effect bar in Sloan v. Lemon, 413 U.S. 825, 93 S.Ct. at 2982 n. 8, 37 L.Ed.2d 939; Committee for Public *669 Ed. & Religious Lib. v. Nyquist, 413 U. S. 756, 93 S.Ct. 2955, 2969, 37 L.Ed.2d 948 (1973), and Levitt v. Committee for Public Ed. & Religious Lib., 413 U.S. 472, 93 S.Ct. 2814, 2818-2820, 37 L.Ed. 2d 736 (1973). Unlike the regulations upheld by the Court in Allen, the administrative regulations of the Commonwealth are much more intrusive, cumbersome and detailed, bringing the Commonwealth into frequent association with the nonpublic schools. Though the Court there did not invalidate the administrative procedure utilized by the state notwithstanding the intermediate intervention of the nonpublic schools, the operation in the instant case extends beyond the practice permitted then. The legislative approach in Allen was found not to be constitutionally flawed even though the individual pupil requests for secular books were filed initially with the nonpublic school and the nonpublic school would prepare summaries forwarding those to the Board of Education. 392 U.S. at 244, 88 S.Ct. at 1926-1927 n. 6. Storing the textbooks on the premises of the nonpublic schools was similarly constitutionally tolerated. Section 4 of the Commonwealth's Guidelines explicates the operative procedures the nonpublic schools and their pupils should follow to receive the books made available through Act 195. Sections 4.3, 4.4, 4.6, 4.7, 4.9, 4.10, 4.11, and 4.13 of the Guidelines, set forth below, point out some of the entanglement features of the Act. Sections 4.3 and 4.6 provide: "4.3 Each nonpublic school shall submit on or before October 15 for the initial year and on or before March 1 thereafter a loan request for the desired textbooks to the Department of Education. The requests will be of standard format and will be distributed by the Department of Education prior to October 1 of the initial year and on or before February 15 of each year thereafter, to each nonpublic school or the appropriate chief administrator. The request shall not exceed 80 per cent of the total allocation."[7] "4.6 Textbooks requested will be shipped directly to the appropriate nonpublic school." Exhibit D-9,[8] printed in the footnote, is the form prepared by the Department of Education which students should complete for the books. Evidently the Department *670 of Education sends the forms directly to the nonpublic schools, the schools in turn forward them to the parents who fill them out and return them not to the Secretary of Education, thus contrary to what the forms connote, but rather to the school from which they received the forms.[9] Therefore, as in Allen, and as stated in Section 4.3 of the Commonwealth's Guidelines, the nonpublic school totals the number of individual requests and transmits this figure to the Department of Education. According to Section 4.6, the books are then transported not to the children but to the nonpublic schools which distribute them to the children.[10] Thus, to a limited degree this resembles the procedure which was approved in Allen on a record, I might add, which was far more exiguous than that presented to this Court. The Allen procedure however has been further distended in the instant case. Section 4.4 of the Guidelines provides: "Five per cent should be allowed in the purchase request for transportation allowances." Section 4.7 states: "The Department of Education is responsible for fiscal control, fund accounting and maintaining records for the acquisition of the textbooks." While Section 4.7 suggests that the accounting operations would be centralized, entailing minimal contact with the nonpublic schools and thus not necessitating the "comprehensive, discriminating and continuing state surveillance" condemned in Lemon v. Kurtzman, 403 U.S. at 619, 91 S.Ct. at 2114, other sections of the Guidelines negate any contention that the Commonwealth's administrative intrusion would only be slight, infrequent or occasional. Section 4.9 admonishes: "Each nonpublic school shall be responsible for any expenditures in excess of its allocations." A reading of Sections 4.10 and 4.11 re-emphasizes the legislative drafting shortcomings. Section 4.10 states in relevant part: "Textbooks loaned to the nonpublic schools: (a) shall be maintained on an inventory by the nonpublic school." (Emphasis added.) Section 4.11 provides: "It is presumed that textbooks on loan to nonpublic schools after a period of time will be lost, missing, obsolete or worn out. This information should be communicated to the Department of Education. After a period of six years, textbooks shall be declared unserviceable and the disposal of such shall be at the discretion of the Secretary of Education." (Emphasis added.) Viewing the regulations as in pari materia and integral components of Act 195, serious questions are raised in my mind as to whether the books are in fact loaned directly to the children as in Allen *671 or really if this portion of the Act is merely nothing more than an elaborately contrived subterfuge designed to principally aid nonpublic schools which are fundamentally and preponderantly church-related.[11] A final example of potentially hazardous entanglement of Church and State is Section 4.13 of the Guidelines: "The nonpublic school or the agency which it is a member shall be responsible for maintaining on file certificates of requests from parents of children for all textbook materials loaned to them under this act. The file must be open to inspection for the appropriate authority. A letter certifying the certificates on file shall accompany all loan requests." Upon considering (1) the special class nature of the legislation, (2) the excessive administrative entanglement features of the Act, and (3) the potential that the Act serves as a boon to nonpublic schools because of the primary aid which could be diverted for sectarian functions unless there was strict compliance by the nonpublic school administrators, I am not completely free from doubt as to the constitutionality of even this provision which allocates secular books by the Commonwealth to children enrolled in nonpublic schools. Certainly, defendants have not patently established the constitutionality of this provision. Yet, despite my almost agonizing doubts on this extremely close question, I resolve the issue of constitutionality in favor of the provision of the statute which loans secular books to students at nonpublic schools. But in making this resolution I must note that by the barest scintilla possible the book provision avoids intrusion into the zone of unconstitutionality. IV. Act 194 and the Auxiliary Services Program Turning to Act 194, the authority mandating the provision of auxiliary services for nonpublic school children, the Court is confronted with a novel and intriguing legislative scheme enabling nonpublic schools to receive some secular services from the Commonwealth. While I reluctantly concur with the majority as respects the loaning of secular textbooks, I am unable to arrive at the same conclusion for the auxiliary services, the instructional equipment or the instructional materials. The approbation of this approach can produce far-reaching, sweeping, and monumental consequences for Church-State relations, for at bottom the seminal question presented is whether a state can achieve in an indirect, circumlocutious fashion what it is constitutionally barred from doing directly. Phrased differently, can the Commonwealth of Pennsylvania via Intermediate Units, which are duly authorized state agencies, circumvent the First Amendment restraints which historically have been engrained and implanted in the constitutional matrix of this country? I earnestly do not believe so. First, the program of auxiliary services is plagued by the same legislative *672 drafting defect alluded to in the previous discussion of the loaning of secular textbooks. In essence the special class of sectarian schools has been isolated for receipt of state supportive services. Secondly, the plaintiffs' position in regard to the auxiliary services should be stated here: "We [the plaintiffs] do not challenge the right of parochial school children to obtain the auxiliary services provided by the statutes or the constitutional authority of the Commonwealth to provide those services to them. We challenge only the power to supply the services on church-owned and church-controlled premises as part of the program of parochial school education under church sponsorship. We recognize that requiring the children to come to publicly controlled neutral premises to receive publicly administered services may be less convenient than the form of administration authorized by the statutes. But, this is no less true with respect to any of the numerous forms of aid that the Supreme Court has ruled unconstitutional." Plaintiffs' Supplemental Brief at 2. In contrast to Act 195 and the loaning of textbooks, (1) these auxiliary services are being provided on the premises of the nonpublic schools and (2) teachers, unlike textbooks, are not fungible, the former not being inanimate objects totally devoid of emotions, feelings or opinions. Nor can it be gainsaid that the Intermediate Unit is any less an organ of the Commonwealth, and thus it is subject to the same constitutional proscriptions incumbent on the state. The Commonwealth's plan calls for the Intermediate Unit to hire these teachers rather than the nonpublic schools, and the teachers are of course accountable to the Intermediate Unit for their professional conduct and the conscientious performance of their duties. But these precautionary measures still cannot permit one to inescapably avoid the conclusion that some assurance must be made that when these teachers are thrust into a religious environment, their secular functions do not become inextricably entwined with the sectarian character of the school. In Earley v. DiCenso, 403 U.S. 602, 91 S.Ct. 2105, 29 L.Ed.2d 745 (1971) the Court repudiated Rhode Island's attempt to supplement the salaries of teachers of secular subjects in nonpublic schools. The Court rejected the argument that teachers would not mix religion with the secular subjects which they were charged with teaching: "We need not and do not assume that teachers in parochial schools will be guilty of bad faith or any conscious design to evade the limitations imposed by the statute and the First Amendment. We simply recognize that a dedicated religious person, teaching in a school affiliated with his or her faith and operated to inculcate its tenets, will inevitably experience great difficulty in remaining religiously neutral. Doctrines and faiths are not inculcated or advanced by neutrals. With the best of intentions such a teacher would find it hard to make a total separation between secular teaching and religious doctrine. * * * Further difficulties are inherent in the combination of religious discipline and the possibility of disagreement between teacher and religious authorities over the meaning of the statutory restrictions. "We do not assume, however, that parochial school teachers will be unsuccessful in their attempts to segregate their religious beliefs from their secular educational responsibilities. But the potential for impermissible fostering of religion is present. The Rhode Island Legislature has not, and could not, provide state aid on the basis of a mere assumption that secular teachings under religious discipline can avoid conflicts. The State must be certain, given the Religion Clauses, that subsidized teachers do not inculcate religion. . . . *673 * * * * * * "A comprehensive, discriminating, and continuing state surveillance will inevitably be required to ensure that these restrictions are obeyed. * * * Unlike a book, a teacher cannot be inspected once so as to determine the extent and intent of his or her personal beliefs and subjective acceptance of the limitations imposed by the First Amendment. These prophylactic contacts will involve excessive and enduring entanglement between state and church." 403 U.S. at 618-619, 91 S.Ct. at 2114. (Emphasis added.) No more or less is expected and demanded of the Commonwealth in the instant case. While the Commonwealth's procedure is probably more restricted and less disturbing than that present in DiCenso, supra, some state surveillance must be maintained and that intrusion in my view would require excessive embroilment of Church and State violative of the Establishment Clause of the First Amendment. Moreover, I do not believe that the Commonwealth's complacent reliance upon the professional integrity of the teachers alone adequately provides the requisite assurance of compliance with the First Amendment. The Supreme Court in DiCenso clearly refuted any contention that the state can, absent repeated prophylacic contacts with the institutions, ensure that state-subsidized teachers in nonpublic schools comport with constitutional limitations and standards. Furthermore, the Commonwealth's history of assigning nurses to nonpublic schools pursuant to 24 P.S. ง 14-1402 does not save Act 194.[12] Without passing upon the validity of that practice, suffice it to say that while a speech therapist's tasks arguably could be considered *674 as providing health care, I do not view them as synonymous with or comparable to the duties of nurses or doctors, or dentists. And certainly no respectable argument can be advanced for according guidance counselors this favorable inference. Finally, the drafting of 24 P.S. งง 14-1401 and 14-1402 more clearly exemplifies statutes whose benefits provided thereunder are uniformly applicable to a general class.[13] V. Act 195 and the Instructional Materials Program The validity vel non of the instructional materials provision of Act 195 is in many ways undistinguishable from the secular book provision. Nonetheless, for reasons which hereinafter follow, I find this program is constitutionally infirm under the First Amendment. The invalidation of the instructional materials provision revolves more around primary effect than entanglement, although any administrative objections hereinafter noted for instructional equipment in Section VI, infra, are equally applicable to the instructional materials. Section 1.12 of the Guidelines defines the kinds of materials available: "Instructional Materials shall mean books, periodicals, documents, pamphlets, *675 photographs, reproductions, pictorial or graphic works, musical scores, maps, charts, globes, sound recordings, including but not limited to those on discs and tapes, processed slides, transparencies, films, filmstrips, kinescopes and video tapes, or any other printed and published materials of a similar nature made by any method now developed or hereafter to be developed. The term includes such other secular, neutral, nonideological materials as are of benefit to the instruction of nonpublic school children and are presently or hereafter provided for public school children of the Commonwealth." Section 3.16 of the Guidelines notes in part: "Inventory of Instructional Equipment and Materials "a. Instructional materials loaned to the nonpublic schools shall be maintained on an inventory by both the nonpublic and the appropriate intermediate unit. "b. It is presumed that instructional materials on loan to nonpublic schools after a period of time will be lost, missing, obsolete or worn out. These items should be so noted on an annual inventory." Moreover, Sections 3.17(a) and 3.13(b) of the Guidelines, more fully described in Section VI, infra, must be complied with by the nonpublic schools. A cardinal distinction between approving the loaning of secular books and the banning of instructional materials would be that ostensibly books are given directly to the children and derivatively the benefits are extended to their parents without any primary effect of aiding or inhibiting religion. Secondly, the costs of secular books are relatively nominal in contrast to the financial magnitude of the program here. The crux of the case for me is whether you can by sophisticated accounting methods fund only secular programs in nonpublic schools, recognizing that a substantial monetary benefit is realized by the sectarian organization, without primarily aiding or advancing religion. For me the answer is unequivocally, emphatically and resoundingly NO. The primary effect gloss of such funding was first broached by Circuit Judge Coffin in DiCenso v. Robinson, 316 F. Supp. 112, 119-120 (D.R.I.1970), reiterated by Circuit Judge Anderson in Johnson v. Sanders, 319 F.Supp. 421, 424-434 (D.Conn.1970), aff'd, 403 U.S. 955, 91 S.Ct. 2292, 29 L.Ed.2d 865 (1971), and the ramifications articulated by Judge Gurfein in Committee for Public Education and Relig. Lib. v. Nyquist, 350 F. Supp. 655, 665-667 (S.D.N.Y.1972). Judge Anderson's incisive and most lucid comments in Johnson, supra, 319 F.Supp. at 424-434, should not go unheeded. After an exhaustive legal analysis, he concluded: "Reason demands some outer limit to the defendants' contention that public funds and controls which are not literally earmarked to pay for or regulate religious instruction or observances can never be said to sponsor or otherwise establish an institution which is built around them. Abstract discussion of secular functions must not obscure the realities of how institutions such as schools operate. At one pole, it is clear that payment of aid directly to a religiously-affiliated educational institution does not automatically establish religion just because the sectarian activities of a school may be enhanced by anything which makes it more convenient for children to attend it. See Walz v. Tax Commission of City of New York, 397 U.S. at 671, 90 S.Ct. 1409, 25 L.Ed.2d 697. But at the other extreme, a law which converts a school's entire task of providing secular instruction from a purely private to a predominately state responsibility, while permitting religious instruction to continue unaltered, would constitute sponsorship of the school โ€” the physical and administrative facility through which religion is taught โ€” even if all public funds were formally designated to be spent *676 for functions other than teaching religion. The test for this sort of institutional sponsorship, which is a variety of `excessive government entanglement with religion' analogous to `releasing' public school students for private religious instruction in their schools, is `inescapably one of degree.' See Walz v. Tax Commission of City of New York, 397 U.S. at 674, 90 S.Ct. 1409, 25 L.Ed.2d 697. If a law authorizes a religious group to participate in a contractual education program which requires the state to assume sponsorship of its entire non-religious scholastic curriculum, then the institution receiving funds and being regulated must be tested by standards of religious neutrality similar to those required of a public school." Id. at 433-434. The use of Intermediate Units as conduits does not save this program or remove any constitutional defects. The benefits are as substantial for the nonpublic schools whether the money is paid to them directly or the materials are paid for by someone else. The Commonwealth's procedure mitigates the entanglement defect, but it does not avoid the primary effect shortcoming. Constitutional vulnerability is predicated on a disjunctive reading of the standards rather than requiring the conjunctive presence of all three criteria. Thus, either on primary effect or entanglement grounds, this program should not be salvaged. VI. Act 195 and the Instructional Equipment Program Providing instructional equipment under Act 195 to nonpublic schools similarly must not be upheld. Loaning of secular instructional equipment to nonpublic schools will require the same "comprehensive, discriminating and continuing state surveillance" stricken down in Lemon v. Kurtzman, 403 U.S. at 619, 91 S.Ct. at 2114. The majority, recognizing that at least for some equipment there will be a potential for constitutional abuse, considers severance an adequate remedy for rectifying this. One of my disagreements with the Court is the inadequate weight accorded the primary effect consequences of this legislation. A second area of difference is the intrusive entanglement of the nonpublic schools with the Commonwealth which the majority here minimizes and discounts. Rather than "purchasing" the "secular educational services" from nonpublic schools as in Lemon v. Kurtzman, 403 U.S. at 609, 91 S.Ct. at 2109, the Commonwealth authorizes the Intermediate Unit to acquire this equipment and then loan it directly to the nonpublic schools. This procedure mitigates the previous approach of the Commonwealth by avoiding the provision of direct state financial aid via cash grants to the sectarian schools. Id. at 621, 91 S.Ct. at 2115. Section 1.13 of the Guidelines defines the wide variety of equipment available under the Act: "Instructional Equipment shall mean instructional equipment, other than fixtures annexed to and forming part of the real estate, which is suitable for and to be used by children and/or teachers. The term includes but is not limited to projection equipment, recording equipment, laboratory equipment and any other educational secular, neutral, nonideological equipment as may be of benefit to the instruction of nonpublic school children and are presently or hereafter provided for public school children of the Commonwealth." While projection equipment and recording equipment per se may be religiously neutral, this equipment can be misused and the carefully drawn statute of the legislature can be circumvented. A projector can be utilized to show religious films as easily as can the recording equipment be used to play records or tapes in a particular denominational vein. *677 Section 3.16 of the Guidelines provides in relevant parts: "Inventory of Instructional Equipment and Materials * * * "c. Instructional equipment loaned to nonpublic schools shall be maintained on an inventory by both nonpublic schools and the appropriate intermediate unit. After a period of 10 years these items shall be declared unservicable and the disposal of such shall be at the discretion of the Secretary of Education. "d. Each nonpublic school shall submit to the local intermediate unit an inventory of all instructional materials and equipment on loan on or before June 1 of each fiscal year. Each intermediate unit should submit to the Secretary of Education a composite inventory of all instructional materials and equipment on loan, on or before June 30 of each fiscal year." Sectional 3.17 further states: "Payment "a. The intermediate unit will receive the allocations for the nonpublic school children and render the necessary accounting procedures and reports." Read in conjunction with 3.17(a) should be Section 3.13(b): "Each nonpublic school shall be responsible to insure that requests for expenditures shall not exceed allocations. In the event that this occurs it is understood that each nonpublic school shall be responsible for any expenditure in excess of its allocation." In Lemon v. Kurtzman, 403 U.S. at 621, 91 S.Ct. at 2115, the power of the Commonwealth to conduct a post-audit of the sectarian school's financial records was singled out as being indicative of the entangling relationship between Church and State which should be eschewed. Moreover, the Court was wary of regulations which might be promulgated in order to implement any of the programs. Thus, the potential for entanglement as much as the actual practices in existence, alarmed the Court and was an important, if not overriding, concern in reaching its judgment. Wholly apart from the vitiating administrative facets of Act 195 hereinbefore mentioned, the majority appears to minimize as being constitutionally insignificant the fact that the instructional equipment and instructional materials are given to the schools rather than the children as is the case for the textbooks. Nothing in the Act compels the schools to maintain any minimum level of expenditures as an offset for receipt of these items. In effect, the Court is saying that whenever a state provides purely secular equipment for a religious school, there can be no primary effect of advancing or inhibiting religion irrespective of the extent of the economic assistance to the institution. This is a conclusion which I am unable to fully accept. The majority reads the First Amendment restrictions in an exceedingly narrow fashion. Thus this neat categorization and compartmentalization purportedly enable the Commonwealth to pay for only secular equipment which in the past was entirely paid for by the nonpublic schools, now freeing the schools' monies for sectarian uses. To me, this is a clear sponsorship of religion by the Commonwealth without exacting any correlative promises that these benefits are administered in a constitutionally nondiscriminatory fashion. The class nature of this legislation with its primary effect overtones as well as the ongoing administrative entanglement aspects of the Act leads me to the same conclusion that this program should not be sustained in any part. VII. Political Divisiveness, the Free Exercise Clause, and the Equal Protection Clause Defendants have also attempted to analogize these programs to those approved *678 in Walz v. Tax Commission of City of New York, supra; Tilton v. Richardson, 403 U.S. 672, 91 S.Ct. 2091, 29 L.Ed.2d 790 (1971), and Hunt v. McNair, 413 U.S. 734, 93 S.Ct. 2868, 37 L.Ed.2d 923 (1973). Any reliance upon those authorities is misplaced, as the factual underpinnings of those cases are clearly distinguishable. We do not have as in Walz, 397 U.S. at 678, 90 S.Ct. at 1416, the tradition and experiences of two centuries of uninterrupted freedom from taxation for churches. Nor as in Tilton and Hunt does this case involve (1) a "one-time, single-purpose construction grant," Tilton, supra, 403 U.S. at 688, 91 S.Ct. at 2100; (2) to a college whose students are less impressionable and where presumably less emphasis is placed on religious indoctrination;[14] and (3) where the nature of the program entails limited government surveillance in order to fully comport with the First Amendment guarantees. Moreover, the potential for political divisiveness and dissension adumbrated by Chief Justice Burger in Lemon v. Kurtzman, 403 U.S. at 623-625, 91 S.Ct. at 2116-2117, is equally controlling here and extremely compelling: "The potential for political divisiveness related to religious belief and practice is aggravated in these two statutory programs by the need for continuing annual appropriations and the likelihood of larger and larger demands as costs and populations grow." * * * * * * "We have already noted that modern governmental programs have self-perpetuating and self-expanding propensities. These internal pressures are only enhanced when the schemes involve institutions whose legitimate needs are growing and whose interests have substantial political support. Nor can we fail to see that in constitutional adjudication some steps, which when taken were thought to approach `the verge,' have become the platform for yet further steps. A certain momentum develops in constitutional theory and it can be a `downhill thrust' easily set in motion but difficult to retard or stop. Development by momentum is not invariably bad; indeed, it is the way the common law has grown, but it is a force to be reckoned with. The dangers are increased by the difficulty of perceiving in advance exactly where the `verge' of the precipice lies. As well as constituting an independent evil against which the Religion Clauses were intended to protect, involvement or entanglement between government and religion serves as a warning signal."[15] Other arguments urged by the proponents of these programs must similarly be rejected as unfounded and unsound. In Committee for Public Ed. & Religious Lib. v. Nyquist, 413 U.S. 756, 93 S.Ct. at 2973, Mr. Justice Powell, writing for the Court, almost summarily dismissed any contention predicated on the Free Exercise Clause of a right to state aid. "It is true, of course, that this Court has long recognized and maintained the right to choose nonpublic over public education. Pierce v. Society of Sisters, 268 U.S. 510, 45 S.Ct. 571, 69 L.Ed. 1070 (1925). It is also true that a state law interfering with *679 a parent's right to have his child educated in a sectarian school would run afoul of the Free Exercise Clause. But this Court repeatedly has recognized that tension inevitably exists between that Free Exercise and the Establishment Clauses, e. g., Everson v. Board of Education, supra; Walz v. Tax Commission, supra, and that it may often not be possible to promote the former without offending the latter. As a result of this tension, our cases require the State to maintain an attitude of `neutrality,' neither `advancing' nor `inhibiting' religion. In its attempt to enhance the opportunities of the poor to choose between public and nonpublic education, the State has taken a step which can only be regarded as one `advancing' religion. However great our sympathy, Everson v. Board of Education, supra, 330 U.S. at 18, 67 S.Ct. at 513 (Jackson, J., dissenting), for the burdens experienced by those who must pay public school taxes at the same time that they support other schools because of the constraints of `conscience and discipline,' ibid., and notwithstanding the `high social importance' of the State's purposes, Wisconsin v. Yoder, 406 U.S. 205, 214, 92 S.Ct. 1526, 1533, 32 L.Ed.2d 15 (1972), neither may justify an eroding of the limitations of the Establishment Clause now firmly emplanted." (Footnote omitted). Accord, Johnson v. Sanders, supra, 319 F.Supp. at 435; Wolman v. Essex, supra, 342 F.Supp. at 418-419; Kosydar v. Wolman, supra, 353 F.Supp. at 764. Another argument of the defendants premised on the Equal Protection Clause can additionally be given short shrift. Chief Justice Burger, while concededly addressing a different constitutional question, spoke of the interplay between the Equal Protection Clause and the First Amendment. In Norwood v. Harrison, 413 U.S. 455, 93 S.Ct. 2804, 2809, 37 L.Ed.2d 723 (1973), where the Court barred nonpublic schools engaged in racial discrimination from receiving free textbooks from the state, the Chief Justice reasoned: "Appellees fail to recognize the limited scope of Pierce when they urge that the rights of parents to send their children to private schools under that holding is at stake in this case. The suggestion is made that the rights of parents under Pierce would be undermined were the lending of free textbooks denied to those who attend private schools โ€” in other words, that school children who attend private schools might be deprived of the equal protection of the laws were they invidiously classified under the state textbook loan program simply because their parents had exercised the constitutionally protected choice to send the children to private schools. "We do not see the issue in appellees' terms. In Pierce, the Court affirmed the right of private schools to exist and to operate; it said nothing of any supposed right of private or parochial schools to share with public schools in state largesse, on an equal basis or otherwise. It has never been held that if private schools are not given some share of public funds allocated for education that such schools are isolated into a classification violative of the Equal Protection Clause. It is one thing to say that a State may not prohibit the maintenance of private schools and quite another to say that such schools must, as a matter of equal protection, receive state aid. "The appellees intimate that the State must provide assistance to private schools equivalent to that it provides to public schools without regard to whether the private schools discriminate on racial grounds. Clearly, the State need not. Even as to church-sponsored schools, whose policies are nondiscriminatory, any absolute right to equal aid was negated, at least by implication, in Lemon v. Kurtzman, 403 U.S. 602, 91 S.Ct. 2105, 29 L.Ed.2d 745 (1971). The Religion *680 Clauses of the First Amendment strictly confine state aid to sectarian education. Even assuming, therefore, that the Equal Protection Clauses might require state aid to be granted to private nonsectarian schools in some circumstances โ€” health care or textbooks, for example โ€” a State could rationally conclude as a matter of legislative policy that constitutional neutrality as to sectarian schools might best be achieved by withholding all state assistance. See San Antonio Independent School District v. Rodriguez, 411 U.S. 1, 93 S.Ct. 1278, 36 L. Ed.2d 16 (1973). In the same way, a State's special interest in elevating the quality of education in both public and private schools does not mean that the State must grant aid to private schools without regard to constitutionally mandated standards forbidding state-supported discrimination. That the Constitution may compel toleration of private discrimination in some circumstances does not mean that it requires state support for such discrimination." (Emphasis added.) In Sloan v. Lemon, supra, 413 U.S. 825, 93 S.Ct. at 2987-2988, Mr. Justice Powell also refused to allow parents of children attending nonsectarian nonpublic schools in Pennsylvania to receive the tuition reimbursements. The severability clause was insufficient justification to exclude nonsectarian schools from the ban since it could not be presumed such legislation would have been enacted by the Commonwealth were it only to encompass such a small class of beneficiaries. VIII. Conclusion Plaintiffs in my view are entitled to a preliminary injunction barring the expenditure of funds under Acts 194 and 195, except for the secular textbooks which I would permit. Because of this approach, I find it unnecessary to decide whether there is any free exercise violation to plaintiffs in that there was compulsory taxation for the support of religion or religious schools. Tragically, some persons, before the ink here is hardly dry, will claim that the dissent is anti-religious or fails to appreciate the importance of religion and religious education in our society. Such distortions would be far from the truth. Each of my children, as a matter of parental choice, has attended nonpublic schools which have a religious focus and are sponsored by a religious body. But it was a private choice; the taxpayers under the constitution are not permitted to pay the price for my religious preferences. NOTES [1] The legislative findings are as follows: The welfare of the Commonwealth requires that the present and future generations of school age children be assured ample opportunity to develop to the fullest their intellectual capacities. To further this objective, the Commonwealth provides, through tax funds of the Commonwealth, auxiliary services free of charge to children attending public schools within the Commonwealth. Approximately one quarter of all children in the Commonwealth, in compliance with the compulsory attendance provisions of this act, attend nonpublic schools. Although their parents are taxpayers of the Commonwealth, these children do not receive auxiliary services from the Commonwealth. It is the intent of the General Assembly by this enactment to assure the providing of such auxiliary services in such a manner that every school child in the Commonwealth will equitably share in the benefits thereof. Act 194, ง 1(a), Pa.Stat. tit. 24, ง 9-972(a). The welfare of the Commonwealth requires that the present and future generations of school age children be assured ample opportunity to develop to the fullest their intellectual capacities. To further this objective, the Commonwealth provides, through tax funds of the Commonwealth, textbooks and instructional materials free of charge to children attending public schools within the Commonwealth. Approximately one quarter of all children in the Commonwealth, in compliance with the compulsory attendance provisions of this act, attend nonpublic schools. Although their parents are taxpayers of the Commonwealth, these children do not receive textbooks or instructional materials from the Commonwealth. It is the intent of the General Assembly by this enactment to assure such a distribution of such educational aids that every school child in the Commonwealth will equitably share in the benefits thereof. Act 195, ง 1(a), Pa. Stat. tit. 24, ง 9-972(a). [2] Neither Committee for Public Education & Religious Liberty v. Nyquist, supra, Levitt v. Committee for Public Education & Religious Liberty, supra, nor Sloan v. Lemon, supra, were decided on entanglement grounds. In Nyquist, however, the opinion of the Court, citing Lemon v. Kurtzman, 403 U.S. at 625, 91 S.Ct. 2105, did refer to the need for recurring appropriations as a source of potential divisiveness and a possible warning signal. 413 U.S. at 796, 93 S. Ct. 2955. See discussion at pages 661-662, infra. [3] Summary judgment was granted in favor of plaintiffs restraining payments under the Pennsylvania statute for services performed or costs incurred after the Supreme Court's decision. See Lemon v. Kurtzman, 348 F. Supp. 300, 301 n.1 (E.D.Pa.1972) (3-judge court). Payments for predecision services and costs were permitted. Id., aff'd, 411 U. S. 192, 93 S.Ct. 1463, 36 L.Ed.2d 151 (1973). [*] Due to lack of comprehension [4] Philadelphia is both a school district and an Intermediate Unit. [5] The guidelines of the Pennsylvania Department of Education (Exhibit P-1) provide: Inventory 4:10 "Textbooks" loaned to the nonpublic schools: a. shall be maintained on an inventory by the nonpublic school. b. and purchased by the Department of Education under Act 195 of 1972 shall be maintained on a statewide inventory by the Division of School Libraries. 4.11 It is presumed that textbooks on loan to nonpublic schools after a period of time will be lost, missing, obsolete or worn out. This information should be communicated to the Department of Education. After a period of six years, textbooks shall be declared unserviceable and the disposal of such shall be at the discretion of the Secretary of Education. [1] While the instant record does not contain as original documents much economic data on the precise impact of the termination of the economic assistance in issue to students attending nonpublic schools, counsel for intervenor, Springfield, has included a copy of the brief filed by Henry E. Crouter in Crouter v. Lemon, 413 U.S. 825, 93 S.Ct. 2982, 37 L.Ed.2d 939 (1973). In that latter brief, President Nixon is quoted as having said: ". . . In the past two years, close to a thousand nonpublic elementary and secondary schools closed and most of their displaced students enrolled in local public schools. "If most or all private schools were to close or turn public, the added burden on public funds by the end of the 1970's would exceed $4 billion per year in operations, with an estimated $5 billion more needed for facilities." Report to the Congress of March 3, 1970 on Education Reform. Crouter brief at 59. Theodore R. Sizer, Dean of the Harvard Graduate School of Education, has said: "How to finance this necessary and responsible increased cost? In my judgment the average independent school would not be able to increase its income the requisite amount and still hold tuition down low enough to provide for a varied student body. The only recourse is public funds . . . ." Crouter brief at 56. [2] The Report of the Archdiocesan Advisory Committee on the Financial Crisis of Catholic Schools in Philadelphia and Surrounding Counties (Abridged Edition 1972) notes that in fiscal 1970 elementary schools in the Archdiocese of Philadelphia incurred debts of $193,000, while high schools spent $804,000 more than available revenues. "A. . . . The combined school operation deficit for 1970 was, therefore, $997 thousand. Thus, the total deficit for 1970 incurred by the three operationsโ€” parish churches, elementary schools and diocesan high schoolsโ€”was $2.2 million. During fiscal 1971, the deficit in parish operations alone jumped to $5.1 million, a four-fold increase over 1970. Although complete school financial data is not yet available for 1971, there is every probability that the total deficit will increase, due mainly to the elimination of state aid. "B. Deficits will continue and will grow during the next several years. Projections covering the school years 1972-73 (fiscal '73) to 1974-75 (fiscal '75) indicate that by 1975 the cumulative deficit in the schools will reach $55.4 million. That projection represents the deficit resulting from a concatenation of most probable conditions. The deficit could be as high as $84.1 million, or a low of $43.1 million." Id. at 9. [3] See as an example Legislative Finding 4 of the Pennsylvania Act under attack in Crouter v. Lemon, 413 U.S. 825, 93 S.Ct. 2982, 37 L.Ed.2d 939 (1973): "(4) Should parents of children now enrolled in nonpublic schools be forced by economic circumstances to transfer any substantial number of their children to public schools, an enormous added financial, educational and administrative burden would be placed upon the public schools and upon the taxpayers of the State. Without allowance for inflationary increase, the annual operating cost of educating in public schools the five hundred thousand students now enrolled in Pennsylvania nonpublic schools would be an additional four hundred million dollars ($400,000,000). Necessarily added capital costs to construct new facilities or acquire existing facilities would be in excess of one billion dollars ($1,000,000,000). Any substantial portion of these operating and capital costs would be an intolerable public burden and present standards of public education would be seriously jeopardized. Therefore, parents who maintain students in nonpublic schools provide a vital service to the Commonwealth." [4] The "verge" language was first penned by Justice Black in Everson v. Board of Education of Ewing Tp., 330 U.S. 1, 16 67 S.Ct. 504, 512, 91 L.Ed. 711 (1947). [4a] For a history of the First Amendment and its constraints, see Everson v. Board of Education of Ewing Tp., 330 U.S. 1, 28-63, 67 S.Ct. 504, 517-535, 91 L.Ed. 711 (1947) (Rutledge, J., dissenting), and the references cited therein; Memorial and Remonstrance Against Religious Assessments, II Writings of James Madison 183-191 (Hunt ed. 1901); Illinois ex rel. McCollum v. Board of Education, 333 U.S. 203, 212-232, 68 S.Ct. 461, 466-475, 92 L.Ed. 649 (1948) (Frankfurter, J., concurring). See also Note, Sectarian Books, the Supreme Court and the Establishment Clause, 79 Yale L.J. 111, 131-139 (1969); Freund, Public Aid to Parochial Schools, 82 Harv.L.Rev. 1680 (1969); Pfeffer, Church, State, and Freedom (rev. ed. 1967). For general historical references see Emerson, Haber & Dorsen, Political and Civil Rights in the United States, Vol. 1 at 741-744 (1967). [5] Significantly, one should bear in mind that the predominant concentration of Catholic schools which will receive aid under these Acts does not fully account for or document the degree of participation or involvement of other sectarian, e. g., Lutheran, Jewish, Presbyterian, or Episcopalian schools. Thus if the entire statistical universe of all sectarian schools in the Commonwealth were included, it necessarily would reflect a higher percentage of the nonpublic schools being religiously identified or integrally connected with sectarian organizations. Cf. Sloan v. Lemon, 413 U.S. 825, 93 S.Ct. 2982, 2985-2986, 37 L.Ed.2d 939 (1973) and Lemon v. Kurtzman, 403 U.S. 602, 610, 91 S.Ct. 2105, 2110, 29 L.Ed.2d 745 (1971), where the Court found that more than 96 per cent of the nonpublic schools in the Commonwealth were church-related. [6] Cochran v. Louisiana State Board of Education, 281 U.S. 370, 50 S.Ct. 335, 74 L.Ed. 913 (1930), was not decided on First Amendment grounds, but rather was bottomed on a finding that neither Section 4 of Article IV of the United States Constitution, guaranteeing to every state a republican form of government, nor the Fourteenth Amendment forbidding an unconstitutional taking of property for private use, had been violated when free books were provided by the state to all school children. [7] Section 4.3 of the Guidelines was revised by the Secretary of Education in March 1973, and now reads: "Each nonpublic school shall submit on or before May 15 for the 1973-74 school year and on or before March 1 thereafter a loan request for the desired `textbooks' to the Department of Education. The requests will be of standard format and will be distributed by the Department of Education prior to April 15 for 1973-74 school year and on or before February 15 of each year thereafter, to each nonpublic school or the appropriate chief administrator. The request shall not exceed 80 per cent of the total allocation." [8] Exhibit D-9 provides: "TO: SECRETARY OF EDUCATION COMMONWEALTH OF PENNSYLVANIA CERTIFICATE OF INDIVIDUAL REQUEST FOR LOAN OF TEXTBOOKS "I hereby request the loan of textbooks and instructional materials in accordance with Pennsylvania Act of 195-1972 for my child(ren) attending ____________________________________________________________________________ (School) (City) (Zip) "Date: _______________ (Signed) ________________________________________ (Parent or Guardian) "N.B. This law is applicable to Pennsylvania residents attending schools in Pennsylvania only." [9] Exhibit D-17 is the text of a letter mailed by one sectarian school principal to parents of children enrolled in that nonpublic school. There is nothing in the record to discredit the second paragraph of the letter and as a matter of practice this probably would be the manner in which the book transfer process operates. "Dear Parent: "Pennsylvania law, Act 195, November 1972, provides for the loan of some textbooks and instructional materials to students of nonpublic schools. We are, therefore, happy to be able to extend to you a credit of $9.70 per student toward the purchase of textbooks; the instructional materials will be made available in the classroom. This credit will be deducted from the student's book bill in September. "Please sign the enclosed card and return to the school as soon as possible. Your prompt cooperation in this matter will be appreciated. (Emphasis added.) Very truly yours," [10] It is not clear from Allen whether, once the figure indicating the number of books needed had been computed and conveyed to the Board of Education, the books were sent directly to the children or to the school. The fact that the books could be kept on the premises suggests that the books were shipped to the schools. [11] In Allen, the Court additionally observed that parents of nonpublic school children had presumably been required to purchase textbooks. According to the Commonwealth's proposed pretrial order, nonpublic school children prior to Act 195 similarly had to purchase their own textbooks. The record in this case however does not disclose whether separate book fees were charged by the school to which the parents under Act 195 could now expect a pro-rata deduction or if parents paid a fixed tuition for their children at nonpublic schools and this tuition encompassed any and all school expenses attendant to enrolling in that school. There is nothing in the Act 195 compelling the nonpublic schools to credit the parent's account and not use the money formerly allocated for secular books for other purposes. Cf. Nyquist, supra, 413 U.S. 756, 93 S.Ct. at 2969. "In the absence of an effective means of guaranteeing that the state aid derived from public funds will be used exclusively for secular, neutral, and non-ideological purposes, it is clear from our cases that direct aid in whatever form is invalid." See also 413 U.S. 756, 93 S.Ct. at 2970-2971. [12] 24 P.S. ง 14-1402 provides: Health services "(a) Each child of school age shall be given, (1) a vision test anually by a school nurse, medical technician or teacher, (2) a hearing test employing an audiometer at least once every year in the elementary grades and once every two years in secondary grades by a school nurse or medical technician, (3) a measurement of height and weight at least once annually by a school nurse or teacher, and (4) a chest X-ray by a medical technician when the child is in high school. "(a.1) Every child of school age shall be provided with school nurse services. "(b) For each child of school age, a comprehensive health record shall be maintained by the school district or joint school board, which shall include the results of the tests, measurements and regularly scheduled examinations and special examinations herein specified. "(c) Medical questionnaires, suitable for diagnostic purposes, furnished by the Secretary of Health and completed by the child or by the child's parent or guardian, at such times as the Secretary of Health may direct, shall become a part of the child's health record. "(d) All teachers shall report to the school nurse or school physician any unusual behavior, changes in physical appearance, changes in attendance habits and changes in scholastic achievement, which may indicate impairment of a child's health. The nurse or school physician or school dentist may, upon referral by the teacher or on his own initiative, advise a child's parent or guardian of the apparent need for a special medical or dental examination. If a parent or guardian fails to report the results to the nurse or school physician, the nurse or school physician shall arrange a special medical examination for the child. "(e) The school physicians of each district or joint board shall make a medical examination and a comprehensive appraisal of the health of every child of school age, (1) upon original entry into school in the Commonwealth, (2) while in sixth grade, (3) while in eleventh grade, and (4) prior to the issuance of a farm or domestic service permit unless the child has been given a scheduled or special medical examination within the preceding four months. The health record of the child shall be made available to the school physician at the time of the regularly scheduled health appraisals. "(f) The Secretary of Health, upon petition of the school board or joint school board or on his own initiative with the concurrence of the school board or joint school board, may modify for individual school districts the school health services program specified in this section. The program as modified shall conform to approved medical or dental practices and shall permit valid statistical appraisals of the various components of the program." [13] 24 P.S. ง 14-1401 reads: Definitions "As used in this article โ€” "(1) `Children of school age' or `child of school age' means every child attending or who should attend an elementary grade or high school, either public or private, within the Commonwealth and children who are attending a kindergarten which is an integral part of a local school district. "(2) `Teachers' means professional employes, temporary professional employes and substitutes and instructors in public or private schools within the Commonwealth. "(3) `Other employes' means janitors, bus drivers, cooks and other cafeteria help and all others employed at schools. "(4) `School physician' means a physician legally qualified to practice medicine and surgery or osteopathy or osteopathic surgery in the Commonwealth, who has been appointed or approved by the Secretary of Health. "(5) `School dentist' means doctor of dental surgery or dental medicine legally qualified to practice dentistry in the Commonwealth, who has been appointed or approved by the Secretary of Health. "(6) `Family physician' means either a doctor of medicine legally qualified to practice medicine and surgery in the Commonwealth, or an osteopath or osteopathic surgeon legally qualified to practice osteopathy or osteopathic surgery in the Commonwealth, who has been designated by the parent or guardian as the personal physician of the child. "(7) `Family dentist' means a doctor of dental surgery or dental medicine legally qualified to practice dentistry in the Commonwealth, who has been designated by the parent or guardian as the personal dentist of the child. "(8) `School nurse' means a licensed registered nurse who is assigned to a school district or joint school board, or a licensed registered nurse properly certificated by the Superintendent of Public Instruction as a school nurse who is employed by a school district or joint school board as a school nurse. The employment of any nurse employed by a school district or joint school board as a school nurse prior to the effective date of this act shall not be affected by a contract for school health services that may be entered into by any school district or joint school board under the provisions of this act. "(9) `Dental hygienist' means a dental hygienist licensed by the State Dental Council and Examining Board, who is assigned to a school district or joint school board or a dental hygienist licensed by the State Dental Council and Examining Board and certificated as a school dental hygienist by the Superintendent of Public Instruction, who is employed by a school district or joint school board as a dental hygienist. The employment of any dental hygienist employed by a school district or joint school board as a dental hygienist prior to the effective date of this act shall not be affected by a contract for school health services that may be entered into by any school district or joint school board under the provisions of this act. "(10) `Medical technician' means a person skilled in the operation of X-ray or other diagnostic equipment having such training and experience as required by the Secretary of Health. "(11) `Sanitarian' means a person having such training and experience as required by the Secretary of Health and qualified to conduct sanitary inspections of school buildings and grounds in connection with water supply, sewage and refuse disposal, food service, heating, lighting, ventilation and safety." [14] The Commonwealth conceded, after examination by the Court during argument on the propriety of the preliminary injunction, that at least the 986 Roman Catholic Diocesan Schools in the Commonwealth eligible under Acts 194 and 195 have a religious purpose. See N. T. of September 13, 1973 at 161. [15] See also concurring comments of Mr. Justice Harlan in Walz v. Tax Commission of City of New York, 397 U.S. at 699, 90 S.Ct. at 1427: "Subsidies, unlike exemptions, must be passed on periodically and thus invite more political controversy than exemptions. Moreover, subsidies or direct aid, as a general rule, are granted on the basis of enumerated and more complicated qualifications and frequently involve the state in administration to a higher degree, though to be sure, this is not necessarily the case."

728 F.Supp. 352 (1990) Delores SIMMONS, Administratrix of the Estate of Daniel La Friscoe Simmons, Deceased v. The CITY OF PHILADELPHIA and Officer Albert Panati. Civ. A. No. 87-3258. United States District Court, E.D. Pennsylvania. January 10, 1990. *353 Mark Frost, Philadelphia, Pa., for plaintiff. Miriam B. Brenaman, Chief Asst. City Sol., Law Dept., Philadelphia, Pa., for defendants. OPINION AND ORDER VAN ANTWERPEN, District Judge. From July 10 to July 13, 1989, a jury trial was held before this court in the above-captioned matter. On July 13, 1989, the jury returned a verdict finding the defendant, the City of Philadelphia ("City"), liable to the plaintiff for violations of plaintiff's decedent's constitutional rights, pursuant to 42 U.S.C. § 1983, and also finding the City negligent. The jury also found police officer Albert Panati ("Panati") negligent, but not liable under the plaintiff's 42 U.S.C. § 1983 constitutional claims. The defendants have now moved for post-trial relief in the form of judgment notwithstanding the verdict and for a new trial. For the reasons given below, we find that the defendants' request for such relief must be denied. Before discussing the law, we believe it is first necessary to set forth the basic facts in the instant case. On October 19, 1985, Daniel Simmons ("Simmons") was taken into custody near City Hall for public intoxication by the City police department. Simmons had had no prior convictions and was 24 years old. Although technically an arrest, the policy of the City set forth in Directive # 128 is usually to release persons picked up for public intoxication to responsible parties or release them after they have sobered up without filing any formal criminal charges. At the time he was taken into protective custody, the decedent was crying, anxious and very intoxicated. The police officers tried to calm him down and transported him to the City's Sixth Police District. Upon arrival, Simmons was placed in the custody of Officer Panati, the Sixth District turnkey. Panati was told that Simmons had been upset and crying upon being taken into custody. Once in the Sixth District, Simmons again became very emotional and confused. He expressed deep concern about his arrest and its consequences. In spite of his condition, the minor nature of his offense, and his inability to call his family, no one placed a call for him. After processing Simmons, Panati removed Simmons' belt and personal belongings and locked him in Cell No. 6 at approximately 5:00 a.m. No one else was in the cell block during the time Simmons was in custody. Although there were other jails in the City which were not totally empty, Simmons was not taken to one of them. Panati did not initially remove Simmons' shoe laces. According to Officer Panati, he removed Simmons' shoe laces approximately fifteen minutes after he was placed in the cell, because Simmons had untied them and they were flopping around. Aside from removing the shoe laces, no other steps were taken to protect Simmons. Officer Panati's desk was in an adjacent area separated by a wall and a steel door. Panati was unable to see the cell block area from his work place and unable to see Simmons unless he physically entered the block and inspected his cell. Panati maintained a log of the times he checked on prisoners. Such checks are to be made every fifteen minutes. Panati testified that, regardless of when he actually inspected the prison cells, he nevertheless wrote down that he inspected the cells at exactly every quarter hour. Panati also testified that his duties would sometimes take him away from the cell area and, at times, even outside the Sixth District building itself. Panati further testified that during at least one hour of Simmons' incarceration, the decedent was very upset and periodically rattled the bars of his cell. Simmons remained unresponsive to any words spoken by Panati. Panati described Simmons' condition as being in a "stupor" with "glassy eyes". The entire time Simmons was in the cell, he remained standing at the cell door. His reactions ranged from confusion to hysteria. Officer Panati found Simmons hanging from his cell at 6:38 a.m. Upon discovering *354 Simmons' body, Panati cut him down and called for medical rescue. He, himself, however, did not attempt any type of medical resuscitation on Simmons. The police rescue did not arrive until 6:55 a.m., a full seventeen minutes after discovery of the body. At death, Simmons' blood alcohol content level was .24. Far from being "protective" — Simmons' custody was fatal. Simmons' mother has brought this suit against the City and Officer Panati for the death of her son. In ruling on a motion for judgment notwithstanding the verdict, the trial court is obliged to consider the evidence in a light most favorable to the party prevailing with the jury. Accordingly, it must be assumed by the trial court that all conflicts in the evidence were resolved by the jury in favor of plaintiff's evidence. The plaintiff is also to be given the benefit of all favorable inferences which may be reasonably drawn from the facts proved. Moreover, the defendants' motion must be denied if, upon reviewing the evidence in the above described light, reasonable men could differ as to the conclusions to be drawn from the evidence. J.J. Farms, Inc. v. Cargill, Inc., 693 F.2d 830 (8th Cir.1982); Mroz v. Dravo Corp., 293 F.Supp. 499 (W.D.Pa.1968), aff'd, 429 F.2d 1156 (3d Cir.1970). A court cannot grant a judgment n.o.v. based on a ground not raised in a party's motion for directed verdict. [A] motion for judgment n.o.v. based on a ground not raised in a party's Motion for Directed Verdict, cannot be granted.... The Third Circuit has interpreted strictly the requirements of F.R.Civ.P. 50(b) that a motion for directed verdict after the presentation of all evidence is a prerequisite to a motion for judgment n.o.v. .... Indeed, to entertain the plaintiff's motion, might deprive defendant of its Seventh Amendment rights to a trial by jury.... Sharpe v. Coopers & Lybrand, 457 F.Supp. 879, 885 (E.D.Pa.1978) (citations omitted), aff'd, 649 F.2d 175 (3d Cir.1979), cert. denied, 455 U.S. 938, 102 S.Ct. 1427, 71 L.Ed.2d 648 (1982). Furthermore as a general rule, although exceptions are now unnecessary, to properly preserve an issue a party must either object or otherwise inform the court of the action which a party desires. Fed.R.C.P. 46. Bucy v. Nevada Construction Co., 125 F.2d 213 (9th Cir.1942). Similar more specific rules apply to the court's rulings on evidence, Fed. R.Evid. 103, and instructions to the jury, Fed.R.Civ.P. 51. Most of the arguments raised in the defendants' motions for judgment n.o.v. and new trial were not raised in defendants' motion for directed verdict, or for that matter, raised at any point during the course of the trial. Defendants moved for a directed verdict "for the reasons stated in defendants' Trial Brief." Therefore, any arguments raised by defendants in the instant motions and not appearing in the trial brief are waived. We can find only two arguments raised in the defendants' motion for post-trial relief that were raised in the motion for directed verdict. These are: that the plaintiff's claim for violation of 42 U.S.C. § 1983 must fail because of lack of evidence regarding the City's conduct and the "deliberate indifference" standard mandated by City of Canton v. Harris, ___ U.S. ___, 109 S.Ct. 1197, 103 L.Ed.2d 412 (1989), and that the defendants owed no duty to Simmons, since no "special relationship" existed between the decedent and the police. We must treat all other motions as waived. Nonetheless, we will proceed to address not only these arguments, but also all of the others, and to explain why even if they had been properly raised they would not have succeeded. Basically, the defendants' arguments in favor of their motions appear to consist of the following premises: (1) that the evidence presented in the instant case did not reach the "deliberate indifference" standard mandated by City of Canton, 109 S.Ct. 1197; (2) that the jury reached an inconsistent verdict in its response to Question One on the verdict sheet; (3) that the jury did not find a causal relationship between the decedent's death and the conduct of the City and the conduct of Officer Panati; (4) that no pendent state law negligence claims were alleged or proved upon *355 which an award could rest; (5) that the City is immune from suit for negligence; and (6) that it was error to permit a photograph of the plaintiff's decedent to go to the jury. I. The Evidence and the "Deliberate Indifference" Standard The defendants argue that the plaintiff failed to establish that the City was deliberately indifferent to the serious medical needs of Daniel Simmons, the plaintiff's decedent. The defendants do recognize that the instant case comes within the ambit of City of Canton, 109 S.Ct. 1197 and, generally, Monell v. New York City Department of Social Services, 436 U.S. 658, 98 S.Ct. 2018, 56 L.Ed.2d 611 (1978). In City of Canton, the United States Supreme Court accepted "deliberate indifference" as the standard in cases under 42 U.S.C. § 1983 alleging inadequate training of municipal personnel. In the City of Canton decision, the Court considered inadequate training in the context of municipal policy: Monell's rule that a city is not liable under § 1983 unless a municipal policy causes a constitutional deprivation will not be satisfied by merely alleging that the existing training program for a class of employees, such as police officers, represents a policy for which the city is responsible. That much may be true. The issue in a case like this one, however, is whether that training program is adequate; and if it is not, the question becomes whether such inadequate training can justifiably be said to represent "city policy". It may seem contrary to common sense to assert that a municipality will actually have a policy of not taking reasonable steps to train its employees. But it may happen that in light of the duties assigned to specific officers or employees the need for more or different training is so obvious, and the inadequacy so likely to result in the violation of constitutional rights, that the policymakers of the city can reasonably be said to have been deliberately indifferent to the need. In that event, the failure to provide proper training may fairly be said to represent a policy for which the city is responsible, and for which the city may be held liable if it actually causes injury. Id. 109 S.Ct. at 1205 (footnotes omitted). In the instant case, the plaintiff presented sufficient evidence with respect to lack of proper training vis-a-vis intoxicated detainees to support a verdict of deliberate indifference. Plaintiff's experts, Joseph Rowen and Dr. Edward Guy both testified that Simmons fit the psychological profile of an individual who was at high risk to commit suicide, i.e., he was intoxicated, young, a high school graduate, employed, agitated, crying, unresponsive, and exhibiting mood swings. Dr. Guy further testified that 99 per cent of all suicides take place in isolated cells and that the periodic checks, as allegedly made by Officer Panati, are nowhere near sufficient. Joseph Rowan, an expert on corrections, testified for the plaintiff that standards established by the Commission on Accreditation of Law Enforcement Agencies (CALEA) and the American Correctional Association, which were available and known to the City prior to the instant incident, recognize that intoxicated detainees are high risk suicide candidates and should be under observation at all times. Moreover, published standards detailing procedures for identifying suicidal detainees and preventing suicides were also available and known to the City prior to this incident. In addition, Mr. Rowan cited a number of cities and states which had instituted successful suicide prevention plans prior to the death of Daniel Simmons. Both experts testified that intoxicated detainees, especially those exhibiting the symptoms of Simmons, should be observed at all times. Mr. Rowan based his testimony on CALEA standard 72.5.4 which requires intoxicated arrestees to be under observation at all times. Both experts further testified that even a layman with minimal training could observe intoxicated arrestees and recognize suicidal symptoms. *356 Both experts further testified that constant observations and medical care could be accomplished in a number of ways. They noted that television monitoring, physical restraints, multiple celling, use of other personnel (such as other inmates or volunteers or police aids), use of other city agencies could all be implemented. Architectural changes could also be made at low cost that would allow staff personnel to be present within the cell area or a special plexiglass "suicide prevention cell" could be installed. The City's own police officers admitted that they had no training in suicide prevention. Officer Panati said specifically that he had no such training. Sergeant Heran of the City police department's research and development department could not say for sure whether police officers receive any police academy training regarding suicide. Further testimony regarding the City's actual knowledge of suicidal tendencies was heard from Simmons' stepbrother, Reginald Rosemond. Mr. Rosemond testified that shortly after the suicide a Police Officer named LaGara stated to him that Simmons had been acting peculiarly while in detention and, therefore, they took his shoe laces from him. The officer also stated to him that people who are intoxicated are at a higher risk to commit suicide. In addition to the above testimony on training and standards, various statistics were introduced by the plaintiff which were compiled by the City through the office of Sergeant Heran. These statistics showed that twenty people had committed suicide in City lock-ups between 1981 through 1985. Simmons was number twenty. Of those twenty, fifteen persons were intoxicated. Moreover, the plaintiff introduced further testimony showing the number of attempted suicides in City lock-ups. Dr. Guy, who is a forensic psychiatrist and head of psychiatry at the City prison system, further testified that the City was aware in 1981, and prior thereto, of a correlation of people who were intoxicated and committing suicide and that the City had requested him to participate in a training program and to make recommendations. Dr. Guy, who had made a study of Philadelphia prison detainees, stated that persons who are most likely to commit suicide were intoxicated or on drugs, somewhat better educated, employed, and showed signs of emotional disturbance and agitation. He noted that intoxication is a "red flag warning" of a potential suicide. Dr. Guy also testified that he told the City in 1981 that changes in procedures would save lives. He stated that persons meeting the above-stated criteria must be placed in constant observation, or monitored, or physically restrained when neither of the other two alternatives are available. He further recommended that some simple architectural changes be made so the staff would be present within the cell area so that no detainee could be left in isolation. He also informed the City that all officers should be trained in suicide prevention and detection. All of this information was communicated to the City police department in 1981, four years before Simmons' death. Finally, Dr. Guy testified that due to the mental state of the decedent, he had a diminished mental capacity and was at high risk to commit suicide. Both experts testified that if Simmons had been constantly observed by various means, his suicide would have been prevented. Both experts testified that the conduct and actions of the City and of Officer Panati were negligent and constituted deliberate indifference. Dr. Guy based his opinion on his knowledge as a forensic psychiatrist treating inmates and on studies he had conducted. Mr. Rowan based his opinion on his expertise in corrections and on studies with respect to jailhouse suicides. Both experts testified that Daniel Simmons was at high risk to commit suicide and that his suicide was foreseeable and preventable. The jury had before it all of the evidence discussed above. We believe that it could well have found that the City-defendant had transgressed the "deliberate indifference" standard when it came to meeting the serious medical need of the plaintiff's obviously intoxicated decedent. Accordingly, we find no merit in this argument advanced *357 by the defendants in support of their motion. II. Alleged Inconsistency on the Verdict Sheet Question One on the verdict sheet in the instant case reads as follows: INDICATE WHETHER OR NOT YOU FIND THAT UNDER SECTION 1983 OF TITLE 42 U.S. CODE THE DEFENDANT OFFICER [PANATI] ACTED UNDER COLOR OF THE AUTHORITY OF PENNSYLVANIA TO DEPRIVE THE DECEDENT OF HIS CONSTITUTIONAL RIGHTS. The jury responded "No" to this question, but went on to find Panati negligent. The defendants argue that, by answering "No", the jury failed to find either of the essential elements required to maintain an action under 42 U.S.C. § 1983, i.e., conduct by a person acting under color of state law and conduct which deprived a person of rights, privileges, or immunities secured by the Constitution or laws of the United States. We do not believe that the jury's verdict was "inconsistent". At trial, there were two defendants and two separate theories of liability presented. All that this "No" answer on the part of the jury means is that the jury did not find Officer Panati liable under the constitutional theory advanced pursuant to 42 U.S.C. § 1983. We believe that this verdict is completely consistent with the facts presented at trial. The jury could conclude that Officer Panati's own actions were negligent, without rising to a constitutional standard of deliberate indifference. There were sufficient facts to support the jury's verdict of negligence: i.e., Officer Panati's inexact record-keeping showed that he did not properly inspect or care for the decedent; he failed to recognize Daniel Simmons' physical and emotional state and exercise ordinary care; he failed immediately to remove flopping shoelaces or recognize what they portended; he rendered no assistance to the decedent despite his stupor, his rattling of the bars, and his unresponsiveness. He failed to provide any medical attention or telephone relatives concerning decedent's condition. Officer Panati admitted at trial that he had no training regarding detection and prevention of suicides. Thus, it was up to the jury to decide whether the officer's conduct amounted to negligence and/or rose to a level of deliberate indifference. Here, the jury concluded that Panati himself was negligent. The jury could also separately conclude that the City was deliberately indifferent, based on the facts previously discussed. It is well settled that local governing bodies may be sued directly under § 1983 for monetary relief. Monell, 436 U.S. at 690, 98 S.Ct. at 2035. The Supreme Court has stated: [I]t is when execution of a government's policy or custom, whether made by its lawmakers or by those whose edicts or acts may fairly be said to represent official policy, inflicts the injury that the government as an entity is responsible under § 1983. Id. at 694, 98 S.Ct. at 2037. In the instant case, the official policies, custom and actual procedures used by the City, its police officers generally, and those who had contact with Daniel Simmons particularly, led directly to Simmons' death. When the jury found a § 1983 violation on the part of the City, it did so because of the City's own conduct, not because of any kind of respondeat superior liability — which liability is specifically forbidden under Monell, 436 U.S. at 691, 98 S.Ct. at 2036. Rather than being inconsistent, the jury's verdict demonstrates a full understanding of the facts and the law. Rather than finding all defendants liable on all counts, the jury recognized that Panati's behavior was negligent without rising to a level of deliberate indifference. We find no "inconsistency" at all. The defendants also argue that this "No" response of the jury to Question One means that the jurors were really finding that the officer was not acting under color of state law and, thus, that no § 1983 liability can attach to the City. At trial, however, there was no issue regarding whether the police officer involved in this incident *358 acted under color of state law. During the jury instruction conference, defendants' counsel agreed that Officer Panati was acting under color of state law and, furthermore, this court charged the jury and explained the meaning of acting "under color of state law." Moreover, there was not any objection to the charge and verdict slip with respect to any instructions and questions relating to this principle. We, therefore, find this contention of the defendants to be without merit.[1] III. Alleged Lack of Causal Relationship The defendants further contend that the jury failed to find a causal relationship which links the conduct of the City and Officer Panati with the death of Daniel Simmons. Not only did this court charge the jury on proximate cause and substantial legal cause but also, Jury Question Five specifically asked the jury to answer this very question: 5. INDICATE FOR THE DEFENDANT OFFICER YOU HAVE ANSWERED "YES" IN QUESTION 1 OR QUESTION 2, OR THE CITY IF YOU HAVE ANSWERED "YES" IN QUESTION 3 OR QUESTION 4, WHETHER OR NOT SUCH DEFENDANTS' ACTIONS WERE A LEGAL CAUSE OF ANY HARM TO THE DECEDENT. This question was answered in the affirmative for the City and the officer and, thus, the proper causal link was indeed found by the jury in the instant case. IV. Pendent State Law Negligence Claims The defendants also argue that the plaintiff failed to allege and to prove state law negligence claims. We must reject this contention for several reasons. First, the complaint clearly alleges negligence at paragraphs 15, 25 and 26. Second, at no time did the defendants object to the plaintiff's pendent state claims. During the pre-trial conference, defense counsel stated that he had no objections to the state claims, as long as he could have a jury instruction with respect to wanton and intentional conduct with respect to the suicide. It was further agreed by counsel that there would be no comparative negligence charge thereby avoiding an overly complex verdict sheet. Thus, in addition to not objecting to the negligence claims, defendants actively acknowledged them. Also, during the trial, the court directed counsel to prepare points for charge based on the federal claims and state claims. Once again, the court had mentioned that it would be charging on negligence and again defendants' counsel did not object. Additionally, defendants did not object to any jury instruction proposed by plaintiff with respect to negligence at the charging conference or during the charge to the jury. Thus, defendants have waived any objection they might have had to plaintiff's negligence claims. Defendants further argue that as a matter of law no claim for negligence could be made out by plaintiff. Police officers who take an intoxicated person into protective custody, and thereby deprive that person of his normal opportunities for protection are under a duty to take reasonable actions to protect such persons in custody from unreasonable risk of physical harm. See Restatement of Torts 2d § 314A (1965). It is clear from the evidence that the jury found that defendants did not exercise reasonable care to protect the plaintiff's decedent from an unreasonable risk of physical harm.[2] *359 Nor do we find merit in defendants' contention that Melendez by Melendez v. City of Philadelphia, 320 Pa.Super. 59, 466 A.2d 1060 (1981) and DeShaney v. Winnebago County, ___ U.S. ___, 109 S.Ct. 998, 103 L.Ed.2d 249 (1989) preclude plaintiff's action, because defendants had no "special relationship" with Daniel Simmons which would create a duty to protect him. Both of these cases are distinguishable from the case at bar. In DeShaney, the plaintiff was severely beaten and permanently injured by his father with whom he lived. The plaintiff instituted an action under § 1983 against the social workers and local officials who received complaints that the plaintiff's father was abusing him and had reason to believe that the complaints were accurate, but did not act on this information. The Supreme Court found that the state's children's service department owed no duty to protect an abused child from private violence. Here, Daniel Simmons was not free to leave, nor was he in the private sector. He was, instead, under the care and custody of the City police department. DeShaney itself expressly recognizes both this distinction and the duty owed to detainees: [W]hen the State takes a person into its custody and holds him there against his will, the Constitution imposes upon it a corresponding duty to assume some responsibility for his safety and general well-being. See Youngberg v. Romeo, supra, 457 U.S., [307] at 317, 102 S.Ct., [2452] at 2458 [73 L.Ed.2d 28] ("When a person is institutionalized — and wholly dependent on the State[,] ... a duty to provide certain services and care does exist"). The rationale for this principle is simple enough: when the State by the affirmative exercise of its power so restrains an individual's liberty that it renders him unable to care for himself, and at the same time fails to provide for his basic human needs — e.g., food, clothing, shelter, medical care, and reasonable safety — it transgresses the substantive limits on state action set by the Eighth Amendment and the Due Process Clause. See Estelle v. Gamble, 429 U.S., [97] at 103-104, 97 S.Ct., [285] at 290-291[, 50 L.Ed.2d 251]; Youngberg v. Romeo, supra, 457 U.S., at 315-316, 102 S.Ct., at 2457-2458. The affirmative duty to protect arises not from the State's knowledge of the individual's predicament or from its expressions of intent to help him, but from the limitation which it has imposed on his freedom to act on his own behalf. See Estelle v. Gamble, 429 U.S. at 103, 97 S.Ct. at 290 ("An inmate must rely on prison authorities to treat his medical needs; if the authorities fail to do so, those needs will not be met"). Id. 109 S.Ct. at 1005-1006 (footnote omitted).[3] Defendants also rely on Melendez, 466 A.2d 1060, to support their "no special relationship" argument. In Melendez, a child was the victim of a racial confrontation in a Philadelphia neighborhood. The child's parents brought suit against the City of Philadelphia on the theory that its police department and human relations commission, having been apprised of racial problems in the neighborhood, failed to provide plaintiff and their neighbors with police protection beyond that owed the public at large. In granting the motion for summary judgment in favor of defendants, the Superior Court held that a municipality has no general duty to provide police protection *360 to any particular person or group. Id. at 1063-1064. Again, Simmons was not part of the general public, but was placed into custody for the purpose of providing him with protection from harm which he might cause to himself or to others as a result of his intoxicated condition. At the moment he was arrested and placed into custody, the defendants had a duty to provide for the care and safety of the decedent. "Because an inmate is not free to leave the confines which s/he is forced to share with other prisoners, the state bears the responsibility for the inmate's safety." Colburn v. Upper Darby Township, 838 F.2d 663, 668 (3d Cir.1988), cert. denied ___ U.S. ___, 109 S.Ct. 1338, 103 L.Ed.2d 808 (1989), quoting Davidson v. O'Lone, 752 F.2d 817, 821 (3d Cir.1984), aff'd sub nom, Davidson v. Cannon, 474 U.S. 344, 106 S.Ct. 668, 88 L.Ed.2d 677 (1986). A detainee is entitled, at a minimum, to no less protection than that afforded a convicted prisoner. Colburn, 838 F.2d at 668. Since we find negligence properly alleged in the complaint and ample evidence presented at the trial to support such claims, we must discount this part of the defendants' argument in support of their motion. V. Governmental Immunity In their motions following those for a new trial and judgment n.o.v., defendants have raised the issue of governmental immunity which we believe should be addressed at this point. Unlike most other municipalities in Pennsylvania, Philadelphia City Council has enacted an ordinance, now found in Chapter 21-700 of the Philadelphia Code, which waives governmental immunity. Code section 21-701 reads, in pertinent part, as follows: (a) The City shall not plead governmental immunity as a defense in any civil action commenced by any person sustaining bodily injury or death caused by negligence or unlawful conduct of any police officer while the latter is acting within the scope of his office or employment.... The City argues in its motion that the Philadelphia City Council's waiver of governmental immunity, as found in the city ordinance cited above, is invalid and the City is, thus, immune from suit. It bases this contention upon In Re Upset Sale of Properties (Skibo), 560 A.2d 1388 (Pa.1989). Said the Pennsylvania Supreme Court in Skibo: The tax claim unit has raised their governmental immunity for the first time on appeal. They claim they are not only immune but that their immunity is not waivable, even if they negligently failed to do so before. Perhaps here is one reason their immunity cannot be waived; a governmental agency cannot be put at the mercy of negligent or agreed waiver by counsel of a substantive right designed to protect its very existence.... The instant defendant, the City, raises this defense, too, for the first time, post-trial. But, the immunity in the case at bar was not waived "by counsel"; it was waived, instead, by the legislative body of a municipality. We believe that this is an important distinction. The Skibo opinion also states: This Court in Mayle v. Pennsylvania Department of Highways, 479 Pa. 384, 388 A.2d 709 (1978) obviated sovereign immunity as a common law defense and the legislature promptly restored it. The legislature, in restoring it, granted some exceptions where the negligence is as common as it is injurious to its victims. That they relented at all, however, is of grace and not of right.... Defense of governmental immunity is an absolute defense, directly analogous to our holding in workmen's compensation cases and is not waivable, LeFlar v. Gulf Creek Industrial Park, 511 Pa. 574, 515 A.2d 875 (1986), nor is it subject to any procedural device that could render a governmental agency liable beyond the exceptions granted by the legislature. Wilson v. Philadelphia Housing Authority, 517 Pa. 318, 536 A.2d 337 (1988) ... Id. at 1389. We also believe that this seemingly broad pronouncement of the Pennsylvania *361 Supreme Court is distinguishable, in the circumstances of the instant case.[4] In City of Philadelphia v. Middleton, 89 Pa.Cmwlth. 362, 492 A.2d 763 (Pa.Commw. 1985), the Commonwealth Court addressed not the issue of a negligent waiver of immunity by counsel, but the issue specifically raised in the instant case: the Philadelphia City Council's intentional waiver of immunity by City Ordinance. When the highest court of the state has not authoritatively considered an issue, "our disposition of such cases must be governed by a prediction of how the state's highest court would decide were it confronted with the problem." McKenna v. Ortho Pharmaceutical Corp., 622 F.2d 657, 661 (3d Cir. 1980), cert. denied, 449 U.S. 976, 101 S.Ct. 387, 66 L.Ed.2d 237 (1980). See also Becker v. Interstate Properties, 569 F.2d 1203, 1205 (3d Cir.1977), cert. denied, 436 U.S. 906, 98 S.Ct. 2237, 56 L.Ed.2d 404 (1978). In this effort, the Federal court must give "proper regard" to the relevant rulings of other courts within the state. Commissioner v. Estate of Bosch, 387 U.S. 456, 465, 87 S.Ct. 1776, 1783, 18 L.Ed.2d 886 (1965). See also Erie Castings Co. v. Grinding Supply, Inc., 736 F.2d 99, 100 (3d Cir.1984). With this approach in mind, we shall proceed to examine what the court said in Middleton. First, the court discussed the appellant's challenge to continued viability of this City Ordinance after the enactment of the Political Subdivision Tort Claims Act, 42 Pa. Cons.Stat.Ann. §§ 8541-8564 (Purdon 1982 & Supp.1989): When this ordinance was first enacted by the City Council of the City of Philadelphia in 1962, it waived immunity in all actions arising out of the negligent or unlawful conduct of any city employee. In 1971 the ordinance was amended to cover only actions of police officers. While appellant does not directly challenge the validity of the ordinance at the time it was enacted, it argues that its validity was completely lost in 1978 when the [Political Subdivision Tort Claims] Act was passed. In support of this argument, appellant first relies on Section 802(c) of the Act which provides that "all other acts or part of acts are repealed to the extent of any inconsistency." Appellant submits, alternatively, that even if this Court holds that the ordinance was not expressly repealed by the Act, we must find that it has been repealed by implication because a municipal ordinance which is contradictory or inconsistent with a subsequent state statute is impliedly repealed by the enactment of the statute. United Tavern Owners of Philadelphia v. Philadelphia School District, 441 Pa. 274, 272 A.2d 868 (1971). Clearly, both of these arguments rest on the premise that the Act and the ordinance are contradictory or inconsistent. We disagree. Id. 492 A.2d at 764. The Middleton court then went on to admit that this was a question of first impression for Pennsylvania's appellate courts; it found guidance, however, in a decision of the Eastern District of Pennsylvania, Borenstein v. City of Philadelphia, 595 F.Supp. 853 (E.D.Pa.1984) (Pollak, J.). The Middleton court stated: The court in Borenstein held that the city's waiver of immunity is not at all inconsistent with the Act. The court reviewed the legislative history of the Act and noted that it was enacted in order to reinstate in part the immunity which had been abrogated by Ayala v. Philadelphia Board of Public Education, 453 Pa. 584, 305 A.2d 877 (1973). The legislature's main concern was to avoid the possible devastating effects which an unpredictable number of law suits would have on municipal budgets. There is no indication, however, that the eight exceptions listed in the Act were intended to be exclusive or that local municipalities were forbidden to waive the immunity granted by the Act. In fact, it is stated *362 in the Report of the Joint State Government Commission on Sovereign Immunity that "as ... experience with costs of claims and administrative expenses accumulates, limited waivers in other areas of possible liability may be added." May 1978 Report at 10. The Supreme Court in Carroll v. County of York, 496 Pa. 363, 369, 437 A.2d 394, 397 (1981), cited this report as the "basis for the Political Subdivision Tort Claims Act." We, therefore, conclude that the City of Philadelphia acted well within the powers derived from its Home Rule Charter in deciding that it would be in the best interest of its citizens to waive governmental immunity in cases where bodily injury or death has resulted from the negligent or unlawful conduct of its police officers. Id. 492 A.2d at 764-765.[5] We believe that Skibo, the Pennsylvania Supreme Court case cited by the City, does not address the precise issue under discussion. Middleton, although a Commonwealth Court decision, does so address that issue. Given the guidance provided by an intermediate state court decision directly on point with regard to the issue in the case at bar, we believe that Skibo is inapplicable. We choose, instead, to follow Middleton, and, accordingly, find the City's waiver of immunity under the City Ordinance in question to be proper. VI. Photograph of Plaintiff's Decedent The defendants argue that it was error for the court to permit one post-suicide photograph of the plaintiff's decedent to go out with the jury. The plaintiff had called Halbert Fillinger, M.D., the Deputy Medical Examiner who autopsied the body of Daniel Simmons. Within Dr. Fillinger's testimony, a color photograph of plaintiff's decedent's clothed body was used to show the jury the strangulation marks and condition of decedent's body. There is no blood or any mutilation of the body depicted in the photograph. Simmons' face is shown from the side only and his eye is closed. The photograph was also used by Dr. Fillinger to illustrate the pain and suffering decedent endured. Defendants claim that the court's admission of this photograph is an error which requires the granting of a new trial. The admission or rejection of a photograph lies largely in the sound discretion of the trial judge. United States v. Stratton, 392 F.Supp. 552, 554 (E.D.Pa.1975), aff'd, 523 F.2d 1052, cert. denied, 424 U.S. 945, 96 S.Ct. 1415, 47 L.Ed.2d 351 (1976). Fed.R.Evid. 403 does provide that otherwise relevant evidence may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice. It has, however, been recognized that Rule 403 should be very sparingly used. Hendrix v. Raybestos-Manhattan, Inc., 776 F.2d 1492, 1502 (11th Cir.1985). Here, the court found that the photograph was not inflammatory but was relevant and probative. The jury was charged not to base their verdict on sympathy. In the instant case, the court reviewed numerous photographs of decedent and allowed the plaintiff to use but one. The photograph admitted is relevant to both the issues of cause of death and pain and suffering. We see no error in the use of this photograph in the instant case. For all of the reasons set forth in the above opinion, we find that the defendants are entitled neither to judgment n.o.v. nor to a new trial.[6] The City clearly owed *363 something more to a young man whose only transgressions were having too much to drink and being in a public place. NOTES [1] Before leaving this discussion of Officer Panati's conduct, we wish to note that the defendants are laboring under a misapprehension as to the jury's characterization of such conduct. In Part II, 4 of the defendants' motion, the defendants refer to a finding by the jury that Officer Panati's conduct was "malicious, wanton, and oppressive." In fact, the jury, on the Verdict Sheet, specifically answered "No" to Question Six which reads: "INDICATE FOR THE DEFENDANT OFFICER IF YOU HAVE ANSWERED `YES' IN QUESTION 5(a) WHETHER OR NOT SUCH DEFENDANT'S ACTIONS WERE MALICIOUSLY, WANTONLY, OR OPPRESSIVELY DONE." [2] The defendants have referred, at several points in their brief, to certain police directives which existed regarding the treatment of arrestees and have presented various arguments, i.e., that such directives do not constitute state law and that such directives are surely as "constitutional" as those found in City of Canton, 109 S.Ct. 1197. We believe, however, that the issue in the instant case is not the quality of the existing directives, but the failure of the City to devise a policy specifically concerned with the situation which led to the death of the decedent here: the proper training for and treatment of intoxicated detainees. We, therefore, discount these arguments advanced by the defendants. [3] The omitted footnote is number 7, which reads: "Even in this situation [institutionalization], we have recognized that the State `has considerable discretion in determining the nature and scope of its responsibilities.' Youngberg v. Romeo, 457 U.S., at 317, 102 S.Ct., at 2458." Such discretion would not, of course, encompass neglect of the safety of intoxicated detainees. This is certainly true in the instant case, given the circumstances stated in this opinion which should have given the City notice of the peculiar vulnerability of such individuals to suicide. [4] With regard to the exceptions carved out by the Political Subdivision Tort Claims Act, the defendant cites to the "real estate exception" found at 42 Pa. Cons. Stat.Ann. § 8522(b)(3) (Purdon Supp.1989) and states that the case at bar would not fit under this category. We agree, but we do not find that this is, or ever was, an issue in the instant case. [5] Judge Pollak has provided an excellent discussion of the city ordinance under discussion and its propriety under Philadelphia's Home Rule Charter, 53 Pa.Stat.Ann. §§ 16251-17096 (Purdon 1957 & Supp.1989), 53 P.S. § 13133 (Purdon 1957), which deals with limitations on the City's powers, and the Political Subdivision Tort Claims Act, 42 Pa. Cons. Stat.Ann. §§ 8541-8564 (Purdon 1982 & Supp.1989). See Borenstein, 595 F.Supp. at 858-859. [6] The defendants have brought to our attention a recent case from the Third Circuit, Williams v. Borough of Westchester, 891 F.2d 458 (3d Cir. (1989)). Williams concerned the affirmance of a district court's granting of summary judgment in favor of the defendants in a case involving a jailhouse suicide. We believe, however, that the instant case is distinguishable from Williams. First, the procedural posture of the cases is different. Williams was a case decided upon a motion for summary judgment; the instant case was decided after the evidence was presented to a jury after a four-day trial. In Williams, a case where the decedent was a mentally-ill person with many suicide attempts in his past, there was no evidence that the officers involved knew of his former history of attempts at self-destruction. In the instant case, the City of Philadelphia knew or should have known that intoxicated detainees are at a higher risk of suicide and Officer Panati certainly knew that the plaintiff's decedent was drunk and upset regarding his incarceration. Furthermore, in Williams, the court, at several points, called its decision in favor of affirming the grant of summary judgment "close" and had stated that more thorough discovery might have effected a different result. At trial, the plaintiff produced evidence upon which the jury could properly find that the City of Philadelphia's policy, custom and treatment of intoxicated detainees amounted to deliberate indifference, and that Officer Panati's actions were negligent. For all of these reasons, both procedural and substantive, we believe that Williams is inapplicable to the case at bar.

UNCLASSIFIEOIIFOR PUBLIC RELEASE. - UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA MOHAMMED AL-ADAHI, et al., Petitioners, v. Civil Action No. 05-280 (GK) BARACK H. OBAMA, et al., Respondents. MEMORANDUM OPINION Petitioner Mohammed Al-Adahi (UAl-Adahi" or Uthe Petitioner") has been detained since 2002 at the United States Naval Base at Guantanamo Bay Cuba. Respondents ("the Government") argue that his detention is justified under the Authorization for the Use of Military Force, Pub. L. No. 107-40 § 2 (a), 115 Stat. 224, 224 (2001) ("AUMF"), which grants the Executive the power to detain individuals engaged in certain terrorist activities. The Petitioner disagrees, and has, along with four other petitioners, filed a petition for a writ of habeas corpus [Dkt. No. IJ. The matter is before the Court on Cross-Motions for Judgment on the Record [Dkt. Nos. 373 and 379J. 1 Upon consideration of the 1 Two of the five Petitioners, • and did not file Motions ent Two others, • did file such a Motion, but their cases were stayed during Al-Adahi' s Hearing. Order (June 25, 2009) [Dkt. No. 430J. UNCLASSIFIEOIlFOR PUBLIC RELEASE.  , UNCLASSIFIEDIIFOR PUBLIC RELEASE, - Motions, the Oppositions, extensive oral argument and accompanying exhibits, and the entire record herein, Al-Adahi's habeas corpus petition and Motion are hereby granted. I • BACKGROUND A. Procedural History Petitioner filed his habeas corpus petition on February 7, 2005. After filing, there was extensive preliminary litigation regarding the Court's jurisdiction to entertain detainees' petitions, the applicability of various statutes, and the appropriate procedures to be used. After more than six years of litigation, the most important legal issue was resolved by the Supreme Court in Boumediene v. Bush, 553 U.S. ,128 S.Ct. 2229 (2008). The Court ruled that detainees at Guantanamo Bay, none of whom are citizens of the United States, are entitled to bring habeas petitions under Article I of the Constitution, and that the federal district courts have jurisdiction to hear such petitions. The Court did not define what conduct the Government would have to prove, by a preponderance of the evidence, in order to justifiably detain individuals -- that question was left to the District Courts. Id. at 2240 ("We do not address whether the President has the authority to detain these petitioners nor do we hold that the writ must issue. These and other questions regarding -2­ UNCLASSIFIEDIIFOR PUBLIC RELEASE.  UNCLASSIFIEDIIFOR PUBLIC RELEASE. - the legality of the detention are to be resolved in the first instance by the District Court."). Nor did the Supreme Court lay down specific procedures for the District Courts to follow in these cases. Boumediene was, however, definitive on at least two points: first, that the detainees are entitled to a prompt hearing, 128 S.Ct. at 2275 ("The detainees in this case are entitled to a prompt habeas corpus hearing."), and second, that the District Courts are to shape the contours of those hearings, id. at 2276 (finding that balancing protection of the writ and the Government's interest in military operations, "and the other remaining questions [, J are within the expertise and competence of the District Court· to address in the first instance."). In an effort to provide the prompt hearings mandated by the Supreme Court, many of the jUdges in this District agreed to consolidate their cases before former Chief Judge Thomas Hogan, for purposes of streamlining procedures for, and management of, the several hundred petitions filed by detainees. See Order (July 1, 2008) [Civ. No. 08 -442, Dkt. No. IJ. On November 6, 2008, after extensive briefing from Petitioners' counsel and the Government, Judge Hogan issued a Case Management Order ("OMO") to govern the proceedings. This Court adopted, in large part, the provisions of that Order, while modifying it somewhat, as noted in Appendix A to -3­ UNCLASSIFIEDIIFOR PUBLIC RELEASE.  UNCLASSIFIEDIIFOR PUBLIC RELEASE. Dkt. No. 283. Much pre-hearing activity has taken place under this Court's Case Management Order. The Government has filed the exculpatory evidence, automatic discovery, and additional discovery required under the CMO. The Government filed its Factual Return for AI­ Adahi on August 1, 2005, and· amended it on September 29, 2008. The Petitioner responded by filing Traverses on July 3, 2008, July 7, 2008, and October 10, 2009. After a period of extensive discovery, both parties filed substantial briefs accompanied by extensive exhibits. On April 10, 2009, the Court set June 22, 2009, as the date for the "merits hearing" on the Cross-Motions for Judgment on the Record for all three Petitioners who planned to go forward in challenging their detention. Al-Adahi's case, including the Petitioner's live direct and cross-examination on June 23, 2009, was presented to the Court over a four-day period. On June 25, Petitioners • instructed their counsel to not proceed with litigating their Motions. cases were then stayed until October 1, 2009. Order (June 25, 2009) . II. STANDARD OF REVIEW The Government bears the burden of establishing that detention is justified. See Boumediene, 128 S.Ct. at 2270; Hamdi, 542 U.S. -4­ UNCLASSIFIEDIIFOR PUBLIC RELEASE.  UNCLASSIFIEDIIFOR PUBLIC RELEASE. 507, 533-34 evidence. (2004). Order, Appendix A at - It must do so by a preponderance of the § II.A (Feb. 12, 2009) [Dkt. No. 283-2] i see also Basardb v. Obama, 612 F. SUpp. 2d 30, 35 n.12 (D.D.C. 2009). Initially, the Government took the position that Article II of the Constitution and the AUMF granted the President the authority to detain individuals. See Gherebi v. Obama, 609 F. Supp. 2d 43, 53 n.4 (D.D.C. 2009). The Government asserted, "[a] t a minimum, . . . the ability to detain as enemy combatants those individuals who were part of, or supporting, forces engaged in hostilities against the United States or its coalition partners and allies. u Resp't's Statement of Legal Justification For Detention at 2 [Dkt. No. 205] . Since the change in administration, the Government has abandoned Article II as a source of detention authority, and relies solely on the AUMF. Gherebi, 609 F. Supp. 2d at 53 n.4. Further, it no longer uses the term "enemy combatant. u Its refined position is: [t]he President has the authority to detain persons that the President determines planned, authorized, committed, or aided the terrorist attacks that occurred on September 11, 2001, and persons who harbored those responsible for those attacks. The President also has the authority to detain persons who were part of, or substantially supported, Taliban or al-Qaida forces or associated forces that are engaged in hostilities against the United States or its coalition partners, including any person who has committed a belligerent act, or has directly supported hostilities, in aid of such enemy armed forces. -5­ UNCLASSIFIEDIIFOR PUBLIC RELEASE.  UNCLASSIFIEDIIFOR PUBLIC RELEASE. Resp' t' s Revised Mem. Regarding the Gov's Detention Authority Relative to Detainees Held at Guantanamo Bay at 3 [Dkt. No. 306]. In Gherebi, Judge Reggie B. Walton of this District Court ruled that the Government has the authority to detain individuals who were part of, or substantially supported, al-Qaida and/or the Taliban, provided that those terms "are interpreted to encompass only individuals who were members of the enemy organization's armed forces, as that term is intended under the laws of war, at the time of their capture." Gherebi, 609 F. Supp. 2d at 70-71. In Hamlily v. Obama, 616 F. SUpp. 2d 63 (D.D.C. 2009), JUdge John Bates of this Dis~rict Court concluded that under the law of war, the Government has the authority to detain individuals who were "part of . . Taliban or al Qaida forces," or associated forces. Id. at 74. The court went on to rule that the Government does not have the authority to detain those who are merely "substantial supporters" of those groups. Id. at 76. While the Court has great regard for the scholarship and analysis contained in both decisions, the Court concludes that Judge Walton's opinion presented a clearer approach, and therefore will adopt his reasoning and conclusion. 2 2 The Court agrees with Judge Bates' comment that the determination of who was a "part of" the Taliban/al-Qaida, under Judge Walton's approach, rests on a highly individualized and case­ specific inquiry; as a result, the "concept [of substantial support] may play a role under the functional test used to -6­ UNCLASSIFIEDIIFOR PUBLIC RELEASE.  UNCLASSIFIEDIIFOR PUBLIC RELEASE. III. ANALYSIS A. Evidentiary Presumptions - As a preliminary matter, some attention must be given to the nature of the evidence that has been presented in this case, and how the Court, as fact-finder, will go about evaluating that evidence. In attempting. to meet its burden, the Government has provided evidence in the form of classified intelligence and interview reports that it believes justify the Petitioner's detention. The reports contain the statements of Petitioner, as well as statements made by other detainees, that the Government argues demonstrate the Petitioner's status as a member or substantial supporter of al-Qaida and/or the Taliban. 3 The Government requested that a rebuttable presumption of authenticity be granted to all the exhibits it intends to determine who is 'part of' a covered organization," and the difference in the two approaches "should not be great." Hamlily, 616 F. Supp. 2d at 76. Petitioner argues that the Government's evidence should be excluded under the Geneva Conventions, because the evidence was collected in violation of various articles of the Third Geneva Convention. Pet.'s Resp. to Resp't's Mot. for J. and Supporting Mem. at 4 ("Pet.' s Opp' nil) [Dkt. No. 402]. Parties briefed this issue further in the weeks following the Merits Hearing [Dkt. Nos. 435, 441, and 442]. Assuming for the moment that the evidence can be admitted consistent with the Geneva Conventions, the Court's consideration of that evidence leads to the conclusion, as discussed below, that AI-Adahi is not justifiably detained. Therefore" it need not and does not reach the question of whether the interrogation reports must be excluded. -7­ UNCLASSIFIEDIIFOR PUBLIC RELEASE. introduce. 4 Opp'n to the Government's - Petitioner objected to this request. See Pets.' Joint Memo. and Supplement Regarding Presumptions, Hearsay and Reliability of Intelligence Information at 3-10 ("Pets.' Presumptions Memo.") [Dkt. No. 400]; Pet. Mohammed AI-Adahi's Brief in Support of Entry of Judgment at 3 ("Pet.' s Mot.") [Dkt. No. 373]. Given the Government's representations that the specific documents included in its case against Petitioner, as well as the documents provided to Petitioner's counsel in discovery, have all been maintained in the ordinary course of business, the Court will presume, pursuant to Fed. R. Evid. 803(6), that its documents are authentic. As provided for in the Case Management Order, the Government's exhibits will be granted a rebuttable presumption of authenticity and will be deemed authentic in the absence of any rebuttal evidence to the contrary. The Government has also requested that a rebuttable presumption of accuracy be granted to all the exhibits it intends to introduce. The Petitioner objected to this request as well. See Pets.' Presumptions Memo. at 3-10. This request is denied for several reasons. First, there is absolutely no reason for this Court to presume 4 ordinarily, "the requirement of authentication requires that the proponent, who is offering a writing into evidence as an exhibit, produce evidence sufficient to support a finding that the writing is what the proponent claims it to be." 2 K. Broun, McCormick on Evidence § 221 (6th ed.). -8­  - that the facts contained in the Government's exhibits are accurate. Given the extensive briefing and oral argument presented by counsel during the discovery phase of this case, as well the exhibits submitted at the merits trial, it is clear that the accuracy of much of the factual material contained in those exhibits is hotly contested for a host of different reasons ranging from the fact that it contains second-level hearsay to allegations that it was obtained by torture to the fact that no statement purports to be a verbatim account of what was said. Second, given the fact that this is a bench trial, the Court must, in any event, make the final judgment as to the reliability of these documents, the weight to be given to them, and their accuracy. Those final judgments will be based on a long, non­ exclusive list of factors that any fact-finder must consider, such as: consistency or inconsistency with other evidence, conditions under which the exhibit and statements contained in it were obtained, accuracy of translation and transcription, personal knowledge of declarant about the matters testified to, levels of hearsay, recantations, etc. s Denial of the Government's request for a rebuttable 5 While the Supreme Court did suggest in Hamdi that a rebuttable presumption "in favor of the Government's evidence" might be permissible, 542 U.S. at 534, it did not mandate it. In Boumediene, the Court clearly left it to the District Courts to craft appropriate procedures. Boumediene, 128 S.Ct. at 2272. -9­  - presumption of accuracy does not mean, however, that the Government must present direct testimony from every source, or that it must offer a preliminary document-by-document foundation for admissibility of each eXhibit. As the Supreme court noted in Hamdi, 542 U.S. at 533-34, hearsay may be appropriately admitted in these cases because of the exigencies of the circumstances. Finally, while parties always retain the right to challenge the admissibility of evidence, the Court will be guided by the Federal Rules of Evidence, in particular Rule 402, providing that " [a] 11 relevant evidence is admissible." Once all evidence is admitted into the record, the Court will then, in its role as fact­ finder, evaluate it for credibility, reliability, and accuracy in the manner described above. B. Mosaic Theory The Government advances several categories of allegations which, in its view, demonstrate that the Petitioner was detained lawfully. Above all, its theory is that each of these allegations - - and even the individual pieces of evidence supporting these allegations -- should not be examined in isolation. Rather, "[t]he probity of any single piece of evidence should be evaluated based on the evidence as a whole," to determine whether, when considered "as a whole," the evidence supporting these allegations comes together to support a conclusion that shows the Petitioner to be -10­ justifiably detained. - Gov's Mot. For J. Upon the Administrative R. and Mem. in SUPP. at 6 (internal citation omitted) ("Gov's Mot.") [Dkt. No. 379]. While the Government avoids an explicit adoption of the mosaic theory, it is, as a practical matter, arguing for its application to the evidence in this case. ct. Ali Ahmed v. Obama, 613 F. Supp. 2d 51, 55-56 (D.D.C. 2009). The Court understands from the Government's declarations, and from case law,6 that use of this approach is a common and well- established mode of analysis in the intelligence community. This may well be true. Nonetheless, at this point in this long, drawn- out litigation the Court's obligation is to make findings of fact and conclusions of law which satisfy appropriate and relevant legal standards as to whether the Government has proven by a preponderance of the evidence that the Petitioner is justifiably detained. The kind and amount of evidence which satisfies the intelligence community in reaching final conclusions about the value of information it obtains may be very different from, and certainly cannot determine, this Court's ruling. Even using the Government's theoretical model of a mosaic, it must be acknowledged that the mosaic theory is only as persuasive 6 See, e.g., McGehee v. Casey, 718 F.2d 1137, 1149 (D.C. Cir. 1983) (recognizing that the "mosaic-like nature of intelligence gathering" requires taking a "broad view" in order to contextualize information) (internal citations and quotations omitted) . . -11­ together just as a - as the tiles which compose it and the glue which binds them brick wall is only as strong as the individual bricks which support it and the cement that keeps the bricks in place. Therefore, if the individual pieces of a mosaic are inherently flawed or do not fit together, then the mosaic will split apart, just as the brick wall will collapse. A final point must be kept in mind. One consequence of using intelligence reports and summaries in lieu of direct evidence is that certain questions simply cannot be answered, i.e., there are no deposition transcripts to consult and few if any witnesses are available for cross-examination. Despite the fact that Petitioner testified via video-conference from Guantanamo Bay, and was cross- examined by the Government,7 sizeable gaps may appear in the record and may well remain unfilled; each party will attempt to account for these deficiencies by positing what they think are the most 7 Petitioner's testimony was closed to the pUblic. However, the Government was ordered to conduct expedited classification reviews of the testimony transcript so that it could be released on the public docket. Order (June 19, 2009) [Dkt. No. 423] . The Government complied, and the transcripts were made available to the public on June 26, 2009 [Dkt. No. 431]. The Government also was ordered to videotape the testimony and maintain a redacted copy of the tape. Order (June 19, 2009). On July 23, 2009, the Government provided notice that it did not comply with this order, citing uoversight and miscommunication" as reasons that the testimony was not videotaped. Notice Regarding the Court's June 19, 2009 Order (July 23, 2009) [Dkt. No. 446]. The following day, Petitioner filed a Motion for Sanctions [Dkt. No. 447J, which is pending at this time. -12­  - ---------------------- compelling evidence. logical - inferences to be drawn from Accordingly, that existing evidence must be weighed and the existing evaluated as to its strength, its reliability, and the degree to which it is corroborated. In any event, th~ Government always bears the ultimate burden of showing by a preponderance of the evidence that Petitioner's detention is lawful. Just as a criminal defendant need not prove his innocence, a detainee need not prove that he was acting innocently. In sum, the fact that the Petitioner may not be able to offer neat answers to every factual question posed by the Government does not relieve the Government of its obligation to satisfy its burden of proof. C. Government Allegations In narrowing the issues for trial, parties focused on six broad factual areas that were in dispute. The Court then heard arguments on the existence and extent of (1) Petitioner's familial ties, (2) his stay at al-Qaida and/or Taliban guesthouses, (3) his military training at Al Farouq and service as an instructor there, (4) his employment as a bodyguard for Usama Bin Laden, (5) his other activities in Afghanistan (including his escape from the country and later arrest), and, finally, (6) the overall credibility of Petitioner's version of his travels from his home in IIIIIIto Pakistan, Afghanistan, and his flight back to Pakistan. 1. Familial Ties and Travel to Afghanistan -13­  There is no question that- the record fUlly Government's allegation that Petitioner had close familial ties to supports the prominent members of the jihad community in Afghanistan. JE 28;8 b(1), beG) JE 55; JE 18; JE 40; Tr. at 11, 17 (June 23, 2009). Tr. at 11 (June 23, 2009). Although the Government alleges that Al-Adahi has presented inconsistent and therefore unreliable reasons for this Tr. at 22 (June 23, 2009); JE 13 (citing Amani's back problems and visit to husband as reasons for trip); JE 15 at 1 (same); JE 33 at 2, 5 b(1) b( 1) The two reasons are hardly inconsistent with each other. b(1), b(6) From her home in had entered into an arranged marriage with b(1), beG) She and her brother, Petitioner, then traveled to Kandahar to unite the recently wedded couple and to attend a celebration of the 8 Parties submitted two volumes of Joint EXhibits, which comprise the vast majority of evidence presented during trial. Unless otherwise indicated, citations to "JE" refer to the universe of Joint Exhibits. -14­ marriage. 9 Tr. at 9 (June 24, 2009). _ - appears to have been a prominent man in Kandahar. • b(1), b(6) b(1), b(6) JE 28 at 3; Tr. at 15-16 (June 24, 2009) (Al-Adahi "believe[d]" thatllllllllfought the Soviets, but was not told that by IIIIIIII himself) . The Government alleges' that _ was b(1), b(6) involved at a high level in al-Qaida operations, b(1), b(6) see JE 18 at 4-5; JE 40 at 1 (alleged to be Bin Laden bodyguard); Gov. Mot. at 9 -1 0 • 10 Further, is described as being "among the jihad personnel from _ " JE 55 at 4. It is not clear if this description is based on statements f r o m . or Al- Adahi "doubts" that _ was a Bin Laden bodyguard, but acknowledges that he was "from mujahidin [sicl." Tr. at 21 (June 23, 2009). The celebration attended by Petitioner Bin Laden's house was for men only. The women celebrated at another venue. Tr. at 11 (June 24, 2009). -15­  The Government suggests that their travel pattern mimics that of other al-Qaida-recruited j ihadists who were traveling into Afghanistan to participate in battle against the united States. Gov. Mot. at 11 (describing arrangements as Uhighly unusual" and suggestive of "a degree of secrecy and operational tradecraft"); id. at 14-15. To buttress its argument, it points to the The Government infers that these arrangements indicate Al-Adahi's willingness to be recruited by al­ Qaida, as well as _ _ status as a member of that organization. Gov. Mot. at 11, 13. The inference that _ _ was affiliated with al-Qaida is strongly supported by the circumstances of the wedding celebration 11 The exact details of this exchange are not totally clear, but the overall narrative remains the same. See Tr. at 14-15 (June 23, 2009); JE 28 at 4; JE 33 at 3. --­ -16­  - - -------------------- that took place. It is undisputed that Usama Bin Laden, the founder and leader of al-Qaida, hosted and attended • wedding reception in Kandahar, Tr. at 11 (June 24, 2009); JE 51 at 2-3. At the celebration at Bin Laden's compound, as he was escorted around the event by a friend of • Al-Adahi was introduced briefly to Bin Laden. Tr. at 11 (June 24, 2009); Tr. at 17, 20-21 (June 23, 2009); JE 51 at 4. A few days later, Al-Adahi met Bin Laden again and the two chatted briefly about religious matters in Yemen. Tr. at 20-21 (June 23, 2009); JE 49 at 4. In his testimony, the Petitioner insisted that such a meeting with Bin Laden was common for visitors to Kandahar. Tr. at 24-25 (June 24, 2009); JE 49 at 5. The Government interprets the access to Bin Laden, as well as the relationship to _ a n d _ b r o t h e r , an alleged bodyguard for Bin Laden, as part of the evidence that "Al-Adahi was part of the inner circle of the enemy organization al-Qaida." Resp't's Opp'n to Pet. (ISN 33) Mohammed Al-Adahi's Br. in Supp. of Entry of J. at 3 ("Gov. Opp'n") [Dkt. No. 408]. The Government concedes that Al-Adahi's family situation is not, in and of itself a basis for his detention. What the Government argues is that the existence of these family connections to Bin Laden strengthen other, more serious allegations, such as Petitioner's training and service as a bodyguard. These -17­ connections, according to the Government, demonstrate that Al-Adahi was an al-Qaida insider whose brother-in-law was facilitating his rise up the ranks of the al-Qaida organization. While it is true that Petitioner's familial ties to usama Bin Laden may suggest that he had access to the leadership of al-Qaida, such associations cannot prove that he was a member of al-Qaida's "armed forces." Gherebi, 609 F. Supp. 2d at 70-71. Accordingly, his relationship tollllilland attendance at the wedding must not distract the Court from its appropriate focus--the nature of Al­ Adahi's own conduct, upon which this case must turn. 2. Guesthouse Stay The Government claims that AI-Adahi stayed at al-Qaida and/or Taliban guesthouses during his stay in Afghanistan in 2001. It points specifically to his admission that he stayed at the al­ Nebras guesthouse for one night. Tr. at 23 (June 23, 2009); JE 27; JE 52. In addition, the Government points to AI-Adahi's own statements in arguing that _ home was a guesthouse that sheltered mujahideen and men involved in AI-Wafa. Gov. Mot. at 12­ 13; JE 28 at 3; JE 16 at 1; JE 19 at 2. AI-Wafa was a Specially Designated Global Terrorist Entity that ostensibly operated as a charity. Exec. Order No. 13,224, 66 Fed. Reg. 49,079 (Sept. 23, 2001); JE 6 at 1. Petitioner counters that 1IIIIIIIIhome was not identified by -18­  the Government in its background declaration as being a guesthouse operated by either al-Qaida or the Taliban. Cf. JE 5. Significantly, there is credible evidence in the record b(1), b(6) demonstrating that Petitioner stayed in home, which appears to have been a separate structure from any guesthouse that JE 33 at 4. Other than this admission about al-Nebras and the argument about his brother-in-law's home, the Government points only to the JE 39 at 3. The b(1), b(6) allegation was based on The guesthouse evidence, like that of Al-Adahi' s family 12 The first page of the interro ation report ~ . . tion indicates that" was shown allllllllllll JE 39 at 1. Al-Adahi is On ~ee of ort " goes on to describe ~son""""'ina marked \\ [ISN 33] . rd. at 3. ; - . is not mentioned /I • h f h • • • - _ tI· ... 5, 6 I -19­ connections, is offered as a tile in the Government's mosaic. The Government recognizes that in this case the guesthouse evidence is not in itself sufficient to justify detention. The Court credits Al-Adahi's repeated admissions of his one-night stay at al-Nebras, but cannot rely on b(1), b(6) vague and uncorroborated statement about his meeting with AI-Adahi at an unnamed Kandahar guesthouse and his questionable _identification of AI-Adahi. 13 3. Al Farouq The Government's central accusation -- that Al-Adahi attended al-Qaida's Al Farouq training camp in or around August of 2001 -­ is not disputed by Petitioner; in fact, he admitted to it during his t~stimony. Tr. at 23-24 (June 23, 2009) (admitting attendance at Al Farouq for one week). The critical issues that divide parties are the significance of Petitioner's brief attendance, and whether or not AI-Adahi served as an instructor at Al Farouq. a. Attendance at Al Farouq b(1), b(6) 13 credibility has been called into question by this Court and other courts in this District. See Ali Ahmed v. Obama, OS-cv-1678, classified memo op. at 13-14 (D.D.C. May 4, 2009) [Dkt. No. 211]. On May 22, 2009, the Government submitted a memorandum and voluminous appendix of exhibits in an effort to rehabilitate b(1), b(6) reliability as a witness. The Court reviewed the Government's submission, and agrees t h a t _ c a n n o t be written off as unreliable in all instances; however, his troublesome record -20­  Again, there is no dispute that AI-Adahi trained at Al Farouq for somewhere between seven and ten days. Id.; JE 26 at 4 (ten days); JE 52 at 2 (about seven days); JE 27 at 3 (seven days). During several interrogations, 14 Al-Adahi gave detailed descriptions of the training regimen and layout of the camp, identified other detainees as trainers ( i n c l u d i n g _ , JE 26 at 5; JE 52 at 2, 14 Petitioner's counsel argues that all ex parte statements made by Petitioner must be excluded from the record. Pet.'s Mot. at 18 -20. They maintain that because Petitioner was represented by counsel as of February 7, 2005, and all interrogations after that date were not consented to by counsel, Constitutional and ethical rules require that evidence from those interrogations be excluded. Id. The Court concludes that the ex parte statements are admissible for the following reasons. First, under Supreme Court and Court of Appeals precedent, only defendants in the criminal context can claim Sixth Amendment protections. Montejo v. Louisiana, 129 S.Ct. 2079, 2085 (2009) (stating that Sixth Amendment "guarantees a defendant the right to have counsel at all 'critical' stages of the criminal proceedings.O) (emphasis added); United States v. Sutton, 801 F.2d 1346, 1365 (D.C. Cir. 1986) (finding that right to counsel attaches "only after the initiation of 'adversary judicial criminal proceedings, e.g., formal charge, I preliminary hearing, indictment, information, or arraignment."). Petitioner is not involved in a criminal proceeding, and thus the Sixth Amendment does not apply. Cf. Coleman v. Balkcom, 451 U.S. 949, 954 (1981) (Marshall, J., dissenting from denial of certiorari) . Second, Petitioner argues that the Government's conduct amounts to a violation of ethical rules. The interrogators in this case were not the attorneys representing the Government in habeas litigation; rather; they were agents conducting an investigation. There is no evidence that Government attorneys controlled or guided interrogations of Al-Adahi. Consequently, there were no ethical violations. See United States v. Lemonakis, 485 F.2d 941, 956 (D.C. Cir. 1973); Sutton, 801 F.2d at 1366. -21­  - and admitted that he received training while there. His motives for going to Al Farouq cannot be determined with the same certainty. In his testimony, Al-Adahi claims that he sought general weapons training and "Islamic education." Tr. at 23-24 (June 23, 2009). After having attended his sister's wedding reception, and with time off from his job inilllllland having no particular plans about what to do next, he portrayed himself as being willing to explore the region and try something new. The Government attempted to link AI-Adahi's attendance to his alleged ideological conviction in jihad against the United States. However, Al-Adahi resisted being portrayed as a supporter of war against America, and repeatedly denied "support [ing] these acts [of jihad]." Tr. at 19 (June 24, 2009); see id. at 17-21. Al-Adahi claims that he pursued training at Al Farouq to satisfy "curiosity" about jihad, and because he found himself in Afghanistan with idle time. JE 26 at 5; cf. Tr. at 22-23 (June 23, 2009) (stating that he did not know about Al Farouq until he arrived at al-Nebras, and attended camp to learn about Islam and weapons). It is important to observe that Al-Adahi's understanding of the term "j ihad" does not seem to equate to war against the United States. See Tr. at 21 (June 23, 2009). For instance, in a b(1 ) -22­ b(1 ) - JE 26 at S;see JE 28 at 3 (where Petitioner explains mujahideen to mean Uthose that fought against the Russians and then later fought with the Taliban against Massoud) . Petitioner insists that he did not attend the camp to become part of jihad, and that the circumstances of his departure support this position. After seven to ten days at Al Farouq, the camp leaders expelled AI-Adahi for failing to comply with the rules. b(1 ) Tr. at 24 (June 23, 2009); JE 52 at 2. b(1 ) JE 26 at 4 - 5 . In Petitioner's view, any affiliation with or substantial support of al-Qaida that could have been established based on his attendance at Al Farouq was destroyed by this expulsion. Pet.'s Mot. at 44. The Government counters that the circumstances of his departure, in addition to his attendance, actually help justify detention. AI-Adahi was ordered to leave, and returned to Kandahar to stay with _ _ again. He did so despite the fact that, according to AI-Adahi himself, individuals expelled from Al Farouq for rules violations were generally considered spies, and severely punished. JE 26 at 4; JE 52 at 2-3. Suspected spies, the Government infers from another detainee's experiences, were treated harshly. See Al Ginco v. Obama, No. OS-cv-1310, 2009 WL 1748011, at *3 (D.D.C. June 22, 2009) (describing Government's concession . -23­ that suspected spy was imprisoned and tortured by Taliban). In this case, Al-Adahi was spared punishment because of his relationship with his brother-in-lawllllllll See JE 52 at 2. The Government argues that the clemency extended to Al-Adahi demonstrates that he continued to be a member of the organization, and was being protected by his powerful brother- in-law _ See JE 52 at 2 (reporting that prior to expelling Petitioner, camp leadership notified 1IIIIIIII Al-Adahi, it notes, was even permitted to return to Kandahar and stay with _ who allegedly housed al-Qaida fighters. This, the Government argues, demonstrates that the organization had not turned its back on Petitioner at all, much less in the brutal way that it had expelled and tortured Ginco. However, even if AI-Adahi's expulsion was b(1), b(6) handled with uncommon leniency because of status, this fact demonstrates at most that Al-Adahi was being protected by a concerned family member; it most certainly is not affirmative evidence that Al-Adahi embraced al-Qaida, accepted its philosophy, and endorsed its terrorist activities. For these reasons, under the analysis in Gherebi, Petitioner cannot be deemed a member of the enemy's "armed forces. II See Gherebi, 609 F. Supp. 2d at 68-69. Al-Adahi was expelled from Al Farouq after seven to ten days at the campi as discussed below, the Government has not established that he did anything to renew -24­ connections with al-Qaida and/or the Taliban. He did not, by virtue of less than two weeks' attendance at a training camp from which he was expelled for breaking the rules, occupy "some sort of 'structured' role in the 'hierarchy' of the enemy force." rd. Finally, Petitioner's demonstrated unwillingness to comply with orders from individuals at Al Farouq shows that he did not " , receive [] and execute[] orders' from the enemy's combat apparatus." rd. at 69. AI-Adahi attended the camp briefly, and was expelled for his refusal to take orders. Therefore, Petitioner's admission that he trained at Al Farouq is not sufficient to carry the Government's burden of showing that he was a part, or substantial supporter, of enemy forces. Cf. Al Ginco, 2009 WL 1748011, at *4 (relationship with al-Qaida may be "vitiated" by intervening events); id, at *5 ("To say the least, " five days at a guesthouse . . combined with eighteen days at a training camp does not add up to a longstanding bond of brotherhood.") . b. Instructor at Al Farouq The Government relies on a statement from one other detainee, as well as several pieces of circumstantial evidence, to argue that AI-Adahi not only attended Al Farouq, but also served as a trainer at the camp. As its most direct piece of evidence supporting this claim, -25­  -SECRET­ b(1), b(2), b(6) the Government points to a statement made by b(1), b(2), b(6) that he could identify ISN 33 by his b(1 ) kunya, • because b(1 ) 15 JE 29 at 1; JE 38 at 5. A significant problem with this testimony is that there is no other evidence placing Al-Adahi in Afghanistan prior to July of 2001. Additionally, when he was later ISN 33, _claimed the man's name was whose kunya JE 101 at 2; cf. JE 104 at 2 (reporting that detainee uninvolved in this case had a Saudi uncle who clearly was not same man as Al-Adahi). The Government claims this is simply a mis-identification. When coupled with the early­ 2000 date given by _ in an earlier statement, the mis­ identification casts serious doubt on the accuracy of his statements. Petitioner insists that his only travel out oflllllllPccurred in July of 2001, when he escorted his sister to Kandahar. In lS In August of 2003, _provided a physical description who he claimed was a "chief trainer." JE 102 at 1. -26­ support of this position, - he presents documents JE 71, where he had worked for about 20 years from IIIIIIII before departing for Afghanistan, JE 13 at 1. The documents purport to show that Al-Adahi requested six months of non-paid 16 leave on July 9, 2001. Id. at Attachment B. They also purport to show that he was on the company's payroll in June of 2000 and April of 2001, id. at Attachments C, E; that he was eligible for an annual bonus for 2000, id. at Attachment D; and that he appeared on a list of employees whose staff allowances were not subject to retirement deduction in 2000, id. at Attachment F. Each document was signed, and many were stamped. Id. Petitioner has represented that they are authentic documents, based chiefly on the declaration of- an employee at the National Organization for Defending Rights and Freedoms (UHOOD") . .Pet. ' s Ex. (UPE") 2._ reports that he delivered counsel's request for these documents to the via a relative of Al-Adahi' s, and then emailed counsel the documents contained in Joint Exhibit 71. PE 2 at 2. The Government objects to the reliability of the documents. It points out several mis-translations of key dates, including one 16 In what appears to be the only instance in the record to_' where Al-Adahi veered from his story that he intended to spend an extended period of time in Afghanistan, he told interrogators in 2006 that Uhe was only to stay one day [in Afghanistan] and return JE 25 at 2. -27­  - where the company cut ties with Al-Adahi because of his inclusion on a February 2001 list of Guantanamo Bay detainees. JE 71 at Attachment A. Because the facility was not detaining suspects in the War on Terror at that point, the Government argues that the accuracy of the documents cannot be relied upon. The evidence is problematic for a number of reasons. First the Petitioner, has not asked for and does not start with a presumption of authenticity for the documents he produces. Second, there are gaps in the chain of custody of these documents. Third, it is unclear who entered the information contained in them, and whether such information was entered contemporaneously. Fourth, they contain factual and/or translation errors--such as the statement about the February 2001 list of Guantanamo Bay detainees--that raise serious doubts about their accuracy. In short, they do not prove that Petitioner was not in Afghanistan in early 2000 whenllllllsays he was. Despite this conclusion, it is still difficult to credit _ _ assertion that AI-Adahi was at Al Farouq in January or February 2000. AI-Adahi's consistent statements to interrogators, as well as his in-person testimony during this proceeding, all place him in Afghanistan no earlier than July of 2001. The Government has presented no evidence other than _ c o m m e n t to contradict this timeline. Instead, it suggests that AI-Adahi is· -28­ unreliable and manipulative at times, and therefore his statements cannot be accepted as to the commencement of his time in Afghanistan. This argument is difficult to credit in full. The Government relies heavily on Al-Adahi/s inculpatory admissions. It cannot have it both ways, i.e" when he says something that supports the Government's position he should be believed, but when he says something that contradicts the Government's position he is a liar. Finally, it is an assertion that is not backed up by facts: there is no evidence in the record that Al-Adahi was involved in activity related to al-Qaida and/or the Taliban before July of 2001. Without more, the Court cannot rely on _ s t a t e m e n t . l ? Further undermining the reliability ofillllllllcomments, the record contains evidence that IIIIiI suffered from "serious psychological issues." JE 29 at 1; Pet./s Mot. at 17-18. The Government itself has expressed skepticism about the value of _ statements, and noted his attempts to manipulate other detainees into undermining intelligence efforts. PE 4. For all these reasons, the Court concludes that his identification of Al- I? It bears mentioning t h a t _ retracted his allegations against Al-Adahi in two separate documents. JE 81; JE 82. The recantations are somewhat generic, and inconsistent with each other. Their main impact is not to prove one version o f ~ account right or wrong, but to suggest that his statements about AI-Adahi are scattered, difficult to interpret, and not probative of anything. -29­  Adahi as a trainer is not reliable independent evidence that Petitioner occupied that role. The Government maintains that _ testimony is accurate when it is considered in light of AI-Adahi's intimate knowledge of Al Farouq's operations and recruits. In several intelligence reports, b(1 ) JE 52 at 3; JE 26 at 5, b(1 ) JE b(1 ) 52 at 2, id. at 1-2,_ b( 1) id. at 3. This knowledge, the Government argues, could only be possessed by a person who was entrusted with a supervisory role in the camp. The Government is not correct. AI-Adahi's detailed knowledge of camp routine could well have been developed during his seven-to­ ten-day stay there. Similarly, the information that he provided about other recruits could have come from conversations with them about their prior travels and future plans. For instance, the fact that he was familiar with the routines followed by the Africans may prove only that AI-Adahi was observant; moreover, all of AI-Adahi' s descriptions were of their training habits only, which he could have observed from afar. Id. Though the Africans did not speak Arabic, Petitioner had access to them at "the mosque, chow hall area and sometimes at fitness training," where non-verbal communication could have taken place. Id. . The Government' s -30­ corroborative evidence on this point is highly speculative, and does not confirm b(1), b(6) • ubious allegation. For all these reasons, the Court finds that the Government has not established that Al-Adahi was a trainer at Al Farouq. 4. Bodyguard for Usama Bin Laden To establish its allegation that Al-Adahi was a bodyguard for Bin Laden, the Government makes an argument similar to its contention that Petitioner was an instructor at Al Farouq. It offers what it calls "direct" evidence from another detainee that Al-Adahi did security work for Bin Laden, and attempts to substantiate that evidence by pointing to Al-Adahi's familiarity with other Bin Laden bodyguards. The Government does not meet its burden on this point. The principal evidence to support this allegation comes in the b(1), b(2), b(6) form of b(1), b(6) JE 35 at 1-2. -31­  rd. There is absolutely no other mention in the record of Petitioner's involvement with a Taliban prison, except for his denial of this accusation during his testimony. Tr. at 31-32 (June 23, 2009). Although the intelligence reports do not mention whether b(1), b(2), b(6) accounts are lengthy and detailed, which are two important indicia of reliability. Nonetheless, the witness himself suffers from serious credibility problems that undermine the reliability of his statements. JE 57 at 1-4 (outlining psychological problems and self-harm incidents) i JE 75 (independent assessment of medical records); JE 76 at 3, 5 b(1), b(6) report of torture by Taliban, and emotional problems brought on by father); JE. 91 (containing -32­  'aLI.. &! August 2005 admission bylllllllllthat he lied in past, and promise that he will not lie again). What is equally worrisome is that before ~made the above statements, interrogators had expressed concern that he was being manipulated by another detainee. JE 87 at 2; before being placed next to that detainee, _ had never made any of the claims that he made to interrogators, including the accusation against AI-Adahi. Id. Further, the Government's corroborative evidence does little to compensate for the deficiencies specified above. There is Similarly, there is evidence that Al-Adahi had a Casio watch when captured, JE 45 at 3, which the Government argues is a telling piece of al-Qaida paraphernalia. Gov Mot. at 16-17. The Government asks the Court to infer that because 1IIIIIIII b(1 ) at some point during his credible. That confirmed detail, in turn, would strengthen the reliability of b(1), b(6) The inference simply does not make sense--or in the words of a noted legal philosopher, "that dog -33­  5 won't hunt. 1/18 A seemingly stronger argument is made by reference to AI­ Adahi's description of other Bin Laden bodyguards. In a 2008 interrogation, Petitioner provided biographical sketches of a number of men who he claimed were Bin Laden bodyguards. JE 51. In all, he provided similar information for 12 bodyguards. Id. at 4­ 8. In the Government's view, this familiarity with Bin Laden's protectors suggests that AI-Adahi knew these men well, and worked closely with them. It argues that such a conclusion, if true, would corroborate b(1), b(6) account. The Government's position has some appeal. AI- Adahi does provide factual details about the other bodyguards that, on the surface, seem to indicate more than a passing familiarity with the men. For instance, one man, • had "fat thighs but was quick." Id. at 6. Another knew how to read, write, and speak English. Id. at 5. These are the sort of personal details that one does not usually learn about during a casual meeting; rather, they suggest a closer relationship. The Court ultimately cannot credit this evidence as sufficient corroborative information to help carry the Government's burden. Upon careful analysis, the biogra phical ske tches of the alleged 18 Needless to say, • are hardly unique items, even in -34­  - - --- . ............ bodyguards are not as significant as the Government portrays them to be. First, it is not clear from the intelligence report which parts of the sketches were provided by Petitioner and which were conclusions inserted by intelligence officials. Second, in many cases, AI-Adahi (if he was the source of all of the information) knew no more than a man's hometown, general familial relationships, and physical attributes. Given the length of his stay Withilllllll and the fact that he met some of the men on more than one occasion, he could have assembled this information, along with the more idiosyncratic descriptions above, based on informal interactions with them, especially since so many of them were from Taiz. It need not be the case that the only reason AI-Adahi could have come across this evidence was because he shared bodyguard duties with them. Because b(1), b(6) account of AI-Adahi's activities is undermined severely by the witness's psychological problems and checkered history of reliability, the account cannot stand on its own to carry the Government's burden. The Government's use of speculative evidence about b(1 ) does little to shore up b(1), b(6) statements. Finally, Petitioner's familiarity with other bodyguards does not, without more, compel the conclusion that he knew the men as a result of his service as a Bin Laden bodyguard. -35­  5. Following his brief - Post-Training Activities period of training, the Government contends that Petitioner engaged in activities that demonstrate a continued commitment to al-Qaida. The Government marshals pieces of circumstantial evidence to support its allegations that after training, AI-Adahi fought for al-Qaida, stayed in the company of al-Qaida fighters, and then was arrested on a bus while fleeing from Afghanistan to Pakistan with al-Qaida soldiers. First, the Government alleges that Al-Adahi participated in battle as an al-Qaida fighter. The Government has no statements or confessions to support its allegation that Al-Adahi fought; rather, it builds its case by pointing to inconsistencies in AI-Adahi's versions of the events that led up to his capture, as well as inferential evidence that suggests terrorist conduct. In the absence of any affirmative evidence of this allegation, the Government argues that AI-Adahi's travel pattern during September of 2001 closely tracked the location of several battles involving al-Qaida forces. See Gov. Opp'n at 3-4. Cf. JE 4 (detailing location of battles); PE 5. The Government argues that AI-Adahi's "cover story"--that he was fleeing Afghanistan as quickly as possible after bombing of the region--rings hollow. It points to his general lack of credibility in other areas, including his explanation of an injury that he -36­  & & suffered while fleeing, to cast doubt on his version of events. Also, the Government notes Bin Laden's edict that men must stay in Afghanistan and wage jihad as evidence of Petitioner's reason for staying in the country and fighting. JE 55 at 4. The Government pointed to several accounts Petitioner offered about how he suffered an injury to his arm and leg before being captured. However, each account included the same central detail that he sustained the injury after falling from a motorcycle in Kandahar. See JE 13 at 2; JE 33 at 6i JE 15 at 2; JE 14 at 1. One version of the story blames the accident on driving too fast and hitting a cart, JE 15 at 2i a second version i n v o l v e s _ b(1 ) JE 33 at 6; in a third telling, Al-Adahi fell off of the vehicle while attempting to flee Kandahar, JE 13 at 2. Yet another version has Petitioner slipping off the motorcycle. JE 14 at 1. According to the Government's reasoning, these slight variations, together with his "diplomatic" expulsion from Al Farouq and arrest on a bus with Taliban fighters, indicates that his motorcycle "cover story" conceals the truth that he was injured in battle. Se~ Gov. Mot. at 20. It is correct that some minor details in the motorcycle story are not described identically in each interrogation, an~ this may cast doubt on precisely how Al-Adahi was injured. Nonetheless, the Government provides only speculation to resolve that doubt, -37­  a is contending that his travel pattern and association with Taliban fighters mean that Petitioner took up arms. Such a serious allegation cannot rest on mere conjecture, with no hard evidence to support it. 19 Unable to prove the more serious allegation of actual participation in combat, the Government cannot rely solely on what is only associational evidence about Al-Adahi's stay at b(1), b(6) and arrest in the company of individuals rumored to be part of the Taliban. Such evidence is not sufficient to carry the Government's burden. First, the Government appears to pin its associational evidence that Petitioner was captured while traveling in the company of Taliban fighters on a statement made by Al-Adahi that \\ [a] fter his capture, [he] heard that there were members of the Taliban on the bus." JE 14 at 2 (emphasis added) .20 This second- level hearsay suggests that Al-Adahi did not know the passengers' identity before boarding, and that the information was passed on to him by an unknown source. Second, it is not clear what type of 19 It must be emphasized that the Government had no evidence from anyone who claimed to have seen or claimed to have even heard that Al-Adahi was involved in combat activities. 20 During an earlier bus ride, from Kandahar to Khost, Al- Adahi reported that he rode with "wounded Taliban soldiers." JE 14 at 3. He departed that bus at Khost and boarded a bus for Miram Shah. He was captured during or after this bus ride. -38­ bus--public or private--Petitioner boarded in fleeing Afghanistan; moreover, there is no evidence that he sought to join or was already part of a band of fighters fleeing the region. See JE 14 at 2 (describing bus trip and arrest on bus). Further, when he was b(1 ) arrested on the bus by Pakistani authorities, 21 b(1 ) and was unarmed. JE 98 at 1; JE 33 at 7. He appeared to be attempting to escape the chaos of that time by any means that he COUld. The Government's allegations regarding AI-Adahi's post- training activities are significant because they provide context to Petitioner's admission about training. In short, his conduct after training at Al Farouq does not demonstrate that AI-Adahi took any affirmative steps to align himself with al-Qaida. The record shows that he returned to b(1), b(6) house for a few weeks, attempted to flee Kandahar, injured himself and received treatment, and then again made efforts to escape Afghanistan. The Government offered 21 In another recounting of his story, AI-Adahi boarded the bus from Khost, and headed toward Miram Shah with Arabs and Pakistanis (the same groups he said were on the bus in JE 98). JE 14 at 3. However, the arrest took place in a "large, modern city, with a large market area;" Petitioner had walked there after leaving the bus several hours earlier. Id. He stated that he had his ass ort with him. Th~s 1nconsis ency underlying fact of his arrest is not in dispute. Cf. JE 14 -39­ no substantive evidence that he continued on a course of substantial support for al-Qaida. Instead, it appears that once his break with the group was initiated by al-Qaida, Al-Adahi accepted his expulsion and never attempted thereafter to become a member or supporter of al-Qaida, or to further its activities in any way. IV. CONCLUSION When all is said and done, this is the evidence we have in this case. AI-Adahi probably had several relatives who served as bodyguards for Usama Bin Laden and were deeply involved with and· supportive of al-Qaida and its activities. One of those relatives became his brother-in-law by virtue of marriage to his sister, I11III AI-Adahi accompanied his sister to Afghanistan so that she b(1), b(6) could be with her husband and _. The wedding celebration was held in Bin Laden's compound and many of his associates attended. At that celebration, Petitioner was introduced to Bin Laden, with whom he had a very brief conversation. Several days later, the Petitioner had a five­ to-ten-minute conversation with Bin Laden. Thereafter, Petitioner stayed at an al-Qaida guesthouse for one night and attended the Al Farouq training camp for seven to ten days. He was expelled from Al Farouq for failure to obey the rules. This training represents the strongest basis that the -40­ Government has for detaining Al-Adahi. However, under the AUMF and the standards described in Gherebi, Petitioner's brief attendance at Al Farouq and eventual expulsion simply do not bring him within the ambit of the Executive's power to detain. After his expulsion, Al-Adahi returned to the home of his sister and brother-in-law for several weeks and then traveled to other places in Afghanistan because he had no other obligations. Like many thousands of people, he sought to flee Afghanistan when it was bombed shortly after September 11, 2001. There is no reliable evidence in the record that Petitioner was a trainer at Al Farouq, that he ever fought for al-Qaida and/or the Taliban, or that he affirmatively provided any actual support to al-Qaida and/or the Taliban. There is no reliable evidence in the record that Petitioner was a member of al-Qaida and/or the Taliban. While it is tempting to be swayed by the fact that Petitioner readily acknowledged having met Bin Laden on two occasions and admitted that perhaps his relatives were bodyguards and enthusiastic followers of Bin Laden, such evidence-­ sensational and compelling as it may appear--does not constitute actual, reliable evidence that would justify the Government's detention of this man. For these reasons, and the reasons set forth above, the Court grants the petition for a writ of habeas corpus. -41­  ItIQ Mindful of the limitations on the scope of the remedy in this situation, see Kiyemba v. Obama, 555 F.3d 1022, 1024 (D.C. Cir. 2009), the Court further orders the Government to take all necessary and appropriate diplomatic steps to facilitate Petitioner'S release forthwith. Further, the Government is directed to comply with any reporting requirements mandated by the Supplemental Appropriations Act, Pub. L. No. 111-32, 123 stat. 1859 (2009), if applicable, to facilitate Petitioner's release, and to report back to the Court no later than September 18, 2009, as to the status of that release and what steps have been taken to secure that release. lsi August _, 2009 Gladys Kessler United States District Judge Copies to: Attorneys of Record via ECF -42­ 

446 F.Supp. 62 (1978) Ronald SCHIPPERS v. MIDAS INTERNATIONAL CORPORATION. Civ. No. 3-77-379. United States District Court, E. D. Tennessee, N. D. January 24, 1978. *63 Norman L. Griffin, Knoxville, Tenn., for plaintiff. Edwin M. Luedeka, Knoxville, Tenn., for defendant. MEMORANDUM ROBERT L. TAYLOR, District Judge. This is an action under 35 U.S.C. § 102 and 28 U.S.C. § 1338(a) for alleged patent infringement. The defendant has moved to dismiss, or in the alternative to transfer, on the ground that venue does not properly lie in this Court. Briefs have been submitted on this issue and an oral argument has been heard. The parties have generally stipulated as to the relevant facts. It is the position of the defendant that venue in this action properly lies in the Northern District of Illinois, Eastern Division. The defendant has represented to the Court that if the action is transferred to that jurisdiction, no further defenses concerning venue will be raised. The Court construes this representation to mean that defendant agrees not to raise technical defenses should this case be transferred, but is prepared to try the merits of the suit. The parties agree that under the circumstances of this case, venue is controlled by 28 U.S.C. § 1400(b). See Fourco Glass Co. v. Transmirra Products Corp., 353 U.S. 222, 77 S.Ct. 787, 1 L.Ed.2d 786 (1957). Section 1400(b) provides in pertinent part that: "Any civil action for patent infringement may be brought . . . where the defendant has committed acts of infringement and has a regular and established place of business." Thus, before venue is proper in this Court, plaintiff must establish that the defendant "has a regular and established place of business" in this district. It is not seriously contended by the plaintiff that the defendant maintains, directly, and in its own name, any place of business in this district. Rather, plaintiff looks to the regular and established place of business of defendant's wholly owned subsidiary, Norris Homes, Inc., and seeks to attribute this place of business to the defendant for purposes of Section 1400(b). In order to satisfy venue requirements in this case by reference to a subsidiary entity, the plaintiff has the burden of showing that the subsidiary, Norris Homes, is a "mere shadow with no substance" other than that of the parent, the defendant. Technograph Printed Circuits, Ltd. v. Epsco, Inc., 224 F.Supp. 260, 264 (E.D.Pa.1963). For reasons which appear more fully below, the Court is of the opinion that the plaintiff has failed to carry this burden. *64 It is not disputed that Norris Homes, though a wholly owned subsidiary of the defendant, is itself a Tennessee corporation. Norris owns the real estate upon which its plant is located, pays Tennessee income and other taxes, and contributes to unemployment compensation in Tennessee. None of the employees at the Norris plant are on the payroll of the defendant. The plaintiff points to several factors in support of his argument that Norris is a mere "alter ego" of the defendant. Norris' phone number is also listed as the defendant's phone number. A sign at the Norris plant states, incorrectly, that Norris is a division of the defendant. The defendant and Norris file joint federal income tax returns. The recreational vehicles produced by Norris are identified as products of the defendant both by the "logo" on the products and through joint advertising campaigns. Finally, there is great overlap among the officers and directors of the defendant and Norris. While these factors indicate that the defendant exercises a substantial amount of control over Norris, they do not show that the separate corporate character of Norris is disregarded in dealings between Norris and the defendant. See Shapiro v. Ford Motor Co., 359 F.Supp. 350 (D.Md.1973). Norris maintains separate sales engineering and credit departments and purchases its own materials. Payment for Norris' products is sent directly to Norris and not to the defendant. Norris maintains its own bank accounts out of which it pays its employees. Norris is billed whenever one of its products is serviced by another subsidiary of the defendant. Similarly, Norris is reimbursed for servicing products of other subsidiaries of the defendant. Perhaps most significant, the defendant does not appear to be responsible for any of Norris' legal obligations. Cf. Hall Laboratories, Inc. v. Millar Bros. and Co., 152 F.Supp. 797, 801 (E.D.Pa. 1957). For the foregoing reasons, and based upon the representations of counsel, it is ORDERED that defendant's motion be, and the same hereby is, granted, and that this action be transferred to the Northern District of Illinois, Eastern Division. Order Accordingly.

102 B.R. 108 (1989) In re BONDI'S VALU-KING, INC., Debtor. Bankruptcy No. B85-00153. United States Bankruptcy Court, N.D. Ohio, E.D. June 30, 1989. *109 Michael D. Zaverton, Dettelbach, Sicherman & Baumgart, Cleveland, Ohio, for trustee. Susan M. Poswistilo, Trial Atty., Tax Div., U.S. Dept. of Justice, Washington, D.C., for I.R.S. MEMORANDUM OF OPINION AND ORDER I. RANDOLPH BAXTER, Bankruptcy Judge. The matter before the Court is the Trustee's objection to Claim No. 56 filed by the Internal Revenue Service (IRS) in the above-captioned case in an amount of $30,660.31. The Trustee objects to the claim on the following grounds: 1. The claim is untimely filed. 2. The claim is for an estimated amount which is unsubstantiated and contains insufficient information to permit a determination of its validity and priority. 3. The claim is excessive and improperly includes penalties and interest. 4. The claim is unrelated to any prior claim filed by said claimant so claimant is asserting a new claim under the guise of an amendment or supplement to a prior proof of claim. The IRS responds that the claim is a request for payment of an administrative expense which can be made at any time during the pendency of the bankruptcy proceeding, and the fact that the claim is estimated is not cause for disallowance of the claim. II. The Debtor voluntarily filed a petition under Chapter 7 of the Bankruptcy Code on January 21, 1985. It was converted to Chapter 11 on March 26, 1985 and reconverted to Chapter 7 on June 19, 1985. Debtor ceased business operations on the date of the final conversion. IRS was listed as a creditor by the debtor and received notice of the bar date for filing proofs of claims, which was set at December 11, 1985. IRS timely filed a proof of claim, Claim No. 44, on October 30, 1985. This proof of claim, in the amount of $16,966.78 asserted the following tax claims: Unsecured Priority Claims Interest to Kind of Tax Tax Period Date Tax Asserted Tax Due Petition Date WT-FICA (3rd Quarter) 11/26/84 $9,572.46 $299.68 WT-FICA (4th Quarter) 7/15/85 $6,317.11 $ -0- Additionally, this proof of claim asserted an unsecured general claim in the sum of $777.53 for the penalty which had accrued on these tax obligations up to the date of petition. Subsequently, on or about December 20, 1988, more than three years after the expiration of the bar date for filing claims, IRS filed a Request for Payment of Internal Revenue Taxes (Bankruptcy Code Cases — Administrative Expenses) asserting as an administrative expense claim the following tax claims: Administrative Claims Accrued Accrued Kind of Tax Tax Period Tax Due Interest Penalty Balance Due FUTA 12/31/84 1,965.33 .00 .00 1,965.33 WT-FICA 03/31/85 6,000.00 2,994.53 1,440.00 10,434.53 WT-FICA 06/30/85 6,000.00 2,994.53 1,440.00 10,434.53 *110 Administrative Claims Accrued Accrued Kind of Tax Tax Period Tax Due Interest Penalty Balance Due FUTA 12/31/85 3,000.00 1,497.28 720.00 5,217.28 CORP-INC 12/31/85 1,500.00 748.64 360.00 2,608.64 The cover letter accompanying this "Request" advised the Clerk of Court for the Bankruptcy Court that the enclosure was a "proof of claim" and requested that the original proof of claim be filed and that file-stamped copies be forwarded to the claimant and the Trustee. Pursuant to these directions, Claimant's Request was treated as a proof of claim by the Clerk and designated as Claim No. 56 on the Claims Register maintained in the within proceeding. In light of both the Clerk's treatment of the IRS "claim" and the language of the cover letter, the Trustee also treated the Request like a proof of claim. The first item on claim # 56 is for Debtor's 1984 FUTA tax obligations. Debtor's petition having been filed in January 1985, this obligation was incurred prepetition. "A tax is incurred on the date it accrues, not on the date of assessment or the date on which it is payable." In re Overly-Hautz Co., 57 B.R. 932, 937 (Bankr.N.D.Ohio 1986), aff'd on other grounds, 81 B.R. 434 (N.D.Ohio 1987); In re Ryan, 78 B.R. 175, 177 (Bankr.E.D. Tenn.1987). The tax is not an obligation of Debtor's estate, and therefore is not entitled to administrative expense priority under § 507(a)(1). Instead, it is the type of tax specified in § 507(a)(7) and consequently excluded from the administrative expense provisions of § 503(b)(1)(B)(i). See U.S. v. Friendship College, Inc., 737 F.2d 430 (4th Cir.1984); In re Scrap Disposal, Inc., 38 B.R. 765 (BAP 9th Cir.1984). The subject tax constitutes a claim against the debtor. The time for filing a proof of claim in a Chapter 7 liquidation is governed by Bankr.R. 3002(c). See also Bankr.R. 9006(b)(3). IRS could have sought an extension of time in which to file "for cause" pursuant to Bankr.R. 3002(c)(1) to obtain additional time in which to file this claim, but it did not do so. IRS does not characterize this 1984 FUTA claim as a supplemental or amended claim to its timely-filed claim of October 30, 1985. Instead, in response to Trustee's Objection to Claim No. 56, it includes this claim in the administrative expenses accrued under Chapter 11. An untimely new claim, however, may be permitted as a valid amendment where the original filing provided notice to the Debtor of the existence, nature, and amount of subsequent claims to be submitted by the creditor. See, e.g., Overly-Hautz, supra. In the instant case, the earlier proof of claim gives no indication that IRS has a claim for 1984 FUTA Taxes or that it intended to hold the estate liable for these taxes even though it was aware of the existence of a FUTA claim prior to the filing of its timely claim and prior to the expiration of the bar date. (See Trustee's Exhibit B.) Therefore the FUTA claim for $1,965.33 is not a valid amendment to a timely-filed Claim and will not be allowed. See also, In re Robert Stone Cut Off Equipment, Inc., 98 B.R. 158 (Bankr.N.D.N.Y.1989). The dispositive issue for the remaining parts of the claim is whether an administrative claim arising in a Chapter 11 proceeding is subject to the bar date established in an ensuing Chapter 7 conversion. The position of the IRS is that only prepetition claims are subject to the bar date; these claims are against the Debtor rather than against the Debtor's estate. The holder of an administrative claim against the estate is not required to file a proof of claim but only a request for payment, which can be filed at any time. The IRS cites three cases in support of its contention that a proof of claim is not required. None of them is apposite to the facts of the case at bar. The first, In re Parker, Jr., 15 B.R. 980, 8 B.C.D. 688 (Bankr.E.D.Tenn.1981), aff'd., 21 B.R. 692 (E.D.Tenn.1982) is a Chapter 13 case with a narrow holding. "The debtor's attorney in *111 a Chapter 13 case need not file a proof of claim in order to be paid his fee for representing the debtors in the Chapter 13 case." 15 B.R. at 982. That case was never converted and did not raise the issue of finality that is present in the instant case. In re Taylor Transport, 28 B.R. 832, 10 B.C.D. 426 (Bankr.N.D.Ohio 1983) dealt with an unconverted Chapter 11 case wherein attorneys filed a proof of claim instead of an application for fees in an apparent attempt to confer party-in-interest status on themselves. This attempt was not sanctioned by the court. 28 B.R. at 835. At issue in the IRS's third case, In re Crisp, 92 B.R. 885 (Bankr.W.D.Mo.1988), was the distribution of funds for postconversion administrative expenses under the provisions of § 726(b). The IRS filed a claim for $59,987.72 to which the Trustee objected as untimely filed. The court concurred, not allowing any late filing by the IRS for Chapter 11 administrative expenses and allowing only $13,773.68 in administrative expenses which arose during the course of the Chapter 7 proceedings. Id. at 893. The court there was concerned only with allocation of funds to Chapter 7 administrative expenses with priority status over Chapter 11 expenses, since the assets were insufficient to satisfy even these superpriority claims in full. Such expenses are not the issue in the instant case. Trustee contends that while a proof of claim is not required for administrative expenses in a Chapter 11, upon conversion, the administrative claim in the Chapter 11 becomes a claim upon the Chapter 7 estate and, as such, is subject to the bar date established in the Chapter 7 proceedings. In support of his position, the Trustee cites §§ 101(9) and 101(4) to show that the IRS is a creditor with a claim. He further points out that § 348 of the Bankruptcy Code governs the effect of conversion of a case. Subsection (a) of that provision provides that the "Conversion of a case from a case under one chapter of this title to a case under another chapter of this title constitutes an order for relief under the chapter to which the case is converted . . ." 11 U.S.C. § 348(a). Under this analysis, the IRS administrative claim on the chapter 11 case arose prepetition and becomes a claim on the Chapter 7 estate subject to the bar date established in the Chapter 7 case. That the claim does not lose its status as an administrative claim with priority over other Chapter 11 unsecured claims is indicated by the fact that § 348(d), which provides special treatment for preconversion claims, expressly omits § 503(b) administrative claims from its treatment, thereby permitting them to retain their priority. See 8 Collier on Bankruptcy ¶ 1019.09 at 1019-18 (15th Ed.1988.). Neither § 348, which deals with conversion, nor §§ 503 and 507, which deal with administrative claims, are concerned with the time of filing. Matter of West Johnson Corp., 96 B.R. 182, 184 (Bankr.W.D. Wis.1988). For the procedural requirements the Court must turn to the rules. When a Chapter 11 case is converted to Chapter 7, the debtor in possession files a schedule of debts incurred in the Chapter 11 case. Bankr.R. 1019(6). Notice is then given to everyone scheduled to file a proof of claim. Bankr.R. 1019(7). The rule does not say that the court should notify them to file proofs of claim or requests for payment of administrative expenses. This rule says they are to be directed to file proofs of claims. In re Transouth Truck Equipment, Inc., 87 B.R. 937, 939, 17 B.C.D. 1230 (Bankr.E.D.Tenn.1988). Moreover, the rule specifically includes the federal government as one of the entities that must be notified to file a proof of claim. The drafters of Rule 1019(7) chose to require the various governments to file proofs of claims, even though most government tax claims will be entitled to administrative expense priority. Id. There are practical reasons in support of the above-outlined procedure. The newly-appointed Chapter 7 Trustee must be aware of all the debts owed by the debtor. Thoses listed on the original Chapter 11 petition will not include the debts incurred during the pendency of the Chapter 11 proceeding. Upon conversion the Chapter 11 expenses are no longer contingent but *112 are now definite in amount and can be filed as proofs of claims. West Johnson at 183-184. The bar date for filing proofs of claim serves the function of providing the debtor and creditors with finality. In re Johnson, 84 B.R. 492, 494 (1988). Application of the bar date to the IRS claim would also contribute to the general principle of interpreting the Bankruptcy Rules "to secure the just, speedy, and inexpensive determination of every case. . . ." Bankr.R. 1001. IRS was required to file a proof of claim of its administrative expenses by the bar date set in the Chapter 7 proceedings,. Because its claim was tardily filed, Trustee's objection is sustained. Since Bankruptcy is a court of law and equity, the Court will further examine the equities of the present situation to determine whether a different result should be obtained. IRS claims that it was unable to file a definite claim because Debtor in possession did not file tax returns from January 2, 1985 to June 19, 1985, when Debtor ceased operations. The Court, however, does not find Debtor's conduct a sufficient cause for failure of the IRS to file any claim. IRS could have timely filed an estimated claim subject to later amendment. It failed to do so. Instead, IRS waited more than three years after the bar date to file its estimated claim. Therefore, although Debtor in possession's conduct is not above reproach, neither is IRS's delay without fault. The Court need not reach the issue of the validity of the claim, having already found that it is untimely filed. IT IS SO ORDERED.

160 Ga. App. 59 (1981) 286 S.E.2d 41 REECE et al. v. THE STATE. 62257. Court of Appeals of Georgia. Decided September 8, 1981. Rehearing Denied October 15, 1981. William G. Posey, for appellants. William A. Foster III, District Attorney, Frank C. Winn, Assistant District Attorney, for appellee. QUILLIAN, Chief Judge. The defendants appeal their conviction for the sale of methaqualone, a Schedule II drug. See Georgia Controlled Substances Act, Code Ann. § 79A-807 (e) (1) (Ga. L. 1974, pp. 221, 235; as amended through 1980, pp. 1746, 1752). Two errors are enumerated: 1) "the trial court erred in refusing to allow the counsel for Appellants to examine the document used by the police officer to refresh his memory"; 2) "the trial court erred in the Poll of the jury, and refused to ask if the verdict was still the verdict of the jury." Held: 1. During cross-examination, counsel for the defendants was not entitled to examine the document utilized by the state's witness to refresh his memory. McEachin v. State, 245 Ga. 606 (5) (266 SE2d 210). Accord, Smith v. Smith, 222 Ga. 313, 315 (149 SE2d 683); Shouse v. State, 231 Ga. 716, 718 (203 SE2d 537); Jackson v. State, 242 Ga. 692 (251 SE2d 282). 2. The trial judge's poll of the jury was in substantial compliance with the requirements set forth in such cases as Wilson v. State, 93 Ga. App. 375 (2) (91 SE2d 854), and Burnett v. State, 240 Ga. 681, 688 (11) (242 SE2d 79). Judgment affirmed. McMurray, P. J., and Pope, J., concur.

573 F.2d 1303 U. S.v.Mercer No. 77-2074 United States Court of Appeals, Third Circuit 3/13/78 1 E.D.Pa. AFFIRMED

25 So.3d 1208 (2007) EX PARTE JOHNNY LUKE. No. 1070250 (CR-06-1346). Supreme Court of Alabama. December 7, 2007. Decision Without Published Opinion Certiorari denied.

897 A.2d 1059 (2006) 186 N.J. 603 HORNET EXPRESS v. ZURICH AMERICAN INSURANCE COMPANY. Supreme Court of New Jersey. April 13, 2006. Petition for certification denied.

536 F.Supp. 64 (1982) EQUAL EMPLOYMENT OPPORTUNITY COMMISSION, Plaintiff, v. UNION CAMP CORPORATION, et al., Defendants. No. K 79-303 CA 4. United States District Court, W. D. Michigan, S. D. January 5, 1982. *65 Martin A. Scott and William E. Miller, II, E.E.O.C., Detroit, Mich., for plaintiff. Barry Smith, Grand Rapids, Mich., Warren Woods and Leonard Appel, Washington, D. C., Jeffrey K. Ross, Chicago, Ill., for defendants. OPINION ON MOTION FOR ATTORNEY'S FEES MILES, Chief Judge. Defendants prevailed at trial in this matter, and now move for an award of attorney's fees against plaintiff Equal Employment Opportunity Commission, pursuant to 42 U.S.C. § 2000e-5(k). Plaintiff opposes the award of any fee, but has not made any objection to the specific hours and rates set forth in defendants' verified petition in the amount of $3,206.25 for local counsel and $25,335.25 for lead counsel, for a total amount of $28,541.50. The exercise of the Court's discretion in awarding an attorney's fee to a prevailing plaintiff is tightly circumscribed as to both award and amount, Newman v. Piggie Park Enterprises, 390 U.S. 400, 88 S.Ct. 964, 19 L.Ed.2d 1263 (1968); Northcross v. Board of Education of Memphis City Schools, 611 F.2d 624 (6th Cir. 1979), aff'd. 447 U.S. 911, 100 S.Ct. 2999, 64 L.Ed.2d 862 (1980). These cases, however, do not control the question of attorney's fees to a prevailing defendant, which is governed by Christiansburg Garment Co. v. E.E.O.C., 434 U.S. 412, 98 S.Ct. 694, 54 L.Ed.2d 648 (1978). A prevailing defendant may recover attorney's fees either under the Court's inherent equity power where the prosecution is in bad faith, or under 42 U.S.C. § 2000e-5(k) only where the Court finds "that the plaintiff's action was frivolous, unreasonable, or without foundation, even though not brought in subjective bad faith," 434 U.S. at 421, 98 S.Ct. at 700. Having considered the parties' four briefs on attorney's fees, the Court does not know and will not speculate as to whether this case was brought in subjective bad faith. However, the Court is persuaded, based upon the record, files, and four day trial, that this case was frivolous, unreasonable, and without foundation. An award of attorney's fees is therefore appropriate. Plaintiff's case was that the charging party, Gilbert Sanchez, was discharged because of his Hispanic race and in retaliation for filing a discrimination charge with the Michigan Civil Rights Commission (MCRC). However, the MCRC had three times dismissed Sanchez's complaints, once at his request and twice because investigation disclosed no evidence of unlawful discrimination. In addition, Sanchez filed five separate grievances on the same factual basis, all of which were found to be groundless by *66 an arbitrator after a full hearing and the consideration of briefs. Four prior contrary determinations, standing alone, would not necessarily require the conclusion that the EEOC suit was groundless, had the EEOC brought forward any evidence that Sanchez's discharge was discriminatory or retaliatory. If there was any such evidence, the EEOC had ample opportunity to bring it out at the four day trial, three days of which were taken up by plaintiff's case. If there was any such evidence, the EEOC ought to have known about it after four prior proceedings, nineteen months of discovery, and numerous depositions. Yet the overwhelming evidence at trial establishes that Sanchez's discharge was the inevitable result of his conduct on the job, as shown by his disciplinary record including his being disciplined 22 times by 11 different supervisors, and suspended a total of 37 days, before his discharge. Several months before trial, defendants' counsel wrote plaintiff, offering to settle the case if any verifiable evidence of discrimination was called to his attention, but indicating his intention to seek an award of attorney's fees if the matter went to trial. EEOC did not respond. The bulk of the requested attorney's fees were incurred in subsequently trying the case. The only hope for EEOC's case was that the Court would reject the overwhelming evidence, accept what little evidence there was favorable to the EEOC, and infer discrimination at every turn to fill in the evidentiary gaps. No reasonable attorney could have hoped to prevail as plaintiff in this case. It is one thing, as the Supreme Court cautioned, to engage in post hoc reasoning that failure to prevail implies that action is unreasonable or without foundation, 434 U.S. at 422, 98 S.Ct. at 700. But it is quite another to decline to sanction the lengthy pursuit of a case that was obviously hopeless from the beginning. This is not a case where the plaintiff only discovered lack of merit at trial. The prior determinations preclude such an argument. Even were such the case, plaintiff chose, despite notice, to pursue the case through trial long after discovery should have made it obvious that there was no case to pursue. This matter is a prime example of an attitude on the part of government agencies, the EEOC in particular, which this Court has viewed with alarm from time to time. Here the charging party cries discrimination and the EEOC, despite an utter lack of evidence, sympathetically files suit, hoping that defendant will surrender rather than go to trial. When, as here, defendant refuses to knuckle under, EEOC goes to a lengthy trial, tries the case poorly, loses, and hopes a lesson has been taught. A better case for an award of attorney's fees could not be made. Plaintiff's brief argues that a prima facie case was made out. However, this was done by stipulation, and the case was tried solely on the issue of pretext. It was also stipulated that defendants could meet their burden of offering a non-discriminatory explanation for the discharge. To argue that a case is not frivolous because plaintiff can meet his first shifting burden, but obviously cannot meet his ultimate burden of persuasion, is nonsensical. II. The remaining question is the amount of the fee award. Although plaintiff makes no objection to the schedule of hours, rates, and fees submitted by defendants, the Court is constrained to award only a reasonable fee, and $28,541.50 seems a bit high based on the Court's experience. In part, this is attributable to defendants selecting lead counsel from Chicago where rates are somewhat higher than in the Western District of Michigan, also necessitating the use of local counsel. The Court, like plaintiff, does not question the hours claimed, as they seem reasonable in light of the length of discovery and trial, except that it does not seem appropriate to award an attorney's fee for preparing the motion for attorney's fees, thus the claimed hours for October and November, 1981 are disallowed. As to the rates, the following are reasonable in light of the Court's experience *67 and the rates prevailing in this district: attorney Ross's hours are compensated at a rate of from $65 to $80 an hour, consultations with senior members of his firm are compensated at $80 to $85 an hour, paralegals are compensated at $20 an hour, and junior attorneys are compensated at $50 an hour. Attorney Smith's hours as local counsel, the bulk of which are for standing by at trial, are compensated at a rate of from $65 to $70 an hour. The resulting computation is somewhat cumbersome: Miller, Johnson, Snell & Cummiskey (Barry R. Smith) MONTH RATE HOURS FEE 6/79 $65 3.75 $ 243.75 12/79 $65 .25 16.25 4/80 $70 .75 52.50 6/80 $70 1.75 122.50 8/80 $70 .25 17.50 12/80 $70 .25 17.50 1/81 $70 1.75 122.50 2/81 $70 5.50 385.00 3/81 $70 .25 17.50 4/81 $70 25.25 1767.50 ________ TOTAL $2762.50 ======== Seyfarth, Shaw, Fairweather & Geraldson MONTH MONTHLY ATTORNEY RATE HOURS FEES TOTAL 6/79 Ross $65 5.50 $357.50 Parsons 75 .25 18.75 Kaplan 80 .25 20.00 $396.25 12/79 Ross 65 .50 32.50 32.50 1/80 Ross 65 .25 16.25 16.25 3/80 Ross 65 1.50 97.50 97.50 4/80 Ross 70 1.00 70.00 Sullivan 80 .25 20.00 90.00 5/80 Ross 70 6.75 472.50 Warner 85 1.25 106.25 578.75 6/80 Ross 70 1.00 70.00 70.00 7/80 Ross 75 15.25 1143.75 1143.75 10/80 Ross 75 .50 37.50 37.50 12/80 Weise 80 .25 20.00 20.00 1/81 Ross 80 23.75 1900.00 Denny 20 12.75 255.00 Warner 85 1.25 106.25 2261.25 2/81 Ross 80 26.75 2140.00 Duff 20 5.50 110.00 Warner 85 .50 42.50 Kaplan 85 .25 21.25 2313.75 3/81 Ross 80 42.75 3420.00 Duff 20 .50 10.00 Weise 85 1.00 85.00 Burns 50 2.00 100.00 3615.00 4/81 Ross 80 96.25 7700.00 Duff 20 6.00 120.00 Wagner 20 .50 10.00 Burns 50 16.50 825.00 Skoning 85 .75 63.75 8718.75 5/81 Ross 80 20.25 1620.00 1620.00 6/81 Ross 80 2.50 200.00 200.00 __________ TOTAL $21,211.25 ========== Lead Counsel $21,211.25 Local Counsel 2,762.50 __________ TOTAL FEE $23,973.75 Conclusion For the reasons stated, defendants are entitled to an award of attorney's fees against plaintiff in the amount of $23,973.75. IT IS SO ORDERED.

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE AT KNOXVILLE Assigned on Briefs September 28, 2004 STATE OF TENNESSEE v. JASON D. LOVE Direct Appeal from the Circuit Court for Blount County Nos. C-14464, C-14465 D. Kelly Thomas, Jr., Judge No. E2003-02777-CCA-R3-CD - Filed November 29, 2004 The defendant, Jason D. Love, appeals the trial court’s denial of alternative sentences. The defendant pled guilty to three counts of delivery of less than .5 grams of a Schedule II controlled substance, a Class C felony. Following a hearing, the trial court denied alternative sentencing and ordered the defendant to serve his sentences in confinement. After careful review, we affirm the trial court’s denial of alternative sentencing. Tenn. R. App. P. Appeal as of Right; Judgments of the Circuit Court Affirmed JOHN EVERETT WILLIAMS, J., delivered the opinion of the court, in which JOSEPH M. TIPTON and DAVID H. WELLES, JJ., joined. Steve McEwen (on appeal), Mountain City, Tennessee, and Raymond Mack Garner (at trial and on appeal), District Public Defender, for the appellant, Jason D. Love. Paul G. Summers, Attorney General and Reporter; Kathy D. Aslinger, Assistant Attorney General; Michael L. Flynn, District Attorney General; and Michael A. Gallegoes, Assistant District Attorney General, for the appellee, State of Tennessee. OPINION Facts and Procedural History The defendant, Jason D. Love, entered a plea of guilty to three counts of delivery of less than .5 grams of a Schedule II controlled substance, stemming from two separate indictments that were later combined. The defendant received concurrent four-year sentences, with the manner of service to be determined by the court, and a $2000 fine on each count. The defendant timely appeals, averring that the trial court erred in denying him alternative sentences. We affirm the sentences imposed by the trial court. At the sentencing hearing, the defendant testified on his own behalf. He stated that he was neither a drug addict nor had he sold drugs before or since his arrest. He further stated that his motivation for selling drugs was to make extra money so that he and his girlfriend could move out of the community in which they lived. While he admitted violating his probation on previous occasions, he contended that he was more mature and had “learn[ed his] lesson.” He testified that he lived with his girlfriend’s parents and periodically helped them around the house with odd jobs and that he assisted his girlfriend’s father in his charitable work with the Jaycees. On cross-examination, the defendant admitted that he had several prior convictions and that he had committed new crimes while on probation for those convictions. When questioned concerning a drug test that yielded positive results for cocaine and morphine, the defendant admitted that he had obtained hydrocodone from a friend to ease the pain from a knee injury he received, but denied having used cocaine. Finally, the defendant denied stating to a presentence investigator that he had used drugs two months prior to the hearing. The defendant also presented the testimony of his girlfriend’s mother, with whom he had been living for some time. She stated that she had known the defendant for three years, the length of time the defendant had been dating her daughter. The witness testified that she and her daughter could assist the defendant in complying with probation by transporting him and otherwise supporting his efforts. She also corroborated the defendant’s testimony that he helped around the house and aided her husband in his activities with the Jaycees organization. On cross-examination, the witness admitted that she had not been aware of the defendant’s involvement with drugs prior to his arrest; she further admitted that she might not be aware of all of his activities. The defendant emphasized the fact that he did not have any new convictions since his arrest on the current charges. The defendant further asserted that he was the “smallest of street dealers” and was not a drug user. Moreover, the defendant pointed out that he had never been convicted of a felony until the present convictions and that none of his prior convictions were for violent crimes. Finally, the defendant averred that because of the positive environment in which he lived, he was a good candidate for rehabilitation. The State argued that the drug offenses should not be depreciated by merely putting the defendant on probation; moreover, it averred that the defendant should be incarcerated because a deterrent was needed in the defendant’s neighborhood to curb similar future activities. Further, the State argued that measures less restrictive than confinement had proven unsuccessful with the defendant, as he had showed an unwillingness to comply with the conditions of probation in the past; therefore, the State contended such measures would be similarly ineffective in this case. The trial court considered several issues in coming to the determination that alternative sentencing would not be appropriate in this case. Specifically, the court cited the lengthy criminal history of the defendant, including criminal trespass, driving on a revoked license, and multiple convictions for assault. The court further noted the fact that the defendant, while on probation for these previous offenses, violated the conditions of his probation on several occasions. Finally, the court accorded great weight to the fact that the defendant had not taken any affirmative steps to convince the court he was an appropriate candidate for alternative sentencing. The court found that the defendant was neither gainfully employed nor was he -2- seeking employment; he was not pursing his GED or any other form of formal training; and he had not attempted to obtain a driver’s license. The trial judge particularly noted, [T]he only argument that’s put forth supporting probation and Mr. Love’s rehabilitation potential are things that he didn’t do. He hasn’t committed new criminal offenses, which is significant. But other than that, there are very few people who come to court in a sentencing hearing and have not done one single thing to indicate that they would be appropriate for probation. But you haven’t. ... I think the likelihood of your rehabilitation, with your present frame of mind, is very, very poor. As long as you have someone who is willing to do everything for you, you’re not going to do anything for yourself. Proceeding on this reasoning, the trial court denied the defendant alternative sentencing. The defendant timely appeals the findings of the trial court, contending the court erred in denying him an alternative sentence. Analysis This Court’s review of the sentence imposed by the trial court is de novo with a presumption of correctness. Tenn. Code Ann. § 40-35-401(d). This presumption is conditioned upon an affirmative showing in the record that the trial judge considered the sentencing principles and all relevant facts and circumstances. State v. Pettus, 986 S.W.2d 540, 543 (Tenn. 1999). If the trial court fails to comply with the statutory directives, there is no presumption of correctness and our review is de novo. State v. Poole, 945 S.W.2d 93, 96 (Tenn. 1997). The burden is upon the appealing party to show that the sentence is improper. Tenn. Code Ann. § 40-35-401(d), Sentencing Commission Comments. In conducting our review, we are required, pursuant to Tennessee Code Annotated section 40-35-210(b), to consider the following factors in sentencing: (1) [t]he evidence, if any, received at the trial and the sentencing hearing; (2) [t]he presentence report; (3) [t]he principles of sentencing and arguments as to sentencing alternatives; (4) [t]he nature and characteristics of the criminal conduct involved; (5) [e]vidence and information offered by the parties on the enhancement and mitigating factors in §§ 40-35-113 and 40-35-114; and (6) [a]ny statement the defendant wishes to make in the defendant’s own behalf about sentencing. Under the Criminal Sentencing Reform Act of 1989, trial judges are encouraged to use alternatives to incarceration. An especially mitigated or standard offender convicted of a Class C, D or E felony is presumed to be a favorable candidate for alternative sentencing options in the absence of evidence to the contrary. Tenn. Code Ann. § 40-35-102(6). However, this presumption is not available to a defendant who commits the most severe offenses, has a criminal history showing clear disregard for the laws and morals of society, and has failed past efforts at rehabilitation. Id. § 40-35-102(5); State v. Fields, 40 S.W.3d 435, 440 (Tenn. 2001). The court should also examine the defendant’s potential for rehabilitation, or lack thereof, when considering whether alternative sentencing is appropriate. Tenn. Code Ann. § 40-35-103(5). -3- Sentencing issues must be decided in light of the unique facts and circumstances of each case. See State v. Taylor, 744 S.W.2d 919, 922 (Tenn. Crim. App. 1987). The record reflects that the trial court considered the sentencing principles and all relevant facts and circumstances; therefore, our review is de novo with a presumption of correctness. Initially, we note that the lengthy criminal history of the defendant, along with his failure to comply with conditions of probation in the past, is sufficient to overcome the presumption of alternative sentencing. See, e.g., State v. Debra Foster, No. E2002-01825-CCA- R3-CD, 2003 Tenn. Crim. App. LEXIS 493 (Tenn. Crim. App., at Knoxville, June 4, 2003). Moreover, the trial court pointed out several other facts that weaken the defendant’s case for alternative sentencing. Particularly, the court noted, and we agree, that the defendant has not taken any affirmative steps to position himself for rehabilitation. Although the defendant states that he seeks to take his life in a better direction, he has failed to put any action behind his words. We are also persuaded by the trial court’s reasoning that, while the environment in which he lives is positive, it enables him to remain unemployed and continue to be irresponsible in his actions. We hold that the trial court appropriately analyzed the particular facts of this case, and we agree with the trial court’s reasoning and its finding that the defendant is not an appropriate candidate for alternative sentencing. Conclusion We affirm the trial court’s denial of alternative sentencing. ___________________________________ JOHN EVERETT WILLIAMS, JUDGE -4- 

491 F.3d 933 Darin WINTERS, as Personal Administrator of the Estate of Donald Winters, Appellant,v.ARKANSAS DEPARTMENT OF HEALTH AND HUMAN SERVICES; Keith Ferguson, Sheriff, in his official capacity as Sheriff of Benton County, Arkansas; John Selig, Chief Executive Officer of DHS, Appellees. No. 06-2787. United States Court of Appeals, Eighth Circuit. Submitted: March 14, 2007. Filed: June 29, 2007. Counsel who presented argument on behalf of the appellant was Luther Oneal Sutter, Little Rock, Arkansas. Counsel who presented argument on behalf of the appellees Arkansas Department of Health and Human Services and John Selig is Rick D. Hogan, Little Rock, Arkansas. Counsel who presented argument on behalf of appellee Keith Ferguson is Michael R. Rainwater, Little Rock, Arkansas. Before COLLOTON, HANSEN, and GRUENDER, Circuit Judges. HANSEN, Circuit Judge. 1 Mr. Darin Winters, as personal administrator of the estate of his father, the late Mr. Donald Winters (whom we will refer to as "Mr. Winters"), brought suit alleging claims pursuant to 42 U.S.C. § 1983; Title II of the Americans With Disabilities Act of 1990 (ADA), 42 U.S.C. § 12132; and Section 504 of the Rehabilitation Act of 1973, 29 U.S.C. § 794, after his father died while a pretrial detainee in the county jail on a state law charge of criminal trespass. The defendants remaining in the lawsuit are the Arkansas Department of Health and Human Services (DHS), its chief executive officer, and the Benton County Sheriff in his official capacity. Following a bench trial, the district court1 entered a judgment for the defendants, accompanied by a lengthy and thoughtful discussion of the facts, as well as a careful consideration of the applicable law. See Winters v. Ark. Dep't of Health and Human Servs., 437 F.Supp.2d 851 (E.D.Ark.2006). Darin Winters appeals. 2 "[W]e review the district court's factual findings for clear error and its conclusions of law de novo." Gibson v. Caruthersville Sch. Dist. No. 8, 336 F.3d 768, 772 (8th Cir.2003). The district court's opinion provides a detailed discussion of all the facts of this case, see Winters, 437 F.Supp.2d at 855-88, which we will only summarize. Mr. Winters was an acutely mentally ill person who died in a county jail on January 1, 2003, while being held on a charge of criminal trespass. The district court found that the cause of his death was a previously undiagnosed physical ailment of "peritonitis due to a perforated ulcer that more likely than not perforated sometime after his arrest on December 28, 2002." Id. at 876. The district court also found that Mr. Winters' mental illness may have played a role in his death by rendering meaningful communication with the medical professionals who treated him almost impossible. Absent accurate information from the patient, the medical personnel were denied information that might have aided in their ability to timely diagnose the perforated ulcer. 3 Mr. Winters also had "multiple blunt force injuries of head, trunk and extremities including fractured ribs." Id. at 875. Mr. Winters himself caused the contusions, abrasions, and fractured ribs by striking his own head, torso, and extremities against the holding cell's toilet and by resisting and struggling against restraints. The evidence supports the district court's finding that these injuries were not the cause of his death. The district court concluded that the Sheriff and his deputies "did everything within reason to protect Mr. Donald Winters from injuring himself." Id. at 876. 4 On the evening of December 28, 2002, police officers were called because Mr. Winters, who had a history of two prior psychotic episodes requiring hospitalization and treatment, was persistently banging on a neighbor's door and would not leave. The officers, aware of Mr. Winters' mentally ill condition, were unable to establish a meaningful dialogue with him. They advised him to go home or he would be arrested for criminal trespass, but Mr. Winters did not respond to the officers, except to tell them that they were going to be executed. It was apparent that he was mentally ill and would not go home. 5 The officers arrested Mr. Winters on a charge of criminal trespass and transported him immediately to the Bates Medical Center to have him examined and admitted into the psychiatric ward. He had to be restrained during the examination and did not communicate meaningfully concerning his health. The examining physician would not admit him into Bates, even though Mr. Winters was considered a danger to himself and others, because the psychiatric ward at Bates was not equipped to handle violent and aggressive patients. The physician at Bates discharged Mr. Winters to the custody of the police, and he was taken to the jail. 6 After Mr. Winters injured himself by beating his head, chin, and elbows against the toilet, officers placed Mr. Winters in a detoxification cell from which they could monitor his actions by video. He appeared before a magistrate judge on the evening of Sunday, December 29, 2002. The magistrate judge found that probable cause supported the criminal trespass charge, set bail at $500, and ordered Mr. Winters to appear in the Benton County District Court on January 5, 2003. 7 The next morning, Monday, December 30, 2002, Mr. Winters began standing on a bench in the detox cell and exposing himself in front of the window. He was also masturbating and smearing feces around the cell. He managed to take off a suicide smock and continued exposing himself. Mr. Winters refused to eat or drink water, accusing the officers of giving him acid. His son Darin visited him and convinced him to drink three or four cups of water, but after drinking it, Mr. Winters held his right side and complained that it was acid. The officers advised Darin that he could take his father out of the jail if he would assume responsibility for him, but Darin indicated that he was unable to handle his father in this condition. He signed a petition for the involuntary commitment of Mr. Winters that day. 8 On Tuesday, December 31, 2002, following an involuntary civil commitment hearing, the presiding judge committed Mr. Winters to the Arkansas State Mental Health System. Because no regional inpatient facility could accommodate an acutely mentally ill patient, the court specified that Mr. Winters would be sent to the Arkansas State Hospital in Little Rock for seven days of evaluation and assessment to determine whether treatment for mental illness would be appropriate. The officers then transported Mr. Winters directly to the Ozark Guidance Center, which was the designated local receiving facility. Ozark staff determined that no beds were currently available at the State Hospital in Little Rock, or at any other state facility that accepts mental health commitments, and accordingly, they placed Mr. Winters' name on a waiting list for admittance to the State Hospital. A physician at Ozark administered two injections to calm Mr. Winters, and after an examination, returned him to the custody of the officers, noting that Mr. Winters appeared to be severely dehydrated. Mr. Winters fell asleep on his return to the county jail to await placement in the State Hospital. 9 As soon as the jail's physician learned of the possible dehydration, officers transported Mr. Winters back to the emergency room at Bates Medical Center. The examining physician found Mr. Winters to be mildly dehydrated and administered two liters of fluids. The physician found no significant dehydration and no indication of any serious medical problem. He was aware that the staff at Ozark had already evaluated Mr. Winters, and Bates was not equipped or staffed to deal with acutely psychotic patients. Accordingly, when the physician concluded that Mr. Winters was in a stable physical condition, he released him to the custody of the Sheriff. 10 Early the next morning, on January 1, 2003, Mr. Winters refused to take the medicine that had been prescribed for him at Ozark. He appeared to be sleeping on a mat in the middle of the cell, fully clothed, from 8 to 10 a.m. Around 2:30 p.m., he was observed naked in the cell and on his knees leaning over. He was sitting up around 3:30 p.m. but was discovered on his side and with no pulse around 4:20 p.m. Attempts to revive him were unsuccessful. 11 Experts testified about the need for more psychiatric beds in inpatient facilities. A private inpatient facility known as Highland Hall had previously accepted patients who came to Ozark Guidance Center needing psychiatric services, but its doors closed in April 2002 due to financial considerations. After this facility closed, there were inadequate local facilities to attend to the needs of acutely mentally ill patients, and the State Hospital became overburdened as regional facilities closed. Expert testimony indicated that absent an appropriate inpatient facility capable of taking on the patients from this region, Ozark had no choice but to return patients to jail if the State Hospital had no open beds. Several task force reports indicated that the state government was aware of the problems created by the shortage of beds for mentally ill citizens. The state legislature appropriated funds for some 16 additional beds after Mr. Winters' death, but experts opined that this remained inadequate to meet existing needs. 12 The district court ruled in favor of the defendants, finding no official capacity liability on the part of the Sheriff or the director of the DHS because their actions were not the proximate cause of Mr. Winters' death, and there was no policy or custom to deprive acutely mentally ill citizens of placement in inpatient mental health treatment facilities. See Grayson v. Ross, 454 F.3d 802, 810-11 (8th Cir.2006) (stating the standard for official-capacity liability under § 1983). The district court found that the Sheriff's officers had done everything they could to protect Mr. Winters from injuring himself and that they were not deliberately indifferent to his serious medical needs. Neither the Sheriff nor the doctors who had examined Mr. Winters had suspected that a delay in admitting him to the State Hospital would adversely affect either his physical or mental health. 13 The district court also found no liability under the ADA or the Rehabilitation Act for failure to provide mental health services. While the failure to provide reasonable medical care to a pretrial detainee on the basis of a disability could be considered discrimination, the district court found that there was no evidence that Mr. Winters had been denied medical care. The Sheriff's Office had attempted to obtain care and proper placement for Mr. Winters on three occasions. The district court rejected as inapplicable the plaintiff's argument based on Olmstead v. L.C. ex rel. Zimring, 527 U.S. 581, 119 S.Ct. 2176, 144 L.Ed.2d 540 (1999) (plurality), that Mr. Winters did not receive an appropriate placement under the ADA because jail is not the least restrictive placement for a person with a mental illness. The Olmstead case dealt with discrimination arising from isolating persons with mental illness in an institution when the state's own treatment professionals have determined that a community setting would be appropriate. See 527 U.S. at 602, 119 S.Ct. 2176. The district court properly distinguished the situation at hand, noting that Mr. Winters was awaiting transfer to the State Hospital for a decision about his appropriate placement, and the staff at Ozark had returned him to the custody of the Sheriff until there was an open bed at the State Hospital because no other treatment facility could take him. (He was still under an order requiring him to post bail on the trespass charge.) No treatment professionals had yet had the opportunity to evaluate him or recommend a placement for him and consequently, the least restrictive placement standard did not come into play. See Winters, 437 F.Supp.2d at 892-96. 14 On appeal, Darin Winters asserts that his father did not receive a proper placement under the ADA because incarceration is not the least restrictive environment for a mentally ill patient and that the actions and omissions of the appellees amounted to deliberate indifference under § 1983. At oral argument, Darin Winters' counsel clarified that he is not appealing the district court's decision that Mr. Winter's death was not caused by deliberate indifference. Instead, he asserts that the officials were deliberately indifferent and discriminated against Mr. Winters while he was incarcerated prior to his death. 15 No party to this suit suggests that jail is an appropriate treatment facility for a mentally ill person. The district court agreed that county "jails should not become our mental hospitals by default," but aptly recognized that the solution to the problem of an inadequate number of available mental health treatment facilities requires decisions of how to best allocate available resources, and those decisions belong to the legislative branch. Id. at 904. In this case, although Mr. Winters was arrested on a criminal charge, the Sheriff's Office immediately sought treatment for him and attempted to transport him to an appropriate facility on several occasions. Mr. Winters was not denied admittance to the State Hospital on the basis of his disability, but for a lack of available space. While a policy of same-day or immediate admission into an appropriate mental health facility may be desirable in the best of all worlds, it is not mandated by the ADA, the Rehabilitation Act, or the Constitution, and it may not always be feasible given a state's limited resources. We agree with the district court's conclusion that Mr. Winters was not discriminated against on the basis of his disability. 16 Additionally, the district court correctly concluded that there was no deliberate indifference to Mr. Winters' serious medical needs, and neither was there a policy or custom to deprive mentally ill citizens of treatment. The Sheriff's officers attempted to get Mr. Winters into a treatment facility and took measures to protect him from personal injury when he began harming himself. We agree with the district court's conclusion "that the Sheriff had no option but to maintain custody of Donald Winters in order to protect him and others because neither Ozark Guidance Center, Bates Hospital, Darin Winters or the [Arkansas State Hospital] would accept custody of him." Id. at 897. 17 Having carefully reviewed the record, we conclude that the district court's findings of fact are not clearly erroneous and that the district court's analysis is correct, thorough, and well-reasoned. Accordingly, we affirm the judgment of the district court. See 8th Cir. R. 47B. Notes: 1 The Honorable G. Thomas Eisele, United States District Judge for the Eastern District of Arkansas

728 So.2d 611 (1998) Ex parte CITY OF GUNTERSVILLE and the Municipal Workers' Compensation Fund, Inc. (Re City of Guntersville and the Municipal Workers' Compensation Fund, Inc. v. Maylond T. Bishop). 1961595. Supreme Court of Alabama. May 22, 1998. *612 Tom Burgess and Murray H. Gibson, Jr., of Burgess & Hale, L.L.C., Birmingham, for petitioners. Robert W. Lee, Jr., and Ashley P. Norton of Robert W. Lee & Associates, P.C., Birmingham; and Wayne Wolfe of Wolfe, Jones & Boswell, Huntsvillle, for respondent. John J. Coleman III, Gregory C. Cook, and Tom S. Roper of Balch & Bingham, L.L.P., Birmingham, for amicus curiae Alabama Self-Insured Workers' Compensation Fund. Rhonda Pitts Chambers of Rives & Peterson, P.C., Birmingham, for amicus curiae Alabama Council of Association Workers Compensation Self Insurers Funds. MADDOX, Justice. The central issue presented in this case is whether § 25-5-77(a), Ala.Code 1975, requires an employer and/or its workers' compensation insurance carrier to furnish a disabled claimant with a motor vehicle. That section provides, in part: "In addition to the compensation provided in this article and Article 4 of this chapter, the employer ... shall pay an amount not to exceed the prevailing rate or maximum schedule of fees as established herein of reasonably necessary medical and surgical treatment and attention, physical rehabilitation, medicine, medical and surgical supplies, crutches, artificial members, and other apparatus as the result of an accident arising out of and in the course of the employment, as may be obtained by the injured employee...." § 25-5-77(a), Ala.Code 1975 (emphasis added). The central issue, therefore, may be broken down into two principal subparts: (1) Does a motor vehicle come within the term "other apparatus" as that term is used in § 25-5-77(a)? and, if so, (2) Is the purchase of a motor vehicle in this case a "reasonably necessary" expense within the meaning of that Code section? We conclude that a motor vehicle does not come within the term "other apparatus" as that term is used in this statute. Because of this conclusion, we do not address whether *613 the purchase of a motor vehicle would be "reasonably necessary" in this case. Facts and Procedural History Maylond T. Bishop was a policeman employed by the City of Guntersville. On July 16, 1993, Bishop was shot in the back while he was on duty. As a result, he was rendered paraplegic, and he is now confined to a wheelchair. He sued for workers' compensation benefits, and on June 16, 1995, the trial court entered findings of fact, conclusions of law, and a judgment in Bishop's lawsuit against the City and its workers' compensation insurance carrier, Municipal Workers' Compensation Fund, Inc. (collectively, the "City"). Bishop and the City had stipulated, and the trial court found: (1) that Bishop was an employee of the City of Guntersville when he sustained his injury; (2) that the injury arose out of and in the course of his employment; (3) that Bishop is permanently and totally disabled as a result of the injury; (4) that the City received prompt and immediate notice of the injury; and (5) that all Bishop's medical expenses and temporary total disability benefits have been, or will be, paid. As a result, the trial court entered a final judgment setting Bishop's weekly lifetime benefit payments at $328.87. Before the trial court entered its judgment, Bishop had purchased a Chevrolet van for approximately $24,500. After the trial court entered its judgment, Bishop requested that the City reimburse him for the full purchase price of the van. The City agreed to pay for the cost of installing a wheelchair lift in the van, but denied that it was responsible for the full purchase price of the vehicle. The City subsequently sued Bishop in the Marshall Circuit Court, seeking a judgment declaring that § 25-5-77(a) did not require the City to reimburse Bishop for the purchase price of the van. The circuit court entered a judgment declaring that the City was responsible for the full purchase price of the van. The Court of Civil Appeals affirmed. City of Guntersville, Municipal Workers' Compensation Fund v. Bishop, 728 So.2d 605 (Ala.Civ.App.1997). We granted certiorari review. In support of his contention that he should be reimbursed for the price of the van, Bishop presented letters from two physicians, both of whom are associated with the Department of Rehabilitative Medicine at the University of Alabama at Birmingham ("UAB") School of Medicine. Both physicians wrote, in essence, that it was necessary for Bishop to have a van with a wheelchair lift to facilitate transportation. Specifically, Dr. Laura Kezar[1] wrote, in part: "I am currently following [Mr. Bishop] for chronic pain syndrome following spinal cord injury. His case has been complicated by the development of severe overuse syndromes involving the bilateral upper extremities, right worse than left. He has recently undergone carpal tunnel release at the right wrist. Because of these problems which are a direct result of his spinal cord injury, I feel it is medically necessary that he obtain a van with a wheelchair lift in order to restore his mobility to the highest possible level of independent functioning." (Emphasis added.) Dr. C.T. Huang[2] wrote: "Mr. Bishop was injured in 1993 resulting in T11 paraplegia, complete. As a result of this permanent injury, the patient needs a van for transportation." (Emphasis added.) At the trial of this case, the parties entered into the following joint stipulation of facts: "1. On July 16, 1993, [Bishop] was employed as a police officer with the City of Guntersville. On that day, [Bishop] was shot in the back by an assailant while [Bishop was] performing his duties as a police officer. As a result of the gunshot wound, [Bishop] was rendered paraplegic and is wheelchair bound. "2. On June 16, 1995, [the Marshall Circuit Court] entered a final judgment in *614 Civil Action No. CV-94-374 entitling [Bishop] to receive lifetime [workers'] compensation benefits from [the City] in the sum of $328.87 per week. The Court also ordered [the City] to pay all reasonable and necessary medical expenses in connection with [Bishop's] injuries as required by § 25-5-77. "3. In order to facilitate his transportation in a wheelchair, [Bishop] on or about March 29, 1995, purchased a 1994 Chevrolet van for approximately $24,500.00. "4. [Bishop] asserts that the van is a `reasonable and necessary' medical expense, and has requested that the [City] reimburse him for the full purchase price of the van. "5. The [City] has paid to have a wheelchair lift installed in the van, but denies any obligation pursuant to the Alabama Workers' Compensation Act to pay for the van itself. "6. [Bishop] has supported his request with letters from his two physicians stating that the van is medically necessary for `transportation,' including regularly scheduled visits to his doctors for the purpose of monitoring his medical condition, and for restoring [Bishop's] mobility `to the highest possible level of independent functioning.' Other than as stated, there are no... medical purposes for the van. "7. The parties agree that the van has made it much more convenient to transport [Bishop] from place to place, and that it has significantly increased [Bishop's] mobility and sense of independence. "8. The parties disagree [as to whether] the van is medically necessary or constitutes a medical `apparatus' within the meaning of § 25-5-77(a), [Ala.Code 1975]." (Emphasis added). The trial court entered a judgment declaring that the City was responsible for the full purchase price of the van. In affirming, the Court of Civil Appeals, noting that it was bound to "liberally construe the Act," 728 So.2d at 610, determined that the van came within the statutory term "other apparatus" and that it was "reasonably necessary" under the facts of this case. 728 So.2d at 606. The two dissenting judges wrote, however, that, while they "agree[d] that a wheelchair lift would be an `other apparatus' under Ala. Code 1975, § 25-5-77(a), [they did not] agree that the Legislature intended that the entire cost of a wheelchair-accessible van be included in that term." 728 So.2d at 611. Consequently, they would have adopted the reasoning of the West Virginia Supreme Court of Appeals in Crouch v. West Virginia Workers' Compensation Comm'r, 184 W.Va. 730, 403 S.E.2d 747 (1991). In that case, the West Virginia court held that because the injured employee testified that he would have owned an automobile had he not been injured, the value of a mid-priced automobile of the same model year as the van the employee purchased should have been deducted from the amount awarded by the court as compensation for the purchase price of the van. Discussion This case presents a question of first impression: Does a motor vehicle come within the meaning of the term "other apparatus" as that term is used in § 25-5-77(a)? The authors of a workers' compensation treatise have written the following regarding the subject: "[T]he employer is liable for medical supplies and any artificial apparatus incident to the effective treatment of the injury. Typically, this liability has included, but is not limited to, the following: new or replacement artificial members, crutches, medication, general medical and surgical supplies, and like materials." Jack B. Hood, Benjamin A. Hardy, Jr., and E.J. Saad, Alabama Workers' Compensation § 10-3 (3d ed.1993) (footnotes omitted; emphasis added). Whether a motor vehicle may be included in the same category as crutches, artificial limbs, or a wheelchair lift is not a question one would intuitively answer in the affirmative. However, the question here is what the Legislature intended the term "other apparatus" to mean. To determine what the Legislature intended, we must examine both the history of the workers' compensation statute and the policies underpinning it. Although this issue is one of first impression in this Court, it has been considered and *615 decided by the courts of several other states with similar statutes. Those courts that have considered this issue appear to be divided into three groups: (1) those holding that the purchase price of a motor vehicle is not compensable; (2) those holding that it is compensable; and (3) those holding that, while the full purchase price may not be compensable, some part of it may be. Courts in Pennsylvania, Colorado, South Carolina, Maryland, New York, and North Carolina have determined that the purchase price of a motor vehicle is not reimbursable under those states' respective workers' compensation statutes. See Bouge v. SDI Corp., Inc., 931 P.2d 477 (Colo.App.1996) (statute providing that the employer "shall furnish... medical, hospital, and surgical supplies, crutches and apparatus" does not include a van, because a van does "nothing to care for or remedy the quadriplegia"); Petrilla v. Workmen's Compensation Appeal Board, 692 A.2d 623 (Pa.Commw.Ct.1997) (statute requiring employer to pay for "medicines and supplies, hospital treatment, services and supplies and orthopedic appliances and prostheses" does not require employer to pay for van, although modifications to van to allow claimant to use it are covered); Strickland v. Bowater, Inc., 322 S.C. 471, 472 S.E.2d 635 (Ct.App.1996) (statute providing that an employer must pay for "other treatment or care" does not require that an employer pay for a van); R & T Constr. Co. v. Judge, 323 Md. 514, 594 A.2d 99 (1991) (statute requiring employer to provide "other prosthetic appliance[s]" does not require employer to pay for van); McDonald v. Brunswick Elec. Membership Corp., 77 N.C.App. 753, 336 S.E.2d 407 (1985) (neither statutory provision requiring employer to provide "other treatment or care" nor provision requiring it to provide "rehabilitative services" required employer to pay for van); Nallan v. Motion Picture Studio Mechanics Union, Local No. 52, 49 A.D.2d 365, 375 N.Y.S.2d 164 (1975), rev'd on other grounds, 40 N.Y.2d 1042, 391 N.Y.S.2d 853, 360 N.E.2d 353 (1976) (van not a "medical apparatus or device" under New York statute). Courts in Arizona, Iowa, Florida, Maine, and Mississippi have held that an employer may be required to reimburse a claimant for the purchase price of a motor vehicle under certain circumstances. See Brawn v. Gloria's Country Inn, 698 A.2d 1067 (Me.1997) (statute entitling claimant to "reasonable and proper medical, surgical and hospital services, nursing, medicines, and mechanical, surgical aids, as needed" requires employer to provide a van); Mississippi Transp. Comm'n v. Dewease, 691 So.2d 1007 (Miss. 1997) ("where there is evidence that a wheelchair van is reasonably necessary, it may qualify as an `other apparatus' for which medical benefits shall be paid"); Manpower Temporary Services v. Sioson, 529 N.W.2d 259 (Iowa 1995) (statute requiring employer to provide "reasonable surgical, medical, ... ambulance and hospital services and supplies... and ... reasonably necessary transportation expenses" does not require employer to provide van except in rare circumstances); Kraft Dairy Group v. Cohen, 645 So.2d 1072 (Fla.Dist.Ct.App.1994) ("vehicle may constitute `other apparatus'" as that term is used in workers' compensation statute, but only if it would improve the condition caused by the accident or aid in recovery from injuries); Terry Grantham Co. v. Industrial Comm'n of Arizona, 154 Ariz. 180, 741 P.2d 313 (Ct. App.1987) ("[w]here an industrial injury necessitates the modification or substitution of an automobile in order to accommodate a wheelchair or artificial member and to restore in part a claimant's former ambulatory ability, such costs may be awarded as `other apparatus'"). Courts in North Dakota and West Virginia have taken a middle route. Those courts require that an employer reimburse a claimant for the difference between the purchase price of a van and the purchase price of a regular automobile. See Meyer v. North Dakota Workers Compensation Bureau, 512 N.W.2d 680 (N.D.1994); and Crouch v. West Virginia Workers' Compensation Comm'r, 184 W.Va. 730, 403 S.E.2d 747 (1991). Although an analysis of the positions of our sister states on this issue is informative, to answer the question before us we must look to the origins and purposes of our own workers' compensation statute. As Professor Larson has written, "[t]he necessity for *616 workers' compensation legislation arose out of the coincidence of a sharp increase in industrial accidents attending the rise of the factory system and a simultaneous decrease in the employee's common-law remedies for his or her injuries." 1 Arthur Larson & Lex K. Larson, Larson's Workers' Compensation Law, § 4.00 (1997). In an effort to meet changing societal needs more efficiently than they were being met by the common law and early statutory law, the states began enacting workers' compensation statutes, in their modern form, in the first part of this century. Larson, § 5.30. In doing so, the states created a new system that was delicately balanced between the interests of employees and the interests of employers. Under this new system, the employer is automatically responsible for paying medical and disability benefits to employees who are injured on the job. "[T]he employee and his or her dependents, in exchange for ... modest but assured benefits, give up their common-law right to sue the employer for damages for any injury covered by the act...." Larson, § 1.10(e). "A correctly balanced underlying concept of the nature of workers' compensation is indispensable to an understanding of current cases and to a proper drafting and interpretation of compensation acts." Larson, § 1.20. The Alabama Legislature incorporated that balanced concept in our workers' compensation statute. Understanding that balance is, of course, a constant challenge for courts. In deciding the issue at hand, we must determine how to best effectuate the intended aims of the compensation statute while maintaining the balance upon which it was based. To adopt the position that Bishop would have this Court adopt would, we believe, disturb the balance of interests that is at the heart of the workers' compensation system. While we recognize our duty to liberally construe the statute,[3] we must nonetheless hold that a motor vehicle does not come within the term "other apparatus" as that term is used in § 25-5-77(a). The facts are undisputed. The parties stipulated that Bishop purchased the van "[i]n order to facilitate his transportation in a wheelchair." They further stipulated that "the van is medically necessary for `transportation,' including regularly scheduled visits to his doctors." Bishop urges this Court to hold that his van is a reasonably necessary "other apparatus" under the statute because he uses it for transportation to and from his doctors' offices, rehabilitation clinics, etc. We note, however, that in § 25-5-77(f) the Legislature specifically provided for expenses associated with transportation to and from such offices. In that section, the Legislature provided that an employer must pay a claimant's transportation costs, based on the distance the claimant travels to and from medical and rehabilitative treatment. The City argues, and we agree, that, because the Legislature specifically provided for transportation costs in § 25-5-77(f), it would not be logical to conclude that the Legislature intended for the more general language of § 25-5-77(a) to cover costs related to transportation as well. The parties also agree that the van is necessary "for restoring [Bishop's] mobility `to the highest possible level' of independent functioning." It is important to note that the parties further stipulated that "[o]ther than as stated, there are no other medical purposes for the van." If we held that the workers' compensation statute required reimbursement of a claimant's expenses where the sole purpose of those expenses was to enhance the claimant's independent functioning, we believe we would be dangerously disturbing the balance of interests that the Legislature built into the workers' compensation system. Our workers' compensation system was designed to provide limited, but guaranteed, benefits to employees injured on the job. In addition to those benefits, employers are required to pay for medical and rehabilitative treatment. However, we hold that those benefits do not include the purchase price of a motor vehicle. Put simply, a motor vehicle is not a device that, in and of itself, can serve to improve a disabled claimant's condition. Its only use is to improve the claimant's independent functioning. While *617 human concern would cause one to wish that a disabled person would reach the maximum possible level of independent functioning, we believe that allowing reimbursement for such costs as are claimed in this case would stretch the workers' compensation statute beyond its intended meaning. Consequently, we hold that a motor vehicle is not within the term "other apparatus" as that term is used in § 25-5-77(a), Ala.Code 1975. Because we make that determination, we need not consider whether a motor vehicle would be "reasonably necessary" in this case if it were such an apparatus. The judgment of the Court of Civil Appeals is reversed and the cause is remanded. REVERSED AND REMANDED. HOOPER, C.J., and SHORES, HOUSTON, COOK, SEE, and LYONS, JJ., concur. NOTES [1] Dr. Kezar is an assistant professor of rehabilitation medicine in the Department of Rehabilitation Medicine. [2] Dr. Huang is a physician in the Department of Rehabilitation Medicine. [3] Riley v. Perkins, 282 Ala. 629, 213 So.2d 796 (1968).

43 Cal.App.4th 575 (1996) 51 Cal. Rptr.2d 52 THE PEOPLE, Plaintiff and Respondent, v. TARA LOUISE MILES, Defendant and Appellant. Docket No. E014366. Court of Appeals of California, Fourth District, Division Two. March 13, 1996. *576 COUNSEL Joan T. Anyon, under appointment by the Court of Appeal, for Defendant and Appellant. Daniel E. Lungren, Attorney General, George Williamson, Chief Assistant Attorney General, Gary W. Schons, Assistant Attorney General, *577 Robert B. Shaw and Karl T. Terp, Deputy Attorneys General, for Plaintiff and Respondent. [Opinion certified for partial publication.[*]] OPINION RICHLI, J. Appellant was convicted by a jury of possession for sale of a controlled substance in violation of Health and Safety Code section 11378 (count 1); attempting to induce a false statement to a law enforcement official by force, threat of force or fraud in violation of Penal Code section 137, subdivision (b) (count 7);[1] and conspiracy to violate section 137, in violation of section 182 (count 8). Eight additional charges were dismissed either during or after trial. Appellant was sentenced to six years in prison and ordered to pay a restitution fine of $2,000, plus collection costs of $200. Appellant challenges her convictions on counts 7 and 8, and the restitution fine and costs. She argues (1) the court improperly failed to instruct the jury regarding the lesser included offense of inducing a false statement to a law enforcement official; (2) the evidence was insufficient as to counts 7 and 8, and the jury was not instructed to make a required finding with respect to count 7 whether the acts for which appellant was convicted were the natural and probable consequences of the common design of appellant and the alleged perpetrator; and (3) the restitution fine was an abuse of discretion because the court did not find, and the record does not establish, that appellant had the ability to pay. In the published portion of this opinion we reject appellant's first contention, and in the unpublished portion we reject her remaining ones. I FACTUAL AND PROCEDURAL BACKGROUND On April 30, 1992, authorities conducted a probation search of a house on Oasis in Joshua Tree, which they believed to be appellant's residence. Appellant was at the house giving her four-year-old daughter a bath. The search yielded firearms, various items used in preparing drugs for sale, a radio scanner tuned to a police frequency, and several quantities of methamphetamine. During the search, Alex Kubiak arrived at the house. He was searched and a syringe was found in his pocket. Appellant and Kubiak were arrested. After appellant was released on bail, she offered Kubiak money, a motorcycle and a car if he would tell the authorities he was renting the house from *578 her at the time of the search. Kubiak gave appellant's attorney a statement saying he lived at the house and owned its contents on April 30, and made the same statement to a deputy district attorney. A few days after appellant was released, appellant and her boyfriend, Daniel Pippett, met with Karol Winger, appellant's sister's roommate, at Pippett's house. Appellant asked Winger to tell the authorities appellant was living with Pippett prior to her arrest, and that anything in the Oasis house would belong to Kubiak. In Winger's estimation, these were false statements. After the meeting, appellant and Pippett met with Winger several more times at Pippett's house. At some later point, Winger had a telephone conversation with Gordon Isen, a deputy district attorney. The call was placed from Pippett's house, and appellant and Pippett were present when it was made. Pippett tape-recorded the call. Before the call, Winger had a discussion with appellant and Pippett concerning what Winger would say. Winger lied to Isen, telling him appellant had been spending all her time at Pippett's house since at least April 1. Either before or after the conversation with Isen, Winger told appellant's attorney, James Goldstein, the same story she told Isen. After speaking with Winger, the deputy district attorney moved to dismiss the charges against appellant. The charges against appellant were dropped and charges were filed against Kubiak. Kubiak later told the authorities he had lied in his statement, and that appellant had offered him the money and vehicles to do so. Eventually, charges were refiled against appellant. As time passed and it appeared she might have to testify, Winger became increasingly troubled and eventually told Pippett she would not testify. Pippett made about half a dozen visits to Winger's house thereafter. During these visits, Pippett told Winger that if she did not testify in favor of appellant, appellant and Pippett would charge Winger with molesting appellant's daughter. Pippett also asked Winger if there was anything that could be done or given to her that would change her mind, and suggested "money or something." Pippett last visited Winger on February 2, 1993. On February 5, a tear gas bomb was thrown through Winger's bedroom window. Tire prints found near the window were consistent with tires on a truck parked at Pippett's house, where appellant was now living. Also on February 5, a pipe bomb explosion was reported at Pippett's house. Pippett told the authorities he had found the bomb in his truck and *579 thrown it away before it exploded. A sheriff's department investigator concluded the explosion had not occurred as Pippett said. Pippett's house and garage were searched, and materials and manuals for making bombs were found. In her defense, appellant testified she had moved out of the Oasis house before April 30 and subleased it to Kubiak. She had returned to the house on April 30 to pick up a few things, and her daughter had needed to use the restroom after playing in the mud. She denied possession of or familiarity with the firearms, drugs or other items found in the house. Appellant also denied asking Kubiak and Winger to lie for her. She testified that on February 5, the day of the bombing, she was living with her grandmother. II DISCUSSION A. Lesser Included Offense (1a) Count 7 of the amended information charged appellant with a violation of section 137, subdivision (b). Count 8 charged appellant with conspiracy to commit a felony violation of section 137. Section 137, subdivision (b) provides in relevant part: "Every person who attempts by force or threat of force or by the use of fraud to induce any person to give false testimony or withhold true testimony or to give false material information pertaining to a crime to, or withhold true material information pertaining to a crime from, a law enforcement official is guilty of a felony, punishable by imprisonment in the state prison for two, three, or four years." Section 137, subdivision (c) provides: "Every person who knowingly induces another person to give false testimony or withhold true testimony not privileged by law or to give false material information pertaining to a crime to, or to withhold true material information pertaining to a crime from, a law enforcement official is guilty of a misdemeanor." (2a) The trial court has a sua sponte duty to instruct the jury on necessarily included offenses when the evidence raises a question about whether all the elements of the greater offense are present. (People v. Wickersham (1982) 32 Cal.3d 307, 323-324 [185 Cal. Rptr. 436, 650 P.2d 311].) (1b) Appellant argues that the misdemeanor offense of knowingly inducing a false statement as set forth in section 137, subdivision (c) is a lesser included offense of the felony of inducing a false statement by force, threat of force or fraud as set forth in subdivision (b). Consequently, she *580 argues, the court was required to instruct the jury regarding the lesser offense. (2b) "An offense is necessarily included in another if (1) the greater statutory offense cannot be committed without committing the lesser because all of the elements of the lesser offense are included in the elements of the greater; or (2) if the charging allegations of the accusatory pleading include language describing it in such a way that if committed in that manner the lesser offense must necessarily be committed." (People v. Clark (1990) 50 Cal.3d 583, 636 [268 Cal. Rptr. 399, 789 P.2d 127].) (1c) Under either test, inducing a false statement in violation of section 137, subdivision (c) is not an offense necessarily included within attempting by force, threat of force or fraud to induce a false statement in violation of section 137, subdivision (b). First, the offense defined in section 137, subdivision (b) does not contain all the elements of the offense defined in subdivision (c). Subdivision (b) applies to "[e]very person who attempts by force or threat of force or by the use of fraud" to induce a false statement. (Italics added.) Subdivision (c) applies to "[e]very person who knowingly induces" a false statement. (Italics added.) Thus, subdivision (c) requires as one of its elements that the defendant actually induce a false statement. Subdivision (b), in contrast, requires only that the defendant attempt to induce a false statement through force, threat of force or fraud. (2c) Where the lesser offense includes an element not required for the commission of the greater offense, the lesser offense is not an included offense for purposes of determining whether a sua sponte instruction is required. In People v. Wolcott (1983) 34 Cal.3d 92 [192 Cal. Rptr. 748, 665 P.2d 520], for example, the court held that assault with a deadly weapon is not included within a charge of robbery with a firearm use enhancement. The court observed that assault requires an attempt to inflict violent injury and the present ability to do so. Robbery, even where a firearm is used, requires neither element. (34 Cal.3d at p. 99.) (1d) Similarly, the offense set forth in section 137, subdivision (b) can be committed without necessarily committing the offense set forth in subdivision (c). An unsuccessful attempt to induce a false statement using force, threat of force or fraud would constitute a violation of subdivision (b) but not of subdivision (c), since no false statement would have been induced in fact. Section 137 as a whole reflects a legislative judgment that an attempt to induce a false statement through force, threat of force or fraud, even if unsuccessful, is inherently more serious than the successful inducement of a false statement by means other than force, threat of force or fraud. *581 The second test for determining whether one offense is included within another requires that we consider the greater offense as alleged in the accusatory pleading, to determine whether it is described "in such a way that if committed in that manner the lesser offense must necessarily be committed." (People v. Clark, supra, 50 Cal.3d 583, 636.) Count 7 of the second amended information, which charged appellant with a violation of section 137, subdivision (b), merely tracked the language of the statute in alleging that appellant "did willfully and unlawfully attempt by force and threat of force and by the use of fraud" to induce Winger to testify falsely. "When the accusatory pleading describes a crime in the statutory language, ... the test for a lesser included offense is simply that, where the charged `offense cannot be committed without necessarily committing another offense, the latter is a necessarily included offense.'" (People v. Wolcott, supra, 34 Cal.3d 92, 99, citing People v. Greer (1947) 30 Cal.2d 589, 596 [184 P.2d 512] and People v. Anderson (1975) 15 Cal.3d 806, 809 [126 Cal. Rptr. 235, 543 P.2d 603].) As explained above, the offense described in section 137, subdivision (b) and alleged in count 7 requires only an attempt and not a successful inducement. Consequently, it can be committed without necessarily committing the misdemeanor offense defined in subdivision (c). Count 8 of the second amended information charged appellant with conspiracy to violate section 137. It alleged that the conspirators committed eight overt acts in furtherance of the conspiracy. The overt acts were: (1) appellant asked Winger to lie to Isen concerning the date appellant moved from the Oasis house; (2) appellant induced Winger to meet with Goldstein and Winger lied to him about the date appellant moved; (3) appellant and her coconspirators tape-recorded a conversation between Winger and Isen in which Winger lied to Isen concerning the date appellant moved; (4) appellant and Pippett threatened to charge Winger with child molestation when Winger refused to testify falsely at appellant's trial; (5) Pippett offered money or property to Winger if she would agree not to reveal she had lied to Isen; (6) appellant and her coconspirators caused a gas canister to be thrown into Winger's bedroom; (7) the coconspirators falsely reported a bomb incident at Pippett's residence to avoid suspicion of the bombing at Winger's house; and (8) an unidentified coconspirator told Kubiak that if he testified against appellant he and his son would be killed. It is apparent that the conspiracy as charged does not necessarily include the offense of inducing a false statement in violation of section 137, subdivision (c). The jury was instructed that it could convict appellant of conspiracy if it found any one of the overt acts was committed. Appellant does not dispute that the instruction accurately stated the law. Thus, the jury could have based a conspiracy conviction solely on, for example, the bombing of *582 Winger's residence. Because the bombing did not persuade Winger to testify falsely, a finding of conspiracy based on that act would not have required a finding that the offense of inducing a false statement, as defined in section 137, subdivision (c), was necessarily committed. Even if the jury were required to find all eight overt acts were committed, there would be no necessary violation of section 137, subdivision (c). None of the charged acts alleged the actual inducement of a false statement. Acts (4), (5), (6) and (8) alleged efforts to induce Winger to testify falsely, and to dissuade Kubiak from testifying against appellant, through bribery, force, threats and fraud. Since these efforts were unsuccessful, no completed offense under section 137, subdivision (c) was alleged. Similarly, act (1) alleged the attempted inducement of a false statement, but not the actual inducement. Act (2) alleged the actual inducement of a false statement, but the statement was made to Goldstein, appellant's attorney. Section 137, subdivision (c) prohibits inducing the giving of false information to a "law enforcement official." Subdivision (e) defines "law enforcement official" to include "any district attorney, deputy district attorney, city attorney, deputy city attorney, the Attorney General or any deputy attorney general, or any peace officer included in Chapter 4.5 (commencing with Section 830) of Title 3 of Part 2." Since Goldstein was not a "law enforcement official" as defined in subdivision (e), the false statement to him was not a violation of section 137, subdivision (c). Act (3) alleged the recording of a telephone conversation and act (7) alleged a false report of a bomb incident. While these acts were alleged to have been done in furtherance of the conspiracy, neither act involved the alleged inducement or attempted inducement of a false statement. We thus conclude that, under the applicable criteria, the offense set forth in section 137, subdivision (c) was not necessarily included within the offenses charged in either count 7 or count 8. Consequently, the court was not required to instruct sua sponte regarding the lesser offense. B., C.[*] .... .... .... .... .... .... .... . *583 III DISPOSITION The judgment is affirmed. Hollenhorst, Acting P.J., and McKinster, J., concurred. NOTES [*] Pursuant to California Rules of Court, rules 976 and 976.1, this opinion is certified for publication with the exception of parts II.B and II.C. [1] Further section references are to the Penal Code. [*] See footnote, ante, page 575.

423 F.Supp.2d 450 (2006) The NUTRASWEET COMPANY, Plaintiff, v. AJINOMOTO CO.,INC. Defendant. No. CIV. 05-318-SLR. United States District Court, D. Delaware. March 31, 2006. *451 James L. Holzman, Esquire, Gary F. Traynor, Esquire and J. Clayton Athey, Esquire of Prickett, Jones & Elliott, PA, Wilmington, DE, for Plaintiff. Co-Counsel: Steven P. Handler, Esquire, David F. Wentzel, Esquire, John P. Killacky, Esquire and Jeremy A. Root, Esquire of McDermott, Will & Emery LLP, Chicago, IL. Peter J. Walsh, Jr., Esquire of Potter, Anderson & Corroon, LLP, Wilmington, DE, for Defendant. Co-Counsel: Matthew D. Slater, Esquire, Patricia M. McDermott, Esquire and Ilya Shapiro, Esquire of Cleary, Gottlieb, Steen & Hamilton, LLP, Washington, D.C. MEMORANDUM OPINION SUE L. ROBINSON, Chief Judge. I. INTRODUCTION The NutraSweet Company ("Nutra-Sweet") filed the instant action against *452 Ajinomoto Co., Inc. ("Ajinomoto") seeking a declaration that the export of aspartame manufactured in Korea in accordance with a certain process does not constitute a breach of a Release and License Agreement ("License Agreement") between the parties and that Ajinomoto may not terminate the Licence Agreement as a result of such a sale. Before the court is Ajinomoto's motion to dismiss pursuant to Rule 12(b)(1) of the Federal Rules of Civil Procedure for lack of subject matter jurisdiction because NutraSweet did not establish an actual controversy as required by the Declaratory Judgment Act, 28 U.S.C. § 2201. II. BACKGROUND NutraSweet and Ajinomoto both manufacture and sell aspartame, a type of artificial sweetener. (D.I. 1 at ¶ 2) Ajinomoto holds patents and know-how pertaining to the production of aspartame. On May 25, 2000, Ajinomoto and NutraSweet entered into a License Agreement that, in relevant part, granted to NutraSweet a "perpetual, irrevocable, royalty-free non-exclusive license and right" to use certain of Ajinomoto's "Patents and Know-How" to manufacture and sell aspartame. (D.I. 1 at ¶¶ 3, 17; D.I. 8, ex. A) The intellectual property rights covered by the License Agreement include over 150 United States and Canadian patents and patent applications held by Ajinomoto, along with all of their foreign counterparts, and know-how regarding the manufacture of aspartame. (D.I. 1 at ¶ 18, D.I. 8, ex. A) This license and right to make, use or sell aspartame employing the identified Ajinomoto intellectual property extends worldwide, except for an "Excluded Territory" consisting of countries listed in exhibit B to the License Agreement.[1] (D.I. 1 at ¶¶ 3, 17; D.I. 8, ex. A) The License Agreement prohibits NutraSweet's export of aspartame manufactured using the licensed patents and knowhow to the Excluded Territory. Since execution of the License Agreement over five years ago, the parties have addressed issues arising from certain shipments of aspartame into Europe by Nutra-Sweet. NutraSweet has sought, and Ajinomoto has granted, numerous exceptions to the License Agreement to permit its otherwise prohibited sale of aspartime into the Excluded Territory. (D.I. 7 at 4) In each instance, Ajinomoto discussed the issue with NutraSweet and negotiated a mutually acceptable solution without resort to legal action. (Id.) For example, in early 2001, Ajinomoto became concerned that aspartame manufactured using its patents and know-how was being exported to the Excluded Territory. (Id.) After an investigation revealed evidence of several apparent violations of the License Agreement by NutraSweet, Ajinomoto neither terminated the License Agreement nor resorted to litigation, but rather requested a meeting with Nutra-Sweet to discuss its concerns. (Id. at 4-5) The parties thereafter negotiated over a six month period and, as a result, entered into a Letter Agreement in May 2002 that supplemented and amended the License Agreement. (Id. at 5) Several other occasions occurred when Ajinomoto either orally or by letter agreement granted permission to NutraSweet to supply aspartamine in the Excluded Territory. (Id.) The details of these circumstances are not set out herein, but the end result is noted: In each of these prior instances, Ajinomoto did not invoke its right to terminate the License Agreement and has not invoked litigation with NutraSweet or its predecessors related to the various aspartame licensing agreements, supply agreements or *453 joint ventures in the 35 year history of relation. (Id. at 6) In April 2003 NutraSweet acquired from Daesang Corporation ("Daesang") certain manufacturing facilities and intellectual property located in Gunsan, Korea. (D.I. 1 at ¶ 5) The acquired assets include a process for manufacturing aspartame (the "Daesang process"), which Daesang had been using to export product to Europe and elsewhere. (Id.) In May 2005 Nutra-Sweet filed the instant action against Ajinomoto on the same day as it accepted a purchase order from a European customer for the delivery of aspartame into the Excluded Territory (the "European customer"). (D.I. 1 at ¶¶ 25, 26) NutraSweet contends that it plans to fill the purchase order[2] and other unspecified future orders from customers in the Excluded Territory with aspartame manufactured in Korea using the Daesang process. (Id. ¶¶ 27, 28) NutraSweet now seeks a declaratory judgment that any sale into the Excluded Territory of aspartame manufactured in Korea in accordance with the Daesang Process does not constitute a breach of the License Agreement and that Ajinomoto may not terminate the License Agreement pursuant to section 6.2 of the Agreement as a result of any such sale. (D.I. 1 at ¶¶ a, b) III. STANDARD OF REVIEW As an initial matter, the court must determine whether Federal Circuit or Third Circuit law controls this case. To determine appellate jurisdiction in this declaratory judgment context, the court must assess the future legal action that Nutra-Sweet contends Ajinomoto might bring, not simply the complaint NutraSweet has filed. Cedars-Sinai Med. Ctr. v. Watkins, 11 F.3d 1573, 1578 (Fed.Cir.1993) (in determining jurisdiction under 28 U.S.C. § 1338(a), the Federal Circuit applies well-pleaded complaint rule not to the declaratory judgment action complaint, but to the hypothetical action that declaratory judgment defendant would otherwise have brought directly against plaintiff). The complaint states that Nutra-Sweet plans to fill an order in the Excluded Territory under the License Agreement using the Daesang process. The only conceivable defense NutraSweet has that it is not in breach of the License Agreement is that the Daesang process does not infringe the patents in the License Agreement. In essence, NutraSweet seeks a ruling that the Daesang process does not infringe the patents or know-how covered by the License Agreement. NutraSweet alleges that it needs a declaratory judgment because it has a reasonable apprehension that, otherwise, Ajinomoto will terminate the License Agreement and sue for patent infringement. The Federal Circuit has exclusive jurisdiction over all cases "arising under any Act of Congress relating to patents." 28 U.S.C. §§ 1295, 1338(a). Where patent law is a necessary element of an action based on contract claims, the action falls within this patent-related area of Federal Circuit jurisdiction. See U.S. Valves, Inc. v. Dray, 212 F.3d 1368, 1372 (Fed.Cir. 2000). Therefore, Federal Circuit law applies. A declaratory judgment action may be brought in order to resolve an "actual controversy" between "interested" parties. 28 U.S.C. § 2201. As explained by the Federal Circuit in BP Chemicals Limited v. Union Carbide Corp., 4 F.3d 975 (Fed.Cir.1993): The purpose of the [Declaratory Judgment] Act is to enable a person who is reasonably at legal risk because of an *454 unresolved dispute, to obtain judicial resolution of that dispute without having to await the commencement of legal action by the other side. It accommodates the practical situation wherein the interests of one side to the dispute may be served by delay in taking legal action. However, the controversy must be actual, not hypothetical or of uncertain prospective occurrence. The requirement of actual controversy encompasses concepts such as ripeness, standing, and the prohibition against advisory judicial rulings—all raised in this case. Id. at 977. In reaching its conclusion, the court must apply a totality of the circumstances standard. C.R. Bard. Inc. v. Schwartz, 716 F.2d 874, 880 (Fed.Cir. 194. Recognizing that "[t]here is no simple rule that addresses all shades of relationships between disputants," the Federal Circuit has developed a pragmatic two-part test for determining declaratory justiciability. There must be both (1) an explicit threat or another action by the patentee, which creates a reasonable apprehension on the part of the declaratory plaintiff that it will face an infringement suit, and (2) present activity which could constitute infringement or concrete steps taken with the intent to conduct such activity. Id. at 978. In the present motion, only the first prong of this test is at issue. The court, therefore, confines its analysis to whether Ajinomoto's conduct has placed NutraSweet in reasonable apprehension of an infringement suit. Although there are countless permutations of competitive relations, the Federal Circuit has given some guidance as to what conduct constitutes commercial activity that does not meet the test for a declaratory judgment action. Certainly, "more is required than the existence of an adversely held patent." Id. Indeed, a "patentee's statement that it intend[s] to enforce [its] patent [has been] held not to create a reasonable apprehension of suit." Phillips Plastics Corp. v. Kato Hatsujou Kabushiki Kaisha, 57 F.3d 1051, 1054 (Fed.Cir.1995)(discussing Shell Oil Co. v. Amoco Corp., 970 F.2d 885, 889 (Fed.Cir. 1992)). Likewise, "[t]he offer of a patent license does not create an actual controversy . . . When there are proposed or ongoing license negotiations, a litigation controversy normally does not arise until the negotiations have broken down." Phillips Plastics Corp., 57 F.3d at 1053. As a general principle, then, the Federal Circuit has concluded that the objective test for determining declaratory justiciability is not met "when a patentee does nothing more than exercise its lawful commercial prerogatives and, in so doing, puts a competitor in the position of having to choose between abandoning a particular business venture or bringing matters to a head by engaging in arguably infringing activity." Cygnus Therapeutics Sys. v. ALZA Corp., 92 F.3d 1153, 1160 (Fed.Cir. 1996). On the other hand, the test for finding a "controversy" is a "pragmatic one and cannot turn on whether the parties used polite terms in dealing with one another." EMC Corp. v. Norand Corp., 89 F.3d 807, 811 (Fed.Cir.1996). "[I]n light of the subtleties in lawyer language," Arrowhead Indus. Water. Inc. v. Ecolochem, Inc., 846 F.2d 731, 736 (Fed.Cir.1988), the Federal Circuit has not required express charges of infringement or similar "magic words" to create a justiciable controversy. Id. Courts must look to the "realities of business life" so that a patentee may not succeed in extra judicial patent enforcement by employing ambiguous "lawyerisms" and "scare-the-customer-and-run tactics." Id. at 735-36. *455 IV. DISCUSSION Initially, courts generally look for an explicit threat of suit. See Gen-Probe v. Vysis, Inc., 359 F.3d 1376, 1380 (Fed. Cir.2004); Cygnus Therapeutics Sys. v. ALZA Corp., 92 F.3d 1153, 1160 (Fed.Cir.1996)(affirming dismissal of declaratory judgment action for lack of actual controversy in the absence of an express threat to sue for infringement). Ajinomoto asserts that it has had no communication with NutraSweet concerning the planned sale of aspartame to the European customer, much less expressly or impliedly threatened to terminate the License Agreement for breach or threatened to sue for infringement. NutraSweet points to three instances purporting to demonstrate Ajinomoto's threat of an infringement suit. First is Ajinomoto's conduct leading to the May 2002 Letter Agreement. The 2002 Letter Agreement negotiations relate to NutraSweet's participation in the sale of aspartame in the Excluded Territory under the License Agreement. The specific facts of this alleged breach of the License Agreement are not before the court now, but, NutraSweet contends that Ajinomoto's threat of infringement as a result of these acts suffice to establish a reasonable apprehension in the current case.[3] The court disagrees. Even if NutraSweet's conduct during the time of the 2002 Letter Agreements was related to the conduct here, the record demonstrates that negotiations took place and resulted in a mutual agreement to modify the License Agreement. The court finds no evidence that NutraSweet was coerced or threatened during these negotiations. These negotiations certainly do not result in a reasonable apprehension of suit now. Second, NutraSweet points to Ajinomoto's refusal to provide NutraSweet any assurance of its position regarding the acts of NutraSweet to export Daesangmanufactured aspartame to the Excluded Territory. While a party's refusal to give assurances not to sue may be relevant, the parties have different versions of what assurances were requested. NutraSweet's version of the facts relate that Ajinomoto, in response to a request for an assurance not to terminate the License Agreement due to NutraSweet's export of the Daesang-manufactured aspartame to the Excluded Territory, stated that NutraSweet needed a license to do so. In light of the past negotiations between the parties, the court does not find this response to be sufficient to raise a reasonable apprehension of litigation. A patent owner should not be penalized for voicing its beliefs of patent rights. See Phillips Plastics Corp., 57 F.3d at 1054. Third, NutraSweet relies on Ajinomoto's refusal to reveal its intentions since the suit was filed. The court finds that the conduct of Ajinomoto after the complaint was filed is not relevant in determining jurisdiction. "Activities that occurred subsequent to the filing of the Complaint may not be considered since jurisdiction, if it exists, must be established as of the date of the filing of the declaratory judgment action." Millipore Corp v. University Patents, Inc., 682 F.Supp. 227, 231 (D.Del.1987) (citing Jervis B. Webb Co. v. Southern Sys. Inc., 742 F.2d 1388, 1398 (Fed.Cir.1984)). NutraSweet also asserts that past litigation between Ajinomoto and NutraSweet and Ajinomoto and Daesang *456 result in a reasonable apprehension of litigation. Again, the court finds this unpersuasive. While on-going litigation between parties may be sufficiently threatening to create a reasonable apprehension necessary for an actual controversy, see Good-year Tire & Rubber Co. v. Releasomers, Inc., 824 F.2d 953, 954 (Fed.Cir.1987), the past litigation between NutraSweet and Ajinomoto did not involve the intellectual property rights involved in the License Agreement and two of the three proceedings cited by NutraSweet were initiated by NutraSweet.[4] Furthermore, none of the litigation between Daesang and Ajinomoto involved the License Agreement or the intellectual property licensed under the License Agreement and, therefore, can not result in a reasonable apprehension of litigation on the part of Nutra-Sweet regarding the License Agreement. V. CONCLUSION For the reasons stated above, the court grants Ajinomoto's motion to dismiss for lack of subject matter jurisdiction. An order consistent with this memorandum opinion shall issue. ORDER At Wilmington this 31st day of March, 2006, consistent with the memorandum opinion issued this same date; IT IS ORDERED that defendant's motion to dismiss (D.I.6) is granted. NOTES [1] The Excluded Territory includes the European Union and certain other countries. [2] NutraSweet has since filled the order to the European customer. [3] NutraSweet contends that Ajinomoto's counsel brought up the possibility of patent infringement at one of the meetings. [4] The only proceeding initiated by Ajinomoto was an interference in the United States Patent and Trademark Office.

161 Ariz. 595 (1989) 780 P.2d 428 Douglas J. SLETTEN, Jr., personal representative of the estate of Douglas J. Sletten, for said estate in its own right, and on behalf of Elmer Carmack, Carol Brooks, Sharon Conner, Charlotte Koen, Donna Delzer, Katherine Valdez, Rhonda Robertson, Donald Sletten, Kenneth Sletten and Douglas Sletten, Jr., and Elmer Carmack, Carol Brooks, Sharon Conner, Charlotte Koen, Donna Delzer, Katherine Valdez, Rhonda Robertson, Donald Sletten, Kenneth Sletten, and Douglas Sletten, Jr., individually, Plaintiffs/Appellees, v. ST. PAUL FIRE AND MARINE INSURANCE COMPANY, a Minnesota corporation, Defendant/Appellant. No. 2 CA-CV 88-0348. Court of Appeals of Arizona, Division 2, Department A. March 28, 1989. Review Denied October 11, 1989. *596 Langerman, Begam, Lewis and Marks by Samuel Langerman, and The Langerman Law Offices by Amy G. Langerman, Phoenix, for plaintiffs/appellees. O'Connor, Cavanagh, Anderson, Westover, Killingsworth & Beshears by Larry L. Smith, George H. Mitchell and William J. Downey, Phoenix, for defendant/appellant. OPINION LIVERMORE, Presiding Judge. On August 3, 1982, while insured by Mutual Insurance Company of Arizona (MICA), Dr. Elden Robins failed to read an X-ray report for an X-ray which he had ordered for his patient, Mrs. Sletten. As a result he did not notice the presence of a possible cancerous growth. On September 7, 1982, Robins became insured by defendant St. Paul Fire and Marine Insurance Company. On August 2, 1984, Robins discovered the 1982 X-ray and ordered new X-rays. Mrs. Sletten was hospitalized with cancer and, shortly thereafter, died. Meanwhile, on September 7, 1984, Robins ceased being insured by St. Paul and once again became insured by MICA. The only issue on appeal is whether St. Paul's policy covers the admitted negligence of Dr. Robins. The St. Paul policy was a "claims made" policy, providing coverage for negligence after 1976 when a claim was made during the term of the policy. The policy reads "A claim is made on the date you first report an incident or injury to us or our agent." Because the policy also stated that it protects the insured against "claims which might be brought against you," the trial court found the policy ambiguous by failing to distinguish between a "claim" as a right to recovery asserted by a patient against the insured doctor and a "claim" as a report of potential liability by the insured doctor to the insurer. Because we disagree with the trial court's conclusion and because if any ambiguity is resolved in the insured's favor there is still no right to recovery, we reverse. When a policy is ambiguous, the ambiguity is to be construed against the insurer. Sparks v. Republic National Life Ins. Co., 132 Ariz. 529, 647 P.2d 1127 (1982); Mid-Century Ins. Co. v. Samaniego, 140 Ariz. 324, 681 P.2d 476 (App. 1984). Whichever way "claim" is defined, however, results in an absence of coverage. If "claim" is treated as a formal claim by patient against doctor, there is no coverage because no such claim was made during the policy period. If "claim" is treated as a report of potential liability by doctor to insurer, there is no coverage because no such claim was made during the policy period. A finding of "ambiguity in the air," see 3 Harper, James & Gray, Law of Torts 655 (2d ed. 1986), is insufficient. The ambiguity must affect the rights of the insured. We do not believe, however, that the policy is rendered ambiguous by the statement *597 that the policy protects against claims made by patients. The policy also states: When is a claim made? A claim is made on the date you first report an incident or injury to us or our agent. You must include the following information: [*] Date, time and place of the incident. [*] What happened and what professional service you performed. [*] Type of claim you anticipate. [*] Name and address of injured party. [*] Name and address of any witness. The insured is as clearly informed as we believe possible that any known negligence likely to invite a claim against him is covered if reported. Because an insured will almost surely report formal claims against him, there is no real ambiguity. The trial court also held against St. Paul because it failed "to unambiguously tell its policyholder that incidents must be reported and that he or she was covered for `incidents' not amounting to a claim `brought against' the insured. There is no reason to believe that Dr. Robins would have failed to report the August 2, 1984 incident to St. Paul had the policy unambiguously stated that he had to do so in order to retain coverage." Once again, we disagree. The language quoted in the preceding paragraph is quite clear. Dr. Robins found it so when asked on deposition. He did not report his potential liability because he did not believe the insurer would want to hear of it. Ambiguity cannot be so premised. Appellees seek to uphold the judgment on the alternative ground that so long as St. Paul was not prejudiced by the late reporting, coverage should exist. See Lindus v. Northern Ins. Co., 103 Ariz. 160, 438 P.2d 311 (1968); Globe Indemnity Co. v. Blomfield, 115 Ariz. 5, 562 P.2d 1372 (App. 1977). That law was developed with respect to "occurrence" policies which provide coverage for negligent conduct occurring during the policy period regardless of when the claim is made. We find persuasive the reasoning in Gulf Ins. Co. v. Dolan, Fertig & Curtis, 433 So.2d 512 (Fla. 1983): Claims-made policies, likewise, require that notification to the insurer be within a reasonable time. Critically, however, claims-made policies require that notice be given during the policy period itself. When an insured becomes aware of any event that could result in liability, then it must give notice to the insurer, and that notice must be given "within a reasonable time" or "as soon as practicable" — at all times, however, during the policy period. * * * * * * ... Coverage depends on the claim being made and reported to the insurer during the policy period. Claims-made or discovery policies are essentially reporting policies.... If a court were to allow an extension of reporting time after the end of the policy period, such is tantamount to an extension of coverage to the insured gratis, something for which the insurer has not bargained. This extension of coverage, by the court, so very different from a mere condition of the policy, in effect rewrites the contract between the two parties. This we cannot and will not do. [Emphasis in original.] See also Zuckerman v. National Union & Fire Ins. Co., 100 N.J. 304, 324, 495 A.2d 395, 406 (1985); Stine v. Continental Casualty Co., 419 Mich. 89, 349 N.w.2d 127 (1984). We believe the Dolan rationale compelling on the facts of this case where Dr. Robins was offered, but declined, extended reporting coverage by St. Paul and was offered, but declined, retroactive coverage for prior negligence not resulting in a claim by his new insurer MICA. Appellees urge us to follow California authority applying the late notice/prejudice rule to claims-made policies. Northwestern Title Security Co. v. Flack, 6 Cal. App.3d 134, 85 Cal. Rptr. 693 (1970). We decline to do so because the effect would be to convert claims-made policies into occurrence policies. In the absence of actual prejudice from late reporting, which also defeats coverage under an occurrence policy, all negligence during the policy period would be covered. We discern no public policy that mandates that only occurrence *598 coverage be sold in Arizona. This appears especially so where coverage protective of Dr. Robins was offered by both St. Paul and MICA and refused by him. Finally, appellees seek to sustain the judgment by claiming that the policy language that protection is afforded against "claims which might be brought against you" is ambiguous as to the time at which the claim must be made. For this proposition they cite Gyler v. Mission Ins. Co., 10 Cal.3d 216, 110 Cal. Rptr. 139, 514 P.2d 1219 (1973), where the court found that that language could refer to claims actually filed or to any incidents that could have resulted in claims. Whatever the merits of that interpretation, we find no ambiguity in the St. Paul policy where the insured is clearly told that the claim must be made "while this agreement is in effect" and then, in language we quoted earlier, told precisely how to make a claim whether it be for an actual or potential claim by an injured patient. To find ambiguity here is simply to take leave of ordinary understanding in order to afford coverage. Reversed. HATHAWAY and HOWARD, JJ., concur.

715 S.W.2d 734 (1986) EL PASO ELECTRIC COMPANY, Appellant, v. PUBLIC UTILITY COMMISSION OF TEXAS, et al., Appellees. No. 14524. Court of Appeals of Texas, Austin. July 16, 1986. Rehearing Denied September 24, 1986. Barry Bishop, Clark, Thomas, Winters & Newton, Austin, Michael D. McQueen, Kemp, Smith, Duncan & Hammond, El Paso, for appellant. Jim Mattox, Atty. Gen., Stephen J. Davis, Asst. Atty. Gen., Austin, for Public Utility Com'n of Texas. Norman J. Gordon, Diamond, Rash, Leslie & Smith, El Paso, for City of El Paso. Before POWERS, BRADY and CARROLL, JJ. CARROLL, Justice. El Paso Electric Company filed an administrative appeal in the district court of Travis County from an order of the Public Utility Commission. The district court sustained the Commission's plea to the jurisdiction and rendered judgment dismissing *735 the administrative appeal. We will reverse the judgment of the district court. THE FACTS The basic facts underlying the Commission's plea to the jurisdiction are undisputed. The Commission issued a final order in the rate proceeding on October 26, 1985. El Paso Electric timely filed a motion for rehearing as required by Tex.Rev.Civ. State.Ann. art. 6252-13a, § 16 (Supp.1986) ("APTRA"). At a hearing on November 20, the Commission considered El Paso Electric's motion for rehearing, along with motions for rehearing filed by other parties to the rate proceeding. At the conclusion of the hearing, Chairman Ricketts announced that the motions for rehearing were granted in part and otherwise denied, in accordance with the recommendations of Commissioner Rosson. On December 4, the utility filed a second motion for rehearing in response to the pronouncements of the Commission at the November 20 hearing. This motion was accompanied by a proposed order for the Commission to enter, expressly denying all relief sought in the second motion for rehearing. On December 7, the Commission issued a second order, substituting findings of fact apparently comporting with the pronouncements at the November 20 hearing. El Paso Electric did not file a motion for rehearing after issuance of the second order on December 7. On December 21, the utility filed its first petition for judicial review of the Commission's order. This petition was filed in the district court of Travis County under cause number 372,858. Subsequently, on January 22, 1985, the utility filed a second petition for judicial review under cause number 374,183. Thereafter both causes were consolidated under cause number 372,858. THE CONTROVERSY Before the district court, the Commission successfully argued that by failing to file a third motion for rehearing, El Paso Electric failed to satisfy the APTRA jurisdictional requirements for judicial review. The pertinent provision in APTRA requires a party to file a motion for rehearing within 15 days after the date of rendition of a final decision or order "in writing or stated in the record." APTRA, § 16(a), (e) (emphasis added). According to the Commission, this provision is mandatory and jurisdictional. Under this argument, El Paso Electric's second motion for rehearing filed on December 4 was not timely since it was filed before the December 7 order, and the district court therefore properly concluded that it was without jurisdiction to review the Commission's order. In response, El Paso Electric maintains that an APTRA motion for rehearing is analogous to a motion for new trial in Texas civil practice. Under the Texas Rules of Civil Procedure, a prematurely filed motion for new trial is deemed filed after the judgment is signed. Tex.R.Civ.P. Ann. 306c (Supp.1986). El Paso Electric argues that the second motion for rehearing should be considered as prematurely filed and as such deemed filed on December 7 after the Commission's second order. CONTENTIONS OF THE PARTIES The Commission principally relies on this Court's opinion in Southern Union Gas Co. v. Railroad Com'n, 690 S.W.2d 946 (Tex.App.1985, writ ref'd n.r.e.). In that case, the Railroad Commission issued a final order on February 28 and the gas company timely filed a motion for rehearing. On March 28, the Commission issued a subsequent order that granted the motion for the limited purpose of changing the effective date for implementing the new rates. The second order denied the gas company's motion "in all other respects." The gas company did not file a motion for rehearing in response to the March 28 order. This Court concluded that the Railroad Commission's alteration of the February 28 order by the March 28 order foreclosed the characterization of the first order as final and appealable. Where an agency grants a motion for rehearing and enters a subsequent *736 final order, "as a prerequisite to an appeal from such order, a motion for rehearing must be filed." Southern Union Gas Co., 690 S.W.2d at 948. More recently, this Court faced an almost identical problem in Consumers Water, Inc. v. P.U.C., 707 S.W.2d 129 (Tex. App.1986, writ ref'd n.r.e.). In that case, the utility timely filed a motion for rehearing in response to the Commission's original order. The Commission issued a subsequent order amending one paragraph in its original order as requested by the utility in its motion for rehearing. The utility did not file a second motion for rehearing. We again concluded that when a motion for rehearing is granted, the underlying agency order is not final and appealable. When a subsequent order is entered, a second motion for rehearing must be filed as a jurisdictional prerequisite to an appeal from such order. El Paso Electric argues that the instant appeal is distinguishable from Southern Union Gas and Consumers Water. Unlike the utilities in those two cases, El Paso Electric has filed two motions for rehearing. Although filed three days before the second Commission order, the second motion for rehearing addressed all issues raised in that order. Moreover, the second Commission order did not grant any relief requested in the second motion for rehearing. ANALYSIS AND CONCLUSIONS The filing of two motions for rehearing in the instant appeal precludes the application of Southern Union Gas and Consumers Water to this cause. In both cases, the second order granted some relief requested by each utility's only motion for rehearing. This triggered the necessity of a second motion for rehearing addressed to the second order. Southern Union Gas Co. v. Railroad Com'n, supra; see also Railroad Com'n v. Exxon Corp., 640 S.W.2d 343 (Tex.App.1982, writ ref'd n.r.e.). In this appeal, the Commission granted some relief requested by El Paso Electric's first motion for rehearing. On the other hand, we have been unable to find that the Commission granted any relief requested in the second motion for rehearing. Thus, unlike the situations in Southern Union Gas and Consumers Water, we find a second Commission order, which for purposes of argument we will assume is final, and a second motion for rehearing that addresses the relief granted in the second order. The sole problem is that the motion for rehearing was filed three days before the order was issued. The dilemma faced by El Paso Electric can be traced to statements by the Commission during the November 20 hearing on El Paso Electric's first motion for rehearing. During that hearing, Commissioner Rosson recommended detailed changes to be made in the Commission's October 26 order. These changes concerned, among other things, the methodology to be used in setting rates and identifying those customers sharing in a base revenue decrease. After these recommendations were made, the other members of the Commission concurred and Chairman Ricketts concluded the hearing with the following statement on the record: "The motions for rehearing are granted as set forth by Commissioner Rosson." Fourteen days passed after the November 20 hearing without a written order being issued by the Commission. Concluding that Chairman Ricketts' statement might be treated as a final order under APTRA § 16, which allows an oral final order if stated on the record, El Paso Electric filed its second motion for rehearing. Quite reasonably, the utility feared that the failure to file a motion for rehearing within 15 days after the November 20 hearing might result in the dismissal of a later suit for judicial review. On December 7, the Commission filed an order recapping its pronouncements at the November 20 hearing. The order substituted findings of fact supporting the Commission's position that a methodology developed in an earlier docket would be used in the present proceeding. To that end, the Commission also entered findings that *737 there was insufficient proof to support the methodologies proposed by other parties to the rate proceeding. The December 7 order does not address any issues raised in El Paso Electric's December 4 motion for rehearing and further states that any "issues raised in the motions for rehearing not specifically addressed" in the order were denied. In response to the utility's contentions, the Commission points to the PURA requirement that all orders of the Commission are to be in writing. Tex.Rev.Civ. State.Ann. art. 1446c, § 13 (Supp.1986). Under this argument, there was no final order until the Commission's pronouncements at the November 20 hearing were reduced to writing. Thus, the Commission maintains that El Paso Electric needlessly concerned itself with any jurisdictional problems that may have arisen if it had not filed a motion for rehearing within 15 days of the November 20 hearing. The Commission's position offers little comfort to litigants faced with jurisdictional deadlines under APTRA § 16 which specifically provides that a final order may be in writing or stated in the record. More importantly, the fact that the November 20 pronouncements did not constitute a final order does not bear upon our treatment of the December 4 motion as prematurely filed. Indeed, if we had concluded that the November 20 pronouncements constituted a final order under APTRA § 16, the December 4 motion would have been treated as timely and not as prematurely filed. After examining the record of the November 20 hearing, and the December 7 order, we have concluded that the order memorializes the Commission's pronouncements at the November 20 hearing. Moreover, we have been unable to find and have not been directed to any relief requested in the December 4 motion that was granted in the December 7 order. In other words, if the December 4 motion had been filed after the December 7 order, we find no real dispute that the Commission would have been sufficiently apprised of all claimed error and would have been allowed the opportunity to correct or prepare to defend the order. See Suburban Util. Corp. v. P.U.C., 652 S.W.2d 358 (Tex.1983). In summary, we have determined that Southern Union Gas and Consumers Water are not applicable to the instant appeal because El Paso Electric's second motion for rehearing addressed the Commission's December 7 order in all respects. Having made this determination, we turn to El Paso Electric's contention that its prematurely filed motion for rehearing should be treated as analogous to a motion for new trial in the civil practice and deemed filed on December 7. An APTRA § 16 motion for rehearing has been found to be analogous to a motion for new trial in civil practice. See United Sav. Ass'n of Texas v. Vandygriff, 594 S.W.2d 163 (Tex.Civ.App.1980, writ ref'd n.r.e.); Houston Mobilfone, Inc. v. P.U.C., 565 S.W.2d 323 (Tex.Civ.App.1978, no writ). Both of these opinions preliminarily rely upon a basic statutory construction principle: in enacting statutes, the Legislature is presumed to have taken notice of court decisions construing earlier analogous statutes, and such judicial construction must therefore be read into the subsequent statute. Humble Pipeline Co. v. State, 2 S.W.2d 1018 (Tex.Civ.App.1928, writ ref'd); Walker v. Thetford, 418 S.W.2d 276 (Tex. Civ.App.1967, writ ref'd n.r.e.). United Sav. Ass'n of Texas v. Vandygriff, supra, examined the specificity necessary for assigning error in an APTRA § 16 motion for rehearing. The court found that the Legislature, in providing for a mandatory motion for rehearing in administrative proceedings, grounded its intent on the provisions of the rules of civil procedure dealing with motions for new trial. The court reviewed the rules to determine the specificity required to assign error in a motion for rehearing, and concluded that although technical specificity is not required, "the agency should not be put in a position of having to guess what error is alleged." Vandygriff, 594 S.W.2d at 170. *738 In Houston Mobilfone, Inc. v. P.U.C., supra, the court observed that the language in APTRA § 16(e) was similar to Tex.R.Civ.P. 329b. Section 16(e) provides that if an agency does not act on a motion for rehearing, the motion is overruled by operation of law 45 days after the date of rendition of the final order. Under Rule 329b, a motion for new trial is overruled by operation of law if it has not been acted upon within 45 days. If overruled by operation of law, a subsequent order purporting to overrule the motion for new trial is a nullity. Missouri-Kansas-Texas Railroad v. Chesher, 354 S.W.2d 645 (Tex.Civ.App. 1962, writ ref'd n.r.e.). The Houston Mobilfone court looked to this rule and concluded that because the appellant's motion for rehearing was overruled by operation of law, a Commission order filed after the 45-day period was a nullity and without effect. Relying on the reasoning in Vandygriff and Houston Mobilfone, we are persuaded that it is appropriate and reasonable to turn to the rules and case law of civil practice to consider the effect of a prematurely filed motion for rehearing. Rule 306c of the Tex.R.Civ.P.Ann. (1985) provides that "[n]o motion for new trial ... shall be held ineffective because prematurely filed; but every such motion shall be deemed to have been filed on the date of but subsequent to the date of signing of the judgment the motion assails...." The effect of the rule is plain: When a motion for new trial is filed before the judgment is signed, the motion is regarded as filed on the date the judgment was signed. Magnolia Petroleum Co. v. Klingeman, 242 S.W.2d 950 (Tex.Civ.App.1951, writ ref'd). Under the specific facts and circumstances of the instant appeal, we conclude that El Paso Electric's prematurely filed second motion for rehearing should be deemed filed on the date of the Commission's December 7 order. In reaching this conclusion, we are primarily guided by three factors. First, it is clear that the Legislature borrowed from the Texas Rules of Civil Procedure when it established a mandatory motion for rehearing in APTRA. Next, it is equally clear that Texas courts have looked to civil practice rules and case law relating to motions for new trial in attempting to resolve procedural issues not covered by APTRA, involving motions for rehearing. Finally, this appeal does not involve an attack on a final order without a motion for rehearing addressing the agency's claimed error. Rather, the December 4 motion satisfies the essential purpose of a § 16(e) motion for rehearing: to completely apprise the agency of the error claimed and to allow the agency opportunity to correct the error or defend it. See Suburban Util. Corp. v. P.U.C., supra. El Paso Electric filed its first petition for judicial review on December 20, 1984, thirteen days after the December 7 order. Since we have concluded that the prematurely filed December 4 motion for rehearing should be deemed filed as of December 7, the December 21 petition was filed before the second motion for rehearing was overruled, either by Commission order or by operation of law under § 16 of APTRA. Until an agency acts upon a motion for rehearing or it is overruled by operation of law, there is no final order for the district court to review. Consumers Water, Inc. v. P.U.C., supra. "The requirement of having a motion for rehearing overruled, thus exhausting administrative remedies is a jurisdictional prerequisite to judicial review by the district court and cannot be waived by action of the parties." Lindsay v. Sterling, 690 S.W.2d 560, 563 (Tex.1985). Under the Lindsay case, the December 21 petition failed to invoke the jurisdiction of the district court to review the Commission's December 7 order. However, El Paso Electric filed a second petition for judicial review on January 22, 1985. This second petition was filed after the utility's second motion for rehearing, which we have deemed to have been filed as of December 7, 1984, was overruled by operation of law. Accordingly, El Paso Electric has exhausted its administrative remedies, thereby satisfying its jurisdictional prerequisite for judicial review. We therefore *739 reverse the judgment of dismissal and remand this cause to the district court.

United States Court of Appeals For the First Circuit No. 17-2053 UNITED STATES OF AMERICA, Appellee, v. DAVID MILLER, Defendant, Appellant. APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MAINE [Hon. D. Brock Hornby, U.S. District Judge] Before Barron and Selya, Circuit Judges, and Katzmann, Judge. Robert Herrick, with whom Nicholson Herrick LLP was on brief, for appellant. Julia M. Lipez, Assistant United States Attorney, with whom Halsey B. Frank, United States Attorney, was on brief, for appellee. December 28, 2018  Of the United States Court of International Trade, sitting by designation.  SELYA, Circuit Judge. Defendant-appellant David Miller pleaded guilty to violating the Mann Act, 18 U.S.C. § 2423(a), by transporting his thirteen-year-old1 adopted daughter across state lines in 1995 for immoral sexual purposes. The defendant had not yet been charged and the limitations period for his Mann Act violation was still open when Congress elongated the statute of limitations in 2003. "The mills of justice grind slowly, but they grind exceedingly fine," Vineberg v. Bissonnette, 548 F.3d 50, 59 (1st Cir. 2008), and the government eventually charged the defendant with the Mann Act violation in 2016. By then, the old statute of limitations had expired, but the new statute of limitations had not. The defendant entered a guilty plea, and the district court sentenced him to a 327-month term of immurement. Represented by a new lawyer, the defendant argues for the first time on appeal that he received ineffective assistance of counsel in derogation of the Sixth Amendment because his trial attorney (now deceased) did not mount a defense premised on the statute of limitations in effect at the time of the offense.2 But this argument runs headlong into a potential obstacle: the general 1 Although the presentence investigation report states that the victim was twelve years old at the time of the crime, both the prosecution's version of the offense and the victim's testimony confirm that she was actually thirteen when the crime was committed. 2 Apart from the ineffective assistance of counsel claim, this appeal does not take issue with any aspect of either the defendant's conviction or his sentence. - 2 - rule is that such a claim must first be raised in the district court, either during the proceedings leading to the defendant's direct appeal or after the conclusion of that appeal (typically, through a petition for post-conviction relief pursuant to 28 U.S.C. § 2255). Here, however, the claim was never raised at all in the district court. Consequently, our first task is to determine whether this case qualifies for an exception to the general rule. Because it is uncertain whether the 2003 amendment applies retrospectively to the defendant's conduct and because the record is opaque as to why trial counsel elected not to raise a limitations defense below, we conclude that the defendant's ineffective assistance of counsel claim ought not to be aired for the first time on direct appeal. Thus, we affirm the defendant's conviction and sentence; without prejudice, however, to his right to raise his claim of ineffective assistance of counsel in a collateral proceeding brought pursuant to 28 U.S.C. § 2255. We do not decide the limitations issue. I. BACKGROUND We briefly rehearse the relevant facts. On November 30, 2016, a federal grand jury sitting in the District of Maine charged the defendant with two counts of transporting a minor with the intent to engage in criminal sexual activity in violation of 18 U.S.C. § 2423(a). Specifically, the indictment charged that in - 3 - June and July of 1995, the defendant knowingly transported a child across state lines with the intent to sexually assault her. In 1995, the statute of limitations for the charged crime allowed prosecution until the victim reached twenty-five years of age. See 18 U.S.C. § 3283 (1994). Since the victim in this case would have turned twenty-five no later than sometime in 2007, the statute of limitations would have expired during that year. The legal landscape shifted in 2003, when Congress extended the statute of limitations for Mann Act violations to allow prosecution for the duration of the life of the child victim. See id. (2003). The defendant originally maintained his innocence. During the pretrial proceedings, his attorney demonstrated an awareness that the applicable statute of limitations had changed mid-stream and indicated that he "wanted to look at the statute of limitations issue one final time." Ultimately, the attorney eschewed a limitations defense and, on June 1, 2017, the defendant entered a guilty plea to one of the charged counts. The district court sentenced the defendant to 327 months in prison and, at the same time, dismissed the remaining count lodged in the indictment. The defendant timely appealed, and at his request, this court appointed new counsel under the Criminal Justice Act. See 18 U.S.C. § 3006A. - 4 - II. ANALYSIS We begin with constitutional bedrock: the Sixth Amendment guarantees "the right to the effective assistance of counsel." Strickland v. Washington, 466 U.S. 668, 686 (1984) (quoting McMann v. Richardson, 397 U.S. 759, 771 n.14 (1970)). The Supreme Court has crafted a two-pronged inquiry as a means of evaluating ineffective assistance of counsel claims: "[f]irst, the defendant must show that counsel's performance was deficient," and "[s]econd, the defendant must show that the deficient performance prejudiced the defense." Id. at 687. This two-pronged inquiry has equal relevance with respect to ineffective assistance claims in both tried cases and cases resolved by guilty pleas. See Hill v. Lockhart, 474 U.S. 52, 58 (1985). To establish deficient performance by an attorney in a criminal case, the defendant must show that the attorney's representation was "outside the wide range of professionally competent assistance." Strickland, 466 U.S. at 690. Pertinently, when "an attorney fails to raise an important, obvious defense without any imaginable strategic or tactical reason for the omission, his performance falls below the standard of proficient representation that the Constitution demands." Prou v. United States, 199 F.3d 37, 48 (1st Cir. 1999). To satisfy the prejudice requirement, the defendant must show "a reasonable probability - 5 - that, but for counsel's errors, he would not have pleaded guilty." Hill, 474 U.S. at 59. Here, however, there is an antecedent question as to timing — a question that asks whether, as a prudential matter, the defendant should be allowed to raise his ineffective assistance of counsel claim for the first time on appeal. The general rule is that "fact-specific claims of ineffective assistance cannot make their debut on direct review of criminal convictions, but, rather, must originally be presented to, and acted upon by, the trial court." United States v. Mala, 7 F.3d 1058, 1063 (1st Cir. 1993). Thus, a criminal defendant who wishes to pursue a claim of ineffective assistance not advanced in the trial court is ordinarily required to defer that claim to collateral proceedings. See id.; see also 28 U.S.C. § 2255. This general rule — like most general rules — admits of exceptions. The exception that the defendant attempts to invoke provides that "where the critical facts are not genuinely in dispute and the record is sufficiently developed to allow reasoned consideration of an ineffective assistance claim, an appellate court may dispense with the usual praxis and determine the merits of such a contention on direct appeal." United States v. Natanel, 938 F.2d 302, 309 (1st Cir. 1991). Since the applicability of this exception must be gauged case by case, we turn next to the particulars of the defendant's ineffective assistance claim. - 6 -  Stripped of rhetorical flourishes, the defendant's position is that his trial counsel was ineffective because the defendant had available a meritorious limitations defense but counsel turned a winner into a loser by neglecting to raise that defense.3 So, the defendant says, this case fits the exception because no further development of the record is needed: any lawyer worth his salt would have advanced such a limitations defense. In weighing this claim, a useful starting point is to consider whether it can be said with assurance that the amended version of the statute of limitations (enacted in 2003 and which had not yet expired when the defendant was charged) applies to the defendant's 1995 offense. If so, further development of the record would be a waste of time and the Natanel exception would be available. Cf. Vieux v. Pepe, 184 F.3d 59, 64 (1st Cir. 1999) ("Obviously, counsel's performance was not deficient if he declined to pursue a futile tactic."). If, however, it is less than certain that the amended version of the statute of limitations was available to the government, a material question would persist 3 The defendant does not challenge the advice given to him by his trial counsel in connection with his guilty plea. He does not allege, for example, that his plea was other than knowing and voluntary because his attorney failed to advise him of a possible limitations defense. Instead, his claim rests exclusively on the argument that his trial counsel should have moved to dismiss the indictment on limitations grounds — a step that he submits likely would have borne fruit and resulted in a dismissal of the charges prior to his tendering of a guilty plea. - 7 - as to why the defendant's trial counsel did not raise a limitations defense; the vitality of the ineffective assistance claim would depend on idiosyncratic facts (including trial counsel's justification, if any, for failing to mount such a defense); and the availability of the Natanel exception would hinge on whether the information in the record was sufficient to permit a reasoned evaluation of the defendant's ineffective assistance claim. See, e.g., United States v. Leahy, 473 F.3d 401, 410 (1st Cir. 2007) (finding that "narrow" Natanel exception did not apply where record "contain[ed] nothing approaching an adequate elaboration of why counsel adopted the course that he followed"); United States v. McGill, 952 F.2d 16, 19 (1st Cir. 1991) (finding Natanel exception inapplicable where "[t]he relevant facts, especially those concerning the reasons behind trial counsel's adoption of certain strategies, [we]re unclear"). Against this backdrop, we turn to the statutory construction question. Applying a statute of limitations enacted in 2003 to conduct that occurred in 1995 requires a retrospective application of the 2003 statute. Following the Supreme Court's lead, see Landgraf v. USI Film Products, 511 U.S. 244, 280 (1994), we assess the validity of such an application through a two-step approach. The first step in the Landgraf approach involves "determin[ing] whether Congress has expressly prescribed the - 8 - statute's proper reach." Id. If Congress has clearly prescribed an intention to give — or not to give — the statute retrospective effect, the statute must be construed as Congress has ordained. See Lattab v. Ashcroft, 384 F.3d 8, 14 (1st Cir. 2004). Although "Congress's intention [must] be unmistakable, our inquiry is not limited to the statutory text but may include an examination of standard ensigns of statutory construction, such as the statute's structure and legislative history." Id. If, however, such a clear directive cannot be gleaned, the second step in the approach comes into play. The question then becomes whether applying the statute retrospectively would have impermissible effects. See id. Specifically, Landgraf instructs an inquiring court to ask whether the proposed application "would impair rights a party possessed when he acted, increase a party's liability for past conduct, or impose new duties with respect to transactions already completed." 511 U.S. at 280. With these principles in mind, we train the lens of our inquiry on the 2003 amendment. Some background lends perspective. The general statute of limitations for non-capital federal crimes is five years. See 18 U.S.C. § 3282(a). In 1990, Congress enacted 18 U.S.C. § 3509(k), which extended the five-year statute of limitations for crimes of child sexual abuse until the child victim reached twenty-five years of age. See Crime Control Act of 1990, Pub. L. No. 101-647, § 225, 104 Stat. 4789, 4805 (1990) ("EXTENSION - 9 - OF CHILD STATUTE OF LIMITATIONS. — No statute of limitation[s] that would otherwise preclude prosecution for an offense involving the sexual or physical abuse of a child under the age of 18 years shall preclude such prosecution before the child reaches the age of 25 years."). Approximately four years later, the text of the statute was recodified (without any substantive change) at 18 U.S.C. § 3283 (1994). This brings us to 2003, when Congress amended section 3283. The amended version provided that: "[n]o statute of limitations that would otherwise preclude prosecution for an offense involving the sexual or physical abuse, or kidnaping, of a child under the age of 18 years shall preclude such prosecution during the life of the child." 18 U.S.C. § 3283 (2003). The Joint Conference Report prepared by the Senate and the House of Representatives, which accompanied the 2003 amendment, explained: The conference report amends the current law that covers the statute of limitations for offenses involving the sexual or physical abuse of a child. This section adds crimes of kidnapping and extends the statute of limitations to the life of the child victim. . . . Under current law, the standard limitation rules do not bar prosecution "for an offense involving the sexual or physical abuse of a child under the age of eighteen years . . . before the child reaches the age of 25 years." While this is better than a flat five-year rule, it remains inadequate in many cases. For example, a person who abducted and raped a child could not be prosecuted beyond this extended limit — even if DNA matching conclusively identified him as - 10 -  the perpetrator one day after the victim turned 25. H.R. Rep. No. 108-66, at 54 (2003) (Conf. Rep.), as reprinted in 2003 U.S.C.C.A.N. 683, 688 (footnote omitted).4 We do not believe that a Landgraf analysis of the 2003 amendment yields a readily discernable result. To begin, neither the amendment nor its legislative history expressly states that the extension to the statute of limitations is to have retrospective reach. At first blush, the wording of the statute — "[n]o statute of limitations that would otherwise preclude prosecution for an offense . . . shall preclude such prosecution during the life of the child," 18 U.S.C. § 3283 (2003) — might be thought to reflect an intent that the new limitations period apply to all offenses for which the prior statute of limitations was still open. But appearances can be deceiving, and in drafting an amendment to a different statute with the same "otherwise preclude" language, Congress included an explicit direction for retrospective application. See Justice for All Act of 2004, Pub. L. No. 108-405, § 204, 118 Stat 2260, 2271 (2004) (explaining that "[t]he amendments made by this section [18 U.S.C. § 3297] shall apply to the prosecution of any offense committed before, on, or 4 For the sake of completeness, we note that Congress again amended the statute in 2006 to allow for prosecution "during the life of the child, or for ten years after the offense, whichever is longer." 18 U.S.C. § 3283 (2006). The 2006 amendment has no bearing on this case. - 11 - after the date of the enactment of this section if the applicable limitation period has not yet expired").5 The fact that Congress thought it necessary to insert this clarifying statement when amending 18 U.S.C. § 3297 but omitted any such clarifying statement from the 2003 amendment to 18 U.S.C. § 3283, arguably introduces a modicum of ambiguity into the question of whether Congress intended section 3283 to apply retrospectively. Cf. Carnero v. Bos. Sci. Corp., 433 F.3d 1, 8 (1st Cir. 2006) (finding no clear intent for extraterritorial application where Congress was silent with respect to particular statute but "provided expressly elsewhere in the [same] Act for extraterritorial enforcement of a different . . . statute"). And even though two courts of appeals have determined that Congress intended that the amended statute of limitations for crimes of child sexual abuse should be applied retrospectively, neither court grappled with Congress's explicit statement regarding the retrospective reach of section 3297. See United States v. Leo Sure Chief, 438 F.3d 920, 923-25 (9th Cir. 2006); United States v. Jeffries, 405 F.3d 682, 684 (8th Cir. 2005). 5 The 2004 amendment to 18 U.S.C. § 3297 added the following language: "[i]n a case in which DNA testing implicates an identified person in the commission of a felony, . . . no statute of limitations that would otherwise preclude prosecution of the offense shall preclude such prosecution until a period of time following the implication of the person by DNA testing has elapsed that is equal to the otherwise applicable limitation period." Justice for All Act § 204, 118 Stat at 2271. - 12 -  There is another fly in the ointment. As the defendant points out, the phrase "[n]o statute of limitations that would otherwise preclude prosecution," when read in historical context, is itself unclear: it may refer only to preclusion by the five- year federal default statute of limitations (18 U.S.C. § 3282). After all, in 1990 — when Congress first employed this critical language — the only existing limitations period to which the language could have referred was the default limit set forth in section 3282. Employing identical language in 2003, then, arguably may have been intended to accomplish only the same result — precluding the application of the federal default statute — and no more. There is, of course, another side to the story. When enacting the 2003 amendment, Congress specifically identified the inadequacy of the then-existing (1994) statute of limitations as the very reason for fashioning the amendment. See H.R. Rep. No. 108-66, at 54, as reprinted in 2003 U.S.C.C.A.N. at 688. And when Congress has opted to distinguish a particular statute of limitations from section 3282, it frequently has used language specifically tailored to achieve that goal. See, e.g., 18 U.S.C. § 1091(f) (stating that "[n]otwithstanding section 3282" an indictment for genocide may be brought "at any time without limitation"); id. § 3286(a) (prescribing eight-year statute of limitations for certain terrorism offenses "[n]otwithstanding - 13 - section 3282"); cf. Rhode Island v. Narragansett Indian Tribe, 19 F.3d 685, 702 (1st Cir. 1994) (explaining that "[t]he omission of [specific language] looms particularly large in light of the use of that [language] elsewhere"). For present purposes though, the most important fact is that neither the statute nor the legislative history expressly states that the 2003 amendment is meant to have retrospective application. In the absence of such an express statement, the 2003 amendment arguably can be read as only preventing a prior statute of limitations from "preclud[ing] prosecution" of a prospective "offense." 18 U.S.C. § 3283 (2003). Assuming, for argument's sake, that the defendant is able to clear this first Landgraf hurdle, the second step of the Landgraf analysis is equally hard to negotiate. This impediment is not surprising: as the Second Circuit aptly observed, it is "particularly difficult to categorize the presumptively impermissible effects of retroactively applying a statute of limitations." Weingarten v. United States, 865 F.3d 48, 56 (2d Cir. 2017), cert. denied, 138 S. Ct. 1309 (2018). The problem becomes dicier because "criminal limitations statutes are 'to be liberally interpreted in favor of repose.'" Toussie v. United States, 397 U.S. 112, 115 (1970) (quoting United States v. Habig, 390 U.S. 222, 227 (1968)). The lone reported decision to analyze the interplay between Landgraf and Toussie with respect to an - 14 - extension of a statute of limitations determined that when these cases "are read in conjunction," a court "must interpret the statute of limitations in a manner favoring repose for Defendant." United States v. Gentile, 235 F. Supp. 3d 649, 655 (D.N.J. 2017). In other words, when Congress has sounded an uncertain trumpet, a court ought to refrain from applying an enlarged criminal statute of limitations retrospectively. See id. Seen in this light, Toussie potentially alters the second step in the Landgraf approach. Cf. Arevalo v. Ashcroft, 344 F.3d 1, 10 & n.6 (1st Cir. 2003) (suggesting that "[i]n criminal cases, other rubrics [beyond Landgraf] may apply"). At the end of the day, the reach of the 2003 amendment is uncertain.6 This uncertainty casts a long shadow over the ineffective assistance claim: a limitations defense, if successful, "would have furnished [the defendant] a complete defense to the entire indictment." Weingarten, 865 F.3d at 53. So the next question that must be asked is: why did the defendant's trial counsel refrain from asserting such a defense? 6 Let us be perfectly clear. We do not hold that the 2003 amendment to 18 U.S.C. § 3283 applies — or does not apply — to conduct that occurred prior to 2003 but as to which the previous limitations period was still open at the time of the amendment. For present purposes, it is enough to conclude that the answer to this question is uncertain and that, therefore, the defendant may have had a viable limitations defense. - 15 -  On this meager record, the answer to this question remains an enigma. We are left to guess at trial counsel's thought processes, especially since we are unable to discern any strategic or tactical reason for spurning the defense. When all is said and done, we know little more than that trial counsel chose not to file a motion to dismiss. Given the potential potency of the limitations defense, the indicia of uncertainty that we have catalogued, the dearth of controlling case law, and our inability to evaluate the ineffective assistance claim without some insight into trial counsel's reasoning,7 we conclude that resort to the Natanel exception is unwarranted. This conclusion is not inconsistent with Weingarten. There, the court ruled that an attorney's failure to raise the same limitations issue did not constitute ineffective assistance of counsel. See 865 F.3d at 58. But the defendant in that case advanced his ineffective assistance claim in the district court by way of a section 2255 petition. Consequently, the appellate court — unlike this court — had the benefit of a developed factual record and did not face the threshold question of whether an ineffective 7 Although the defendant's trial counsel is now deceased, it may still be possible to flesh out the record. For example, a review of counsel's file and notes might shed light on his decision to eschew a limitations defense. So might testimony from his partners, associates, or co-workers. In any event, the defendant himself likely could testify about any strategic discussions that he and his attorney may have had. See Tse v. United States, 290 F.3d 462, 463-64 (1st Cir. 2002) (per curiam). - 16 - assistance claim could be entertained for the first time on direct review.8 III. CONCLUSION We need go no further. Concluding, as we do, that it would be imprudent for us to attempt to adjudicate the defendant's ineffective assistance of counsel claim on direct review without a developed record, we hold that this case falls within the confines of the general rule, not within the narrow Natanel exception. Accordingly, we affirm the judgment below; without prejudice, however, to the defendant's right to raise his claim of ineffective assistance of counsel, if he so desires, in a collateral proceeding brought pursuant to 28 U.S.C. § 2255. So Ordered. 8 Notwithstanding Weingarten's different procedural posture, the Second Circuit appears to share our concern about the uncertainty surrounding the limitations issue. After all, the Weingarten court found that issue to be "murky," 865 F.3d at 56, and concluded that the defendant "may have been able to make a colorable argument" in support of a limitations defense, id. at 55. - 17 - 

UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 18-1981 RONNIE CLARKE, Plaintiff - Appellant, v. PETERSBURG CITY PUBLIC SCHOOLS, et al, Defendant - Appellee. Appeal from the United States District Court for the Eastern District of Virginia, at Richmond. Robert E. Payne, Senior District Judge. (3:17-cv-00846-REP) Submitted: December 18, 2018 Decided: December 20, 2018 Before AGEE, THACKER, and HARRIS, Circuit Judges. Dismissed by unpublished per curiam opinion. Ronnie Clarke, Appellant Pro Se. Unpublished opinions are not binding precedent in this circuit. PER CURIAM: Ronnie Clarke seeks to appeal the district court’s orders dismissing as frivolous, fanciful, and delusional Clarke’s complaint against Petersburg City Public Schools, and denying his motion for preliminary relief. We dismiss the appeal for lack of jurisdiction because the notice of appeal was not timely filed. Parties are accorded 30 days after the entry of the district court’s final judgment or order to note an appeal, Fed. R. App. P. 4(a)(1)(A), unless the district court extends the appeal period under Fed. R. App. P. 4(a)(5), or reopens the appeal period under Fed. R. App. P. 4(a)(6). “[T]he timely filing of a notice of appeal in a civil case is a jurisdictional requirement.” Bowles v. Russell, 551 U.S. 205, 214 (2007). The district court’s orders were entered on the docket on July 17, 2018. The notice of appeal was filed on August 20, 2018. Because Clarke failed to file a timely notice of appeal or obtain an extension or reopening of the appeal period, we dismiss the appeal. We dispense with oral argument because the facts and legal contentions are adequately presented in the materials before this court and argument would not aid the decisional process. DISMISSED 2 

72 F.Supp.2d 1122 (1999) HSMV CORPORATION, Petitioner, v. ADI LIMITED, Respondent. No. CV 99-08036ABC(MCX). United States District Court, C.D. California. November 8, 1999. *1123 Steven L. Sloca, Graham L.W. Day, Irell & Manella, Los Angeles, CA, Santa Monica, CA, for petitioner. Martin J. Trupiano, Graham & James, Los Angeles, CA, for respondent. ORDER RE: PETITIONER HSMV CORPORATION'S MOTION TO VACATE ARBITRATION AWARD COLLINS, District Judge. Petitioner HSMV Corporation's ("HSMV") Motion to Vacate Arbitration Award (the "Motion") came on regularly for hearing before this Court on November 8, 1999. After reviewing the materials submitted by the parties, argument of counsel, and the case file, it is hereby ORDERED that HSMV's Motion is GRANTED. I. Background A. The Arbitration Agreement HSMV, a California based company, and Respondent ADI Limited ("ADI"), an Australia based company wholly owned by the Commonwealth of Australia (the "Commonwealth"), are parties to a series of agreements concerning the manufacture and delivery of all-terrain military vehicles called "Flyer" vehicles for HSMV's customer, the Government of Singapore. In May 1996, HSMV entered into an agreement with the Government of Singapore for the supply of 29 Flyer vehicles. On May 24, 1996, HSMV and ADI entered into their first "Back to Back Agreement" relating to those vehicles. In March 1998, HSMV and the Government of Singapore entered into another agreement for the supply of 50 additional Flyer vehicles. Disputes arose in connection with the first Back to Back Agreement. On November 7, 1998, HSMV and ADI resolved these disputes by entering into a settlement agreement (the "1998 Settlement"). Around the same time, the parties were negotiating their second Back to Back Agreement relating to the manufacture of the additional 50 Flyer vehicles. A part of this proposed second Back to Back Agreement was the addition of an arbitration provision. On November 11, 1998, ADI's counsel sent Edebeatu Ibekwe ("Ibekwe"), HSMV's counsel, a draft of the new agreement listing the names of two proposed arbitrators: Geoffrey Gibson ("Gibson") of the law firm Blake Dawson Waldron ("Blake Dawson") and Professor Michael Pryles of the law firm Minter Ellison. Shortly thereafter, ADI's counsel forwarded Ibekwe a copy of each proposed arbitrator's *1124 CV.[1] While HSMV had an opportunity to do so, neither Ided Nechushtan ("Nechushtan"), President of HSMV, nor Ibekwe investigated the backgrounds of Gibson or Professor Pryles. Nor did HSMV propose the addition of any other potential arbitrators. Ibekwe claims that he had "no reason to doubt their credentials" because both proposed arbitrators were partners in major Australia law firms. Id., Ex. G at 40.[2] On November 18, 1998, HSMV and ADI entered into their second Back to Back Agreement (the "Agreement") and agreed to arbitrate all disputes arising out of or relating to the Agreement. See Ibekwe Decl., Ex. 1 at 27 (Section 6.3 re "Resolution of disputes") & 55-56 ("Exhibit F — Interim Dispute Resolution Procedures"). The arbitration procedures are set forth in Exhibit F of the Agreement (the "Procedures"). The Procedures provide that either party may initiate arbitration by delivery of a Claim Letter "to an arbitrator chosen by such party from the mutually approved list of arbitrators attached hereto...." Id. at 55. The Procedures also guarantee a prompt hearing — within seven business days following the arbitrator's receipt of the Claim Letter — and prompt decision — within 24 hours of the conclusion of the hearing. Id. The parties agreed to conduct the arbitration in (1) Melbourne, Australia, if the delivery of the Claim Letter occurs between November and April or (2) Los Angeles, California, if the delivery of the Claim Letter occurs between May and October. Id. at 56. In furtherance of the parties' agreement that "the sole purpose of the foregoing arbitration provision is to afford the parties an expeditious method of resolving the claims covered hereby so the Work can continue without interruption and any liquidated sum owing can be paid," the parties also agreed that "no monetary damages may be awarded in any such arbitration" and "the determination of the arbitrator shall not be collateral estoppel or res judicata in any action for damages." Id. Thus, under the Agreement, the only relief an arbitrator can award is injunctive relief "as necessary to prevent further breach." Id. at 55. Thereafter, "[a]ny party to the arbitration may petition any court of competent jurisdiction to confirm the arbitrator's determination as a binding arbitration award in accordance with applicable law." Id. (emphasis added). The Agreement contains no choice of law provision. In April 1999, ADI initiated the first arbitration proceeding and selected Gibson as the arbitrator. On May 10, 1999, after a hearing in Melbourne, Australia, Gibson ruled in HSMV's favor. On May 25, 1999, HSMV initiated the second arbitration proceeding. HSMV selected Gibson as the arbitrator on the theory that he was familiar with the facts of the parties' relationship (and presumably since his prior ruling was favorable to HSMV). Claiming that ADI had breached the Agreement, HSMV sought an injunction requiring ADI, inter alia, to ship to HSMV all parts purchased or ordered but not yet installed, to redirect all future parts to HSMV for use by its new supplier, to provide all technical assistance to effect transition to the new supplier and to refrain from discussing HSMV products with the Government of Singapore. See Trupiano Decl., Ex. M at 75-77. HSMV also sought restitution. Id. at 77. On June 7, 1999, the arbitration was held in Los Angeles, California. Gibson issued an award in favor of ADI (the "Arbitration Award") on the same day. B. Notice of Blake Dawson's Representation of the Commonwealth In early 1998, in connection with the Commonwealth's efforts to privatize ADI, ADI repeatedly requested that HSMV consent to the disclosure of the various agreements between HSMV and ADI to *1125 the Commonwealth, its advisors and prospective buyers. See Barrett Decl., Exs. A-C. In June 1998, Ibekwe advised ADI that HSMV would consent to the disclosure of certain of the agreements if (1) ADI provided HSMV with an acceptable confidentiality deed (a form of non-disclosure agreement) signed by the party to whom any such disclosure is to be made and (2) such deed granted HSMV the right to enforce the confidentiality provisions against those third parties. Id., Ex. D. On October 1, 1998, an agency of the Commonwealth forwarded a copy of the proposed confidentiality deed to Nechushtan. The last sentence of the two page cover letter stated that: Should you have any queries, please call me on 61 2 6208 9114. Mr. Bill Conley of Blake Dawson Waldron (61 2 6234 4017) can assist in respect of the confidentiality arrangements. Trupiano Decl., Ex. H. On the bottom center of the confidentiality deed's cover page, "BLAKE DAWSON WALDRON," its address and telephone number are referenced. Id. No other references are made to Blake Dawson. Sometime thereafter, either in October or early November 1998, Nechushtan forwarded the documents to Ibekwe without reading them. Ibekwe recalls reviewing these documents. However, he claims that he did not pay much attention to them and did not notice references to Blake Dawson because the privatization of ADI and confidentiality deed issues were not "front-burner" issues for HSMV. Id., Ex. G at 20-21. At the time, he and HSMV had "more important things" to deal with — i.e., the negotiation of the 1998 Settlement and the Agreement. Id. at 21; Day Decl., Ex. 1 at 11-13. After the June 7, 1999 arbitration, Baring Brothers, the financial adviser to the Commonwealth, requested that it be allowed to disclose ADI's agreements with HSMV to prospective buyers of ADI. Ibekwe Decl., ¶ 7. In response, HSMV asked that it be provided with a confidentiality deed signed by those parties. Id. On June 18, 1999, the Sydney office of Blake Dawson[3] forwarded the requested confidentiality deeds to Ibekwe. The one paragraph letter contained a reference heading to "Sale of ADI Ltd" and stated: We refer to your facsimile of 13 June 1999 to Jeff White. As requested please find attached copies of confidentiality deeds for: [three prospective buyers]. we look forward to your response. Trupiano Decl., Ex. O. According to Ibekwe, "[i]t was only after receiving this [letter] that HSMV and I became aware that Blake Dawson Waldron — the firm in which [Gibson,] the arbitrator ... is a partner — had, at all relevant times, been representing the Commonwealth in its attempts to sell ADI, and that such representation commenced before HSMV and ADI entered into the Back to Back Agreement." Ibekwe Decl., ¶ 8. On June 29, 1999, Ibekwe wrote to Gibson advising him of HSMV's recent discovery of Blake Dawson's connection with ADI: "This fact was not disclosed to HSMV by ADI, [its counsel] Deacons Graham & James or your firm.... Had HSMV been appraised of this fact, it would not have elected to proceed with the arbitration with you as the panel." Id., Ex. 2. Ibekwe requested that Gibson set aside his arbitration decision. Id. Gibson declined to do so. On July 1, 1999, Gibson explained that he had no knowledge of his firm's involvement in the sale of ADI: "I can give you an unqualified assurance that I was not aware of any relationship between any part of this firm and ADI when either award was made and that accordingly any such relationship could have had no effect on any part of my conduct in either of the arbitrations...." Id., Ex. 3.[4] *1126 On July 16, 1999, HSMV filed a Petition to Vacate Arbitration Award pursuant to Cal.Civ.Proc.Code § 1280 et seq. in Los Angeles County Superior Court (Case No. BS 058229). On August 6, 1999, ADI removed the action to this Court. On August 11, 1999, ADI filed an Answer to HSMV's Petition. On August 22, 1999, ADI filed a Counter-Petition for Confirmation of Arbitration Award under 9 U.S.C. § 207. On September 29, 1999, HSMV filed the Motion. On October 19, 1999, ADI filed its Opposition. On October 25, 1999, HSMV filed its Reply. II. Discussion A. Removal Jurisdiction This matter is before the Court on the basis of removal jurisdiction. ADI removed the case from state court alleging that this Court has removal jurisdiction. ADI claims that HSMV's Petition to Vacate originally could have been brought in federal court pursuant to: (1) 28 U.S.C. § 1331 (federal question) because the matter falls within the scope of the Convention on the Recognition and Enforcement of International Arbitral Awards, 9 U.S.C. § 201 et. seq., (the "Convention"); (2) the Foreign Sovereign Immunities Act ("Immunities Act"), 28 U.S.C. §§ 1330 and 1602 et seq., because the Petition to Vacate concerns an action against an entity whose majority of shares are owned by a foreign state; and (3) 28 U.S.C. § 1332 (diversity) because this is an action between citizens of different states and the amount in controversy exceeds $75,000. Notice of Removal at 2-5. Although HSMV does not contest ADI's claim that this Court has subject matter jurisdiction over this action, the Court must address the basis for jurisdiction to determine whether state law, the Federal Arbitration Act ("FAA")[5] or the Convention supplies the applicable procedural and substantive law for the Motion.[6] To determine removal jurisdiction based on a federal question, the Court may examine only the complaint or petition as it existed at the time of the removal. See William W. Schwarzer, et al., Federal Civil Procedure Before Trial, § 2:697-2:701 (1999). However, the Court may examine the complaint, other pleadings, the removal notice or other papers to ascertain whether a case is removable on diversity grounds. See id. at § 2:654. Here, after reviewing HSMV's Petition to Vacate, the Court concludes that the only basis for removal jurisdiction is 28 U.S.C. § 1330. 28 U.S.C. § 1330(a) provides that the district courts have "original jurisdiction without regard to amount in controversy of any nonjury civil action against a foreign state as defined in section 1603(a) ... as to any claim for relief in personam with respect to which the foreign state is not entitled to immunity." 28 U.S.C. § 1330(a). Under § 1603, a "foreign state" is defined to include an entity whose majority shares "[are] owned by a foreign state or political subdivision thereof." 28 U.S.C. § 1603(a)-(b). A federal court may exercise subject matter jurisdiction under § 1330(a) only "`[i]f one of the specified exceptions to sovereign immunity applies.'" Security Pacific Nat'l Bank v. Derderian, 872 F.2d 281, 283 (9th Cir. 1989). In this case, ADI concedes that it is a "foreign state" under the Immunities Act because it is wholly owned by the Commonwealth. While ADI alleges the applicability of § 1330(a), it does not explain which exception applies to trigger jurisdiction. After examining the exceptions set forth in 28 U.S.C. § 1605(a), the Court finds that this is an action "in which the foreign state has waived its immunity *1127 either explicitly or by implication." 28 U.S.C. § 1605(a)(1).[7] Implicit waivers are found when "`(1) a foreign state has agreed to arbitration in another country; (2) a foreign state has agreed that a contract is governed by the law of a particular country; and (3) a foreign state has filed a responsive pleading in a case without raising the defense of sovereign immunity.'" Corporacion Mexicana de Servicios Maritimos, S.A. de C.V. v. M/T Respect, 89 F.3d 650, 655 (9th Cir.1996). Here, ADI implicitly waived any sovereign immunity claim by (1) its agreement to arbitrate in Los Angeles and (2) its failure to raise the sovereign immunity defense in its Answer. Therefore, the Court has jurisdiction under § 1330(a) to entertain this action.[8] B. Evident Partiality The FAA governs the enforcement and validity of contractual arbitrations arising out of contracts affecting interstate or foreign commerce. Allied-Bruce Terminix Companies, Inc. v. Dobson, 513 U.S. 265, 270-73, 115 S.Ct. 834, 130 L.Ed.2d 753 (1995).[9] 9 U.S.C. § 10 establishes the relevant standard for a court to vacate an arbitration award. Among other grounds, § 10(a) provides that the award may be set aside "[w]here there was evident partiality or corruption in the arbitrators." 9 U.S.C. § 10(a)(2). Here, HSMV alleges that Gibson's failure to disclose his firm's representation of the Commonwealth establishes the "evident partiality" basis for setting aside the Arbitration Award. In Commonwealth Coatings Corp. v. Continental Cas. Co., 393 U.S. 145, 89 S.Ct. 337, 21 L.Ed.2d 301 (1968), a supposedly neutral arbitrator failed to disclose the fact that he and one of the parties to the arbitration had an ongoing and significant business relationship. The Supreme Court vacated the arbitration award on the ground that there existed "evident partiality" in the arbitrator. Id. at 338. The Court held that the arbitrator had a duty "to disclose to the parties any dealings that might create an impression of possible bias." Id. at 339. More recently, in Schmitz v. Zilveti, 20 F.3d 1043 (9th Cir. 1994), a nondisclosure case involving an arbitrator who had no actual knowledge of a conflict, the Ninth Circuit held that a party's failure to investigate potential conflicts of interest may result in a "reasonable impression of partiality under Commonwealth Coatings." Id. at 1049. In Schmitz, the parties agreed to arbitrate their dispute in accordance with the *1128 National Association of Securities Dealers ("NASD") arbitration procedure ("NASD Code"). Id. at 1044. The NASD Code required each arbitrator to disclose relationships that might affect impartiality or create an appearance of bias. Id. One of the parties to the arbitration was Pru-Bache. The lawyer-arbitrator failed to disclose that his law firm had represented Prudential Insurance Co., the parent company of Pru-Bache, numerous times over a 35 year period. Id. The arbitrator was not aware of the firm's representation of Prudential because he only ran a conflict check for Pru-Bache. Id. Nevertheless, the Court held that the arbitrator's failure to disclose the conflict warranted the vacation of the award under 9 U.S.C. § 10(a)(2). Id. at 1049. In reaching its holding, the Schmidt Court rejected the argument that the arbitrator's lack of knowledge precluded a finding of evident partiality. The court explained that "though lack of knowledge may prohibit actual bias, it does not always prohibit a reasonable impression of partiality." Id. at 1048.[10] Where an arbitrator has an independent duty to investigate, a violation of this duty "may result in a failure to disclose that creates a reasonable impression of partiality." Id.[11] Because a conflict existed and the arbitrator violated his duty to investigate under the NASD Code, the court found a reasonable impression of partiality. Id. Schmitz is controlling.[12] Here, Gibson's law firm's contemporaneous representation of ADI's owner clearly presented a conflict of interest. The question is whether Gibson had a duty to investigate independent of his Commonwealth Coatings duty to disclose. The Court concludes that such a duty existed under applicable California and Australian arbitration rules.[13] *1129 First, the California International Arbitration and Conciliation Act (the "CIA Act"), Cal.Civ.Proc.Code § 1297.11 et seq., imposes a duty upon arbitrators to disclose conflicts of interest. The CIA Act applies to "international" commercial arbitrations that take place in California. Cal.Civ. Proc.Code § 1297.11. The Court has no doubt that the arbitration between HSMV and ADI constitutes an "international" commercial arbitration within the scope of the CIA Act.[14] Under the CIA Act, "all persons whose names have been submitted for consideration for appointment or designation as arbitrators ... or who have been appointed or designated as such" must disclose various information that "might cause their impartiality to be questioned." Cal. Civ.Proc.Code § 1297.121. Such information includes, but is not limited to, "an interest that could be substantially affected by the outcome of the proceeding." Id. This duty to disclose is on-going: From the time of appointment through the end of the arbitration, the arbitrator shall disclose "any circumstances referred to in Section 1297.121 which were not previously disclosed." Cal.Civ.Proc.Code § 1297.123. Second, the United Nations Commission on International Trade Law's Model Law on International Commercial Arbitration ("Model Law"), which Australia has adopted, imposes the same duty. See McClellan Decl.,[15] ¶¶ 6-7 & Ex. 2 at § 3.2.[16] Article 12 of the Model Law provides, in pertinent part: When a person is approached in connection with his possible appointment as an arbitrator, he shall disclose any circumstances likely to give rise to justifiable doubts as to his impartiality. An arbitrator, from the time of his appointment and throughout the arbitral proceedings, shall without delay disclose any such circumstances to the parties unless they have already been informed of them by him. United Nations Comm'n on Int'l Trade Law: Model Law on Int'l Commercial Arbitration, Art. 12, reprinted at 24 I.L.M. 1302, 1305 (1985); see McClellan Decl., Ex. 2 at § 4.2. While neither the CIA Act nor the Model Law expressly provides that the arbitrator must "investigate" whether he has any of the questionable relationships and/or interests, the Court concludes that the disclosure requirement imposed by both rules necessarily implicates a duty to investigate whether instances of potential conflict exist. Under either rule, an arbitrator is obligated to conduct a conflicts check to see if he must disclose any circumstances that might cause his impartiality to be questioned. It is undisputed that Gibson failed to do so. Third, the Court finds that Gibson, as a lawyer, had a duty to investigate whether a conflict may exist prior to his engagement as the sole "neutral" arbitrator in this dispute. The Ninth Circuit has recognized that an arbitrator who is also a lawyer may have an independent duty to investigate possible conflicts of interest. The Schmidt Court cited Close v. Motorists Mut. Ins. Co., 21 Ohio App.3d 228, 486 N.E.2d 1275 (1985) with approval as an example of a case (not involving the NASD *1130 Code) where "the parties can expect a lawyer/arbitrator to investigate and disclose conflict." Schmitz, 20 F.3d at 1048. In Close, the Ohio Court of Appeals vacated an arbitration award on the ground that evident partiality existed where the lawyer-arbitrator failed to disclose his law firm's on-going representation of one of the parties. 21 Ohio App.3d at 230, 486 N.E.2d 1275.[17] The court was not persuaded by the argument that there could be no evident partiality where the arbitrator had no knowledge of the conflict. Noting that the arbitrator, in his role as a lawyer, routinely conducts a conflicts check when taking on new clients, the Close Court held that "the same duty is owed to the parties to an arbitration." Id. "In deciding this case, we emphasize the duty of inquiry and disclosure. When such is done, any possible conflict can be resolved by the parties prior to hearing. Thus resort to the courts is obviated, and this is, after all, the purpose of arbitration." Id. In sum, the Court finds that Gibson had a duty "to make a reasonable effort to inform himself of his firm's representation" of the Commonwealth in its efforts to privatize ADI. Schmitz, 20 F.3d at 1049. "A violation of this independent duty to investigate may result in a failure to disclose that creates a reasonable impression of partiality under Commonwealth Coatings." Id. at 1048.[18] C. Waiver That Gibson had a duty to investigate and a duty to disclose is not the end of the Court's inquiry. Here, ADI argues that HSMV was on notice of the conflict of interest and waived its right to object to the alleged appearance of partiality. ADI contends that HSMV received actual notice of Blake Dawson's involvement in the privatization of ADI from the October 1, 1998 letter and the attached Confidentiality Deed. ADI further contends that HSMV subsequently waived the conflict by selecting Gibson, a partner at Blake Dawson, to arbitrate the disputes.[19] Motion at 12-14. While the Court is not without sympathy for ADI's position, the Court rejects ADI's argument that HSMV waived the conflict of interest. The facts of this case show that a diligent review of the documents forwarded by the Commonwealth might have prevented this dispute.[20] Ibekwe, the lawyer who represented HSMV at all relevant times, was involved in the 1998 Settlement; he knew about the sale of ADI; he negotiated and co-drafted the Agreement; he handled the Commonwealth's requests for consent to disclose agreements between ADI and HSMV; and he agreed to the *1131 selection of Gibson. Had Ibekwe paid more scrupulous attention to the pertinent documents prior to the two arbitrations, perhaps he would have realized that Gibson's law firm was involved in the privatization of ADI. Unfortunately, he did not. Thus, HSMV did not discover the conflict until after the second arbitration. However, the record at best shows that a careful study of the documents forwarded to HSMV could have revealed Blake Dawson's relationship with the owner of ADI. But that is not sufficient to support a finding that HSMV waived the conflict of interest. "Clearly, as a threshold matter one must know of, understand and acknowledge the presence of a conflict of interest before one can" waive the conflict. Gilbert v. Nat'l Corp. for Hous. Partnerships, 71 Cal.App.4th 1240, 84 Cal.Rptr.2d 204 (1999) (on disqualification of lawyer). The record simply does not demonstrate that HSMV actually knew, understood and acknowledged the presence of a conflict before the conclusion of the arbitration proceedings.[21] Kaiser Found. Hospitals, Inc. v. Superior Court, 19 Cal.App.4th 513, 23 Cal. Rptr.2d 431 (1993), cited by neither party, is instructive. In Kaiser, the losing party (Coburn) moved to vacate the arbitration award after discovering that the arbitrator failed to disclose his past services for Kaiser, the other party to the arbitration. Kaiser argued that Coburn had actual knowledge of the arbitrator's relationship with Kaiser and waived any objection to the appointment. Id. at 515, 23 Cal. Rptr.2d 431. Specifically, Kaiser relied on a letter sent by its counsel to Coburn's counsel to show it had given actual notice of the possible conflict. Id. at 515-16, 23 Cal.Rptr.2d 431. The letter stated: I note that Judge Drummond has been selected by our party arbitrators as the neutral arbitrator. My client and myself will accept him as the neutral in this matter. This is true even though he has sat as a claimant's party arbitrator in other cases against my client, as a neutral in other cases and even as a party arbitrator on behalf of my client. Id. at 516, 23 Cal.Rptr.2d 431 (quotations omitted). The trial court rejected Kaiser's waiver argument and explained why the letter was "insufficient to obviate the impression of bias." Id. at 516, 23 Cal. Rptr.2d 431. I really believe that the duty to disclose comes from the neutral arbitrator and I have to consider here the implications of what happened on the process of arbitration in general. [¶] If the courts allow opposing counsel to claim disclosure by a phrase in a letter, that doesn't really disclose anything except that he was a party arbitrator and the courts hold that that relieves the neutral arbitrator of all responsibility of disclosure, then I think we are inviting an awful lot of unfairness in the system. *1132 Id. at 515, 23 Cal.Rptr.2d 431. The Court of Appeal affirmed. Here, as in Kaiser, the Court recognizes that "the consequences of [the arbitrator's] failure to disclose may be overcome if the pertinent facts are actually revealed, or otherwise become known, to the parties in some other fashion." Id. at 517, 23 Cal. Rptr.2d 431. However, the brief references to Blake Dawson in letters by a third (albeit related) party to HSMV, sent to HSMV in connection with another matter more than a month before the parties designated potential arbitrators and more than six months before Gibson was first selected as an arbitrator to preside over a dispute, do not overcome the consequences of Gibson's failure to disclose. In sum, Gibson had a duty to investigate whether a possible conflict existed. He "did nothing to fulfill that duty." Schmitz, 20 F.3d at 1049. That he was not asked by the parties to run a conflict check or had forgotten to conduct a check is not an excuse. See id. at 1048. Thus, although he lacked actual knowledge, Gibson had constructive knowledge of his firm's contemporaneous representation of ADI's owner. See id. "Given [Gibson's] constructive knowledge and the presence of conflict, [Gibson's] failure to inform the parties to the arbitration resulted in a reasonable impression of partiality under Commonwealth Coatings." Id. (citing Close, 21 Ohio App.3d at 229-30, 486 N.E.2d 1275). III. Conclusion For all of the reasons set forth above, the Court hereby GRANTS HSMV's Motion to Vacate Arbitration Award. SO ORDERED. NOTES [1] Gibson's CV indicates that he is a partner at Blake Dawson. See Trupiano Decl., Ex. L. [2] References to exhibit page numbers shall refer to the page numbers the parties added in accordance to Local Rule 3.6.2. [3] Gibson works out of the Melbourne office. [4] In a subsequent letter, Gibson stated that he first learned of relationship "on about 28 June 1999 .... in the course of a discussion with a partner from our Canberra office." Trupiano Decl., Ex. R. [5] Hereinafter, the Court's use of "FAA" references Chapter 1 of the Federal Arbitration Act, 9 U.S.C. §§ 1-11, and the "Convention" references Chapter 2 of the Federal Arbitration Act, 9 U.S.C. § 201 et seq. [6] Neither party addresses this issue. Instead, HSMV simply argues that it is entitled to have the Arbitration Award set aside under either California law, FAA or the Convention. ADI's opposition does not even mention the Convention, presumably conceding that the Convention is not applicable. [7] 28 U.S.C. § 1605(a)(6) also provides an exception where the action is brought either to enforce an agreement to arbitrate or to confirm an arbitration award. However, this exception is not applicable since HSMV initiated the action to vacate an arbitration award. [8] Neither diversity of citizenship nor the Convention provides a basis for removal jurisdiction. First, the Immunities Act "is the exclusive source of subject matter jurisdiction over suits involving foreign states and their instrumentalities." Corporacion Mexicana, 89 F.3d at 653; accord Universal Consolidated Companies, Inc. v. Bank of China, 35 F.3d 243, 246 (6th Cir.1994) (the Immunities Act "eliminate[s] actions against foreign states from the scope of diversity jurisdiction"). Second, HSMV's Petition to Vacate could not have been initiated under 9 U.S.C. § 201 et seq., which implemented the provisions of the Convention into domestic law. The Convention contains no provision that expressly permits a losing party to initiate suit to vacate an award that would otherwise fall under the scope of the Convention. Alan Scott Rau, The New York Convention in American Courts, 7 Am. Rev. Int'l Arb. 213, 234-35, 257 & n. 20 (1997); see 9 U.S.C. § 201, notes (reprint of the Convention). As drafted, the Convention provides a mechanism for winning parties to initiate a proceeding to confirm arbitration awards and sets forth grounds by which a court may refuse to recognize or enforce the award. See 9 U.S.C. § 201, notes (Articles IV and V of the Convention). Because the Court finds that HSMV could not have initiated this action against ADI under the Convention, the Court cannot assert removal jurisdiction on this basis. [9] In its moving papers, HSMV briefed California law due to its erroneous belief that the Court has diversity jurisdiction. See Motion at 9 n. 5. The Court finds that California law parallels federal law in all relevant respects. Where necessary, the Court discusses California law to the extent that it is consistent with federal law. [10] "In an actual bias case, a court must find actual bias. Finding a `reasonable impression' of partiality is not equivalent to, nor does it imply, a finding of actual bias. Otherwise, the Commonwealth Coatings court could not have held that a reasonable impression of partiality was present when no actual bias was shown." Id. at 1047. Because this is not an actual bias case, evidence of Gibson's impartiality — e.g., his ruling in favor of HSMV in the parties' first arbitration — to show lack of evident partiality in the second arbitration is irrelevant. See Opp. at 9 & 18. [11] The Court further stated: "If the parties are to be judges of the arbitrators' partiality, duties to investigate and disclose conflicts must be enforced, even if later a court finds that no actual bias was present.... We therefore decline to adopt a per se rule that no reasonable impression of partiality can be found absent a showing that the arbitrator knew the facts on which it is based." Id. at 1049. [12] ADI argues at length that under federal law, "`evident partiality' cannot arise when an arbitrator is unaware of the conflict." Opp. at 16. However, as HSMV correctly notes, there exists a split of authority in the federal courts with respect of whether an award may be vacated on the ground of "evident partiality" from nondisclosure when the arbitrator lacked knowledge of the conflict but failed to investigate. See Reply at 15. To the extent that they are in conflict with the Schmidt standard, the Court rejects the line of non-Ninth Circuit cases cited by ADI. See Opp. at 15-17; see, e.g., ANR Coal Co., Inc. v. Cogentrix of N. Carolina, 173 F.3d 493, 499-500 (4th Cir.1999) (expressly distinguishing Schmitz); Al-Harbi v. Citibank, N.A., 85 F.3d 680, 682-83 (D.C.Cir.1996) (same); Peoples Security Life Ins. Co. v. Monumental Life Ins. Co., 991 F.2d 141 (4th Cir.1993) (pre-Schmitz). Peoples Security is also distinguishable on the ground that it involves allegations of evident partiality from actual bias rather than mere failure to disclose. See 991 F.2d at 142 & 146. The Ninth Circuit has determined that "both the facts and factual analyses [sic] of those [actual bias] cases are inapposite to the instant nondisclosure case." Schmitz, 20 F.3d at 1047. Moreover, the Court rejects ADI's contention that the ruling in Schmitz is limited to cases involving duties imposed by the NASD Code. Opp. at 17-18. The NASD Code is simply one of various sources that may impose upon arbitrators an "independent duty" to investigate. See Schmitz, 20 F.3d at 1048. [13] Because the parties' Agreement is silent on this issue, the Court looks to the laws of California and Australia, the two jurisdictions for arbitration identified in the Agreement. [14] An arbitration is considered "international" if (1) the parties have their places of business in different countries at the time of the arbitration agreement; (2) the subject matter of their dispute is closely connected with a third country; (3) a substantial part of the parties' agreement is to be performed in a third country; (4) the parties have designated California as the place of arbitration; (5) the subject matter of the arbitration is related to commercial interests in more than one country. H. Warren Knight, et al., California Practice Guide: Alternative Dispute Resolution, § 5:553 (1988) (discussing Cal.Civ.Proc.Code § 1297.13). [15] ADI raises no objection to HSMV's submission of expert declarations, including the Declaration of Geoff McClellan. [16] Again, there is no doubt that arbitration at issue constitutes an "international commercial arbitration" covered by the Model Law. See id., Ex. 2 at 78 (discussion of definition in Article 1(3)). [17] Close involved a petition to vacate under Rhode Island law. The Rhode Island statute tracks the language of 9 U.S.C. § 10(a). See id. at 229-30, 486 N.E.2d 1275. The Ohio court also followed Commonwealth Coatings. Id. at 230, 89 S.Ct. 337. [18] ADI argues, without any legal support, that HSMV and its counsel had a duty to investigate whether Gibson might have a conflict of interest. Opp. at 14. This argument has no merit. No authority supports the proposition that Gibson can shift his affirmative duty to investigate and disclose to HSMV and/or its counsel, even under the facts of this case. [19] ADI offers other additional "evidence" to show that HSMV and its counsel had actual knowledge of the conflict, including (1) the remark in ADI's letter to Ibekwe stating that it relied on the advice of counsel in submitted the suggested arbitrators (Opp. at 6); (2) the introductory paragraph in Gibson's CV indicating he has represented government clients and has expertise in administrative law (Id.); and (3) Nechustan and Ibekwe's testimony that they heard or saw "something" during the first arbitration proceeding held at Gibson's law office (Opp. at 6). The Court finds none of this purported evidence supports ADI's claim. [20] Nechushtan, like many clients represented by counsel, counted on his lawyer to pay attention to detail. The Court accepts the uncontroverted evidence that Nechushtan was not aware of Blake Dawson's involvement in the privatization of ADI and he did not review the October 1, 1999 letter and the Confidentiality Deed before forwarding them to Ibekwe. See, e.g., Trupiano Decl., Ex. F at 9-10, 14-15. [21] Because the cases cited by ADI in support of waiver are all distinguishable in this regard, ADI's reliance on them is misplaced. See Cook Indus., Inc., 449 F.2d 106, 107 (2d Cir.1971) (finding that "appellant was fully aware at the time of the submission to arbitration of the relationship between appellee and [the arbitrator]"); Kiernan v. Piper Jaffray Companies, Inc., 137 F.3d 588, 591-93 (8th Cir.1997) (arbitrator disclosed certain affiliations prior to the arbitration pursuant to NASD rules; believing that a conflict may exist, counsel requested that the NASD arbitration department allow him to inquire further into the arbitrator's relationships; after further disclosures were made, counsel advised the NASD that his clients had concerns about the arbitrator's impartiality but for various reasons decided not to request the arbitrator's removal); Sheet Metal Workers Int'l Assoc. Local Union # 420 v. Kinney Air Conditioning Co., 756 F.2d 742, 745-46 (9th Cir. 1985) (actual bias case) (the potential conflicting interests of the arbitration board's management representatives "were known to the parties prior to the hearing"); Int'l Standard Elec. Corp. v. Bridas Sociedad Anonima Petrolera Indus. Y Comercial, 745 F.Supp. 172, 180 (S.D.N.Y.1990) (under the Convention) (the arbitration panel advised the parties that it intended to appoint a secret expert; after failing to object to the panel's non-disclosure of the expert's name, ISEC cannot avoid confirmation of the award on the ground that its rights were subverted by the use of a "secret expert").

NUMBER 13-08-259-CR COURT OF APPEALS THIRTEENTH DISTRICT OF TEXAS CORPUS CHRISTI - EDINBURG CAROLINE KATHLEEN CALLAWAY, Appellant, v. THE STATE OF TEXAS, Appellee. On appeal from the County Court at Law No. 3 of Collin County, Texas. MEMORANDUM OPINION Before Chief Justice Valdez and Justices Yañez and Vela Memorandum Opinion by Justice Vela A jury convicted appellant, Caroline Kathleen Callaway, of the offense of misdemeanor driving while intoxicated (DWI). See TEX. PENAL CODE ANN. § 49.04(a) (Vernon 2003). The court assessed punishment at confinement for ninety days in jail, plus an $850.00 fine. The sentence was suspended, and she was put on community supervision for one year. In five issues, she argues the court erred by 1) overruling her objection to the State’s closing argument, 2) denying her request for a jury instruction, and 3) failing to exclude statements she made to the arresting officer. We affirm. I. FACTUAL BACKGROUND On August 14, 2007, Callaway drove her Volkswagen to a bar called “Martini Park” in Plano, Texas. There, she drank three glasses of red wine, and at 10:50 p.m., began driving home. Ten minutes later, she pulled into the parking lot of a 7-Eleven on Dallas Parkway. About 1:30 a.m. the following morning, Frisco police officer Joseph Robin stopped at the 7-Eleven and saw Callaway sitting in the driver’s seat of a Volkswagen. The vehicle was running with the driver’s side window down, and Callaway was the only occupant. Although she “appeared to be asleep,” Callaway was “slumped over,” and her hands were in her purse. Officer Robin spoke to Callaway but could not wake her up. He testified that when he opened her door, “she seemed to wake up at that point and then immediately pass[ed] back out.” He patted her on the back, and eventually she woke up. He asked her several times to exit the vehicle, but she did not comply. After asking her several times if she had been drinking, Callaway answered affirmatively. When she got out of the vehicle, he asked her how much she had to drink. She said, “[s]everal” and stated that she had been drinking red wine. When he searched her for weapons, “she placed her arms out at her side” and said, “[A]irplane--or airport.” When he asked her what she was doing, she said, “[T]his is what you do at the airport.” When Officer Robin asked her to do some field-sobriety tests, she refused and told him she wanted a lawyer. Officer Robin testified that Callaway had “bloodshot” eyes, “slurred speech,” and the smell of 2 alcohol on her breath. She told him she had come from Martini Park and that she had “pulled into the 7-Eleven parking lot because she realized she was too drunk to drive, and to sleep it off.” A half-empty bottle of wine was found in her vehicle. At trial, when asked whether appellant was intoxicated, Officer Robin stated “my opinion was that she was intoxicated. She was not able to operate a motor vehicle safely.” On direct examination, defense counsel asked Callaway whether she remembered telling Officer Robin that she was intoxicated. Callaway replied “yes, I do.” II. JURY ARGUMENT By her first and second issues, Callaway contends the trial court erred by overruling her objection to a remark made by the State during closing argument, and that the failure to sustain the objection deprived her of the right to confront her accusers under the Confrontation Clause and the Sixth Amendment to the United States Constitution. We will address both issues together. A. Standard of Review “‘It is the duty of trial counsel to confine their arguments to the record; reference to facts that are neither in evidence nor inferable from the evidence is therefore improper.’” Brown v. State, 270 S.W.3d 564, 570 (Tex. Crim. App. 2008) (quoting Alejandro v. State, 493 S.W.2d 230, 231 (Tex. Crim. App. 1973)). The four permissible areas of jury argument are: “(1) summation of the evidence; (2) reasonable deduction from the evidence; (3) answer to argument of opposing counsel; and (4) plea for law enforcement.” Id. “[E]rror exists when facts not supported by the record are interjected in the argument, but such error is not reversible unless, in light of the record, the argument is extreme or manifestly improper.” Id. “In determining whether jury argument is extreme or manifestly 3 improper, we look at the entire record of final arguments to determine if there was a willful and calculated effort on the part of the State to deprive appellant of a fair and impartial trial.” Cantu v. State, 939 S.W.2d 627, 633 (Tex. Crim. App. 1993). We must consider counsel’s remarks during closing argument in the context in which they appear. Drew v. State, 743 S.W.2d 207, 220 (Tex. Crim. App. 1987); Ayala v. State, 267 S.W.3d 428, 433 (Tex. App.–Houston [14th Dist.] 2008, pet. ref’d). The Sixth Amendment protects a defendant’s right to confront and cross-examine witnesses against him. U.S. CONST. amend VI; Davis v. Alaska, 415 U.S. 308, 315-16 (1974). This right is violated when appropriate cross-examination is limited. Carroll v. State, 916 S.W.2d 494, 497 (Tex. Crim. App. 1996). In Crawford v. Washington, the Supreme Court stated that the Confrontation Clause of the Sixth Amendment bars the “admission of testimonial statements of a witness who did not appear at trial unless he was unavailable to testify and the defendant had had a prior opportunity for cross-examination.” 541 U.S. 36, 53-54 (2004). B. Context of the Complained-Of Remark During Callaway’s guilt-innocence closing argument, her counsel argued to the jury: I’m not here to tell you that I support her [Callaway’s] decision to pull off the highway and go to sleep at 1:30 in the morning or eleven o’clock at night. May not be the smartest thing in the world, but it’s not against the law to do it. Y’all know that it’s done a lot. . . . It happens a lot. It is not against the law. And, in fact, law enforcement sometimes encourages it so that people don’t fall asleep at the wheel and cause accidents. She [appellant] said I was trying to do the right thing. I was trying to do the right thing. And now, the State of Texas wants to take her freedom away from her for doing the right thing. 4  After counsel finished his closing argument, the prosecutor argued, in relevant part: Ladies and gentleman, this case is about taking responsibility, about taking responsibility at the beginning and at the end. . . . Is this right? Is this fair and is this justice for someone to drive from the Martini bar down—up Dallas Parkway, loop around, and stop at 7-Eleven because she was too drunk to drive? *** You don’t reward the Defendant because she barely sideswiped a couple of cars. To the italicized remark, defense counsel objected as follows: “There is absolutely no evidence about sideswiping cars. That’s outside the record. That’s unsworn testimony. I object. It denies us our right to cross-examine and confront witnesses.” In response to the objection, the prosecutor argued, “[T]he State is not alleging that this did happen. It’s an argument of trying to reward the defendant based upon a reward for not doing that.” The trial court overruled the objection, and the prosecutor continued his argument to the jury: Do you reward her [appellant] for driving while intoxicated up to a point at 7-Eleven? Do you reward her for driving northbound on Dallas Parkway, pulling over because she was too drunk to drive? Do you reward her because she’s asleep at the wheel at 7-Eleven at 1:25 when she has claimed that she’s not intoxicated? According to her on the stand. You do not reward her for these actions by letting her go. You hold her responsible for her actions. She said she was drunk. She said she was intoxicated. She said she drove to 7-Eleven. You hold her responsible because in Collin County we hold people responsible for their actions. *** Do you or would you reward a complete drunk person just because they got to their home? They committed the offense. The elements were met. Beyond a reasonable doubt, ladies and gentlemen. Beyond a reasonable doubt. She’s guilty of driving while intoxicated. 5 C. Analysis The prosecutor’s remark that Callaway sideswiped two cars on her way from Martini Park to the 7-Eleven was clarified when he explained that “the State is not alleging that this did happen. It’s an argument of trying to reward the defendant based upon a reward for not doing that.” Thus, the prosecutor was not interjecting facts not supported by the record, and he was not referring to testimonial statements of a witness who did not appear at trial. Such testimony is barred by the Confrontation Clause. See Crawford, 541 U.S. at 53-54. Earlier, defense counsel had argued to the jury that “law enforcement sometimes encourages it [drivers to pull off the highway] so that people don’t fall asleep at the wheel and cause accidents.” Defense counsel argued that appellant “was trying to do the right thing[]” by stopping at the 7-Eleven and that the State wanted to take appellant’s “freedom away from her for doing the right thing.” Put in context, the remark was an attempt to argue to the jury that just because a driver does the right thing by pulling off the road to sleep, thereby avoiding a serious collision, the driver should not be rewarded by a verdict of not guilty. Accordingly, we conclude that the prosecutor was answering defense counsel’s argument and making a plea for law enforcement, both of which constitute proper jury argument. See Brown, 270 S.3d at 570 (stating that “answer to the argument of opposing counsel” and “plea for law enforcement” constitute proper jury argument). Although it is possible to construe the objected-to remark as being improper when taken out of its full context, the remark, when put it context, is not improper. Even if the remark could be viewed as improper, we cannot conclude that there was a willful and calculated effort to deprive Callaway of a fair and impartial trial. See Cantu, 939 S.W.2d at 633. Thus, the trial court did not err by overruling the objection. Issues one and two are 6 overruled. II. JURY INSTRUCTION ON CORROBORATION In issue three, Callaway contends the trial court erred in not instructing the jury about the corpus delicti rule for the corroboration of a defendant’s extrajudicial admissions. After both sides rested and closed, defense counsel requested the trial court to include an instruction in the charge “that the admission of the defendant cannot be used by itself to establish the element, corpus delicti of an offense, and that the defendant’s admission has to be corroborated before it can be used to establish any element of the offense.” The trial court denied the requested instruction. A. Standard of Review Appellate review of an error in a jury charge involves a two-step process. Abdnor v. State, 871 S.W.2d 726, 731 (Tex. Crim. App. 1991). First, we determine whether there was error in the charge. Almanza v. State, 686 S.W.2d 157, 174 (Tex. Crim. App. 1985) (op. on reh’g). If so, “the next step is to make an evidentiary review . . . as well as a review of any other part of the record as a whole which may illuminate the actual, not just theoretical, harm to the accused.” Id. B. Applicable Law The corpus delicti rule is a rule of evidentiary sufficiency, meaning that an extrajudicial confession of wrongdoing, standing alone, is not enough to support a conviction; other evidence must exist showing that a crime has in fact been committed. Rocha v. State, 16 S.W.3d 1, 4 (Tex. Crim. App. 2000) (citing Williams v. State, 958 S.W.2d 186, 190 (Tex. Crim. App. 1997)). “This other evidence is commonly referred to 7 as the ‘corpus delicti.’” Id. “This other evidence need not be sufficient by itself to prove the offense: ‘all that is required is that there be some evidence which renders the commission of the offense more probable than it would be without the evidence.’” Id. (quoting Williams, 958 S.W.2d at 190). “[A] trial judge need not instruct the jury on corroboration when the corpus delicti is established by other evidence.” Baldree v. State, 784 S.W.2d 676, 686-87 (Tex. Crim. App. 1989). The corpus delicti of DWI “is that someone drove or operated a motor vehicle in a public place while intoxicated.” Layland v. State, 144 S.W.3d 647, 651 (Tex. App.–Beaumont 2004, no pet.). C. Analysis Appellant testified that she drove from Plano to a 7-Eleven, where she parked her vehicle. Officer Robin testified that this 7-Eleven is located on a public road. Accordingly, evidence other than Callaway’s extrajudicial admission established the first two elements of the corpus delicti of the offense. See Layland, 144 S.W.3d at 651. Other than Callaway’s extrajudicial admissions about her intoxication, there is some other evidence which renders the intoxication element of the corpus delicti more probable than it would be without the evidence: (1) Callaway testified she drank three glasses of red wine and then left Martini Park about 10:50 p.m., arriving at the 7-Eleven about 11:00 p.m.; (2) at 1:30 a.m., Officer Robin saw Callaway slumped over in the driver’s seat of her vehicle; (3) Callaway did not wake up when Officer Robin tried to wake her; (4) when he opened her door, “she seemed to wake up at that point and then immediately pass[ed] back out;” (5) he asked her several times to exit the vehicle, but she did not comply; (6) when he searched her, “she placed her arms out at her side” and said, “[A]irplane--or airport;” (7) 8 she had bloodshot eyes, slurred speech, and her breath smelled of alcohol; (8) a half- empty bottle of wine was in her vehicle; and (9) Officer Robin testified that, in his opinion, she was intoxicated and not able to operate a motor vehicle safely. Because the other evidence, independent of Callaway’s admission, rendered the corpus delicti of DWI more probable than it would be without the evidence, we hold that the trial court did not err in refusing to instruct the jury on independent corroboration of her admission to Officer Robin that she was intoxicated. Issue three is overruled. IV. INVOCATION OF CONSTITUTIONAL RIGHTS In issue four, Callaway contends that the trial court erred in refusing to exclude evidence showing that she had invoked her right to counsel and her right to remain silent. Defense counsel filed a pre-trial motion in limine, requesting the trial court to order the prosecution not to offer into evidence: 1) any statements made by appellant following the invocation of her right to counsel or her right to remain silent; and 2) any testimony relating to any such statements. At a pre-trial hearing, the trial court denied the motion as it pertained to appellant’s invocation of these rights during her encounter with Officer Robin at the 7-Eleven. A. Standard of Review and Applicable Law We review a trial court’s decision to admit or exclude evidence under an abuse-of- discretion standard. Torres v. State, 71 S.W.3d 758, 760 (Tex. Crim. App. 2002). We will not reverse a trial court’s ruling unless that ruling falls outside the zone of reasonable disagreement. Id. 9  “Under the Fifth Amendment, a right to counsel exists as a prophylactic protection of the right to remain silent; in other words, it exists to counteract the inherent pressures of custodial interrogation.” Garcia v. State, 191 S.W.3d 870, 877 (Tex. App.–Houston [14th Dist.] 2006, no pet.) (citing U.S. CONST. amend. V; M cNeil v. Wisconsin, 501 U.S. 171, 176 (1991)). Once a suspect asserts his or her Fifth Amendment right, he or she cannot be interrogated outside the presence of counsel unless the suspect initiates the contact. Id. (citing Edwards v. Arizona, 451 U.S. 477, 484-85 (1981)). “An individual may not be penalized for exercising his Fifth Amendment rights when he is under police investigation; evidence of his invocation of his right to counsel is inadmissible as evidence of guilt.” Kalisz v. State, 32 S.W.3d 718, 721 (Tex. App.–Houston [14th Dist.] 2000, pet. ref’d) (citing Hardie v. State, 807 S.W.2d 319, 322 (Tex. Crim. App. 1991)). Courts have also held that the invocation of the right to remain silent cannot be admitted as evidence of guilt. See Cooper v. State, 961 S.W.2d 222, 226 (Tex. App.–Houston [1st Dist.] 1997, pet. ref’d) (stating that “[e]vidence of invoking the right to terminate an interview is inadmissible as evidence of guilt”) (citing Hardie, 807 S.W.2d at 322).1 Here, the evidence showed that Callaway was under investigation by Officer Robin. Therefore, evidence of her invocation of her right to counsel, which includes her right to remain silent, is inadmissible as evidence of guilt. See Kalisz, 32 S.W.3d at 721; Cooper, 961 S.W.2d at 226. 1 See also McLendon v. State, No. 04-96-00542-CR, 1998 W L 538208, at *4 (Tex. App.–San Antonio Aug. 26, 1998, no pet.) (not designated for publication) (stating that “evidence establishing the DW I defendant invoked a Miranda right is inadmissible as substantive evidence of guilt.”) (citing Hardie v. State, 807 S.W .2d 319, 322 (Tex. Crim. App. 1991)). 10 B. Preservation of Error Callaway complains that during the State’s direct-examination of Officer Robin, the State elicited testimony2 that she invoked her right to counsel. Rule 33.1 of the Texas Rules of Appellate Procedure governs preservation of error, and states, in part: (a) In General. As a prerequisite to presenting a complaint for appellate review, the record must show that: (1) the complaint was made to the trial court by a timely request, objection, or motion that: (A) stated the grounds for the ruling that the complaining party sought from the trial court with sufficient specificity to make the trial court aware of the complaint, unless the specific grounds were apparent from the context; TEX. R. APP. P. 33.1. “The complaining party bears the responsibility of clearly conveying to the trial judge the particular complaint, including the precise and proper application of the law as well as the underlying rationale.” Pena v. State, 285 S.W.3d 459, 463-64 (Tex. Crim. App. 2009). “To avoid forfeiting a complaint on appeal, the party must ‘let the trial judge know what he wants, why he thinks he is entitled to it, and to do so clearly enough for the judge to understand him at a time when the judge is in the proper position to do something about it.’” Id. at 464 (quoting Lankston v. State, 827 S.W.2d 907, 909 (Tex. Crim. App. 1992)). Here, no objection was made to Officer Robin’s testimony. Thus, Callaway did not clearly 2 Specifically, when the prosecutor asked Officer Robin, “W hat happened once you had her [appellant] in front of your patrol vehicle?”, he replied, “I said we’re going to conduct some field sobriety tests; are you willing to take the tests. And she said, no. I don’t want to do that; I want to speak to a lawyer.” Later in Officer Robin’s direct-examination, the prosecutor asked him, “Under your training as an officer, what were you supposed to do at that point when she [appellant] was asking for an attorney in the field?”. To this, he replied, “W hen she--when they ask for her attorney, we basically stop all questioning. She is invoking her right to remain silent essentially. So when she requested a lawyer, she requested a lawyer and she was placed under arrest. . . .” 11 convey to the trial court “the precise and proper application of the law as well as the underlying rationale.” See id. at 463-64. Furthermore, “[a] motion in limine, whether granted or denied, preserves nothing for appellate review.” Griggs v. State, 213 S.W.3d 923, 926 n.1 (Tex. Crim. App. 2007). Therefore, Callaway did not preserve error.3 See TEX. R. APP. P. 33.1. Even if Callaway had objected to Officer Robin’s complained-of testimony and received an adverse ruling, any error was harmless. “‘[O]verruling an objection to evidence will not result in reversal when other such evidence was received without objection, either before or after the complained-of ruling. This rule applies whether the other evidence was introduced by the defendant or the State.’” Reyes v. State, 267 S.W.3d 268, 274 (Tex. App.–Corpus Christi 2008, pet. ref’d) (quoting Leday v. State, 983 S.W.2d 713, 718 (Tex. Crim. App. 1998)). Here, during redirect-examination of appellant and during cross- examination of Officer Robin, defense counsel elicited testimony4 that appellant invoked 3 Except for fundamental errors, even constitutional guarantees can be forfeited by failing to properly object at trial. Reyes v. State, 267 S.W .3d 268, 273 (Tex. App.–Corpus Christi 2008, pet. ref’d). The use of an accused’s silence as an admission of guilt is not fundamental error and can be waived absent a proper objection in the trial court. Id. “Likewise, allowing a jury to hear that the defendant invoked his or her right to counsel is not fundamental error.” Id. 4 Specifically, defense counsel asked appellant: Counsel: The Prosecutor asked you about refusing to take the s t a n d a rdized field sobriety tests? Appellant: Yes, sir. Counsel: W hen the officer asked you to perform those? Appellant: That’s correct. Counsel: Did you, also, in connection with those when he requested the test, do you recall asking whether you could talk to your attorney? Appellant: Many times, yes. 12 her right to counsel. No objection was made to this testimony. Thus, any error in admitting Officer Robin’s testimony that appellant invoked her right to counsel was rendered harmless because the jury heard testimony elicited by defense counsel that appellant invoked her right to counsel. See Reyes, 267 S.W.3d at 274 (holding that even if trial court had overruled accused’s objection that audio portion of a videotape allowed the jury to hear him invoke his rights to counsel and to remain silent, error would have been harmless because jury heard testimony that accused invoked these rights). Issue four is overruled. In issue five, Callaway contends the trial court erred in refusing to exclude statements she made to Officer Robin in response to his interrogation of her after she invoked her right to counsel. A. Applicable Law “The 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.” Miranda v. Arizona, 384 U.S. 436, 444 (1966). “For Miranda safeguards to attach, two threshold issues must be met: 1) the suspect must have been ‘in custody,’ and 2) the police must have ‘interrogated’ the suspect.” Little v. State, 853 S.W.2d 179, 183 (Tex. App.–Corpus Christi 1993, no pet.). “[T]he term ‘interrogation’ under Miranda refers not only to express questioning, but also to any words or actions on the part of the police (other than those normally attendant to arrest and custody) that the police should know are reasonably likely W hile cross-examining Officer Robin, defense counsel asked him, “After she [appellant] woke up, she wasn’t slurring her speech, was she?” Officer Robin replied, “I said, do you want to take the field sobriety tests. She said no. She said that she didn’t have any weapons and wanted a lawyer. W asn’t a whole lot of speech once she was out of her vehicle.” 13 to elicit an incriminating response from the suspect.” Rhode Island v. Innis, 446 U.S. 291, 300-301 (1980) (footnotes omitted). The Fifth Amendment “bar[s] police-initiated interrogation of an accused who, in the context of custodial interrogation, has previously asserted his right to counsel during such interrogation, unless the accused’s counsel is actually present.” Hughen v. State, Nos. PD-1123-08, 1124-08, 2009 WL 3189187, at *4 (Tex. Crim. App. Oct. 7, 2009) (citing Minnick v. Mississippi, 498 U.S. 146, 153 (1990)). Article 38.22 of the code of criminal procedure generally precludes the use of statements that result from custodial interrogation absent compliance with its procedural safeguards. TEX. CODE CRIM. PROC. ANN. art. 38.22, § 2 (Vernon 2005). However, Article 38.22, Section 5 specifically exempts “a statement that does not stem from custodial interrogation. . . .” Id. § 5. Thus, if appellant’s statements did not stem from custodial interrogation, neither Miranda nor Article 38.22 require their exclusion. Morris v. State, 897 S.W.2d 528, 531 (Tex. App.–El Paso 1995, no pet.) (citing Galloway v. State, 778 S.W.2d 110, 112 (Tex. App.–Houston [14th Dist.] 1989, no pet.)). B. Analysis Callaway complains that the trial court should have excluded Officer Robin’s testimony about: 1) “her refusal to perform the standardized field sobriety tests[;]” 2) “her denial that some bottles of wine found in her vehicle were opened[;]” 3) “her reference to Judge Burke as being her lawyer[;]” and 4) “her statements that ‘she was intoxicated’ and that ‘she was too drunk to drive.’” We address each complaint separately. 14 1. Refusal to Perform Field-Sobriety Tests The record reflects that Callaway invoked her right to counsel after she refused Officer Robin’s request to take the field-sobriety tests. Nevertheless, Callaway did not object when the prosecutor elicited testimony from Officer Robin that appellant refused to take the field-sobriety tests. Therefore, appellant did not preserve error. See TEX. R. APP. P. 33.1; Pena, 285 S.W.3d at 464. Accordingly, even if appellant had preserved this complaint for review, police requests for performing sobriety tests do not constitute interrogation. Smith v. State, 105 S.W.3d 203, 207 (Tex. App.–Houston [14th Dist.] pet. ref’d) (citing Kalisz, 32 S.W.3d at 721). Thus, assuming Callaway was in custody when Officer Robin asked her to take the field-sobriety tests, her response that she did not want to take them did not result from interrogation. See id. Because the “interrogation” predicate is not met, neither Miranda nor Article 38.22 require exclusion of appellant’s refusal to take the field-sobriety tests. See TEX. CODE CRIM. PROC. ANN. art. 38.22, § 5; Little, 853 S.W.2d at 183. 2. Testimony About the Wine Bottles Found in Appellant’s Vehicle The record reflects that after Callaway requested an attorney, Officer Robin arrested her outside the 7-Eleven for DWI. Before he transported her to the police station, other officers searched her vehicle. When the prosecutor asked Officer Robin, “Were any items from her [Callaway’s] vehicle placed on your patrol car?”, he replied, “Yes, they were.” When asked what those items were, Officer Robin stated, “It was a[n] empty box of Coors Light, and two bottles of wine. White Zinfandel wine. One was sealed closed and the other was open and half empty.” When the prosecutor asked Officer Robin, “[Did] [t]he 15 defendant say anything in response to seeing those items on your patrol vehicle?”, he said: She responded and said that that’s not open. And when she said that, I said—I looked at her and I said are you telling me that’s not open, and she said, yes, the box is, but the Coors Light is not open. I said we’re not referring to the Coors Light; I said we’re referring to the bottle of wine. Appellant did not object when this testimony was elicited, and therefore did not preserve error. See TEX. R. APP. P. 33.1; Pena, 285 S.W.3d at 464. However, even if appellant had objected to this testimony and received an adverse ruling, the error would have been harmless because defense counsel cross-examined Officer Robin about what Callaway said when the wine bottles were displayed on his patrol car.5 5 Defense counsel’s cross-examination of Officer Robin proceeded as follows: Defense Counsel: W as t h e re a n e x c hange, conversation, between you and Ms. Callaway when the items were placed on the hood of your car? It’s a yes or no question. Officer Robin: Yes. She made a comment. Defense Counsel: All right. And did she explain anything to you about why those items were in her vehicle? Officer Robin: She stated that th e s m a l l wine containers that were there were warm, and they were there for a week. Defense Counsel: Did she tell you they were garbage? Officer Robin: I don’t recall if sh e s a i d t h e t e rm garbage, but I remember her referencing that she said they were there for some time. *** Defense Counsel: Okay. And when you placed those—or when t h o s e —the bottles and the Coors container were put on the h o o d o f her car, she responded to that in an appropriate manner, did she not? Officer Robin: Depends on what you consider appropriate. Defense Counsel: She explained their presence in the vehicle? Officer Robin: She became argumentative, I guess you could say, or— Defense Counsel: W hat was she arguing with you about? 16 Officer Robin: About the fact that the—at first the Coors box was not open. She referenced the Coors box, she kept saying, that’s not open, that’s not open. W hen I tol d her it’s the wine bottles we’re referring to, she said that’s been in t h e re a week. She started—she used a cuss word at us. *** Defense Counsel: There was a Coors can in the car that was not open isn’t that right? Officer Robin: I believe there was a Coors can. Defense Counsel: Okay. So all she was doing was telling you a fact that was true? Officer Robin: Correct. Defense Counsel: Okay. And there was a bottle that was unopened; correct? Officer Robin: There was one white Zinfandel that was not open. Defense Counsel: There was one that was half empty? Officer Robin: That is correct. Defense Counsel: Obviously had been opened? Officer Robin: That’s correct. Defense Counsel: W hat she said was, they’ve been in a car for a while, they’re warm; right? Officer Robin: That’s right. *** Defense Counsel: So tell me what’s argument a t i ve or offensive about her explaining to you about the two bottles and about the Coors can. Officer Robin: S h e w a s calm, but when the bottles came out, her demea n o r changed. She became, I guess, you know, argumentative in the sense she raised her voice. You know, that’s not open. You know, that’s not open, that one’s not op e n . W hen I referenced it, well, that’s been there for two weeks, that’s—you know, I’m not arguing with her, but she’s trying to argue the point that that bottle is not open. Defense Counsel: Or make the point? Officer Robin: Or make the point, depending on which direction you’re looking at it. 17 3. Appellant’s Reference to Judge Burke as Her Lawyer After Callaway was arrested, she was placed in the back seat of Officer Robin’s patrol car. When the prosecutor asked the Officer if Callaway made any comments, he responded that she had made a reference to a city Judge in Frisco. When the prosecutor asked Officer Robin if appellant was “requesting anything at this point?”, he said, “I believe she requested to speak with [the Judge]. And my response was how do you know [the Judge] and she said “he’s my lawyer.” Callaway did not object when this testimony was elicited, therefore error was not preserved. See TEX. R. APP. P. 33.1; Pena, 285 S.W.3d at 464. Even if Callaway had objected to this testimony and received an adverse ruling, any error would have been harmless. Defense counsel cross-examined6 Officer Robin about what appellant said when she was in his patrol car. No objection was made to this testimony. Thus, any error in admitting Officer Robin’s testimony about what appellant said in response to his question 6 Defense counsel’s cross-examination of Officer Robin proceeded as follows: Defense Counsel: W hen she [appellant] talked to you about—was it Judge Burke? Officer Robin: Yes. Defense Counsel: Did you—did you get the impression that she was kind of throwing a name around to try to intimidate you or she just happened to know who Judge Burke was? Officer Robin: I don’t think she did it in a manner to intimidate me. Several people usually come across—they’ll put a name out. It’s just standard for us to ask how do you know this person. Defense Counsel: And she told you Judge Burke is my attorney? Officer Robin: She did. Defense Counsel: Did you have any reason to doubt that? Officer Robin: I did not. 18 about how she knew the Judge was rendered harmless because the jury heard the same or similar testimony elsewhere during the trial. See id. 4. Appellant’s Statements Regarding Her Intoxication Officer Robin testified on direct-examination that when Callaway got out of her vehicle, he asked her, among other questions, “[W]here are you coming from[?].” She told him she was coming from “Martini Park.” He testified she “pulled into the 7-Eleven parking lot because she realized she was too drunk to drive, and she pulled into the parking lot to sleep it off.” He also testified she “felt that she did the right thing by pulling into the parking lot because she was too drunk to drive.” When appellant asked for a lawyer, Officer Robin stopped questioning her and placed her under arrest for DWI. Appellant did not object when this testimony was elicited. Therefore, error, if any, is not preserved. See TEX. R. APP. P. 33.1; Pena, 285 S.W.3d at 464. Furthermore, appellant’s statements to Officer Robin were made prior to the time she invoked her right to counsel. Even if appellant had objected to the complained-of testimony and received an adverse ruling, the error would have been harmless. During the guilt-innocence phase, defense counsel questioned7 appellant about what she told Officer Robin about her state of intoxication. No objection was made to this testimony. Thus, any error in admitting Officer Robin’s testimony about what appellant said in response to Officer Robin’s question about where she had been was rendered harmless because the jury heard the same or 7 W h e n defense counsel was questioning appellant on direct-examination, he asked her, “At a few points during the period of time that you were talking with [Officer Robin] you indicated to him that you were intoxicated, you were drunk. Do you remember that?”. To this, she replied, “Yes, I do.” Later, when defense counsel asked her, “You told [Officer Robin] [a] couple [of] times that you pulled over because you were tired. You said—at one point you said because I was intoxicated and you thought that was the right thing to do?”; she replied, “Like I said--”. At that point, defense counsel asked her, “Is that right?”, and she said, “Yes.” 19 similar testimony elsewhere during the trial. See id. Issue five is overruled. V. CONCLUSION We affirm the trial court’s judgment. ROSE VELA Justice Do not publish. TEX. R. APP. P. 47.2(b). Concurring Memorandum Opinion by Justice Yañez. Delivered and filed the 11th day of February, 2010. 20 

796 F.2d 472 Considinev.Reserve Life Ins. Co. 85-2036 United States Court of Appeals,Fourth Circuit. 7/14/86 1 D.Md. AFFIRMED

FILED NOT FOR PUBLICATION JUN 9 2020 UNITED STATES COURT OF APPEALS MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT STEVEN DWAYNE BROWN, No. 18-56603 Plaintiff-Appellant, D.C. No. 2:15-cv-06050-FMO-JEM v. TREJO, Deputy Sheriff; DONALD MEMORANDUM* HINTON, Custody Assistant, in Individual and Official Capacity; CATHERINE CHAVERS YANES, Private Investigator #25489, in Individual and Official Capacity, Defendants-Appellees, and SERGIO TREJO, Defendant. Appeal from the United States District Court for the Central District of California Fernando M. Olguin, District Judge, Presiding * This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3.  Submitted June 5, 2020 ** Before: FARRIS, TROTT, and SILVERMAN, Circuit Judges Steven Brown appeals the district court’s grant of summary judgment in favor of the defendants in his pro se prisoner civil rights action. He also appeals the district court’s denial of his motion for sanctions for spoliation of evidence. We have jurisdiction pursuant to 28 U.S.C. § 1291. We review the summary judgment order de novo. Gordon v. County of Orange, 888 F.3d 1118, 1122 (9th Cir. 2018). We review the district court’s spoliation of evidence order for an abuse of discretion and any factual findings, including bad faith and prejudice, for clear error. Leon v. IDX Sys. Corp., 464 F.3d 951, 957-58 (9th Cir. 2006). We affirm. Summary judgment was proper for Deputy Trejo on Brown’s excessive force claim. To prevail on his claim, Brown needed to establish “that the force purposely or knowingly used against him was objectively unreasonable.” Kingsley v. Hendrickson, 576 U.S. 389, 135 S.Ct. 2466, 2473 (2015). We assess the reasonableness of force “from the perspective of a reasonable officer on the scene,” using the facts known to the officer at the time and considering the legitimate security interests of the jail. Id. Brown, who had a violent criminal history, was a ** The panel unanimously concludes this case is suitable for decision without oral argument. See Fed. R. App. P. 34(a)(2). 2 high security inmate. It was reasonable for jail officers to place him in hand cuffs and a waist chain when moving him within the jail. Cuffs were applied and removed through the tray slot while Brown remained in his cell. The handcuffs were not too tight when the deputy secured them, escorted Brown to the law library, and left Brown in the law library cage. Brown caused the cuffs to tighten by attempting to free himself after the deputy left the law library. Brown did not tell the deputy that the cuffs were too tight until the deputy and another deputy were escorting Brown and two other high security inmates back to their cells. A reasonable officer in the circumstances would have waited to loosen the cuffs until Brown was returned to his cell. Brown claims that being left handcuffed in the law library violated several of his constitutional rights. The access to the courts and self-representation claims fail because Brown did not establish actual injury or that the incident had any impact on his criminal case. Alvarez v. Hill, 518 F.3d 1152, 1155 n. 1 (9th Cir. 2008) (requiring proof of actual injury for an access to the courts claim); see also Nordstrom v. Ryan, 856 F.3d 1265, 1271 (9th Cir. 2017) (requiring proof of substantial prejudice for a self-representation claim). Nor did the incident rise to the level of punishment. Because the cuffs were not too tight when the deputy left Brown in the law library, Brown cannot establish that the deputy intentionally 3 placed Brown at a substantial risk of suffering serious harm. Castro v. County of Los Angeles, 833 F.3d 1060, 1071 (9th Cir. 2016) (en banc) (setting forth the elements of the claim). Brown would have suffered only the normal condition of being restrained during confinement if he had not tried to remove the cuffs by himself. Finally, summary judgment was proper on the medical care claim. Brown did not tell the deputy that he was injured or ask for medical care. In any event, Brown obtained minor care from the nurse later the same day. Brown failed to establish that the deputy intentionally placed Brown at substantial risk of suffering serious harm or acted in an objectively unreasonable way. Gordon, 888 F.3d at 1124-25 (setting forth the elements of the medical care claim). Defendant Hinton was entitled to summary judgment on Brown’s claims that confiscation of newspaper articles violated Brown’s First Amendment right to receive mail, denied Brown access to the courts or his right to self-representation, and amounted to retaliation. The newspapers articles about other inmates and former jail employees were properly seized as contraband pursuant to a policy that served a legitimate government interest of protecting other inmates and former staff. First Amendment rights to receive mail may be limited by regulations that “are reasonably related to legitimate penological interests”, including prison security. Nordstrom, 856 F.3d at 1272 (internal quotation marks omitted). 4 Because the articles were properly seized to protect other inmates and former staff, Brown cannot establish that Hinton seized the mail in retaliation for Brown engaging in protected conduct or that the action did not reasonably advance a legitimate correctional goal. Rhodes v. Robinson, 408 F.3d 559, 567-68 (9th Cir. 2005) (setting forth the elements of a First Amendment retaliation claim). Brown also failed to establish that he suffered the actual injury necessary to prevail on his access to the courts claim or the substantial prejudice required for his self- representation claim. Alvarez, 518 F.3d at 1155 n.1; Nordstrom, 856 F.3d at 1271. There is no evidence that Andrew Smith, who sent the articles, was involved in Brown’s defense or any other lawsuit or that the seized newspaper articles were relevant in any way to Brown’s criminal case. The district court properly granted summary judgment in favor of defendant Hinton on Brown’s claims arising out of Hinton’s failure to investigate Brown’s missing pro per phone funds. Pursuant to policy, Hinton was not required to investigate the lost funds until Brown provided a criminal affidavit stating that he had nothing to do with the loss of his personal identification number and obtained a court order for a new number. Policy required the criminal affidavit because inmates trade and sell personal identification numbers. Although Brown knew about both requirements, he did not file the criminal affidavit or obtain a court 5 order. Therefore, Brown cannot establish elements of his retaliation claim, that Hinton failed to investigate because of Brown’s protected conduct or that the action did not reasonably advance a legitimate correctional goal. Rhodes, 408 F.3d at 567-68 (setting forth the elements of a First Amendment retaliation claim). Summary judgment was also proper on the access to the courts and self- representation claims because Brown did not establish that the lost personal identification number had any impact on his criminal case. Alvarez, 518 F.3d at 1155 n.1 (requiring proof of actual injury for access to the courts claims); Nordstrom, 856 F.3d at 1271 (requiring proof of substantial prejudice for self- representation claims). Moreover, Brown had a court-appointed investigator who visited him at the jail, frequently and regularly visited the law library, and filed numerous motions with the court. The district court properly granted summary judgment for defendants Hinton and Yanes on Brown’s claim that they conspired to interfere with his attorney- client relationship with an intern from the ACLU. Brown failed to establish that the defendants conspired to intentionally deprive him of constitutional rights. Crowe v. County of San Diego, 608 F.3d 406, 440 (9th Cir. 2010) (setting forth the conspiracy requirements). At most, Brown speculated that Hinton and Yanes agreed to interfere with his conversation with the ACLU intern, who was gathering 6 information for the jail conditions report. In addition, Brown did not prove that the ACLU was representing him, that the intern ended the interview because of the alleged interference, or that Brown was injured. The official capacity claims against defendants Hinton and Yanes also fail because there is no evidence of a policy or custom that violated Brown’s constitutional rights. Castro, 833 F.3d at 1073. Finally, the district court did not abuse its discretion by denying Brown’s motion for spoliation of evidence and refusing to sanction defendants by entering judgment against them. There is no evidence that the defendants altered either the inmate cell transfer log or video of Brown being escorted to the law library. Nor is there evidence that the defendants intentionally destroyed video from the law library. In any event, Brown cannot establish prejudice from the lost video. He wanted the law library video to prove that he was left cuffed in the law library cage, a fact that the district court assumed to be true for purposes of summary judgment. AFFIRMED. 7 

935 F.2d 1288Unpublished 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.UNITED STATES of America, Plaintiff-Appellee,v.Jerome SIEGEL, a/k/a Jerry, a/k/a The Jeweler, Defendant-Appellant. No. 89-6359. United States Court of Appeals, Fourth Circuit. Argued Jan. 8, 1991.Decided June 20, 1991. Appeal from the United States District Court for the Eastern District of North Carolina, at Wilmington. Terrence W. Boyle, District Judge. (CR-85-25, CA-89-12) Rosalie Wacker O'Brien, Rilee, Cantor, Arkema & Edmonds, Richmond, Va., for appellant. G. Norman Acker, III, Assistant United States Attorney, Raleigh, N.C. (Argued), for appellee; Margaret Person Currin, United States Attorney, Raleigh, N.C., on brief. E.D.N.C. DISMISSED. Before WIDENER, SPROUSE and WILKINSON, Circuit Judges. PER CURIAM: 1 This is an appeal by Siegel from an order of the district court filed October 10, 1989 in a proceeding under 28 U.S.C. Sec. 2255. 2 In 1986, Siegel pleaded guilty and was sentenced on drugrelated charges on indictments from the Eastern District of North Carolina and the District of South Carolina. The South Carolina charges were transferred to the Eastern District of North Carolina under Fed.R.Crim.P. 20. Siegel was sentenced to an active sentence of 25 years in prison plus probation and special parole terms. Fifteen years of that active sentence were on the North Carolina indictment, and 10 years on the South Carolina indictment. The sentences were to run consecutively. 3 The district court's order filed October 10, 1989, which is the order appealed from, denied relief from the sentence resulting from the North Carolina indictment, but granted re-sentencing relief from the sentence resulting from the South Carolina indictment. 4 Ordinarily in such a case, an appeal might lie from an order such as the district court's order filed October 10, 1989. But this case is further complicated by the fact that a dispute exists between Siegel and the government over whether the sentences should run consecutively or concurrently. It will thus be impossible to ascertain whether or not the sentences run consecutively or concurrently until after re-sentencing. 5 We are thus of opinion that this appeal is premature because all of the issues between the parties have not been decided and the order appealed from is not a final order under 28 U.S.C. Sec. 1291. While the order may be final as to the sentence imposed under the North Carolina indictment, it is not final as to the entire sentence imposed, including that under the South Carolina indictment, for Siegel has not been re-sentenced. 6 Accordingly, the appeal must be dismissed without prejudice, awaiting action of the district court with respect to the re-sentencing of Siegel. 7 In this most unusual case, it is apparent that an appeal may lie in the criminal case after re-sentencing. In an abundance of caution, we suggest that if there is any future appeal after re-sentencing, that appeal be taken both in the criminal case and as well, in this Sec. 2255 proceeding. 8 Siegel's claim that re-sentencing must be by a different district judge is without merit. 9 DISMISSED.

759 F.Supp. 144 (1991) Rosa Maria CABALLERO, Plaintiff, v. Reynold V. ANSELMO and Julian M. Kaufman, Defendants. No. 85 Civ. 2386 (IBC). United States District Court, S.D. New York. March 15, 1991. As Amended March 20, 1991. *145 Dow, Lohnes & Albertson, New York City (Joseph F. Kelly Jr., of counsel), for plaintiff Rosa Maria Caballero. Lowenthal, Landau, Fischer & Ziegler, New York City (Lawrence L. Ginsburg, of counsel), for defendant Reynold V. Anselmo. MEMORANDUM AND ORDER IRVING BEN COOPER, District Judge. Plaintiff Rosa Maria Caballero commenced this action March 27, 1985, to recover four thousand five hundred forty six (4,546) shares of stock ("the stock") in Spanish International Communications Corporation *146 ("SICC") which she alleged were improperly sold by defendant Reynold V. Anselmo to defendant Julian M. Kaufman. Both Anselmo and Kaufman were directors and shareholders of SICC at the time of the alleged improper sale. Pursuant to plaintiff's motion, we bifurcated the action with respect to the issues of liability and damages. The liability issue was tried before this Court in April, 1986. At the close of plaintiff's case, defendant Kaufman moved for a directed verdict pursuant to Federal Rule of Civil Procedure 50, and defendant Anselmo moved to dismiss pursuant to Federal Rule of Civil Procedure 41(b). We reserved decision on both motions. In an opinion dated September 7, 1989, we found in favor of plaintiff against defendant Anselmo on the grounds that Anselmo had wrongfully converted the shares of plaintiff's SICC stock; all claims against defendant Kaufman were dismissed. Caballero v. Anselmo, 720 F.Supp. 1088 (S.D.N.Y.1989). At that time we directed plaintiff and defendant Anselmo to endeavor to agree upon a reasonable and proper amount of damages, and to provide us with a proposed form of judgment including such amount agreed upon within 60 days. The parties were not able to reach an agreement on the amount of damages. After numerous conferences, counsel agreed that another trial was not necessary for the court to determine the legal damages issues (letter to Court from Joseph F. Kelly, Jr., Esq. dated November 7, 1990 and letter to Court from Lawrence L. Ginsburg dated November 14, 1990) and submitted papers in support of their respective positions regarding the formula for measuring damages owing to plaintiff and whether plaintiff is entitled to punitive damages as a result of the conversion. We shall address each issue separately below. The facts of the case are set out at length in our opinion, 720 F.Supp. 1088; familiarity with them is assumed. DISCUSSION I. Measure of Damages Plaintiff seeks recovery under alternative theories: she argues that we should either impose a constructive trust upon the stock and declare defendant a constructive trustee thereof or apply a conversion theory of damages. Plaintiff argues that under either theory she is entitled to judgment equal to the highest value of the stock between the time of conversion and the time of judgment, to wit, proceeds in the amount of $1.5 million resulting from a transaction that occurred in July, 1986 ("the July 1986 sale"). We will analyze each of plaintiff's theories in turn. A. Constructive Trust Plaintiff argues that we should impose a constructive trust upon the $1.5 million proceeds of the July, 1986 sale of plaintiff's stock by Daniel Villanueva to a third party, and determine that defendant Anselmo, as constructive trustee, owes plaintiff the full amount. Plaintiff's Memorandum Of Law In Furtherance Of The Assessment Of Damages at 11-14 ("Plaintiff's Memo"). Defendant argues that we should not impose a constructive trust because the application of a constructive trust theory of damages is not appropriate in conversion cases, and even if appropriate, a constructive trust can only be imposed against entities who are in possession of the converted property or the proceeds thereof. In short, defendant argues that if we do declare him constructive trustee, it can be only for the $15,000 proceeds realized when he sold the stock to Kaufman in May, 1973. Defendant Reynold V. Anselmo's Memorandum Of Law With Respect To The Determination Of Damages at 9 ("Defendant's Memo"). For the reasons set forth below, we agree with defendant to the extent that the imposition of a constructive trust is not appropriate in this action. The constructive trust may be defined as a device used by chancery to compel one who unfairly holds a property interest to convey that interest to another to whom it justly belongs.... If the property has been sold the trust attaches to its proceeds in the hands of the defendant, or to the other property purchased by defendant into which the original *147 property or its proceeds can be traced.... If one has possession of personal property under such circumstances that appropriation of it to his own use ... will make him guilty of the tort of conversion ..., the wronged person may charge the converter as a constructive trustee of the converted property or of cash proceeds or property he receives by reason of a sale of the property converted. Bogert, Law of Trusts and Trustees, § 471 at 3-5, § 476 at 125-132 (rev. 2d ed. 1978) (footnotes omitted). A constructive trust will be imposed where "property has been acquired in such circumstances that the holder of legal title may not in good conscience retain the beneficial interest." Beatty v. Guggenheim Exploration Co., 225 N.Y. 380, 386, 122 N.E. 378, 380 (1919); Scull v. Scull, 94 A.D.2d 29, 462 N.Y.S.2d 890 (1st Dep't. 1983), aff'd 67 N.Y.2d 926, 493 N.E.2d 238, 502 N.Y.S.2d 135 (1986); Coco v. Coco, 107 A.D.2d 21, 485 N.Y.S.2d 286 (2d Dep't. 1985). Under New York law, the general legal requisites for imposition of a constructive trust are (1) the existence of a fiduciary or confidential relationship, (2) a promise, express or implied, (3) a transfer in reliance on the promise, and (4) unjust enrichment. Kopelman v. Kopelman, 710 F.Supp. 99, 102 (S.D.N.Y.1989); Bankers Sec. Life Ins. Soc. v. Shakerdge, 49 N.Y.2d 939, 406 N.E.2d 440, 428 N.Y.S.2d 623 (1980); Hutton v. Klabal, 726 F.Supp. 67 (S.D.N.Y.1989). Generally, a constructive trust must be proved by plaintiff by clear and convincing evidence. Schmieder v. Hall, 421 F.Supp. 1208 (S.D.N.Y.1976), aff'd, 545 F.2d 768 (2d Cir.), cert. denied, 430 U.S. 955, 97 S.Ct. 1601, 51 L.Ed.2d 805 (1977). We approach our analysis of these factors with a certain elasticity. The constructive trust remedy is flexible, and "it has ... been held that, `although the [above-mentioned] factors are useful in many cases constructive trust doctrine is not rigidly limited,' Simonds v. Simonds, 45 N.Y.2d 233, 241, [380 N.E.2d 189, 194,] 408 N.Y.S.2d 359, 363 (1978), and a constructive trust may be found even in the absence of these prerequisites when ... equity and common sense require." S.E.C. v. Levine, 689 F.Supp. 317, 323 (S.D.N.Y. 1988). See Lines v. Bank of America Nat. Trust & Sav. Assoc., 743 F.Supp. 176 (S.D. N.Y.1990); Hornett v. Leather, 145 A.D.2d 814, 535 N.Y.S.2d 799 (3d Dep't.1988), appeal denied, 74 N.Y.2d 603, 541 N.E.2d 425, 543 N.Y.S.2d 396 (1989); Reiner v. Reiner, 100 A.D.2d 872, 874, 474 N.Y.S.2d 538, 541 (2d Dep't.1984). However, in those instances, plaintiff must at least show a promise and a transfer of property. Chipman v. Steinberg, 106 A.D.2d 343, 483 N.Y.S.2d 256 (1st Dep't.1984), aff'd, 65 N.Y.2d 842, 482 N.E.2d 925, 493 N.Y.S.2d 129 (1985); Plotnikoff v. Finkelstein, 105 A.D.2d 10, 482 N.Y.S.2d 730 (1st Dep't. 1984). We defer for a moment any discussion of whether a fiduciary relationship existed between plaintiff and defendant, and we turn to address the other factors. First, no promise was made by defendant to plaintiff's father or to plaintiff. Defendant made no promise to hold the stock for plaintiff's benefit, nor was there a promise to convey the stock to a third party for plaintiff's benefit. At most there was an agreement whereby defendant and plaintiff's father agreed that plaintiff would retain title to the stock and defendant would vote her interest. This, we conclude, is insufficient to establish that a promise had been made to plaintiff. Second, plaintiff has not shown that she or her father made a transfer at all. Even assuming that a voting right was given, no transfer of title was made nor intended. The stock remained in plaintiff's name while defendant had possession of the stock or stock certificate. In order to establish a constructive trust it is necessary to show that defendant wrongfully obtained title rather than mere possession. Edwards v. Rector, Church Wardens and Vestrymen of Trinity Church in City of New York, 5 F.Supp. 335 (S.D.N.Y.1933), aff'd, 77 F.2d 884 (2d Cir.1935), cert. denied, 296 U.S. 628, 56 S.Ct. 151, 80 L.Ed. *148 446. Based on the evidence and the arguments of the parties, we conclude that nothing more than mere possession was transferred, and that is not sufficient to give rise to our imposition of a constructive trust. In order for plaintiff to show the third factor, that a transfer was made in reliance on a promise made by defendant, she would, logically, need to establish that defendant made a promise (the second factor), she made a transfer, and the transfer was in reliance of that promise. None of those elements are present. It follows, then, that if no promise was made by defendant and no transfer was made or intended by plaintiff or her father, then plaintiff made no transfer in reliance on any promise by defendant. Most importantly, plaintiff has not convinced us, nor can we find, that defendant was unjustly enriched by the sale of the stock. The proceeds of the sale amounted to $15,000, the amount plaintiff's father originally paid for the stock. Defendant offered to return $10,000 to plaintiff's father (the other $5,000 was applied to pay off a loan made by the corporation to plaintiff's father). When plaintiff's father refused the $10,000, defendant held the funds in various accounts for plaintiff. Tr. 260-63. Plaintiff has not offered any evidence indicating that defendant appropriated the funds to his personal use, nor is there any other indication that defendant benefitted personally from the sale. Consequently, we are compelled to conclude that defendant was not unjustly enriched. The "essential purpose of a constructive trust is to prevent unjust enrichment." Coco v. Coco, supra, 107 A.D.2d at 24, 485 N.Y.S.2d at 288. There was no unjust enrichment to be prevented in the instant action; therefore, a constructive need not be imposed. Finally, we do not pass on whether a fiduciary relationship existed between defendant and plaintiff because even if such a relationship did exist, the absence of the three other factors would preclude us from impressing a constructive trust upon the stock or the proceeds thereof. See In re Black & Geddes, Inc., 35 B.R. 830 (S.D.N. Y.1984) (a constructive trust should not be based solely on the existence of a fiduciary or close relationship). In short, the evidence and arguments offered by plaintiff are insufficient to support the imposition of a constructive trust upon the stock as against this particular defendant. Plaintiff has not proven the existence of factors that would support our imposing a constructive trust; furthermore, neither equity nor common sense require the imposition of a constructive trust in the absence of the factors discussed above. Bertoni v. Catucci, 117 A.D.2d 892, 498 N.Y.S.2d 902 (3d Dep't.1986). Consequently, we decline to impose a constructive trust upon the stock or the proceeds of the sale thereof in favor of plaintiff. Finally, because we found that imposing a constructive trust is inappropriate in the instant matter, we decline to address plaintiff's argument regarding trustee liability which was based on our imposition of a constructive trust. B. Conversion Measure of Damages In order to determine the proper amount of damages owing to plaintiff as a result of defendant's act of conversion, we must fix a valuation date for the stock. Critical to this analysis is our determination of what constitutes a "reasonable time" after discovery of the conversion by plaintiff, within which the stock should be valued. Under the general rule, damages recoverable for the conversion of property are limited to the value of the property at the time of the conversion. 23 N.Y.Jur.2d, Conversion, § 68, at 296-99 (1982). However, an exception applies to property of fluctuating value, such as shares of stock: "[t]he measure of damages for conversion of stock certificates is the cost of replacement within a reasonable period after the discovery of the conversion, regardless of when the conversion may have occurred." Hartford Acc. & Indem. Co. v. Walston & Co., Inc., 22 N.Y.2d 672, 673, 238 N.E.2d 754, 754, 291 N.Y.S.2d 366, 367 (1968); see also Gelb v. Zimet Bros., Inc., 34 Misc.2d 401, 228 N.Y.S.2d 111 (Sup.Ct.1962), aff'd, 18 A.D.2d 967, 237 N.Y.S.2d 989 (1st Dep't. *149 1963). "The question of what constitutes reasonable time after knowledge or notice of the wrongful sale for the purpose of measuring damages depends upon the circumstances of each particular case. No fixed period is prescribed by law nor is there any rule of thumb by which such period can be ascertained" Phillips v. Bank of Athens Trust Co., 202 Misc. 698, 702, 119 N.Y.S.2d 47, 52 (Sup.Ct.N.Y.Co. 1952), "but the injured party is not actually required to reenter the market in order to determine when he might have done so." Schulz v. CFTC, 716 F.2d 136, 140 (2d Cir.1983). The purpose of the reasonable time rule is to allow the plaintiff "reasonable opportunity to consult counsel, to employ other brokers and to watch the market for the purpose of determining whether it is advisable to purchase on a particular day or when the stock reaches a particular quotation, and to raise funds if he decides to repurchase." Gelb v. Zimet Bros. Inc., 34 Misc.2d 401, 402-3, 228 N.Y.S.2d 111, 113 (Sup.Ct.N.Y.Co.1962). "Tempering that law is that ever present mandate that the injured one shall keep down the damages." Hayward v. Edwards, 167 Misc. 694, 695, 4 N.Y.S.2d 699, 701 (Sup.Ct.Queens Co.1938). Further, the rule does not apply only in cases where defendant acted in good faith or because of an honest mistake, but also where the conversion was inspired by dishonest motives. Gelb v. Zimet, supra, 34 Misc.2d at 404, 228 N.Y.S.2d at 114. Plaintiff and defendant do not dispute the rule for fixing a valuation date for the shares; however, they strongly disagree in their respective interpretations of how long the "reasonable time" should extend from the time plaintiff first received notice of the conversion. As stated above, plaintiff argues that she is entitled to judgment equal to the amount of the proceeds resulting from the July, 1986 sale of the stock to a third party. This sale was consummated after this action was commenced but prior to our September 7, 1989 opinion. She relies heavily on Hayward v. Edwards, supra, to support her argument that the reasonable time in the present action should extend from May, 1973 to July, 1986 because she was an infant when the conversion occurred. Plaintiff's Memo at 5-7. Defendant contends that the stock should be valued as of June, 1973, one month after plaintiff's father received notice of the conversion and demanded that defendant return the shares to plaintiff. He argues that plaintiff's reliance on Hayward, supra, is misplaced because in that case (1) the circumstances were such that "involved a `likelihood that a long lapse of time would pass before discovery' (4 N.Y. S.2d at 703) and (2) plaintiff, an infant, had no knowledge of stock trading." Defendant's Memo at 9. It is defendant's contention that unlike the defendant in Hayward, he immediately notified plaintiff's father of the May, 1973 sale of the stock, thus eliminating any likelihood of a long lapse of time before discovery. Defendant maintains that once plaintiff's father was notified of the conversion, he acted as plaintiff's agent; therefore, plaintiff, through her father (who knew the art of stock trading), was fully informed at all times of the status of the stock. Thus, defendant argues, reliance on Hayward is inappropriate and misplaced. Id. at 10. We disagree. The facts in Hayward are strikingly similar to what confronts us here. In Hayward, defendant, plaintiff's uncle, converted a stock certificate belonging to plaintiff by forging plaintiff's name and transferring the certificate to a third party. At the time of the conversion, August, 1934, plaintiff was ten years old. The conversion was discovered by someone in plaintiff's family in January, 1935. Plaintiff brought suit by a guardian ad litem in February, 1936, and the matter was tried in January, 1938, when plaintiff was 13 or 14 years old. 167 Misc. 694, 695, 4 N.Y.S.2d 699, 701. In the instant case, while it is true that defendant notified plaintiff's father soon after he sold the stock to Kaufman, he never informed plaintiff or her father of the hypothecation of the stock which occurred in January, 1973, four months before the sale of the stock and two months *150 before plaintiff's father resigned from SICC. 720 F.Supp. at 1093-94. Had plaintiff's father not decided to leave SICC, there could possibly have been a longer duration between the hypothecation of the stock by defendant and discovery by plaintiff or her father. Indeed, plaintiff's father discovered the conversion, in the form of the sale of the stock by defendant, more than four months after the original act which gave rise to a conversion claim. The time between conversion and discovery by plaintiff's family in Hayward was four to five months — practically the same length of time as herein. 167 Misc. at 695, 4 N.Y.S.2d at 700-1. In both cases, there was a possibility of a long duration between the conversion and discovery thereof. See id. at 697, 4 N.Y.S.2d at 703. Consequently, we find that the instant matter is not distinguishable from Hayward on this point. Second, plaintiff was not fully informed at all times as to the status of the stock. Like the plaintiff in Hayward, she was an infant at the time of the conversion and had no personal knowledge of the art of stock trading. Furthermore, the actions of plaintiff's father were insufficient to justify a finding that he was acting as her agent. We had already concluded as much when we determined that the applicable statute of limitations had tolled, preserving plaintiff's cause of action. Memorandum Of Court, filed November 7, 1985. Plaintiff's father did not bring an action as her guardian ad litem, nor was he under a legal obligation to do so. Frehe v. Schildwachter, 289 N.Y. 250, 45 N.E.2d 427 (1942) (infant plaintiff has the right to maintain an action by a guardian ad litem, but she also has the right to defer any action until she reaches the age of majority). Because plaintiff's father was not acting as plaintiff's agent or guardian, his knowledge of the conversion will not be imputed to her. "The law appoints no mentor to act for [plaintiff] and thus impute knowledge to [her]." Hayward, 167 Misc. at 696, 4 N.Y.S.2d at 702. Therefore, plaintiff was not in the position of a fully informed adult at the time of the conversion or in the time thereafter; rather, she was an uninformed infant who lacked even the most rudimentary knowledge of stock trading or business transactions. Accordingly, we conclude that Hayward is not distinguishable on either point that defendant has raised. Hayward is also instructive in fixing a valuation date for determining damages owing to an infant shareholder whose stock has been converted. That court was faced with the issue of fixing the termination date of the reasonable time after discovery of the conversion of the shares of stock that belonged to the infant plaintiff. After consulting with authorities, the Hayward court weighed the competing policy considerations that regulated the determination of the reasonable time, the most important of which are the rationale that led prior courts to establish the reasonable time rule, the imperative that plaintiff must make every attempt to mitigate her damages, and the stated desire of New York law in general to protect the rights and interests of infants and minors. 167 Misc. 694, 695-6, 4 N.Y.S.2d 699, 701-3. In its final analysis, the court applied the reasonable time rule, but extended it from the date of discovery through the date of trial, a period of three years; however, it fixed the valuation date at six months after discovery because it was at that time that the stock reached its highest value. Id. at 697, 4 N.Y.S.2d at 703. The court reasoned that while the infant plaintiff may have known of the conversion, he had not yet discovered his loss, for the purpose of charging him with taking the proper action to keep down his damages, until he instituted the action and moved it to trial. Explicit in the court's decision was the rationale that plaintiff was charged with knowledge because a suit was instituted through his guardian ad litem, but not because the knowledge of the guardian ad litem was imputed to him. Implicit in the court's reasoning was that plaintiff had not discovered the conversion because he was a minor, and, had he waited until the age of majority to bring an action, he would have been charged with knowledge thereof when the disability of minority was removed. We interpret the court's reasoning to mean *151 that the reasonable time would have extended to some time shortly after plaintiff reached the age of majority, had he not brought suit by his guardian ad litem. See Id. Defendant points to the holding of the Supreme Court in Galigher v. Jones, 129 U.S. 193, 9 S.Ct. 335, 32 L.Ed. 658 (1889), wherein the Court explained the reasoning of the New York Court of Appeals in arriving at the reasonable time rule and for limiting the reasonable time to a short duration: The hardship which arose from estimating the damages by the highest price up to the time of trial, which might be years after the transaction occurred, was often so great, that the Court of Appeals of New York was constrained to introduce a material modification in the form of the rule, and to hold the true and just measure of damages in these cases to be, the highest intermediate value of the stock between the time of its conversion and a reasonable time after the owner has received notice of it to enable him to replace the stock. Id. at 201, 9 S.Ct. at 337, 32 L.Ed. at 661 (cites omitted). However, Galigher, the New York cases cited therein, and the entire line of authorities cited by defendant are clearly distinguishable on the facts from this case, making Hayward all the more instructive and persuasive. In each of those cases the individual whose stock was converted was an adult who either had first-hand knowledge of stock trading or had such a knowledge of business transactions that each could decide to either purchase replacement stock or remain out of the market and sue to recover damages. The Hayward court noted, and we agree, that the presence of unique circumstances in that case demanded a different result than was reached in the other conversion cases: No one can read the cases without concluding that the "reasonable time" rule as established by them presumed that the plaintiff had a knowledge of stock trading. A theory is constructed in those decisions to the effect that plaintiff would have done that which would have brought him the greatest return on his investment, if his possession of the securities had not been interfered with. For instance, in fixing that "reasonable time" the courts have said that the victim was entitled to time after discovery in which to decide upon what course to follow in adjusting his affairs. He might want to consult the market quotations; to advise with experts in trading; to raise the cash required for another purchase of stock or to repurchase the same securities that were converted. That analogy will not be questioned were the one whose property was taken had the capacity to decide things of that nature. But a ten year old boy knows nothing of stock trading, consulting, repurchasing or fund raising. Hayward v. Edwards, 167 Misc. at 696, 4 N.Y.S.2d at 701-2 (citations omitted) (emphasis ours). Furthermore, in Gerdes v. Reynolds, 30 N.Y.S.2d 755 (Sup.Ct.Sp.T.N.Y.Co.1941) another case involving the conversion of stock owned by an adult, the court sought to trace the history of the reasonable time rule through the date of that case. The court recognized that while the Hayward court had adhered to the reasonable time rule, it nonetheless extended the reasonable time for a much longer duration than had previously been applied in any other case because "of the peculiar circumstances of that case, which involved the theft of securities belonging to an infant." 30 N.Y.S.2d 755, 762. We agree with the Hayward and Gerdes courts that the infancy of the plaintiff is a particular fact that must lead us to extend the reasonable time for some longer duration. Defendant argues that the Statute of Limitations, N.Y.C.P.L.R. § 208, does not entitle plaintiff to recover an increased award of damages. Defendant's Reply Memorandum Of Law ("Defendant's Reply"), at 5. We agree. However, the longstanding and far-reaching policy in New York is to protect infants and minors in situations where they are presumed to lack the adequate experience and knowledge required *152 to make well-informed decisions. For instance, individuals under the age of 18 are required to secure parental consent in order to marry, those under 16 must obtain parental and judicial consent, and those under 14 are prohibited entirely from marrying. N.Y.D.R.L. §§ 15(2), (3), 15-a. The purpose of the law is to insure mature decision making and to prevent unstable marriages. Moe v. Dinkins, 533 F.Supp. 623 (S.D.N.Y.1981), aff'd, 669 F.2d 67 (2d Cir.), cert. denied, 459 U.S. 827, 103 S.Ct. 61, 459 U.S. 827 (1982). Similarly, individuals under the age of 18 cannot dispose of real or personal property by will, N.Y.E.P. T.L. § 3-1.1, and they are considered incompetent — due to their age — to receive letters testamentary or letters of administration, N.Y.S.C.P.A. § 707, or to effectively execute a power of attorney. N.Y.G. O.L. § 5-1502G. See Matter of Peters, 71 Misc.2d 662, 336 N.Y.S.2d 712 (Surr.Ct.Cattaraugus Co.1972). Additionally, contracts entered into by minors are generally voidable by the minor at any time prior to ratification, N.Y.G.O.L. § 3-101; Ruppert v. Secretary of United States Dept. Health & Human Svcs., 671 F.Supp. 151 (E.D.N.Y.1987), aff'd in part, rev'd in part 871 F.2d 1172 (2d Cir.1989), whereas a contract entered into by one who has reached the age of majority is fully enforceable because the individual is deemed to have the legal capacity to enter into a binding contract. New York City Health & Hospitals Corp. v. Spell, 140 Misc.2d 847, 531 N.Y.S.2d 686 (Civ.Ct.N.Y. Co.1988). Furthermore, infants who are performing artists and professional athletes must have any contract for their services judicially approved; this review by the court, which when given acts to make the contract binding against the infant, serves to insure that the terms of the contract consider the interests of the infant. N.Y. Arts & Cult. Aff. L. § 35.03; Shields v. Gross, 58 N.Y.2d 338, 448 N.E.2d 108, 461 N.Y.S.2d 254 (1983). Finally, even though infants may be held responsible for their negligent torts, generally a lesser standard of care applies than would in the case of an adult: the applicable standard of care used to determine whether an infant is negligent is that which it is reasonable to expect of children of like age, intelligence and experience.[1]Comeau v. Lucas, 90 A.D.2d 674, 455 N.Y.S.2d 871 (4th Dep't.1982), Mochen v. State, 43 A.D.2d 484, 352 N.Y.S.2d 290 (4th Dep't. 1974). We find that the pervasive policy in New York to protect the rights and interests of infants and minors, as exhibited by the aforementioned examples, should be extended to plaintiff in the instant case. Additionally, we are persuaded by the reasoning of the Hayward court. Plaintiff was an infant at the time of the conversion. For that reason alone, we find that she was not aware, for the purpose of charging her with mitigating her damages, that the conversion occurred until she reached the age of majority. See Hayward, supra, 167 Misc. at 697, 4 N.Y.S.2d at 703. We agree with defendant's contention, well established in New York law, Den Norske Ameriekalinje v. Sun. Printing & Publishing Assoc., 226 N.Y.1, 122 N.E. 463 (1919); Wilmot v. State, 32 N.Y.2d 164, 297 N.E.2d 90, 344 N.Y.S.2d 350 (1973); Air Et Chaleur, S.A. v. Janeway, 757 F.2d 489 (2d Cir.1985), that plaintiff had a duty to mitigate her damages. Once the disability of minority was removed, she was chargeable with knowledge of the conversion and with the responsibility of keeping her damages to a minimum. Plaintiff was born January 6, 1965 and attained majority on January 6, 1983, Complaint ¶ 13; consequently, we fix January 16, 1983, ten days after plaintiff reached the age of majority, as the termination date of the reasonable time. The ten day period allows plaintiff to exercise her judgment and consult with counsel, without the impediment of minority, to decide *153 what course to take on the matter. Accordingly, plaintiff is entitled to the highest intermediate value of the shares between May, 1973 and January 16, 1983, plus interest thereon from the date the stock attained its highest value. N.Y.C.P. L.R. § 5001. Defendant, relying on two recent Appellate Division cases,[2] argues that whatever amount to which plaintiff is entitled should be reduced by at least 25% because the stock was a minority interest in a closely held corporation and thus not marketable. Defendant's Memo at 13. We disagree. A closer reading of the two cases cited by defendant reveals that they involved circumstances in which an individual shareholder filed a petition for a judicial dissolution of the corporation and the corporation in turn elected to buy out the individual's interest. The trial courts were responsible for determining the value of the stock for the purpose of such a sale. That is not the case here. The purpose is not to establish a value for the stock in the context of a dissenting shareholder, a tax valuation or due to a judicial dissolution; rather, we must determine what the stock would have been worth had plaintiff's interest not been interfered with. See Haynsworth, Valuation of Business Interests, 33 Mercer L.Rev. 457 (1982). Additionally, defendant cites no authority to support its position that a discount of valuation is appropriate in the context of fixing damages for conversion of stock. Indeed, none of the cases cited by either party which dealt with stock of a closely held corporation made any mention of applying a discount to the amount of damages. The stated rule of conversion damages is that plaintiff is entitled to the full value of the stock within a reasonable time after discovery of the conversion. Hartford Accident & Indem. Co. v. Walston & Co., Inc., supra. There is no provision for a discount under those circumstances; consequently, we decline to apply one. Finally, the hardships discussed in Galigher, supra, regarding the determination of the value of stocks as of certain dates, are less onerous in today's business market. Indeed, many electronic and technological advances have been made since Galigher was decided 102 years ago which make it easier to ascertain the values of stocks, both publicly and closely held, as of particular dates. Hence, by extending the reasonable time, we do not believe we will be adding an undue burden to the process of determining the amount of damages. II. Punitive Damages We next turn to the issue of whether plaintiff is entitled to punitive damages as a result of the conversion of the stock by defendant. Plaintiff, relying on what she describes as "this court's finding of intentional wrongdoing," contends, without further specificity, that she is entitled to punitive damages. Plaintiff's Memo at 14. Defendant argues that plaintiff is not entitled to punitive damages because defendant's act of conversion was not accompanied by the requisite mental state that would warrant the assessment of punitive damages. Defendant's memo at 14. Imposition of punitive damages for conversion of personal property will be justified where circumstances show that the conversion was accomplished with malice, insult, reckless and willful disregard for plaintiff's rights, or by other proof evidencing the aggravated nature of the act. 23 N.Y.Jur.2d Conversion, § 74 (1982); Fraser v. Doubleday & Co., Inc., 587 F.Supp. 1284, 1288 (S.D.N.Y.1984). "An act is done maliciously when it is done deliberately with knowledge of the plaintiff's rights and with the intent to interfere therewith." Ashare v. Mirkin, Barre, Saltzstein & Gordon, P.C., 106 Misc.2d 866, 869, 435 N.Y.S.2d 438, 441 (Sup.Ct.N.Y.Co.1980), modified on appeal to delete punitive damages, 81 A.D.2d 650, 441 N.Y.S.2d 408 (2d Dep't.) aff'd, 54 N.Y.2d 891, 444 N.Y. S.2d 918, 429 N.E.2d 425 (1981). Additionally, punitive damages "are allowed where *154 the wrong is aggravated by evil motives...." Merrick v. Four Star Stage Lighting, Inc., 60 A.D.2d 806, 400 N.Y.S.2d 543 (1st Dep't.1978). In Ashare v. Mirkin, supra, plaintiff, an attorney, agreed to bring his law library and office furniture to his firm's new office for use by members of the firm. Defendants, plaintiff's former partners, agreed that plaintiff would retain ownership of the library and furniture, and the firm would maintain and keep the library current during plaintiff's employment. Nearly two years later, when plaintiff gave notice that he was leaving the firm, the parties discussed the possible purchase of plaintiff's property by defendants. After initial discussions, defendants refused to discuss the matter further, claimed the property as their own, and rejected plaintiff's demand that they return the property. 106 Misc.2d at 869-70, 435 N.Y.S.2d at 441. The trial court found that defendants converted plaintiff's property in retaliation for plaintiff's decision to leave the firm. Id. at 870, 435 N.Y.S.2d at 441. The court, "considering the nature of the defendants' willful and malicious conduct" in converting plaintiff's property and in labelling him an "ingrate" for wanting to leave the firm, awarded plaintiff punitive damages. Id. The Appellate Division modified the trial court's judgment to delete the award of punitive damages, stating that even "[u]nder the circumstances, there was no basis for the award for punitive damages." 81 A.D.2d 650, 441 N.Y.S.2d 408. The circumstances of the instant case are quite similar to those in Ashare v. Mirkin. Plaintiff's father put the stock in plaintiff's name and agreed with defendant that defendant would have the right to vote the shares while plaintiff would retain ownership rights. Transfer of ownership or control was never considered. When plaintiff's father decided to resign from SICC, defendant told him he was "sick", and within six weeks thereafter sold plaintiff's stock. In our September 7, 1989 opinion, we concluded that defendant's "impetus for selling the stock was a combination of retaliation and desire to keep ownership in the hands of insiders." 720 F.Supp. at 1094. We also found that defendant's anger over the decision of plaintiff's father to leave SICC "played a major role in the relatively quick sale of the stock." Id. When plaintiff's father rejected the proceeds of the sale and demanded the return of the stock, defendant refused to comply. We are persuaded by our examination of Ashare v. Mirkin and other applicable cases cited above; accordingly, we are compelled to conclude that while defendant's actions resulted from his anger at and his retaliatory intent toward plaintiff's father, those actions do not evidence the requisite malice, reckless and willful disregard for plaintiff's rights, or aggravation caused by evil intentions that would justify the imposition of punitive damages. Accordingly, we find that under the circumstances, there is no basis on which we can justify awarding punitive damages to plaintiff. See, Ashare v. Mirkin, supra, 81 A.D.2d 650, 441 N.Y.S.2d 408 (2d Dep't.) aff'd, 54 N.Y.2d 891, 444 N.Y.S.2d 918, 429 N.E.2d 425 (1981). CONCLUSION In accordance with the foregoing, we are constrained to, and do, fix January 16, 1983 as the termination date of the reasonable time for the purpose of determining the value of the shares. Plaintiff is entitled to the full amount of the highest value attained by the stock from discovery of the conversion in May, 1973, to January 16, 1983, plus interest from the date the stock attained its highest value. Furthermore, we decline to impose a constructive trust upon defendant for the proceeds of the sale of the stock. Finally, plaintiff is not entitled to recover punitive damages. We again choose to follow a practice that has met with great success in this Court: we direct plaintiff and defendant to endeavor to agree upon a reasonable and proper amount of damages, based upon our formula, and to provide us with a proposed form of judgment, including the amount agreed upon. If the parties cannot reach an agreement before May 1, 1991, they are to notify us in writing by May 1, 1991, and a *155 date will be fixed immediately thereafter for a hearing strictly limited to the issue of the amount of damages owing to plaintiff from defendant. SO ORDERED. NOTES [1] An exception applies when an infant engages in an activity normally undertaken by an adult, such as driving a car or playing golf: the infant may then be held to a standard of adult skill, knowledge and competence. Neumann v. Schlansky, 58 Misc.2d 128, 294 N.Y.S.2d 628 (Sup.Ct.West.Co.1968), aff'd 63 Misc.2d 587, 312 N.Y.S.2d 951 (Sup.Ct.Sp.T.West Co.1970), aff'd 36 A.D.2d 540, 318 N.Y.S.2d 925 (2d Dep't.1971). [2] Blake v. Blake Agency Inc., 107 A.D.2d 139, 486 N.Y.S.2d 341 (2d Dep't.1985); Matter of Fleischer, 107 A.D.2d 97, 486 N.Y.S.2d 272 (2d Dep't. 1985).

9 S.W.3d 508 (2000) 340 Ark. 263 Tiny Standoak BABB, Gregory Franks, Shilena Easter, Michael Easter, Felisha Easter, Frederick Easter, and Daryl Standoak v. Leanna MATLOCK and Curtis Standoak. No. 99-127. Supreme Court of Arkansas. February 3, 2000. Willie E. Perkins, Jr., Malvern, for appellants. *509 Brent Baber, Little Rock, for appellees. DONALD L. CORBIN, Justice. This is a wrongful-death case in which we are asked to interpret the term "beneficiaries," as provided in Ark.Code Ann. § 16-62-102(d) (Supp.1999). Appellants Tiny Standoak Babb, Gregory Franks, Shilena Easter, Michael Easter, Felisha Easter, Frederick Easter, and Daryl Standoak are the grandchildren of Allean Standoak, who died on March 29, 1997. Allean had four children: Appellee Leanna Matlock, Appellee Curtis Standoak, Theadoris Standoak, and Shirley Standoak. Appellants are the children of Theadoris Standoak and Shirley Standoak, both of whom predeceased Allean. In December 1997, Appellee Leanna Matlock was appointed special administratrix of Allean's estate for the purpose of bringing a wrongful-death suit. In August 1998, the Garland County Probate Court entered an order of settlement in the wrongful-death action. The order reflected that after payment of attorney's fees and satisfaction of liens held by Medicare and Medicaid, the remainder of the settlement was divided between Appellees, the two surviving children. Appellants subsequently filed a motion to intervene in the wrongful-death action, claiming that they were Allean's heirs at law and thus beneficiaries of the settlement. The probate judge denied intervention, and this appeal followed. Our jurisdiction of this case is pursuant to Ark. Sup.Ct. R. 1-2(b)(1), as it involves issues of first impression. We affirm. We review probate proceedings de novo, and we will not reverse the decision of the probate court unless it is clearly erroneous. Buchte v. State, 337 Ark. 591, 990 S.W.2d 539 (1999); Barrera v. Vanpelt, 332 Ark. 482, 965 S.W.2d 780 (1998). When reviewing the proceedings, we give due regard to the opportunity and superior position of the probate judge to determine the credibility of the witnesses. Id. The questions presented by this appeal are: (1) whether the definition of "children" as used in section 16-62-102(d) should be interpreted broadly so as to include the descendants of those children of the deceased who predeceased the deceased; and (2) whether the relationship of in loco parentis continues past the age of majority for purposes of claiming as a beneficiary to a wrongful-death suit. We conclude that the answer to both questions is "No." There was no cause of action for wrongful death at common law. Simmons First Nat'l Bank v. Abbott, 288 Ark. 304, 705 S.W.2d 3 (1986); McGinty v. Ballentine Produce, Inc., 241 Ark. 533, 408 S.W.2d 891 (1966). Thus, because the action is a statutory creation and is in derogation of or at variance with the common law, we construe the wrongful-death statute strictly. Id. Strict construction necessarily "requires that nothing be taken as intended that is not clearly expressed." Lawhon Farm Servs. v. Brown, 335 Ark. 276, 279, 984 S.W.2d 1, 4 (1998). Given that narrow standard, we must reject Appellants' first argument, that we should broadly construe the class of statutory beneficiaries to include persons not specifically named. Section 16-62-102(d) provides: The beneficiaries of the action created in this section are the surviving spouse, children, father and mother, brothers and sisters of the deceased person, persons standing in loco parentis to the deceased person, and persons to whom the deceased stood in loco parentis. Clearly, grandchildren of the deceased person are not included in the group of statutory beneficiaries. It is equally clear that the term "children" means living children, as the entire group of beneficiaries is qualified by the term "surviving." Thus, children who are not living at the time of the deceased person's death are not among the statutory beneficiaries, and, correspondingly, neither are the deceased children's heirs at law. Accordingly, we reject *510 Appellants' assertion that they are beneficiaries to the wrongful-death settlement. We also reject the claim raised by Appellants Tiny Standoak Babb and Gregory Franks that they are beneficiaries because they are persons to whom the deceased stood in loco parentis. Their claim is based on the fact that Allean raised them after each of their mothers had died. Appellees argue that this fact is of no consequence to the wrongful-death action, because both Babb and Franks were over the age of eighteen and were not disabled at the time of Allean's death. Thus, Appellees assert that the relationship of in loco parentis terminates at the time the children reach the age of majority, unless they are disabled. The probate court agreed with Appellees. Babb and Franks do not dispute that they were both adults at the time of Allean's death and that neither one of them suffers from any disability. They maintain, however, that the loss they suffered as a result of Allean's wrongful death is not lessened by the fact that Allean was no longer supporting them, financially or otherwise, at the time of her death. In this respect, they contend that their legal position is no different from that of Appellees, who were also adults at the time of Allean's death. We disagree. This court has defined the term "in loco parentis" as "in place of a parent; instead of a parent; charged factitiously with a parent's rights, duties, and responsibilities." Standridge v. Standridge, 304 Ark. 364, 372, 803 S.W.2d 496, 500 (1991) (quoting Black's Law Dictionary 708 (5th ed.1979)). O GREGORY FRANKS, ne who stands in loco parentis to a child puts himself or herself "in the situation of a lawful parent by assuming the obligations incident to the parental relation without going through the formalities necessary to a legal adoption." 59 AM.JUR.2D Parent and Child § 75, at 217 (1987) (footnote omitted). The relationship may be abrogated at will by either the person assuming the parental duties or the child. Id. Thus, the relationship is a temporary one, unlike that of adoption. Bryant v. Thrower, 239 Ark. 783, 394 S.W.2d 488 (1965). The question then is when does the relationship end, provided that it is not voluntarily abrogated by either party. Although this court has not specifically addressed this issue, the general rule appears to be that the relationship of in loco parentis ends when the child reaches the age of majority and is not disabled. See 67A C.J.S. Parent & Child § 154, at 551 (1978) (footnote omitted) (providing that "[o]rdinarily, a person cannot stand in loco parentis to an adult who is not mentally or physically incapacitated from providing for himself"). This is consistent with the general rule that a parent is legally obligated to support his or her child at least until the time the child reaches majority. See Towery v. Towery, 285 Ark. 113, 685 S.W.2d 155 (1985). Once a child reaches majority and is physically and mentally capable, the legal duty of the parent to support that child ceases. Id. Conversely, the duty of support does not cease at majority if the child is mentally or physically disabled and needs support. Id. Here, there is no evidence that Babb or Franks, both of whom were adults and suffered from no disability, were relying on Allean's support at the time of her death. Thus, they are not beneficiaries under the wrongful-death statute, as Allean did not stand in loco parentis to them at the time of her death. We are aware of the impact that this decision may have on the ever-increasing number of children in this state who are being raised, but not formally adopted, by grandparents and other relatives. Indeed, we may be tempted to sympathize with Appellants' position that their loss is in no way lessened merely because Allean was no longer contributing to their support. Nevertheless, we believe that any expansion of the right of recovery under the wrongful-death statute lies within the province of the General Assembly, not this court. We thus affirm the probate court's ruling on this point. Accordingly, *511 because we conclude that all Appellants lacked standing to claim any interest in the settlement procured as a result of Allean's wrongful death, we summarily affirm the remaining points on appeal. BROWN and IMBER, JJ., concur. ARNOLD, C.J., and THORNTON, J., dissent. ANNABELLE CLINTON IMBER, Justice, concurring. I agree with the result reached by the majority based upon the plain language of Ark.Code Ann. § 16-62-102 (Supp.1999). Section 16-62-102(d) provides for two categories of in loco parentis beneficiaries: "persons standing in loco parentis to the deceased person," and " persons to whom the deceased stood in loco parentis." The first category is written in the present tense. Thus, beneficiary status in that category is accorded only to persons who stand in loco parentis to the deceased at the time of death. The statute's next phrase defining the second category of in loco parentis beneficiaries can be and should be similarly construed to refer only to persons to whom the deceased stood in loco parentis at the time of death. The use of the past tense in the latter phrase merely indicates that a deceased person cannot stand in loco parentis to anyone following his or her death. Both categories of in loco parentis beneficiaries are thereby capable of being construed consistently and harmoniously. Inequities would necessarily result if the statute were construed otherwise, with beneficiary status being limited to an in loco parentis relationship at the time of death as to one in loco parentis category, but not as to the other in loco parentis category. For these reasons, I would affirm the probate court's ruling based upon the plain language of section 16-62-102(d) and our case law interpreting the term in loco parentis. BROWN, J., joins in this concurrence. W.H. "DUB" ARNOLD, Chief Justice, dissenting. I disagree with the majority in holding that the relationship of in loco parentis does not continue past the age of majority for purposes of claiming as a beneficiary to a wrongful-death suit. Appellants Tiny Standoak Babb and Gregory Franks were raised by their grandmother, Allean Standoak, after their parents died. "Raise" is defined in the dictionary as: "to give (children) a parent's fostering care: bring up: NURTURE, REAR." Webster's Third New International Dictionary 1877 (1986). Appellees argue that the relationship of in loco parentis terminated at the time each of the children reached their majority. The wrongful-death statute sets forth those who are considered as beneficiaries. Section 16-62-102(d) provides: The beneficiaries of the action created in this section are the surviving spouse, children, father and mother, brothers and sisters of the deceased person, persons standing in loco parentis to the deceased person, and persons to whom the deceased stood in loco parentis. (Emphasis added.) This Court has not specifically addressed this issue until this case. The majority now holds that the relationship ends when the child for whom the deceased stood in loco parentis reaches the age of majority but not when the natural child reaches the age of majority. The statute makes no distinction as to children, whether natural or those for whom the deceased has stood in loco parentis, regarding whether they are beneficiaries even after reaching the age of majority. Therefore, I fail to see why the majority has made such a distinction. I, therefore, respectfully dissent. THORNTON, J., joins.

Electronically Filed Intermediate Court of Appeals CAAP-12-0000853 27-JUN-2013 09:34 AM 

540 F.2d 1085 Mississippi Power & Light Co.v.United Gas Pipe Line Co. No. 75-2316 United States Court of Appeals, Fifth Circuit 9/27/76 S.D.Miss., 532 F.2d 412

112 Cal.Rptr.2d 277 (2001) 92 Cal.App.4th 681 William TURNER et al. Plaintiffs and Appellants, v. STATE FARM FIRE AND CASUALTY COMPANY, Defendant and Respondent. No. G026162. Court of Appeal, Fourth District, Division Three. September 27, 2001. *278 Robert W. Battin, Santa Ana, for Plaintiffs and Appellants. Luce, Forward, Hamilton & Scripps, Peter H. Klee, San Diego, Seth M. Friedman, Beverly Hills, and Marc J. Feldman, San Diego, for Defendant and Respondent. OPINION MOORE, J. The trial judge dismissed this action after sustaining a demurrer to the first amended complaint without leave to amend. William and Leslie Turner (the Turners) appeal from the judgment, contending the trial court erred in determining a third party libel and slander action did not trigger a potential for coverage or a duty to defend under a rental dwelling insurance policy. We disagree and affirm. I FACTS The Turners, who are husband and wife, obtained a rental dwelling insurance policy from State Farm Fire and Casualty Company (State Farm) for a piece of property they own, located in Villa Park, California. The Turners reside elsewhere. After they were sued for defamation and State Farm refused to defend or indemnify, the Turners in turn brought suit against State Farm under the rental dwelling policy for failure to defend, breach of the duty of good faith and fair dealing, and negligence. The first amended complaint alleged a duty of State Farm to defend against the defamation suit based on a series of supposedly connected events that would make even Mrs. Palsgraf recoil.[1] The Turners, while at home and not at the rental property, had a "verbal dispute" with each other over new rental terms for tenants of the rental property. The dispute escalated and Mrs. Turner pulled a gun on Mr. Turner. Mr. Turner, doubting the gun was loaded, took it away from Mrs. Turner. Mrs. Turner then attempted to slug Mr. Turner with a stainless steel golf club *279 (iron). Mr. Turner blocked Mrs. Turner so as to sustain blows only to the bottom of his shoe. A 911 call was placed to the Orange County Sheriffs Department. Mr. Turner told the police Mrs. Turner had a history of mental problems, but never took her medication, and that the police had been called to the home the previous year when the couple was arguing. Mrs. Turner was arrested for assault with a deadly weapon and taken to the Orange County women's jail. The police report notes that Mrs. Turner was irrational. At the jail Mrs. Turner claimed a male deputy had performed an inappropriate strip search on her before bringing her in. Later Mr. Turner also complained about the search the deputy had performed on his wife. Subsequently, the male deputy sheriff filed a lawsuit against both Mr. and Mrs. Turner for defamation. The Turners tendered the defense of the deputy's action to State Farm under the rental dwelling policy, which State Farm declined. They then paid $12,500 to attorneys to defend them in the defamation action. Because State Farm refused to defend them, the Turners paid the deputy $15,000 to settle his claim. The court sustained the demurrer to the Turners' first amended complaint without leave to amend and entered judgment in favor of State Farm. The Turners then filed their notice of appeal. They contend the trial judge erred in sustaining the demurrer because State Farm was under a duty to defend the deputy's libel and slander suit against them according to the terms of the rental dwelling policy. II DISCUSSION Introduction The standard of appellate review where judgment is entered after the sustaining of a demurrer is well established. "`When a demurrer is sustained, we determine whether the complaint states facts sufficient to constitute a cause of action. [Citation.] And when it is sustained without leave to amend, we decide whether there is a reasonable possibility that the defect can be cured by amendment: if it can be, the trial court has abused its discretion and we reverse; if not, there has been no abuse of discretion and we affirm. [Citations.] The burden of proving such reasonable possibility is squarely on the plaintiff.' [Citation.]" (Blatty v. New York Times Co. (1986) 42 Cal.3d 1033, 1040-1041, 232 Cal.Rptr. 542, 728 P.2d 1177.) In ruling on the demurrer, a court must give the operative pleading a reasonable construction, assuming the truth of properly pleaded material facts together with all judicially noticed facts. (Crowley v. Katleman (1994) 8 Cal.4th 666, 672, 34 Cal.Rptr.2d 386, 881 P.2d 1083; California Alliance for Utilities etc. Education v. City of San Diego (1997) 56 Cal.App.4th 1024, 1028, 65 Cal.Rptr.2d 833; Lacker v. Superior Court (1991) 230 Cal.App.3d 1038, 1043, 281 Cal.Rptr. 640.) The Turners claim error because the trial court sustained State Farm's demurrer without leave to amend. While they obviously had amended their pleading at least one time since the demurrer was to the first amended complaint, the Turners provide no citation to anything in the record to show they either requested leave to amend again or indicated they could amend again. Nor do they provide any indication to this court that they could have pleaded their case more successfully if given an opportunity to do so. Thus, we will assume the first amended complaint represents their best pleading. *280 The insurance policy The policy is called a rental dwelling policy. This type of policy is generally similar to, but usually less expensive than, a comprehensive or commercial general liability policy (CGL). It is available to landlords who want some but not all of the coverages provided in a standard CGL policy. (See 1 Cal. Liability Insurance Practice: Claims and Litigation (Cont. Ed. Bar 1994) § 1.32, p. 1-24 [concerning owners', landlords' and tenants' liability policies].) The language on which the Turners rely is contained in two separate sections of the policy. The first, which describes the business liability coverage, provides: "If ... a suit is brought against any insured for damages because of ... personal injury ... to which this coverage applies, caused by an occurrence, and which arises from the ownership, maintenance, or use of the insured premises, we will: [¶] ... [¶] 2. provide a defense at our expense by counsel of our choice...." (Emphasis in original omitted.) The second defines "personal injury" as an "injury arising out of one or more of the following offenses: [¶] ... [¶] b. libel, slander or defamation of character...." Duty to defend An insurance company has a duty to defend a lawsuit against its insured if there is a potential for coverage. The insured need only show the underlying claim may fall within the policy coverage. (Montrose Chemical Corp. v. Superior Court (1993) 6 Cal.4th 287, 295, 24 Cal. Rptr.2d 467, 861 P.2d 1153.) When there is no potential for coverage, there is no duty to defend. (Buss v. Superior Court (1997) 16 Cal.4th 35, 47, 65 Cal.Rptr.2d 366, 939 P.2d 766.) The Turners' allegations must be examined to determine if they fall within the coverage of their policy The Turners imply State Farm denied them a defense without ever investigating extrinsic facts to determine whether a disagreement about the rental property instigated their fight. State Farm agrees it made no attempt to verify this assertion, but says it made no difference, since it assumed the Turners' version of the facts to be correct, but found no potential for coverage anyway. We will also assume it is true the Turners were arguing about their rental property when the police were called. Since there appear to be no other facts the Turners claim would have implicated coverage, State Farm is correct that it makes no difference that it did not investigate the Turners' story before it refused to defend. Some case authority must be examined to determine whether the Turners are able to show a potential for coverage under their State Farm policy. To trigger a duty to defend, there must be a causal connection between the insuring clause of their policy and the slanderous statements. (Kramer v. State Farm Fire & Casualty Co. (1999) 76 Cal.App.4th 332, 340, 90 Cal. Rptr.2d 301.) Feurzeig v. Insurance Co. of the West (1997) 59 Cal.App.4th 1276, 69 Cal.Rptr.2d 629 requires consideration here. Feurzeig, an officer of a corporation that was insured under a CGL policy, was sued for slander. Two men who had previously managed some real estate properties, which were not insured under the policy, alleged that Feurzeig slandered them in conversations with lenders, vendors, subcontractors and investors in the properties. Coverage under the policy was limited to claims arising out of the ownership, maintenance or use of the insured premises. Some of the allegedly slanderous remarks were made at the insured premises. The Feurzeig court held, since Feurzeig's remarks *281 were uttered as an officer or director of the insured entity and arose from the use of the insured premises, there was a duty to defend. In comparing Feurzeig with the case before us, we see some glaring differences. We will ignore the different types of policies because the coverage is quite similar. In Feurzeig the allegedly slanderous remarks were made at the site of the insured property, and in connection with the insured business. To compare with the Turners' situation, we see the remarks were not made at the rental property. And while there had been an earlier discussion about the rental property the allegedly slanderous remarks were not about the rental property. They were made much later, both at and after the time Mrs. Turner was taken to the police station. While Feurzeig is a case in which the court held there was a duty to defend, a case with the opposite result is Kramer v. State Farm Fire & Casualty Co., supra, 76 Cal.App.4th 332, 90 Cal.Rptr.2d 301. Just as in the instant case, Kramer concerned a rental dwelling policy. It covered "claims for accidental injuries arising `from the ownership, maintenance, or use of the insured premises....'" (Id. at p. 334, 90 Cal.Rptr.2d 301.) In Kramer, a grandmother and stepgrandfather who owned rental properties brought an action against their insurer. The insurer refused to provide coverage for a suit by the daughter, son-in-law and four grandchildren, who alleged the stepgrandfather molested the grandchildren at the premises, and the grandmother concealed the molestation. The court recognized the difficulty in crafting a rule that would apply in every case involving the use of a premises. (Id. at p. 340, 90 Cal.Rptr.2d 301.) It concluded, even though the molestations occurred on the premises and arose from the grandparents' use of the premises to care for the grandchildren, there was no indication the grandchildren were exposed to any peculiar risk of molestation due to the use of the premises. (Ibid.) The grandparents argued it would have been impossible for the acts to occur without the use of the dwelling. In fact, there had been molestations at other properties as well, thus making it obvious the molestations could have occurred had the grandparents not owned, maintained or used the insured premises. (Id. at pp. 340-341, 90 Cal.Rptr.2d 301.) The court was satisfied the required causal connection between the use of those premises and the tortious activity causing the injury was lacking. (Id. at p. 341, 90 Cal.Rptr.2d 301.) In the case before us, the causal connection is even more attenuated. In Kramer, since at least some of the tortious activity occurred on the insured premises, there was a direct connection between the tortious activity and the insured premises, even though the court held the causal connection was lacking. Where the Turners are concerned, however, their argument did not even occur on the insured premises. Although Mr. and Mrs. Turner were discussing rental property terms when Mrs. Turner blew up, assaulting her husband with a gun and then a golf club, it does not follow that the purported strip search and subsequent defamatory statements were "sufficiently causally related to the [ownership] of [the rental] property to warrant coverage." (Kramer v. State Farm Fire & Casualty Co., supra, 76 Cal. App.4th at p. 340, 90 Cal.Rptr.2d 301.) As stated in Kramer, "we are satisfied that the required relationship is lacking in this case." (Ibid.) In Farmers Ins. Exchange v. Reed (1988) 200 Cal.App.3d 1230, 248 Cal.Rptr. 11, the Reeds, like the Turners, had a fight. She was drunk. He took her keys so she could not drive home. Another car *282 struck and injured Mrs. Reed while she was walking home. She sued Mr. Reed for her injuries. Farmers had issued the Reeds an automobile insurance policy which provided "the insurer would pay damages for which any insured person was legally liable `because of bodily injury to any person ... arising out of the ownership, maintenance or use of a private passenger car...."' (Id. at p. 1232, 248 Cal. Rptr. 11.) In Farmer's declaratory relief action, the court concluded the independent acts of the woman and the driver who struck her broke any causal connection between the husband's use of his vehicle and her injuries. (Id. at p. 1234, 248 Cal. Rptr. 11.) The break in the causal connection between the ownership, maintenance or use of the vehicle is similar to the Turners' situation. Just as Mr. Reed's taking the keys from Mrs. Reed happened some time prior to her being struck by another car, the Turners' argument about the rental property occurred several steps prior to the slanderous remarks about the police officer. Peters v. Firemen's Ins. Co. (1998) 67 Cal.App.4th 808, 79 Cal.Rptr.2d 326 revolves around yet another feuding couple. She said he gave her a gift that will last forever when they were aboard his insured luxury yacht. When she discovered the herpes, she sued him. Again, the boat insurance policy insuring language was similar to that in State Farm's policy and obligated the insurer to pay damages "`for any claim or suit covered under this policy for bodily injury or property damage for which any insured person becomes legally liable through the ownership, maintenance or use of the insured boat.'" (Id. at p. 811, 79 Cal.Rptr.2d 326, italics added.) Mr. Peters tried mightily, but unsuccessfully, to argue the causal connection between the use of his yacht and the herpes. He claimed his yacht was a sign of wealth and status which fostered romance and sexual conduct. Neither the trial nor appellate court bought it. They concluded the use of the yacht was incidental to the claimant's injury, which could have been transmitted just as easily elsewhere. (Id. at p. 814, 79 Cal.Rptr.2d 326.) Similarly, the discussion of the rental property was only incidental to the defamation action brought against the Turners. The Turners place great stock in Melugin v. Zurich Canada (1996) 50 Cal. App.4th 658, 57 Cal.Rptr.2d 781. In that case, the insuring clause of a CGL policy provided: "`The Insurer agrees to pay on behalf of the Insured all sums which the Insured shall become obligated to pay as damages ... because of: [¶] A. Bodily Injury (as defined herein) ...; [¶] B. Personal Injury (as defined herein)...."' (Id. at pp. 662-663, 57 Cal.Rptr.2d 781.) The policy defined the term "Personal Injury" to include "`discrimination, ... violation of civil rights, ... [and] sexual discrimination, ..."' but provided that "`damages based on the above offences [sic] are only covered where insurance against same is not prohibited by law.'" (Id. at p. 663, 57 Cal.Rptr.2d 781, italics omitted.) When the insured company requested the defense of a sexual discrimination lawsuit, the insurer denied it. Most of the Melugin opinion is devoted to addressing whether or not Insurance Code section 533 bars such coverage. The appellate court reversed the trial court's grant of summary judgment in favor of the insurance company stating it was obligated by its policy to defend appellants. The coverage provided in the insuring clause of the Melugin policy was much broader and comprehensive than the instant coverage. The critical causal connection language "which arises from the ownership, maintenance, or use of the insured *283 premises" was absent from the Melugin policy. Obviously, it would be difficult to craft a rule regarding causal connections that would apply in every case. But general parameters can be laid. When a rental dwelling policy affords coverage for damages because of personal injury caused by an occurrence and which "arises from" the ownership, maintenance or use of the insured premises, the occurrence must be logically and more than incidentally or parenthetically connected to such ownership, maintenance or use. The Turners' slanderous statements could have occurred after an argument about anything. The topic of the argument was merely incidental to the police being called. It was the gun and the irrationality that required police involvement. They had also been called to the home the previous year when the couple was arguing. The need for police involvement just happened to have arisen on this occasion after the Turners had argued about the rental property. But the breaks in the causal connection multiplied. It was sometime after Mrs. Turner was interviewed at the scene, arrested, transported to jail and booked that the first slanderous statement was spoken. By that time the argument over the rental property was history. There is no potential for coverage under the Turners' insurance policy with State Farm. Accordingly, no duty to defend ever arose. No exclusion in policy The Turners next argue an insurance company may not restrict coverage by an unwritten interpretation which if allowed would have the same effect as a written exclusion. Since the policy had no written exclusion of coverage regarding an action "which grew out of a verbal dispute between their Insureds or a Libel and Slander suit by a police officer," the Turners argue there was a duty to defend. (Underscoring omitted.) Such reasoning is circular. "`[W]hen an occurrence is clearly not included within the coverage afforded by the insuring clause, it need not also be specifically excluded.' [Citation.]" (American Internal Bank v. Fidelity & Deposit Co. (1996) 49 Cal.App.4th 1558, 1575, 57 Cal.Rptr.2d 567.) Bad faith Lastly, the Turners contend that State Farm acted in bad faith when it refused to defend them in the defamation action. But a prerequisite to the implied covenant of good faith and fair dealing is a potential for coverage. Since, as discussed above, there is no such potential in this situation, there can be no breach of the implied covenant. (Waller v. Truck Ins. Exchange, Inc. (1995) 11 Cal.4th 1, 36, 44 Cal.Rptr.2d 370, 900 P.2d 619.) III DISPOSITION The Turners' first amended complaint demonstrates neither coverage nor the potential for coverage under the rental dwelling policy. State Farm had no duty to defend the deputy's defamation action and did not act in bad faith. The judgment is affirmed. State Farm shall recover its costs on appeal. WE CONCUR: RYLAARSDAM, ACTING P.J., and O'LEARY, J. NOTES [1] Palsgraf v. Long Island R. Co. (1928) 248 N.Y. 339, 162 N.E. 99. While Mrs. Palsgraf stood on a platform of defendant's railroad, a man carrying a package of fireworks wrapped in a newspaper attempted to board a moving train. A railroad employee assisted him, and the package was dislodged, fell and exploded. The shock threw down platform scales many feet away, and these struck Mrs. Palsgraf.

2009 MT 347N CITY OF BILLINGS, Plaintiff and Appellee, v. ALLEN DEAN JORDAN, Defendant and Appellant. No. DA 09-0326. Supreme Court of Montana. Submitted on Briefs: September 30, 2009. Decided: October 21, 2009. For Appellant: Joslyn Hunt, Chief Appellate Defender, Helena, Montana Eric Bunn, Deputy Public Defender, Billings, Montana For Appellee: Hon. Steve Bullock, Montana Attorney General, Sheri K. Sprigg, Assistant Attorney General, Helena, Montana Brent Brooks, Billings City Attorney, Melanie Pfeifer, Deputy City Attorney, Billings, Montana Justice James C. Nelson delivered the Opinion of the Court. ¶ 1 Pursuant to Section I, Paragraph 3(d)(v), Montana Supreme Court 1996 Internal Operating Rules, as amended in 2003, the following memorandum decision shall not be cited as precedent. It shall be filed as a public document with the Clerk of the Supreme Court and its case title, Supreme Court cause number and disposition shall be included in this Court's quarterly list of noncitable cases published in the Pacific Reporter and Montana Reports. ¶ 2 On May 26, 2008, Allen Jordan was ticketed for speeding and for failure to carry proof of motor vehicle insurance. Jordan pled guilty in Billings Municipal Court to the speeding charge. He moved to dismiss the "no-insurance charge" on the grounds that, even though his insurance card showed that the insurance on the vehicle he was driving expired on April 30, 2008, his insurance agent had agreed to provide coverage for the vehicle. Jordan testified that he had called his insurance agent on May 5, 2008, and instructed her to switch the insurance coverage from his other vehicle to this vehicle. Thus, Jordan claimed that he believed he had insurance coverage. ¶ 3 Jordan also testified that the day after he was cited for failure to carry proof of motor vehicle insurance, he went to see his insurance agent. She informed him that because he failed to pay the premium that was due on April 30, 2008, she was unable to make the change he requested. She also told Jordan that she had tried to contact him, but the phone number in his file was incorrect. Because Jordan was unable to show that his vehicle was insured at the time of his arrest, the Municipal Court judge denied his motion to dismiss the charge. ¶ 4 Jordan eventually pled guilty to the no-insurance charge reserving his right to appeal the denial of his motion to dismiss. Because this was Jordan's fifth offense of failing to carry proof of motor vehicle insurance, he was given a jail sentence of six months with all time suspended except for 48 days of house arrest. He was also fined $500 and ordered to pay a court surcharge of $45. ¶ 5 Jordan appealed the denial of his motion to dismiss to the District Court for the Thirteenth Judicial District, Yellowstone County. On August 21, 2008, the District Court entered an order setting forth a briefing schedule. That order gave the City until October 24, 2008, to file its opening brief. On January 15, 2009, Jordan filed a motion to deem his appeal well taken as the City had not filed an opening brief in this case. The District Court granted Jordan's motion and entered an order on February 4, 2009, reversing and remanding to the Municipal Court with instructions to enter an order dismissing Jordan's no-insurance conviction. ¶ 6 On February 10, 2009, over Jordan's objection, the District Court entered an order setting aside its previous order to dismiss this case. This order was based on the City's position that it never received the District Court's order regarding the briefing schedule. Apparently, the court had served the order on the deputy county attorney rather than the deputy city attorney. Both Jordan and the City filed briefs in the matter, and, on April 3, 2009, the District Court entered its decision affirming Jordan's conviction for failure to carry proof of motor vehicle insurance. The District Court stated: "One either has motor vehicle insurance or one does not. Mr. Jordan did not. Thus, Mr. Jordan's appeal from the lower Court must fail." ¶ 7 On appeal from the District Court's decision, Jordan raises two issues which we have reframed as follows: (1) Whether the District Court erred in setting aside its earlier order to dismiss this case, and (2) Whether the Municipal Court erred in denying Jordan's motion to dismiss. ¶ 8 Having reviewed the record, the District Court's decision and the parties' arguments on appeal, we have determined to decide this case pursuant to Section I, Paragraph 3(d) of our 1996 Internal Operating Rules, as amended in 2003, which provides for memorandum opinions. ¶ 9 Issue 1: Whether the District Court erred in setting aside its earlier order to dismiss this case. ¶ 10 Jordan argues on appeal that the District Court committed reversible error in setting aside the dismissal of his conviction because the court had lost jurisdiction via its previous order reversing the conviction. Jordan further argues that the dismissal should not have been set aside because the City slept on its rights by waiting 196 days from the time it was served with Jordan's brief on appeal until it finally filed its opening brief in the District Court. ¶ 11 Relying on the Montana Rules of Appellate Procedure, the Office of the Attorney General (the State), acting on behalf of the City, argues that the District Court had jurisdiction to reconsider its decision on appeal until remittitur was issued. The State points out that in this case, the District Court realized before remittitur was issued that it failed to send the briefing schedule to the correct prosecutor's office, and that, under these circumstances, the court's decision to allow the case to be briefed and decided on the merits was not an abuse of discretion. ¶ 12 Contrary to the State's arguments on appeal, the Montana Rules of Appellate Procedure do not apply to appeals to District Court. "These rules shall govern proceedings before the supreme court." M. R. App. P. 1(2). The correct procedure to follow in appeals from a municipal court to a district court can be found in the Montana Uniform Municipal Court Rules of Appeal to District Court (Title 25, chapter 30, MCA). To that end, M. U. Mun. Ct. R. App. 14(c) provides that the failure of a respondent to file an answer brief "shall be deemed an admission that the appeal is well taken and subject to summary ruling by the district court." However, "a district court judge has the discretion to dismiss—or decline to dismiss—an appeal, for failure to file a timely brief. The court may do so, but no rule says the court must do so." State v. Frazier, 2005 MT 99, ¶ 8, 326 Mont. 524, 111 P.3d 215 (emphasis in original) (citing M. U. Mun. Ct. R. App. 14(c); § 25-33-304, MCA ("For a failure to prosecute an appeal or unnecessary delay in bringing it to a hearing, the district court may order the appeal to be dismissed . . . ." (emphasis added))). ¶ 13 In the instant case, the District Court determined that it was at least partially at fault for the City's failure to file a brief because the court sent the order setting forth the briefing schedule to a deputy county attorney instead of to the deputy city attorney who was the prosecutor of record in both the Municipal and District Courts. The State pointed out in its brief on appeal that this confusion persisted on appeal as the "Notice of Appeal filed on June 2, 2009, was served on `Dennis Paxinos, Yellowstone County Attorney' instead of on the Billings City Attorney." Under these circumstances, we hold that the District Court did not abuse its discretion in rescinding its order to dismiss and allowing the appeal to continue with a new briefing schedule. ¶ 14 Issue 2: Whether the Municipal Court erred in denying Jordan's motion to dismiss? ¶ 15 Jordan argues that the Municipal Court committed reversible error by not finding that the interests of justice demanded the dismissal of his conviction because Jordan's failure to have motor vehicle insurance was due to his insurance agent's error. The State argues on the other hand that the Municipal Court's decision was correct because Jordan never produced an insurance card showing that his vehicle was covered on the date of his arrest. ¶ 16 Section 61-6-302(2), MCA, provides: Each person shall carry in a motor vehicle being operated by the person an insurance card approved by the department but issued by the insurance carrier to the motor vehicle owner as proof of compliance with 61-6-301. A motor vehicle operator shall exhibit the insurance card upon demand of a justice of the peace, a city or municipal judge, a peace officer, a highway patrol officer, or a field deputy or inspector of the department. A person commits an offense under this subsection if the person fails to carry the insurance card in a motor vehicle or fails to exhibit the insurance card upon demand of a person specified in this subsection. However, a person charged with violating this subsection may not be convicted if the person produces in court or the office of the arresting officer proof of insurance valid at the time of arrest. [Emphasis added.] ¶ 17 In this case, the insurance card that Jordan carried in his vehicle indicated that his motor vehicle insurance had expired on April 30, 2008, almost a month prior to his arrest. Moreover, Jordan did not produce in court "proof of insurance valid at the time of [his] arrest." As the State points out in its brief on appeal, § 61-6-302(2), MCA, places on the operator of the motor vehicle the burden of ensuring that there is in the vehicle at all times an insurance card showing that the vehicle is insured. Jordan's argument that his insurance agent should have provided coverage is irrelevant. Under the plain language of § 61-6-302(2), MCA, Jordan committed the offense of failure to carry proof of motor vehicle insurance. Accordingly, we hold that the Municipal Court did not err in denying Jordan's motion to dismiss. ¶ 18 Affirmed. JUSTICES MIKE McGRATH, W. WILLIAM LEAPHART, JIM RICE, and BRIAN MORRIS, concur.

835 A.2d 215 (2003) 153 Md. App. 130 B&S MARKETING ENTERPRISES, LLC., v. CONSUMER PROTECTION DIVISION. No. 1672 Sept. Term 2002. Court of Special Appeals of Maryland. November 4, 2003. *218 Lawrence P. Fletcher-Hill (Gordon, Feinblatt, Rothman, Hoffberger & Hollander, *219 L.L.C. on the brief), Baltimore, for appellant. William D. Gruhn, Assistant Attorney General (Lauren R. Calia, Assistant Attorney General, J. Joseph Curran, Jr., Attorney General on the brief), Baltimore, for appellee. Argued before SALMON, EYLER, JAMES R., and KRAUSER, JJ. *216 *217 KRAUSER, Judge. The appellants are B&S Marketing Enterprises, LLC, and S&B Marketing Enterprises, LLC and the two men, who operate and control these two entities, Louis R. Seo, Jr. and Frank A. Brown, Jr.[1] Using the trade names "Kash-2-U leasing" and "Cash-2-U leasing," B&S and S&B Enterprises provide "quick cash" to Maryland consumers through a contractual contrivance appellants call a "sale-leaseback" but which might more aptly be described, under the circumstances in which it was typically presented and enforced, as a "sale-leaseback-repurchase" agreement. It is the last stage of this transaction— the "repurchase"—which, according to the Consumer Protection Division of the Office of the Attorney General ("Division"), transformed what might have passed as a "sale-leaseback" into an unambiguous "loan." What were dubbed "rental payments" by appellants were deemed "interest payments" by the Division. And those payments were paid, according to the Division, at the exorbitant annual interest rate of 730%. In due course, the Division brought charges against the appellants, alleging that they had made unlicensed and usurious "loans" in violation of Maryland's Consumer Loan Law, Md.Code (2000 Repl. Vol., 2003 Supp.), §§ 12-301 to-317 of the Commercial Law Article ("CL"), and had, by misrepresenting these "loans" as "sale-leasebacks", engaged in "unfair or deceptive trade practices" in violation of the Maryland Consumer Protection Act, CL §§ 13-101 to 501. This matter was then referred to an administrative law judge for a hearing ("ALJ"). At the conclusion of that hearing, the ALJ found that the "sale-leaseback" was not a "loan," that appellants, individual and corporate, had in any event engaged in unfair and deceptive sales practices in violation of the Consumer Protection Act, and that Seo and Brown were personally liable for those practices. She therefore recommended that all charges pertaining to the Consumer Loan Law be dismissed but that appellants be ordered to cease and desist from violating the Consumer Protection Act and to pay restitution to "consumers for renewal and repurchase transactions, during the period of February 1994 through February 1996." Her recommendation stopped short, however, of requesting the imposition of civil penalties. Although it adopted most of the ALJ's recommendations and all of her factual findings that were based upon her determination of witness credibility,[2] the Division reached a different conclusion as to whether the "sale-leaseback" was a loan and as to whether civil penalties should be imposed. In its Final Decision, the Division declared that appellant had "enter[ed] into loans in the form of a pretended sale-leaseback... without complying with the Consumer Loan Law." The Division's ensuing Final Order required that appellants make certain disclosures, "cease and desist from violation of the Consumer Protection *220 Act, take affirmative action in the form of restitution, and pay civil monetary penalties." Challenging the conclusions reached by the Division, appellants filed a petition for judicial review in the Circuit Court for Baltimore City. That was followed by the Division's issuance of an Amended Final Order. In that order, the Division, as it did in its original order, required appellants to "cease and desist from the violation of the Consumer Protection Act," "take affirmation action in the form of restitution," and pay "civil monetary penalties" as well. Affirming the Division's decision, the circuit court remanded "the case to the agency to issue an order that makes explicit that simply changing forms will not make the pretend leaseback valid." From that order, appellants noted this appeal, presenting the following issues for our review:[3] I. Did the Division apply the correct legal standard to appellant's sale-leaseback transactions? II. Did the Division err in finding that the disclosures made by appellants in connection with the sale-leaseback transactions were insufficient? III. Did the circuit court exceed its authority in remanding the matter to the Division for revision of the Amended Final Order? IV. Did the Division exceed its authority in ordering "individual awards of restitution without any showing of reliance?" V. Did the Division err in not giving deference to the ALJ's finding that Seo and Brown acted in good faith and in imposing personal liability on them? For the reasons that follow, we shall affirm the judgment of the circuit court. The Sale-Leaseback Using radio and television advertisements, appellants targeted employed persons between the ages of 25 and 39, "in the $20,000-or-so income bracket," needing "cash rather quickly," for their sale-leaseback program. The advertisements declared that anyone needing emergency cash could "get up to $200 today" by calling "752-C-A-S H." To qualify for the money, the potential customer was informed that he or she must have "an active checking account," "own electronics or appliances," and "have been on [his or her] job for one year." The text of one radio advertisement stated: MONEY PROBLEMS GETTING YOU DOWN? ? ? NO MONEY TO PAY THE ELECTRIC BILL? ? ?—NO PROBLEM NO MONEY TO PAY THE TELEPHONE BILL? ? ?—NO PROBLEM NO MONEY TO COVER THE CHECK YOU JUST WROTE? ? ?— NO PROBLEM THESE AND ANY OTHER EMERGENCIES CAN BE SOLVED WITH A SIMPLE PHONE CALL TO KASH-2-U LEASING. CALL 752-2274, THAT'S 752-C-A-S H AND GET UP TO $200.00 TODAY. WITH KASH-2-U LEASING EMERGENCY MONEY PROBLEMS ARE A THING OF THE PAST. GET MONEY FOR BACK TO SCHOOL ITEMS, FALL SALES AND LATE VACATIONS BY CALLING KASH-2-U LEASING AT 752-2274, *221 THAT'S 752-C-A-S-H. IF YOU HAVE AN ACTIVE CHECKING ACCOUNT, OWN ELECTRONICS OR APPLIANCES AND HAVE BEEN ON YOUR JOB FOR ONE YEAR, KASH-2-U CAN PROBABLY QUALIFY YOU FOR THEIR SALE/LEASEBACK PROGRAM RIGHT OVER THE PHONE. THERE'S NO CREDIT CHECK AND NO RED TAPE AND YOU CAN HAVE THE $200.00 IN YOUR POCKET TODAY—YES, I SAID TODAY. THAT NUMBER AGAIN FOR FAST, FAST CASH TODAY. CALL KASH-2-U LEASING AT 752-2274, THAT'S 752-C-A-S-H. CALL CASH FOR CASH. Another radio advertisement declared: IT'S THAT TIME AGAIN! OUT WITH THE OLD YEAR AND IN WITH THE NEW! AND ALL THE MANAGEMENT AND EMPLOYEES OF CASH-2-U LEASING WOULD LIKE TO TAKE THIS OPPORTUNITY TO SINCERELY THANK ALL OF OUR WASHINGTON CUSTOMERS FOR A GOOD AND REWARDING 1994. AND REMEMBER, MONEY EMERGENCIES NEED NOT RUIN YOUR HOLIDAY CELEBRATION. CALL CASH-2-U LEASING NORTH AT (301)949-2274, THAT'S 949-C-A-S-H OR SOUTH AT (301)702-2274, THAT'S 702-C-A-S-H AND GET UP TO $200.00 TODAY. NO CREDIT CHECK AND NO RED TAPE. JUST HAVE AN ACTIVE CHECKING ACCOUNT, BE ON YOUR JOB ONE YEAR, ANSWER YES TO A COUPLE OF QUESTIONS AND COME PICK UP $200.00 TODAY. FAST, FAST CASH! THAT'S THE CASH-2-U WAY. LET CASH-2-U GET YOU IN THE PARTY MOOD. MAKE 1994 A YEAR TO REMEMBER AND START 1995 ON A HAPPY NOTE. CALL CASH-2-U NORTH AT 949-2274, THAT'S 949-C-A-S-H OR SOUTH AT 702-2274, THAT'S 702-C-A-S-H AND LET U.S. HELP YOU HAVE A HAPPY, HAPPY NEW YEAR. Indeed, according to the Division, "[a]dvertising run by [appellants] shortly before the hearing stated that they [were] `not a loan company, pawn, or check cashing service' but still did not offer an explanation as to what the consumer transaction would be." (Footnote omitted). When a consumer responded to one of these ads by telephoning appellants, he was told that he could obtain up to $200 if he brought with him to one of appellants' two stores his checkbook, bank statement, photo identification, pay stub, phone bill, and serial numbers for two household items to qualify for the "sale-leaseback" program. Upon arrival, the consumer submitted these documents, filled out an application, and "sold" one or two appliances to appellants for $100 each. Appellants then leased the appliances back to the consumer for fifteen day terms at $30 per appliance. Typically, the lease ended when all rent was paid up-to-date and the appliances were repurchased. Appellants paid the same price for each appliance, $100, regardless of the nature, condition, or actual value of the item. At no time did appellants see, appraise, inspect, or even verify the existence or ownership of an appliance, beyond requesting its serial number from the consumer. Many items purchased by appellants had a market value that was far less than the $100 purchase price. In short, the amount of the purchase price was not related to the fair market value of the specific item being purchased. The sales portion of this two-part transaction was oral until June 1995, when appellants added a "Bill of *222 Sale" form, containing a description of the property, serial numbers, and sometimes model numbers.[4] After the sale of the appliance to appellants, the consumer signed a "Lease Agreement for Personal Property," requiring the customer to pay appellants as rent the sum of $30 per item at 15 day intervals. Just as the purchase price was unrelated to the fair market value of the item being purchased by appellants, the amount of the rent was not related to the actual fair market rental value of the item being rented. The lease agreement further provided for the repurchase of the rental property "at the end of the initial lease term or at the end of any renewal for a cash price equal to the fair market value of the rental property," provided that all other fees were paid. Although the lease granted the consumer the right to terminate the agreement "at any time following the expiration of the initial lease term or any renewal" by returning the property and paying all accrued charges, the green option sheet given to customers at the time they signed the lease, which was in larger print than the lease agreement, set forth only three termination options. None of the options stated that the lease agreement could be terminated by surrendering the rental property. The options sheet was used by appellants from February 1994 through at least March 1996. It presented the options in the following words and format: Options For The Sales-Leaseback Program Options For The Sales-Leaseback Program AT THE END OF YOUR FIRST 15 DAY CYCLE YOU HAVE 3 OPTIONS AVAILABLE TO YOU. THE OPTIONS ARE AS FOLLOWS: OPTION # 1 — CASH OUT[[5]] — YOU ARE NOW OUT OF THE PROGRAM. $ 60.00 RENT $200.00 PURCHASE PRICE $ 10.00 TAX _______ $270.00 OPTION # 2 — BUYDOWN — YOU ARE BUYING YOUR ITEMS BACK 1 AT A TIME. $ 60.00 RENT $100.00 PURCHASE PRICE $ 5.00 TAX ________ $165.00 YOU HAVE NOW PURCHASED 1 ITEM OUT OF THE PROGRAM AND NOW HAVE AN ADDITIONAL 15 DAYS TO PURCHASE ITEM 2 BACK. $ 30.00 RENT $100.00 PURCHASE PRICE $ 5.00 TAX ________ $135.00 *223 OPTION # 3 — RENTAL PAYMENT — WHEN USING OPTION # 3 THE RENT DOES NOT APPLY TO THE PURCHASE PRICE. ALL THAT OPTION # 3 DOES IS GRANT YOU AN ADDITIONAL 15 DAYS TIME IN WHICH TO PURCHASE YOUR ITEMS BACK. $ 60.00 RENT As noted, no mention was made in the green options sheet of the right of the customer to terminate the lease by surrendering the property. Nor was that option discussed with potential customers. In fact, employees of appellants were instructed by appellants' training manual to stress that the customer was obligated to repurchase the rental property to terminate the transaction.[6] In March 1996, however, appellants replaced the green options sheet with a "yellow multi-part options sheet," adding the missing fourth option. That option read: OPTION # 4—RETURN OF MERCHANDISE—WHEN USING OPTION # 4 YOU PAY THE $60.00 RENTAL AND RETURN THE RENTAL MERCHANDISE. ONCE YOU HAVE MADE THE RENTAL PAYMENT AND RETURNED THE RENTAL MERCHANDISE YOU HAVE NO FURTHER OBLIGATION TO US. But "repeat" customers were never told of this revision, and they comprised 80% of appellants' monthly business. When a customer fell behind on his or her payments, appellants began collection activities by telephoning the customer. During such calls, appellants demanded payment, but, not surrender of the property. Collection calls were followed by a demand letter in which appellants advised the customer: "Failure to contact us will leave us no choice but to use all means necessary to collect this amount." Like the collection calls, such letters never mentioned that the property could be returned. If that produced no results, appellants deposited the security deposit check of the delinquent customer, deeming that check to be a "repurchase" of that customer's property. If a check was dishonored, appellants sent the customer a "Notice of Returned Check." That notice, among other things, advised the customer that passing a bad check was a crime and specified the criminal penalty for that crime, by setting out at length the relevant criminal statute. It concluded by informing the customer in large capitalized letters: "IF YOU FAIL TO HONOR YOUR CHECK WITHIN 10 DAYS AFTER RECEIVING THIS NOTICE, WE WILL BE FORCED TO CONSIDER APPROPRIATE LEGAL ACTION." What appellants did not attempt to do, however, was repossess the property. The Division concluded that "[m]any customers found it difficult to come up with the $270 (purchase price for two items plus rent for two items plus tax for two items) needed to pay off their obligation to the [appellants]" and that "[s]uch customers continued paying the `rent' until they could come up with the full `repurchase' price." Those customers, the Division observed, "often paid rent that was many times the value of the property that they were `renting.' " The Division cited *224 as examples a customer who paid $1,153 in rent for one item, and others who paid $682, $600, and $503, respectively, in rent for two items. "The annual interest rate on such a loan," the Division noted, was "730%." Despite the lease agreement's property surrender provision, the Division found that "[t]he vast majority of customers— approximately 99.5%—eventually paid back the money which they had received from [appellants]." Indeed, the Division found that appellants "designed their transaction to ensure that consumers ultimately repaid the cash advanced by the [appellants] rather than surrender the property listed in the transactional documents." When defaulting customers did surrender the property to appellants, appellants "refused to do business with them in the future" and the surrendered items "were treated as being of zero or negligible residual value and abandoned," the Division stated. In fact, so inconsequential was this property considered by appellants that they did not list the thousands of items of rental property they purchased in the course of conducting their business on the Maryland personal property return forms they filed with the Department of Assessments and Taxation. From the inception of their business in 1994 through 1996, appellants, the Division found, had entered into sale-leaseback agreements with more than 11,000 customers. Many of those transactions were personally handled by Brown and Seo. By the date of the administrative hearing, appellants had entered into a total of 56,208 sale-leaseback transactions, but the "leased" property had been surrendered in only 84 instances.[7] Procedural History On August 8, 1996, the Division filed a Statement of Charges and Petition for Hearing with the Chief of the Consumer Protection Division. That statement named as respondents, B&S Marketing Enterprises, Inc., doing business as Kash-2-U Leasing, and later S&B Marketing Enterprises, Inc., doing business as Cash-2-U Leasing, and its two officers and stockholders, Louis R. Seo, Jr., and Frank A. Brown, Jr. In that statement, Division claimed that appellants, among other things, "provide small loans to consumers in the principal amount of $200, for which they charge an interest rate of 780% per annum,"[8] and that "[i]n order to avoid Maryland's usury and consumer finance laws, which would require the maker of such loans to be licensed and to charge no more than 33% interest per annum, [appellants] have created a sham `sale-leaseback' transaction." The statement further averred that consumers "who have cash emergencies are induced to enter into these sham transactions in order to obtain short term credit at usurious interest rates" and that appellants misrepresented and concealed "the true nature, terms and legality of these transactions." The Division recommended that appellants be ordered "to cease and desist from violation of the Consumer Protection Act and of the Consumer Loan Law," to pay restitution "of money received from consumers in connection with a violation of the Consumer Protection Act," to "pay *225 $1000 civil penalties per violation," and "to pay for the costs of the investigation and th[e] proceeding." The Chief of the Consumer Protection Division granted the Division's petition for a hearing and referred the matter to the Office of Administrative Hearings for a public hearing. Following a public hearing, the presiding ALJ, in a written decision, found that appellants' transaction was a sale-leaseback transaction, not a loan, but nonetheless concluded that appellants, in presenting the sale-leaseback program, engaged in unfair and deceptive trade practices in violation of the Consumer Protection Act. In reaching that conclusion, the ALJ noted, among other things, that, from February 4, 1994 through March 1996, appellants "used several option sheets which explained three options for repurchasing goods, but did not include an option for returning the goods." The option sheet, the ALJ explained, though "not a transactional document," misrepresented "the terms of the lease with respect to how a customer could close the transaction." The ALJ further found that, based on the very low number of items returned by consumers, "many, if not most, consumers believed that they were obligated to purchase the leased goods." She pointed out that, from July 1994 through September 1996, appellants "had 56,208 transactions of property, yet only 44[9] items were returned by their customers." The ALJ recommended that the Consumer Protection Division issue an order requiring that appellants: "cease and desist from violation of the Consumer Protection Act," pay "restitution of money received from consumers for renewal and repurchase transactions, during the period of February 1994 through February 1996, which violated the Consumer Protection Act," and "pay for the costs of the investigation and this proceeding." She did not, however, order appellants "to pay civil penalties for the above violations." She further recommended that the "Consumer Protection Division dismiss the charges... alleging violations of the Consumer Loan Law." On November 19, 1997, the parties filed exceptions to the ALJ's decision with the Division. After hearing argument on those exceptions, the Division issued a "Final Decision" on November 2, 2001.[10] In that decision, the Division found that appellants had "engaged in small loan transactions in the form of sale-leaseback and resale transactions" and were not licensed to do so under the Consumer Loan Law. It further found that the "effective annual rate of interest in a typical transaction-in which the customer paid `rent' equaling 30% of the principal every 15 days-was approximately 730%." That rate, it stated, exceeded the limits set forth in Consumer Loan Law. It also found that appellants had not provided the consumer disclosures required by that law. With respect to "unfair or deceptive trade practices," the Division found that appellants had "presented [their] transaction as a sale-leaseback in form, but in practice [had] engaged in loan transactions," and that they had "led consumers to believe that [appellants] could lawfully enter into a species of loan transactions *226 with a rate of interest far in excess of that permitted by law." "Even if the transaction were construed as a sale-leaseback," the Division opined, appellants "misled consumers by omission at critical junctures as to whether the transaction could be terminated other than by repayment of the funds advanced." With respect to the green option sheet's omission of the option to surrender the property, the Division concluded that [t]he omission of the option to surrender property in the versions of the options sheet used during most of the period at issue and [appellants] emphasis on "repurchase" options in that document and in other practices demonstrates their intent to mislead consumers as to the formal terms of the lease form. This was apparently done so that consumers would repay the money received rather than present [appellants] with property that [appellants] would otherwise abandon. (Citation omitted). The Division further stated that because "Seo and Brown individually participated in the unfair and deceptive practices, they are personally liable for any penalties assessed or restitution which may be ordered." It assessed a civil penalty "in the amount of $100 per transaction—or a total $591,400." That penalty was based on 5,914 transactions that occurred during the period from September 1995 to February 1996. On November 2, 2001, the Division issued a "Final Order." That order required appellants to "cease and desist from violation of the Consumer Protection Act, take affirmative action in the form of restitution, and pay civil monetary penalties, as well as the costs of this proceeding." It further ordered appellants to "cease and desist from lending money to consumers until" they obtained a "license from the Commissioner of Financial Regulation under the Maryland Consumer Loan Law," revised their "communications with consumers to explicitly represent the transaction as a loan," and ceased "charging a higher rate of interest than allowed by the Maryland Consumer Loan Law." Paragraph 3 of the Final Order stated: 3. Relief Relating to Sale-Leaseback Program. Alternatively, if Respondents wish to continue their operations as a sale-leaseback program involving consumer property, Respondents shall cease and desist offering a sale-leaseback program unless and until they are in compliance with the following provisions: Those "following provisions" required in part that appellants make "clear and conspicuous" disclosures, as well as provide customers with a disclosure statement, a new options sheet, and a disclosure form of "Comparative Cost of Sale-Leaseback." The "clear and conspicuous" disclosure requirement provided that appellants "shall truthfully and affirmatively disclose to consumers all material facts about the nature of the sale-leaseback transaction and the consumer's options and obligations under the transaction." The disclosure statement that was to be placed in appellants' advertisements was to read "substantially as follows": We will pay you $ [insert range of prices offered] to buy _____ items of your personal property. You keep that property and pay us rent. You will owe us $ [insert rental amount and term] for the time that you keep that property. You have two options to get out of the sale-leaseback: (1) turn the property over to us and owe us nothing more or (2) buy back the property from us. *227 And finally, the disclosure statement was required to compare the cost of a sale-leaseback to a loan. It was to read: The Cost of a Sale Leaseback Compared to a Loan In this sale-leaseback, you will receive $ _____ to sell _____ items of property, and then pay $ _____ rent every 15 days. The cost to you of renting this property for a year is 730% of the money you will receive. By comparison, if you got the same $ _____ as a loan from a bank or finance company or credit card, the interest you would pay is limited by law to no more than 33% per year. After the Final Order was issued, the Division filed a motion to modify it. In that motion, the Division expressed concern that appellants could "argue that compliance with paragraph 3 constitutes full compliance with applicable law, including the Consumer Loan Law." The Division suggested that paragraph 3 be revised to read: 3. Relief Relating to Sale Leaseback Program. [Alternatively,] If Respondents wish to continue operations as a sale-leaseback program involving consumer property, in addition to complying with all laws that may be applicable, including but not limited to the Consumer Loan Law, Respondents shall cease and desist from offering a sale-lease back program unless and until they are in compliance with the following provisions: (Strikeout and underlining in original). The Division further proposed deletion of "730" as the percentage in the disclosure form, which compared the cost of a sale-leaseback to a loan, because the "percentage rate would depend upon the amounts in the first paragraph of the disclosure, which are to be filled in by [appellants] based on the actual amounts charged." On November 29, 2001, prior to a ruling on the motion, appellants filed a petition for judicial review in the Circuit Court for Baltimore City. A day later, on November 30, 2001, an "Amended Final Order" was issued, rejecting the Division's proposed change of paragraph 3 and accepting its proposed change of the disclosure form, by removing "730" as the percentage. Following a hearing on appellants' petition, the circuit court, in a written opinion, stated that the "transactions are loans and not sales and leasebacks," that "the [Division] did not err in ordering restitution to all those who entered into the unlawful transaction with [appellants]," and that "finding Seo and Brown personally liable [was] not erroneous." The circuit court also found that the amended final order was "not as clear as it should be" and consequently remanded "the case to the agency to issue an order that makes explicit that simply changing forms will not make the pretend leasebacks valid." Later, the circuit court issued an order affirming the final decision of the Division and remanding the case for an order consistent with the court's written opinion. Standard of Review In reviewing a decision of an administrative agency, our role "is precisely the same as that of the circuit court." Dep't Of Health & Mental Hygiene v. Shrieves, 100 Md.App. 283, 303-04, 641 A.2d 899 (1994). We review only the decision of the administrative agency itself. Ahalt v. Montgomery County, 113 Md. App. 14, 20, 686 A.2d 683 (1996). We "do not evaluate the findings of fact and conclusions of law made by the circuit court." Consumer Prot. Div. v. Luskin's, Inc., 120 Md.App. 1, 22, 706 A.2d 102 (1998), rev'd in part on other grounds, 353 Md. 335, 726 *228 A.2d 702 (1999). "Thus, whether the circuit court applied the wrong standard of review is of no consequence if our own review satisfies us that the [Board's] decision was proper." Giant Food, Inc. v. Dep't of Labor, Licensing & Regulation, 124 Md.App. 357, 363, 722 A.2d 398 (1999), rev'd on other grounds, 356 Md. 180, 738 A.2d 856 (1999). To conduct a proper inquiry of an administrative agency's decision, we "`must be able to discern from the record the facts found, the law applied, and the relationship between the two.'" Sweeney v. Montgomery County, 107 Md. App. 187, 197, 667 A.2d 922 (1995) (quoting Forman v. Motor Vehicle Admin., 332 Md. 201, 221, 630 A.2d 753 (1993)). In reviewing the decision of an agency, our role "is limited to determining if there is substantial evidence in the record as a whole to support the agency's findings and conclusions, and to determine if the administrative decision is premised upon an erroneous conclusion of law." United Parcel Serv., Inc. v. People's Counsel, 336 Md. 569, 577, 650 A.2d 226 (1994). Substantial evidence is "`such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.'" Md. State Police v. Warwick Supply & Equip. Co., 330 Md. 474, 494, 624 A.2d 1238 (1993) (quoting State Admin. Bd. of Election Laws v. Billhimer, 314 Md. 46, 58, 548 A.2d 819 (1988)). In making this determination, we must give "`deference ... not only [to the agency's] fact-findings, but to the drawing of inferences from the facts as well.'" Id. (quoting Billhimer, 314 Md. at 59, 548 A.2d 819). We must also accord deference to the agency's "`application of law to those [factual findings], if reasonably supported by the administrative record, viewed as a whole.'" Berkshire Life Ins. Co. v. Md. Ins. Admin., 142 Md.App. 628, 653, 791 A.2d 942 (2002) (quoting Ins. Comm'r v. Engleman, 345 Md. 402, 411, 692 A.2d 474 (1997)). "`When, however, the agency's decision is predicated solely on an error of law, no deference is appropriate and the reviewing court may substitute its judgment for that of the agency.'" Warwick, 330 Md. at 494, 624 A.2d 1238 (quoting Billhimer, 314 Md. at 59, 548 A.2d 819). Thus, if the agency's decision "`is not predicated solely on an error of law, we will not overturn it if a reasoning mind could reasonably have reached the conclusion reached by the agency.'" Id. (quoting Billhimer, 314 Md. at 59, 548 A.2d 819). Discussion I. Appellants contend that the Division applied the wrong law and the wrong legal standard in concluding that their sale-leaseback transactions were really "loans," not leases. It should have applied, according to appellants, the more "explicit" standards of the Maryland Uniform Commercial Code, Md.Code (1975, 2002 Repl. Vol., 2003 Supp.) §§ 1-101 to 10-112 of the Commercial Law Article ("UCC"), rather than the "pretended purchase" provision of the Consumer Loan Law, which appellants insist "lack[s] any explicit criteria for a `pretended purchase.'" Had it done so, appellants maintain, the Division would not have considered appellants' intent or purpose, but only the legal terms of the lease agreements and that would have inexorably led to the conclusion that appellants were offering sale-leasebacks and not loans to consumers. But the issue before us is not which law—the UCC or the Consumer Loan Law—offers the most "explicit standards" for determining what is or is not a loan but rather which law prevails when the two conflict. To answer that question, *229 we need look no further than the provisions of the UCC, which categorically declare that, in such instances, the Consumer Loan Law prevails. See UCC §§ 2A-104(2), 9-201(c)(1) (providing that in case of a conflict between a consumer protection statute and either Title 2A, dealing with leases or Title 9, dealing with secured transactions, the consumer protection statute controls). And that law unquestionably permits the Division to look beneath the formal terms of an agreement and to consider the substance of that agreement in determining whether it constitutes a "loan." Moreover, unlike appellants, we do not find the Consumer Loan Law is too vague to apply. Maryland's Consumer Loan Law applies to loans having "an original amount or value which does not exceed $6,000." CL § 12-303(a). Thus the "loans" made by appellants, which never exceeded $100 per appliance, were covered by this law. The law further provides that "[a] person may not engage in the business of making loans under this subtitle unless the person is licensed under or is exempt from the licensing requirements of Title 11, Subtitle 2 of the Financial Institutions Article, the Maryland Consumer Loan Law-Licensing Provisions." Id. § 12-302. There is no dispute that appellants did not have lending licenses. And finally, the law defines "lender" as "a person who makes a loan under this subtitle," § 12-301(c), and "loan" as "any loan or advance of money or credit made under this subtitle," § 12-301(e). We turn now to the provision that appellants maintain is too vague for application—the "pretended purchase provision." That provision, CL § 12-303(3)(c), states: (c) Pretended purchase of property or of services considered loan.—This subtitle applies but is not limited to a lender who: (1) As security for a loan, use, or forebearance of money, goods, or things in action or for any loan, use, or sale of credit, whether or not the transaction is or purports to be made under this subtitle, makes a pretended purchase of property from any person and permits the owner or pledgor to retain possession of the property; or (2) By any device or pretense of charging for his services or otherwise, seeks to obtain any interest, charges, discount, or like consideration. The language of CL 12-303(3)(c) is neither new nor novel. It first appeared in Maryland's former Uniform Small Loan Law.1918 Md. Laws, Chap. 88.[11] The preamble to that law is worth re-stating here. It declared that there had "long been conducted in this State an extensive business, in the making of small loans ... to persons in need of funds to meet immediate necessities," that the "conduct of such business has long been a cause of general complaint, and of much hardship and injustice to borrowers," and that there *230 was no effective provision "for the protection of such borrowers and for the punishment of usurious lenders." Nor did the Division err in looking beneath the form of the transaction at issue, into its "true nature," in determining whether it was a "loan". See Andrews v. Poe, 30 Md. 485, 487 (1869). In Andrews, the Court of Appeals explained: It matters not in what part of the transaction it may lurk, or what form it may take—whether it reads six per cent[,] upon its face, with an understanding to pay an extra four per cent., or whether it be a pretended sale and lease, or under whatever guise the lender—always fruitful in expedients—may attempt to evade the law[.] [C]ourts of justice, disregarding the shadow and looking to the substance, will ascertain what in truth was the contract between the parties. Id. at 487-88. The propriety of this approach has been repeatedly reaffirmed. See, e.g., Hoffman v. Key Fed. Sav. & Loan Ass'n, 286 Md. 28, 34, 416 A.2d 1265 (1979); Brenner v. Plitt, 182 Md. 348, 356-57, 34 A.2d 853 (1943). In looking beneath the form of the transaction, to determine whether the sale-leaseback was in substance a disguised loan, the Division considered "all the circumstances of the transaction." It analyzed appellants' advertising, their oral and written presentation of the transaction to consumers, their customers' understanding of the program, their "valuation and treatment of the property" they purportedly purchased, and their collection practices. With respect to appellants' advertising, the Division found that appellants "targeted consumers who were in need of cash and who wished to avoid a credit check, presumably because they would have difficulty obtaining a loan." Although those advertisements did not use the word "loan" and, on occasion, referred to a "sale leaseback plan," they provided, the Division observed, "no details and emphasized that the customer would obtain $200 cash immediately without a credit check." Indeed, Seo testified that the advertisements targeted those who were employed, between the ages of 25 and 39, and had a "take home" income of $1,000 per month. With respect to appellants' training materials, the Division found that "[u]p to the time of the hearing[,] the materials used to train [appellants'] employees stressed only the option for a customer to repay the money received by `repurchasing' the items of property." The Division pointed out that, until the time of the hearing, "the training manual did not address the possibility that the customer would actually turn the property over to" appellants. In fact, one of appellants' early presentation scripts, written by Seo and Brown, emphasized to the customer: "At the end of the lease term, you have the option to repurchase these items from us." Later, after January 1996, appellants developed a training manual, stating that customers could terminate the transaction by returning the property, but emphasizing the repurchase options. That was done by listing the repurchase and rental payment options before the return property option. Subsequently, in 1997, during the ALJ hearing, appellants instituted an "office manual," which, unlike the training manual, contained, among other things, a section on handling property returned by the customers. And like the training manual, the office manual de-emphasized the return property option by listing it last. The Division further found that, in explaining the transaction to customers, appellants' "oral representations and options sheet ... did not match the written transactional *231 documents." The Division noted that most of appellants' customers were "not sophisticated in financial transactions," and therefore "looked to [appellants'] employees to explain the transaction." Comparing the language of the original green options sheet—used from February 1994 to March 1996—with that of the lease agreement, the Division stated: "While the lease form contained two legal-sized pages of small print legalese, [the green options sheet] ... was easier to read and in larger print." As the green options sheet only addressed repurchase options, the Division stated, appellants "led customers to believe that they were required ultimately to repay the $200 by `repurchasing' the items ... listed in the transactional documents." And as we noted earlier, appellants did not include the option to terminate the transaction by returning the property until March 1996, in the "multi-yellow part options sheet." Moreover, repeat customers, comprising 80% of appellants business, testified that they were not told about the revisions to the options sheets. "Most customers ...," the Division stated, "considered the `rental merchandise'... to be collateral that secured their payment obligation," and "understood that, if they defaulted on that obligation, they would be sued or the property would be seized as collateral." For instance, when asked what she understood her agreement with appellants to mean, customer Ruth Lampkin responded: "I gave my Magnavox TV and my Sony CD player like for collateral if I reneged on the repayment of the $270." Customer Pomra Powell gave similar testimony, stating that she saw her television as collateral for her loan. The Division further noted that appellants "evinced little interest in th[e] property" they had purportedly purchased and that "[a]part from obtaining a generic description of an item and a serial or model number, they obtained no information about the age, condition, or even location of the item." In fact, as the Division noted, appellants "did not list any of that property in personal property returns that they filed with the State." The Division concluded: "[Appellants'] disinterest in obtaining more information about the items `purchased' illustrates the actual role played by the items of personal property listed in the transactional documents and demonstrates that the `purchase' was in fact a pretense." With respect to the "purchase" price, the Division stated: "According to [appellants'] forms, they always `purchased' the items of property listed by consumers for $100 per item, regardless of the nature, condition, or actual value of the particular item." What is more, the Division found, appellants "never inspected the property before assigning that price" and "did not even ask consumers about the age, condition, or value of the items listed." The Division further stated that the fair market value of the property "ranged from $5 (e.g., toasters and telephones) to as high as $500" and that appellants, "in many transactions,... `purchased' for $100 items that were worth far less." And appellants, the Division pointed out, "always assigned $100 as the price for `repurchase' of an item by the consumer regardless of depreciation or how many times the item had been listed in the transactions." Thus, "as with a loan," the Division concluded, appellants "were always to be repaid the same amount they had originally advanced to the consumer." While there was no evidence before the Division that appellants relied on a property appraisal in setting their $100 purchase price, to justify that price, appellants presented appraisals of "approximately 1,727 items shown on approximately 896" lease *232 agreement forms. After categorizing those items, the appraiser found that the fair market value[12] of the different items ranged from a toaster at $5 to a 32" Color T.V. at $340, and concluded that $90.07 represented the average fair market value. As a result, the Division stated: "It appears that [appellants] routinely paid an average of 11 percent more than the average fair market value of the items identified in their transactional documents." The Division also noted that "consumer testimony at the hearing confirmed that few of the items listed in the transaction documents ... could be worth $100." For example, customer Sharon Martin testified that the property appellants purportedly from purchased from her, included a ten-year-old Uniden car phone, for which she paid $190, and a five to ten-year-old radio, for which she paid less than $50. Customer Cynthia Peacock stated that she sold to appellants a small black and white television and a 19 inch color television, with a remote, which she valued at $50 each. Joanne Anthony stated that appellants purchased from her for $100 each: a two-year-old microwave, for which she paid $80, and a two-year-old telephone and answering machine. And customer Ruth Lampkin stated that appellants purchased from her a three-year-old 13 inch color TV, for which she paid $299; a twelve-year-old, 20 inch color TV, for which she paid $349; and a twelve-year-old VCR, for which she paid $200. "Given the likely depreciation of the value of some of these items," the Division concluded, "the fair market value of most individual items was less than $100 at the time of the transactions." The Division further noted that, "[i]f items were substantially less in value than the purchase price stated in the bill of sale, [appellants] conceivably could have suffered a loss if the customer were to terminate the lease by delivering the items rather than repaying the `purchase' price." Based on the "formal terms of [appellants'] lease form," the Division asserted, "their practice of `purchasing' an item without any consideration of the item's value appears to be a foolish practice." It therefore concluded: [Appellants'] apparent willingness to assign an item a price sometimes far in excess of its appraised value makes sense only if there is an understanding that the sales transaction is to be reversed on the same terms in the future. That is, one cannot consider the `sale' transaction in isolation for a rational person in [appellants'] position would only enter into such a transaction if a resale were contemplated at the same or a better price. And it further observed: [I]f customers had truly understood that there was an option to turn in the listed property in lieu of repaying the $200 advanced, a rational consumer would have listed items of negligible value, collected $200 from [appellants], paid the $60 `rental' fee, and simply surrendered the items to [appellants] at the end of the rental period at a tidy profit. Of course, not all consumers behave as a rational economist might expect. However, the testimony at the hearing confirmed that consumers would have turned in those goods that were worth less than $200 if they had understood *233 that they would be relieved of the obligation to pay back the money advanced by [appellants]. The fact that consumers did not take advantage of [appellants'] apparent generosity confirms the consumer testimony that [appellants] led consumers to believe that they were obligated to repay the $200 by `repurchasing' the property. (Citation omitted). The Division also found that "the `sale' and obligatory `resale' at the same price without any transfer in possession of the property meant that the only thing that changed hands were funds advanced to, and repaid by, the customer." With respect to the "rental" payments customers made to appellants, the Division determined that, "[l]ike the `purchase price,' the intervening `rent' payments were unrelated to the actual value of the property listed in the transactional documents." As noted earlier, the lease agreement required that customers pay appellants $30 per item as "rent"—which the Division characterized as "$30 per $100 principal"—at 15 day intervals. With respect to repayment of the funds advanced to customers, the Division pointed out that, [i]f a customer did not have sufficient funds to pay the money advanced on the due date, he or she could continue to pay $30 "rent" with respect to every $100 advanced for successive 15-day terms. Many customers found it difficult to come up with the $270 ordinarily required at the end of the first 15-day period and often paid "rent" many times the value of the property they were "renting." As one customer testified, "I really got stressed out ... paying $60 and never getting anywhere." Another explained: "It was hard for me to get $270. I was behind already with my bills. And ... the interest part I could pay but I just couldn't pay the $270." The Division concluded that if customers "had known of an option to surrender property rather than repay the funds advanced, they would have done so.... [C]ustomers whose goods were worth less than $100 also would have surrendered the property, if they understood it was an option." That conclusion was further bolstered by the testimony of customers Sharon Martin, Cynthia Peacock, and Joanne Anthony. Martin was asked, "If anybody had told you you could turn in your car phone and radio and not have to pay the $200 back, would you have?" She responded, "Yes, I would have turned it in." Peacock gave similar testimony: Q. Did the person at Cash-2-U tell you anything about your being able to bring the TVs in and their forgiving the $200? A. No, that was never mentioned. Q. If someone had offered to take the TVs off your hands for $200, what would your response have been? A. Being honest, I would have to tell them that the TVs—if I could have gotten $50 for both of them, it would have been good. And Joanne Anthony testified: Q. Did anyone at Kash-2-U say, "Ms. Anthony, if you don't want that microwave, you just bring it-bring it in and we'll forgive $100"? A. No, no. Q. What was your understanding of what you were supposed to do when you left Kash 2 U? A. Come back with the money. Q. Did they tell you why they wanted these serial numbers? A. No. Q. If they said, "Ms. Anthony, we would like that microwave for $100. *234 We'd like to pay you $100 for that," would you have sold it to them for $100? A. Yes, uh-huh. Because "[v]irtually no customers exercised the `option' to `return' the property," the Division found, "customers clearly acted as though the transaction involved the loan and repayment of money." Appellants "behaved more like a lender than a lessor" in handling delinquent customers, the Division observed. It was undisputed that, as the Division put it, if customers "failed to make intervening payments, [appellants] called the customer to demand payment" and that "if phone calls proved unsuccessful in securing payment, [appellants] followed up with dunning letters [advising] the customer that they would `use all means necessary to collect this amount.'" Moreover, the calls appellants made to delinquent customers demanded payment, not return of the goods. The "dunning" letters, which followed these calls, did not mention return of the goods. In fact, appellants made no effort to repossess the property that they had purportedly purchased. That appellants did not demand return of the property, or otherwise seek to repossess it, was "evidence," according to the Division, "of their own understanding that the true nature of the transaction did not involve the listed property, but rather the advance and repayment of money." We therefore hold that the Division did not err in looking beneath the forms, into the substance of the transaction, to determine that appellants "engaged in small loan transactions in the form of sale-leaseback transactions." And that is precisely the approach that other jurisdictions have taken. See, e.g., Fox v. Peck Iron & Metal Co., 25 B.R. 674, 688-92 (Bankr.S.D.Cal.1982)(looking to the substance of a sale and lease-back transaction to hold that it was really a usurious loan); SAL Leasing Inc. v. State, 198 Ariz. 434, 10 P.3d 1221, 1227-28 (Ct.App.2000)(holding that sale and lease-back of vehicles were disguised usurious loans violating Consumer Lenders Act); Burr v. Capital Reserve Corp., 71 Cal.2d 983, 80 Cal.Rptr. 345, 458 P.2d 185, 192 (1969)(upholding trial court finding that the substance a sale-leaseback transaction was really a usurious loan); Halco Fin. Servs., Inc. v. Foster, 770 S.W.2d 554, 555-56 (Tenn.Ct.App.1989)(looking to the substance of a sale and lease-back transaction to hold that it was really a usurious loan). What is more, the evidence is so compelling that the transaction was a loan and not a lease, that even if we apply the UCC, as appellants urge us to do, we reach the same result: appellants' sale-leaseback was nothing more than a loan. UCC § 2A-103(1)(j) defines a "lease" as "a transfer of the right to possession and use of goods for a term in return for consideration, but a sale, including a sale on approval or a sale or return, or retention or creation of a security interest is not a lease." Moreover, "[i]f a transaction creates a lease and not a security interest, the lessee's interest in the goods is limited to its leasehold estate; the residual interest belongs to the lessor." Official Comment UCC § 1-201(37). In other words, as one commentator has observed, "[t]he central figure of a true lease is the reservation of an economically meaningful interest to the lessor at the end of the lease term." Edwin E. Huddleston, III, Old Wine in New Bottles: UCC Article 2A-Leases, 39 Ala. L.Rev. 615, 625 (1988). After concluding that, under the Consumer Loan Law, the sale-leaseback was a loan, the Division turned to the UCC. And there it found additional support for that *235 proposition. According to the UCC, a key element of a true lease was the reversionary interest of the lessor. And that element, as the Division observed, "was absent from [appellants'] business." In reaching that conclusion, the Division recounted the actions of appellants that demonstrated that the property was "of little or no value" to them. Appellants, it noted, did not appraise or inspect the property, but only obtained "a general description of the item and a serial or model number." The option sheets, it observed, did not reflect the option of returning the property to terminate the program until March 1996—approximately two years after appellants opened their first Maryland store in January 1994. And, as noted earlier, neither appellants' collection calls nor dunning letters demanded the return of property. The Division also pointed out that appellants never sought to repossess the property when a delinquent customer's deposit check was dishonored. Instead, the Division observed, appellants "would credit the customer with `free time' and close the customer's account." The Division also noted that appellants kept no record of returned property during their first two years of operation.[13] And on the few occasions where customers surrendered property, the Division continued, appellants "treated the goods as having negligible value and abandoned them"; they sought neither to re-lease the property nor to sell it. In fact, when asked what appellants do with returned property, Brown testified that "[w]e use it in our offices." He explained that all of the microwave ovens used in the stores were "return rentals," that the returned televisions were used to monitor advertisements, and that, to sell items, they "put a price tag on them," "display[ed] them in [their] offices," and attempted to sell them at flea markets. But Seo testified that he had never seen a bill of sale "reflecting a sale of a returned good." And, as the Division observed, in their 1995 and 1996 "Personal Property Return" forms, appellants described the nature of their business as "investment activities" and did not claim as personal property any of the items "purchased" in their transactions. The "filings demonstrate," the Division opined, "an understanding that [appellants] were in the business of lending money and had no genuine interest in the property listed in the transactional documents." As a last effort to convince this Court that their sale-leaseback transaction satisfies the definition of a lease under UCC § 2A-103(1)(j) and not of a "security interest" under UCC § 1-201(37), appellants argue that, because UCC § 1-201(37), as amended, deleted all reference to the parties' intent,[14] the Division erred by looking beyond the terms of an agreement, in determining that the sale-leaseback transaction created a security interest. But that argument we need not reach. Even if we assume that the sale-leaseback created a lease under the UCC, that conflicts with the Division's determination that the transaction was a loan under the *236 Consumer Loan Law. And, as noted earlier, in the event of such a conflict, the latter law prevails. Appellants also contend that the record does not support the Division's conclusion that customers testified "that if they had been made aware of an option to surrender property to be relieved of their repayment obligation, they would have done so." We disagree. Indeed, appellants concede that at least one witness, Sharon Martin, said, "Yes," when asked, "If anybody had told you you could turn in your car phone and radio and not have to pay the $200 back, would you have?" Other customers gave similar testimony. When queried, "If someone had offered to take the TVs off your hands for $200, what would your response have been?" Cynthia Peacock replied, "[I]f I could have gotten $50 for both of them, it would have been good." Customer Joanne Anthony agreed. She was asked: "If they said, `Ms. Anthony, we would like that microwave for $100. We'd like to pay you $100 for that,' would you have sold it to them for $100?" "Yes," she responded. And finally, appellants argue that the Division abused its discretion in denying their motion to reopen the record to show that, after appellants began including the option to return property in their options sheet, the number of property returns "did not increase significantly." That abuse of discretion continued, appellants contend, in the Division's relying on the small number of returns-84 instances, from July 1994 through September 1996-to support its finding that customers did not understand that returning the property was an option. "The number of property returns," appellants claim, "is meaningless as any indication of the level of consumer awareness" without a showing of "how many customers would choose the option if they had perfect information." A "lack of consumer action does not necessarily reflect any lack of consumer understanding," appellants state. In support of that assertion, appellants rely on the testimony of Mayo Simpson, a customer who testified that he understood that he could "return the merchandise" and "be out of their program." "The discretion of an administrative agency to admit evidence after the hearing is arguably broader than the discretion that is generally accorded to trial judges...." Md. State Police v. Zeigler, 330 Md. 540, 557, 625 A.2d 914 (1993). And when the exercise of that discretion "does not violate regulations, statutes, common law principles, due process and other constitutional requirements, it is ordinarily unreviewable by the courts." Id. In other words, "courts are authorized to intervene" only when "an agency's exercise of discretion, in an adjudicatory proceeding, is `arbitrary' or `capricious'" Id. at 558, 625 A.2d 914. The Division's refusal to reopen the record was neither arbitrary nor capricious. The Division's finding that the sale-leaseback transaction was really a usurious loan was not premised solely on the small number of transactions that were terminated by customers surrendering their property. As noted above, the Division considered "all the circumstances of the transaction." Moreover, as the Division observed, the evidence that "virtually all consumers continued to repay the money," instead of returning their property, "is entirely consistent with the [Division's] finding that [appellants were] providing consumers with short-term cash." And we understand why the Division was not swayed by Mayo Simpson's testimony. The Division points out that, while Simpson testified that he understood that he could terminate the program by surrendering the property, it "became apparent that his knowledge was acquired at some *237 point after the transaction." In fact, he testified that he signed a bill of sale on January 20, 1995, even though appellants had not begun using a bill of sale until June of that year; and that, in January of 1995, he signed a "four item option sheet" even though appellants had not added the fourth option to their options sheet until March 1996. II. Appellants contend that the Division's finding that it "misrepresented the terms of their lease transactions through oral misrepresentations and a written `options sheet' is not based on substantial evidence." We disagree. The Division found: Through oral representations and use of the green options sheet, [appellants] represented to customers that they were required to `purchase' the goods `sold' to [appellants] using one of the three purchase options as recited on the options sheet. That finding, as we have previously discussed at length, is supported by substantial evidence. Customer Sharon Martin was asked: "What did you think you had to do to get out of the program then?" She responded, "Pay back the money in full." She was then asked: "Did they say anything about bringing the goods back?" She said, "No, that was never mentioned." Customer Cynthia Peacock was queried, "Apart from explaining your payment options, did they give you any other options for concluding the transaction?" She replied, "No, ... just the payment plan." And customer Sheila Chambers was asked: "After reviewing the sheet with him, what was your understanding of what you had to do in this program?" She responded, "I had to follow ... either Option 1 or Option 2 or Option 3." Similar testimony was given by other customers. Even after the options sheet was revised to include the fourth option that permitted customers to surrender the property, the Division observed that that option was de-emphasized or ignored by appellants. The Division specifically found: Following the adoption of the revised yellow multi-part options sheet, [appellants'] presentation of the sale-leaseback program still did not emphasize the fourth option to customers. When customers were signing the packet of documents presented to them, Respondents did not point out the addition of the fourth option. Nor did Respondents advise repeat customers that the forms had changed. For example, Sharon Martin, a repeat customer, stated that when she entered into a second sale-leaseback transaction with appellants she was not told about any changes in the options sheet. Joanne Anthony testified that, although she received and signed the revised options sheet, she was not told that there was anything different about the program. And when customer Ruth Lampkin was asked, "Did they tell you ... if you want to fulfill your obligation just bring those items back in and you don't have to pay us the $200," she replied: "No." Since repeat customers comprised 80% of appellants' monthly business, the failure to inform them of changes in the options sheet was a serious, substantial, and misleading omission. III. Appellants contend that the circuit court exceeded its authority by remanding the Division's Amended Final Order to the Division for clarification as to whether appellants could proceed with their sale-leaseback program, after providing certain consumer disclosures. According to appellants, *238 the Division's prosecutors may not appeal a decision of the Division. Contrary to appellants' claim, the Division was "entitled to judicial review of a decision ... if the agency was a party before the agency or the Office [of Administrative Hearings]." Md.Code (1984, 1999 Repl.Vol.), § 10-222(a)(2) of the State Government Article. Accordingly, the circuit court did not abuse its discretion in remanding the case to the Division. IV. Appellants contend that the Division "erred as a matter of law in ordering appellants to pay automatic restitution to all consumers who engaged in the transactions during a three-year period, with no showing that such customers relied on appellants' allegedly deceptive practices." Section 13-403(b)(1) of the Consumer Protection Act requires that the Division, having found a violation of the Consumer Protection Act, "shall state its findings and issue an order requiring the violator to cease and desist from the violation and to take affirmative action, including restitution of money or property." And section 12-314(b)(2) of the Consumer Loan Law specifically provides that a person who makes a usurious loan "may not receive or retain any principal, interest, or other compensation with respect to [that] loan." Given those two provisions, the Division did not have to show customer reliance to order restitution, only that appellants had made unlicensed usurious loans.[15] Adopting what it called a "middle course," the Division only required appellants to pay as restitution to former customers the "net monetary gain" appellants received from violating the Consumer Protection Act; namely, the "rent" payments received. Although that approach was less drastic than other alternatives, it had the desirable and lawful effect of preventing appellants from being unjustly enriched by their wrongful conduct. See Consumer Prot. Div. v. Consumer Publ'g Co., 304 Md. 731, 776, 501 A.2d 48 (1985). V. Appellants contend that the Division erred in imposing civil penalties on Seo and Brown instead of deferring to the ALJ's finding that they had acted in good faith. *239 In determining that Seo and Brown should not be subject to civil penalties under CL § 13-410,[16] the ALJ found that Seo and Brown, prior to starting their sale-leaseback business in Maryland, had sought legal advice "in order to conform to existing law" and that, after they had been investigated by the Maryland Office of Consumer Credit, they had added a Bill of Sale to the transaction, and, after that, an option to return the goods to the options sheet. She also noted that they had sought advice from a UCC expert about the legality of the transaction. The Division, on the other hand, found this purported evidence of good faith unconvincing. Although Seo and Brown did seek legal advice, they did not, the Division pointed out, "introduce into evidence the substance of the advice ... other than that the attorney reviewed the forms." As for their consultation with the UCC expert, the Division noted that "given the timing and circumstances, [that] consultation... reveals little about whether they acted in good faith when they committed violations." In fact, as the Division observed, the expert testified that Brown and Seo had showed the UCC expert the options sheet, containing the fourth option to return the goods, but did not show her the prior sheets, which excluded that option, because, in the expert's words, "they did not want to taint my opinion as to the documents that they were currently drafting." And, as we have previously stated, Seo and Brown devised the policies and practices of appellants and personally participated in thousands of transactions. Hence, there was substantial evidence presented that Seo and Brown were not acting in good faith when they devised and implemented their "loan" scheme, whose true nature they tried to conceal by calling it a "sale-leaseback" program. JUDGMENT AFFIRMED. COSTS TO BE PAID BY APPELLANTS NOTES [1] Seo is the president of B&S and S&B and owns 75% of the stock of both companies. Brown is the vice-president of B&S and S&B and owns 25% of the stock of both companies. [2] "To the extent that the ALJ credited or did not credit the testimony of witnesses who testified in person about specific events," it would "defer," the Division declared, "to the judgment of the ALJ, who had the opportunity to hear and observe those witnesses." [3] To facilitate our review of the issues raised by appellants, we have reworded and consolidated them. [4] In May of 1995, appellants were informed by the Commissioner of Consumer Credit that their transaction was a "loan" because they did not bear the risk of loss, repairs, or maintenance of the rental property and they had not taken possession of it. As a result, appellants, as the ALJ observed, "added a written Bill of Sale to the transaction process and revised the lease agreement to the effect that the lessor bore the risk for repairs or replacement upon notice by the lessee." [5] A later version of the green options sheet changed "cash out" to "repurchase" and made minor changes in the calculations. [6] The training manual was revised in 1997 to require employees to explain to customers that they had the option of returning the rental property to terminate the transaction. [7] From July 1994 through September 1996, S&B engaged in a total of 38,810 transactions resulting in 44 transactions in which customers surrendered goods. From October 1994 through September 1996, B&S engaged in a total of 17,398 transactions resulting in 40 transactions in which consumers surrendered goods. [8] The Division, however, found that "the annual interest rate on such a loan [was] approximately 730%." [9] This number represents items returned to S&B Marketing Enterprises, Inc., but not the 40 items returned to B&S Marketing Enterprises, Inc. [10] The decision was the work of Robert N. McDonald, Chief Counsel of Opinions & Advice, for the Office of the Attorney General, who had been delegated final decision-making authority by the the Chief of the Consumer Protection Division. [11] Section 18 stated in part: Sec. 18. No person, co-partnership, or corporation, except as authorized by this Act shall, directly or indirectly, charge, contract for, or receive interest or consideration greater than six (6) per centum per annum upon the loan, use or forbearance of money, goods or things in action, or upon the loan, use or sale of credit, of the amount or value of three hundred dollars ($300) or less. (a) The foregoing prohibition shall apply to any person who, as security for any such loan, use or forbearance of money, goods or things in action or for any such loan, use or sale of credit, makes a pretended purchase of property from any person and permits the owner or pledgor to retain the possession thereof, of who, by any device or pretense of charging for his services, or otherwise, seek to obtain a greater compensation than is authorized by this Act. [12] The appraisal report defined "fair market value" as: [T]he highest price estimated, in terms of money, which the property would bring if exposed for sale on the open market by a Seller who is willing but not obliged to sell, allowing a reasonable time to find a Buyer who is willing but not obliged to buy, both parties having full knowledge of all the purposes to which the property is best adapted and capable of being used. [13] The Division however found in March 1996, after Seo was deposed, that appellants "created a form entitled `Rental Return Receipt," given to customers who terminated the transaction by surrendering the property. [14] The Official Comment to CL § 1-201 states that amended CL § 1-201(37) deleted "all reference to the parties' intent" because "[r]eference to the intent of the parties to create a lease or security interest has led to unfortunate results." It further states: "Whether a transaction creates a lease or security interest continues to be determined by the facts of each case." [15] When the Division shows any violation of the Consumer Protection Act, it can "order... the violator to cease and desist from the violation and to take affirmative action, including [to make] restitution of money or property." CL § 13-403(b)(1). The Division can also impose fines for any violation of the Consumer Protection Act. The Attorney General can ask the court for "any order of judgment necessary to ... restore to a person any money ... acquired from him by means of any prohibited practice." § 13-406(c)(2). In this case, the dispute centered around whether the transaction was an illegal loan. That issue was decided against appellants, so that there is no dispute that every person who entered such transaction paid money as a result of the "prohibited practice." This situation differs from one in which the consumer protection violation involves only a false or misleading representation or omission. See CL § 13-301. In such transactions, we cannot be so certain that the money paid by each consumer was "acquired from him by means of [the] prohibited practice" without proof that the consumer entered into the transaction as a result of deceptive representations or omissions. See § 13-408(a)("[A]ny person may bring an action to recover for injury for loss sustained by him as the result of a practice prohibited by this title"); see also Citaramanis v. Hallowell, 328 Md. 142, 151-53, 613 A.2d 964 (1992)(observing that the General Assembly intended that private recovery under Consumer Protection Act be given only for actual injury or loss sustained as a result of the conduct that violates the Act). [16] CL § 13-410(d) requires the Division to consider the following factors in imposing a civil penalty: (1) The severity of the violation for which the penalty is assessed; (2) The good faith of the violator; (3) Any history of prior violations; (4) Whether the amount of the penalty will achieve the desired deterrent purpose; and (5) Whether the issuance of a cease and desist order, including restitution, is insufficient for the protection of consumers. Md. Code (2000 Repl.Vol.), § 13-410(d) of the Commercial Law Article.

213 Kan. 457 (1973) 516 P.2d 967 T.O. ALLEY and EVALENA ALLEY, Appellees, v. CHICAGO, ROCK ISLAND AND PACIFIC RAILROAD COMPANY, Appellant. No. 47,043 Supreme Court of Kansas. Opinion filed December 8, 1973. Mark L. Bennett, Jr., of Topeka, argued the cause, and Clayton M. Davis, of Topeka, Mark L. Bennett, of Topeka, and Bill Baldock, of Alma, were with him on the brief for the appellant. Arthur E. Palmer, of Topeka, argued the cause, and Ernest J. Rice, of Topeka, and Leo N. Johnson, of Council Grove, were on the brief for the appellees. *458 The opinion of the court was delivered by FOTH, C.: On February 15, 1969, plaintiff Evalena Alley left her house in rural Wabaunsee county to drive to her job in Council Grove. To get to the nearest township road she was required to cross the main line of the Rock Island railroad, which traverses the Alley farm in a general east-west direction. As she crossed she collided with an eastbound train. She suffered injuries requiring eight days of hospitalization and the loss of about two weeks of work; the 1969 Ford which she owned jointly with her husband was totally destroyed. A Wabaunsee county jury awarded her $5,000 for her personal injuries and awarded the Alleys jointly $2,770.40 for the loss of the car. The defendant railroad has appealed, contending among other things that it should have had a dismissal or a directed verdict either at the close of the plaintiff's evidence or at the close of all the evidence. It claims the evidence was insufficient to show a breach of duty on its part and, more importantly, that it demonstrates Mrs. Alley to have been guilty of contributory negligence as a matter of law. Since this court concurs in the latter assertion it is unnecessary to consider the other points raised by the parties. The duty of one about to cross a railroad track is well defined in our law. The early cases are collected, discussed and explicated in Horton v. Atchison, T. & S.F. Rly. Co., 161 Kan. 403, 168 P.2d 928. The court there repeated the familiar maxim that "A railway track is itself a warning of danger." (Syl. ¶ 1.) It also noted that this court has never required a traveler to always stop, look and listen, but "is committed to the more liberal rule which requires a traveler to exercise diligence commensurate with the hazard." (Syl. ¶ 2.) Having so held the court went on to reiterate the following principles particularly applicable to Mrs. Alley's conduct: "It is not enough that a traveler approaching a series of railroad tracks stop, look and listen at a point from which his view of the main tracks is sufficiently obstructed that he cannot be assured he can proceed with safety, when looking on nearer approach to main tracks would reveal the danger." (Syl. ¶ 3.) "Where obstructions to a traveler's view prevent him from otherwise ascertaining the fact that he may cross a railroad track with safety, then it is his duty to stop to make sure of his safety before crossing. (Following Williams v. Electric Railroad Co., 102 Kan. 268, Syl. ¶ 2, 170 Pac. 397.)" (Syl. ¶ 4.) *459 "`The driver of an automobile cannot recover damages for injury to himself and his machine, where he approaches a railway track at a place at which he cannot see along the track until his automobile is in a place where it will be struck by a passing engine or cars, and does not stop his car to ascertain whether or not there is danger, although he listens before going into the place of danger and does not hear any engine or cars coming.' (Following Wehe v. Railway Co., 97 Kan. 794, syl. 156 Pac. 742.)" (Syl. ¶ 5.) "The duty of a traveler to look and listen where an opportunity exists is an absolute and continuing duty. It requires him to look and listen at the point nearest to a main track where he may do so with safety, that is, at the point where it will do the most good." (Syl. ¶ 7.) The continuing validity of these rules was recently recognized in Sander v. Union Pacific Rld. Co., 205 Kan. 592, 470 P.2d 748, where we said (p. 596): "The duties of a driver approaching a railroad crossing are set forth in many decisions of this court and need not be elaborated in detail. The established law in this state is that a railroad track is itself a warning of danger; that the duty to exercise care in crossing railroad tracks is a continuing duty; and that a person who attempts to negotiate a railway crossing directly in front of a rapidly moving train, of which approach he is or should be aware, is guilty of contributory negligence." (Citing, inter alia, Horton v. Atchison, T. & S.F. Rly. Co., supra.) In measuring Mrs. Alley's conduct by these standards we look at the undisputed facts, of which the most significant come from the testimony of Mr. and Mrs. Alley. The Alleys' house lies to the south of the railroad right of way. Their private road or drive runs from the house to the northeast until it enters the right of way some 75 feet south of the eastbound track. From there it runs east, roughly parallel to the tracks, about 300 feet. There it makes a left curve, to the north, toward the tracks about 57 feet away as the crow flies; from the beginning of the curve to the first track is about 98 feet by road. The tracks are on a fill at this point, and as it approaches the tracks the drive rises some eight to ten feet to the level of the crossing. There was brush between the drive and the elevated railroad bed. A new, wet snow had fallen on the day in question, and before Mrs. Alley assayed the crossing her husband bladed the drive and crossing. Having done so, he sat on his tractor in the yard and watched the ensuing accident. Before she started he told her that if she couldn't make it over the tracks he would come down with the tractor and pull her over. *460 Mrs. Alley testified that because it was slick she was concerned about making it up and over the tracks, even with the steel-studded snow tires on the car. It was necessary, she said, to increase speed to make it up the grade, and you couldn't do that until after you had rounded the curve and were heading straight for the tracks. This she did, attaining a speed estimated by her at "maybe five, six, eight miles per hour." Failure to speed up, she said, might have resulted in sliding off the road. Asked where she was when she first looked for a train, Mrs. Alley replied: "A. Right as I turned at the bend, and then just before I got to the track, just before I got to the track, twice I looked. "Q. Just before you turned on the bend? "A. Around this little sharp turn that takes you right up to the track. "Q. And you looked and didn't see a train. You couldn't see the track even, you say? "A. Not clearly you couldn't; not see a train coming. "Q. Could you see at all? "A. I wouldn't say whether I could see at all or not; not clearly enough that I could see the train. "Q. All right. The next time you looked, where was the automobile? "A. We was right at the track, where I looked, but the train was there too. "Q. You were practically on the track and the train was right there. "A. Right there too. "Q. And between those two times you didn't look to see if a train was coming? "A. What do you mean by that? "Q. I mean, those were the only two times you looked for a train? "A. It's the only two times you could possibly see at all for the brush. "Q. You were well aware that brush existing and the obstruction to view? "A. You couldn't help to be aware of it. "Q. And you were aware of that before you attempted to make this crossing, before? "[A] I had crossed it before and always thought at least if the train would have whistled I could have heard it." It is this testimony, coupled with the other circumstances, which in the court's view convicts Mrs. Alley of contributory negligence under the established rules of law quoted above. Mrs. Alley first looked for a train at a point before the curve in the road began, some 98 feet by road from the track. At that point she could not see clearly enough, by her testimony, to tell whether a train was coming or not. She proceeded to navigate that 98 feet at an accelerating speed which reached a maximum of eight miles per hour, *461 but never again looked until she was "right at the track" and could not stop. Her failure to look "at the point where it will do the most good" was a clear breach of her obligation as set forth in Horton v. Atchison, T. & S.F. Ryl. Co., Syl. ¶ 7, supra, unless it can be excused by the presence of the brush. According to her testimony, the brush prevented her seeing down the track between her first, obstructed look, and her second, too-late look. That is just the situation described in paragraphs 4 and 5 of the syllabus in the same case, which were prompted by a truck driver's proceeding over a crossing when his view was obstructed by boxcars on a side track. Where the motorist's view is obstructed, his duty is to make sure the crossing is safe. When he gambles on the chance that there will be no train, his stake includes a conclusive presumption of his negligence. Other circumstances leading to a conclusion of contributory negligence are that: Mrs. Alley had lived on the farm for twenty years and was thoroughly familiar with the crossing and the brush; she had crossed the tracks at least twice daily going to work for the past nine years; she knew that trains on the main track were not on a regular schedule but could be expected any time; and she knew and was "conscious of the fact" that about half the trains passing by failed to blow their whistle at the crossing. As to the last factor, the failure to blow this particular train's whistle was found by the jury, in answer to special questions, to be the sole act of negligence on the part of the railroad. Evidence of the railroad's uneven practice in this regard was introduced by plaintiffs not only through Mrs. Alley but other witnesses, over the railroad's objection. While of dubious value in establishing the railroad's "habit and custom," and thus whether or not the whistle was blown on this occasion, such evidence did establish that Mrs. Alley could not realistically count on a warning of an approaching train from this source. We are committed to the rule that contributory negligence is ordinarily a question of fact for the jury, but we must also recognize that when the facts and fair inferences therefrom are undisputed it becomes a question of law. Hines v. Leach, 212 Kan. 589, 512 P.2d 103; Abston v. Medora Grain, Inc., 206 Kan. 727, 482 P.2d 692. The latter situation obtains in this case, and we hold that Mrs. Alley was guilty of contributory negligence as a matter of law. *462 The judgment is therefore reversed with directions to enter judgment for the defendant. APPROVED BY THE COURT.

NOTE: This disposition is nonprecedential. United States Court of Appeals for the Federal Circuit ______________________ GAELCO S.A., GAELCO DARTS S.L., Plaintiffs-Appellants v. ARACHNID 360, LLC, Defendant-Appellee ______________________ 2018-1469 ______________________ Appeal from the United States District Court for the Northern District of Illinois in No. 1:16-cv-10629, Judge Thomas M. Durkin. ______________________ JUDGMENT ______________________ ROBERT STEPHAN RIGG, Vedder Price PC, Chicago, IL, argued for plaintiffs-appellants. Also represented by JOHN K. BURKE. ANTHONY J. FUGA, Holland & Knight, LLP, Chicago, IL, argued for defendant-appellee. Also represented by, R. DAVID DONOGHUE, STEVEN E. JEDLINSKI. ______________________ THIS CAUSE having been heard and considered, it is ORDERED and ADJUDGED: PER CURIAM (HUGHES, SCHALL, and STOLL, Circuit Judges). AFFIRMED. See Fed. Cir. R. 36. ENTERED BY ORDER OF THE COURT November 13, 2018 /s/ Peter R. Marksteiner Date Peter R. Marksteiner Clerk of Court 

973 F.2d 301 24 Fed.R.Serv.3d 144 DELTA FINANCIAL CORPORATION, Plaintiff-Appellee,v.PAUL D. COMANDURAS & ASSOCIATES, Defendant-Appellant. No. 90-3194. United States Court of Appeals,Fourth Circuit. Argued May 8, 1991.Decided Aug. 18, 1992.As Amended Sept. 10, 1992. Mark Alan Moorstein, Mark A. Moorstein, P.C., Manassas, Va., for defendant-appellant. C. Torrence Armstrong, McGuire, Woods, Battle & Boothe, Alexandria, Va., (Sean F. Murphy, on brief), for plaintiff-appellee. Before WIDENER and MURNAGHAN, Circuit Judges, and YOUNG, Senior United States District Judge for the District of Maryland, sitting by designation. OPINION WIDENER, Circuit Judge: 1 Paul D. Comanduras & Associates, Limited (PDC) appeals from an order of the district court directing PDC to arbitrate its disputes with Delta Financial Corporation (Delta) and denying PDC's motion to stay such arbitration pursuant to the automatic stay provisions of 11 U.S.C. § 362. For the reasons set forth below, we vacate the order of the district court and remand for further proceedings. 2 In October 1987, PDC and Delta entered into a partnership agreement forming the Vanguard Limited Partnership (Vanguard). The initial stated business of the partnership was the acquisition and development of two parcels of land in Loudoun County, Virginia. Under the agreement, PDC was the general partner with sole power to conduct the partnership's development of two large subdivision projects, while Delta participated as a limited partner responsible for providing the necessary financing. The agreement also included a provision stating that "[a]ny dispute or controversy arising under, out of, in connection with or in relation to this Agreement ... shall be determined and settled by arbitration in Loudoun County, Virginia...." 3 Over the next several years, disputes did indeed arise between PDC and Delta with the result that, on October 22, 1990, Delta filed a complaint against PDC as defendant in the United States District Court for the Eastern District of Virginia. The complaint, which stated that it was "based upon the Federal Arbitration Act, 9 U.S.C. § 1, et seq.," named PDC as the sole defendant and asked for an order compelling PDC to engage in arbitration with Delta in accordance with the partnership agreement. Prior to the hearing on Delta's complaint, Vanguard initiated Chapter 11 bankruptcy proceedings in the United States Bankruptcy Court for the Eastern District of Virginia. At the subsequent hearing in the district court, PDC sought to have Delta's complaint dismissed and, in the alternative, argued that the filing of Vanguard's bankruptcy petition required that the district court proceeding be stayed pursuant to 11 U.S.C. § 362(a)(1) and 11 U.S.C. § 362(a)(3). 4 The district court on November 2, 1990 granted Delta's motion to compel arbitration, denied PDC's motion for a stay, and denied a motion to intervene on the part of Vanguard. The court indicated that if the arbitration between PDC and Delta began to interfere with Vanguard's bankruptcy proceedings, it would be a matter "between the arbitrator and the Bankruptcy Court." PDC filed a notice of appeal from the district court's order. 5 In January 1991, Vanguard obtained from the bankruptcy court a stay of the arbitration as to five of the issues that had been proposed for arbitration. On January 14, 1991, this court granted PDC's request for a complete stay of the arbitration pending the appeal of the district court's order. 6 As an initial matter, both parties have raised jurisdictional questions before us. PDC contends that Delta failed to satisfy the jurisdictional provisions of 9 U.S.C. § 4, which states that an aggrieved party "may petition any United States district court which, save for such [arbitration] agreement would have jurisdiction under Title 28...." 7 Delta's complaint, as developed subsequently, indicated that diversity of citizenship existed between Delta, a Maryland Corporation, and PDC, a Virginia corporation.1 During the hearing before the district court, PDC conceded that the two parties were of diverse citizenship, but argued that the limited partnership itself, Vanguard, was an indispensable party to this action under Fed.R.Civ.P. 19(b). Involuntary joinder of Vanguard would destroy the district court's diversity jurisdiction, as the partnership is deemed a citizen of both Maryland and Virginia for diversity purposes. Carden v. Arkoma Associates, 494 U.S. 185, 110 S.Ct. 1015, 108 L.Ed.2d 157 (1990). 8 Even if the partnership entity may under some circumstances be a necessary or indispensable party to litigation involving the constituent partners, which we do not suggest, we are of opinion that Vanguard is not necessary or indispensable to the instant dispute. This action arises out of a strictly internal conflict between the partners, all of whom, after our decision today, will be before the district court. PDC has failed to establish that Vanguard itself has any interest distinct from the interests of the several partners. Thus, we are satisfied that "complete relief [may] be accorded among those already parties," that Vanguard claims no interest different from the interest of the partners that may be impaired by the disposition of the case, and that Vanguard's absence will not "leave any of the persons already parties subject to a substantial risk of incurring double, multiple, or otherwise inconsistent obligations." Fed.R.Civ.P. 19(a); see also Curley v. Brignoli, Curley & Roberts Associates, 915 F.2d 81, 91-92 (2d Cir.1990) (holding, in suit by limited partners against general partners, that limited partnership is not indispensable where all partners are parties to the action), cert. denied, --- U.S. ----, 111 S.Ct. 1430, 113 L.Ed.2d 484 (1991). Thus, the district court properly rejected PDC's jurisdictional argument related to the nonjoinder of Vanguard. 9 We also agree with the district court's finding that the jurisdictional amount required by 28 U.S.C. § 1332 was adequately shown. In considering a suit to compel arbitration, the question of jurisdictional amount may be determined by reference to the possible award resulting from the requested arbitration. Davenport v. Proctor & Gamble Mfg. Co., 241 F.2d 511, 514 (2d Cir.1957); Marcy Lee Mfg. Co. v. Cortley Fabrics Co., 354 F.2d 42, 43 (2d Cir.1965); 13B C. Wright, A. Miller & E. Cooper, Federal Practice and Procedure § 3569 (1984). In the present case, Delta's complaint indicated that it sought through the arbitration the dissolution of the partnership and liquidation of its assets worth many hundreds of thousands of dollars. It alleged that PDC had failed to dissolve the partnership and liquidate its assets in violation of the partnership agreement. We believe that the district court had before it a sufficient record to determine that the value of Delta's interest upon dissolution under the terms of the partnership agreement could exceed $50,000. We therefore find no error in the district court's determination of its diversity jurisdiction over Delta's petition to compel arbitration. 10 The jurisdictional question raised by Delta goes not to the jurisdiction of the district court, rather to the appellate jurisdiction of this court. Delta argues that under our decision in Jeske v. Brooks, 875 F.2d 71 (4th Cir.1989), an appeal from the district court's order compelling arbitration is barred by 9 U.S.C. § 16(b)(2).2 Jeske emphasized that except in cases where the requirements of 28 U.S.C. § 1292(b) are met, no appeal lies from an interlocutory order compelling arbitration. 875 F.2d at 73. 11 Jeske, however, involved 9 U.S.C. § 16(b)(2) referring to interlocutory orders; 9 U.S.C. § 16(a)(3) explicitly provides that an appeal may be taken from "a final decision with respect to an arbitration...." In arguing that there has been no final decision, Delta points out that the order of the district court ended with a statement indicating that if the parties could not agree on an arbitrator, "each side should submit its nominees to the court and the court will make a decision as to who shall be the arbitrator." On December 10, 1990, the court did indeed name an arbitrator. Delta insists that by retaining jurisdiction in this manner, the district court rendered its November 2nd order interlocutory. 12 We note that a final order is one "leaving nothing to be done except the execution of the judgment." Bernstein By Bernstein v. Menard, 728 F.2d 252, 253 (4th Cir.1984) (citations omitted); see Catlin v. United States, 324 U.S. 229, 233, 65 S.Ct. 631, 633, 89 L.Ed. 911 (1945). In the present case, the district court in its November 2nd order finally decided the sole question presented by Delta's complaint, namely, whether an order to compel PDC to arbitrate in accordance with the partnership agreement should be granted. Even if the order of November 2nd was itself, when entered, not a final, appealable order,3 ] a question we do not decide, we are satisfied that, in the absence of any prejudice to Delta, which has not been shown, the court's order of December 10th appointing an arbitrator effectively cured any potential prematurity of PDC's notice of appeal. See, e.g., Dowling v. City of Philadelphia, 855 F.2d 136, 138 (3d Cir.1988). We accordingly find that the district court's determination is properly before this court as a final decision with respect to an arbitration. 13 Having considered the jurisdictional issues raised by the parties, we now turn to the issue regarding the proper joinder of parties in the district court. On June 13, 1990, months before this case was filed, PDC filed with the Virginia State Corporation Commission a Fifth Amended Certificate which on its face amended Vanguard's limited partnership agreement. That certificate showed Delta to have been removed as a limited partner and that one Timothy B. Cranch had been installed as a new limited partner of Vanguard. PDC argues that Cranch was a necessary4 party to the proceeding below, and that the district court's failure to join him pursuant to Fed.R.Civ.P. 19(a) was error. 14 We note first that in its filings with the district court Delta disputed the validity of Cranch's being made a partner and of its own removal under the partnership agreement and under the Virginia Revised Uniform Limited Partnership Act, Va.Code Ann. §§ 50-73.1 to 50-73.77. Delta further argued that Cranch was a relative of Paul Comanduras or an employee of PDC and as such had no interest in Vanguard independent of PDC's already-represented interest. The district court, however, made no findings with respect to the validity of Cranch's partnership interest or Delta's removal, the extent of Cranch's interest, or to whether Cranch was in fact a necessary party to this action. 15 We are of opinion that Cranch, if it is determined that as a limited partner he has a bona fide interest in the partnership, was indeed a necessary party to Delta's action to compel arbitration, and that the district court erred in failing to consider the issue. It would be no more proper to arbitrate in Cranch's absence with respect to his partnership interest, than it would be to litigate with respect to it. Though questions of joinder under Fed.R.Civ.P. 19 ultimately are controlled by federal law, a federal court must look to the state-law relationships between the parties when determining which parties are, as a practical matter, necessary for a just adjudication of the case. See Provident Tradesmens Bank & Trust Co. v. Patterson, 390 U.S. 102, 125 n. 22, 88 S.Ct. 733, 746 n. 22, 19 L.Ed.2d 936 (1968); 7 C. Wright, A. Miller & M. Kane, Federal Practice and Procedure: Civil 2d § 1603 (1986). The partnership agreement plainly provides that, upon termination of the partnership, limited partners as well as general are entitled to a share in the distribution of partnership assets. This provision, if Cranch's interest be valid, clearly would give him an interest in the outcome of the instant suit sufficient to require joinder under Fed.R.Civ.P. 19(a). 16 The cases are virtually unanimous in holding that in suits between parties to a contract seeking rescission of that contract, all parties to the contract, and others having a substantial interest in it, are necessary parties. See, e.g., Acton Co., Inc. of Mass. v. Bachman Foods, Inc., 668 F.2d 76, 81-82 (1st Cir.1982); 59 Am.Jur.2d Parties § 97, at 527 (1987). The same principle applies to suits arising out of disputes between multiple claimants to a common fund; all such claimants must be joined if feasible. See Illinois Brick Co. v. Illinois, 431 U.S. 720, 737-39, 97 S.Ct. 2061, 2070-71, 52 L.Ed.2d 707 (1977). A partnership agreement, at bottom, is nothing more than a special form of contract between the partners, and here one partner, Delta, seeks to compel liquidation of the common, finite properties which are the partnership assets. Thus, Cranch's joinder is necessary both to protect his interest and to ensure that the district court's resolution of the merits of this case is binding and final as to all interested parties. 17 Moreover, that the Fifth Amended Certificate purports to remove Delta and install Cranch in its place only bolsters our opinion that Cranch's presence in the instant suit is crucial to the district court's ability to fashion complete relief. Indeed, the present uncertainty as to Cranch's status, if allowed to continue by his nonjoinder, would undermine even an arbitrator's ability to resolve the instant conflict. Despite the as yet undecided issue of its validity under state law, the Fifth Amended Certificate was filed with the State Corporation Commission and must, at the present time, be accorded prima facie validity. This certificate was filed with the district court as an attachment to PDC's memorandum in opposition to Delta's motion for an order compelling arbitration; thus the issue clearly was before the court.5 When confronted with that certificate, the district court simply should have paused to consider whether the correct parties were in court; its failure to do so was error. 18 Our decision as to the possible necessity of Cranch's joinder accords with the general principle of partnership law that, in a suit between certain partners over partnership assets or obligations in which the effect, as here, will be a dissolution and liquidation of the partnership, all partners are necessary parties and must be joined if feasible. See, e.g., 68 C.J.S. Partnership § 415(a). Though the predominantly state-law character of partnership disputes, combined with the difficulty in maintaining diversity jurisdiction, see Carden, supra, has resulted in a dearth of federal case law on the subject, the necessity of joining all partners to such a suit is well established. See Stainton v. Tarantino, 637 F.Supp. 1051, 1072 (E.D.Pa.1986); Gottlieb v. Vaicek, 69 F.R.D. 672 (N.D.Ill.1975), affirmed without opinion, 544 F.2d 523 (7th Cir.1976). The treatise writers likewise are in agreement on the point. See, e.g., 59A Am.Jur.2d Partnership § 872 (1987); W. Inman, Gibson's Suits in Chancery § 413 (7th ed. 1982); L. Miller, Hogg's Equity Procedure § 81 (3d ed. 1943); R. Barton, Pleading and Practice in the Courts of Chancery 91 (3d ed. 1926). 19 The record as it now stands is insufficient to determine either Cranch's status as a limited partner or the extent of his interest in the instant suit.6 We do not require dismissal, however, but remand the case so that the district court may develop the record and determine in the first instance whether Cranch indeed must be joined. See F.R.Civ.P. 19(a). Accordingly, without reaching any determination of the merits, we vacate the district court's order compelling arbitration.7 We dissolve the stay of arbitration previously entered by us in this case, as our vacation of the arbitration order renders the stay moot. 20 The judgment of the district court must be vacated and the case remanded for action not inconsistent with this opinion. 21 VACATED AND REMANDED WITH INSTRUCTIONS. 1 The complaint apparently claimed jurisdiction under the Arbitration Act, 9 U.S.C. § 1, et seq., which does not independently exist 2 In 1990, a portion of 9 U.S.C. § 15 was renumbered and now appears as 9 U.S.C. § 16. Pub.L. 101-650, Title III, § 325(a)(1), Dec. 1, 1990, Stat. 5120 The motion of Delta to dismiss the appeal is, of course, denied. 3 See University Life Ins. Co. of America v. Unimarc Ltd., 699 F.2d 846 (7th Cir.1983) 4 In its brief in this court, PDC argues that Cranch is an indispensable party in the sense that his joinder, though necessary to a just adjudication of the dispute, would destroy the complete diversity of the parties. However, the record suggests only that Cranch is a citizen of Virginia. The present alignment of the parties, with Delta as plaintiff seeking arbitration, and PDC as defendant resisting arbitration, leads us to believe that Cranch, if joined, would be aligned as a defendant with PDC. Inasmuch as Delta is a citizen of Maryland and PDC of Virginia, Cranch's joinder as a defendant would not defeat diversity. Accordingly, we view the issue of Cranch's joinder one of necessary parties under Fed.R.Civ.P. 19(a), rather than one of indispensable parties under Rule 19(b) 5 Though PDC filed no separate motion to dismiss on grounds of nonjoinder under Fed.R.Civ.P. 19, nor did Cranch appear and attempt to intervene, PDC clearly argued that Cranch was a necessary party in its memorandum opposing Delta's petition seeking an order compelling arbitration and at oral argument before the district court. Even in this court Delta does not argue that PDC waived its objection regarding Cranch's nonjoinder, and we as well are satisfied that the question was sufficiently presented to the district court 6 As we have noted, Delta asserted before the district court that Cranch was merely an employee of PDC and that he had no real financial interest in Vanguard. The partnership agreement tends to confirm that Cranch at least at one time was a principal of PDC. We leave to the district court the task of determining the nature and extent of Cranch's interest 7 Nothing we have said should indicate any suggestion on our part that the matter of the dissolution of the partnership is not a proper subject for arbitration

TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN NO. 03-01-00451-CR Donald Lynn Williams, Appellant v. The State of Texas, Appellee FROM THE DISTRICT COURT OF BELL COUNTY, 27TH JUDICIAL DISTRICT NO. 49,709, HONORABLE JOE CARROLL, JUDGE PRESIDING After revoking appellant Donald Lynn Williams’s deferred adjudication community supervision, the district court adjudged him guilty of indecency with a child by contact and sentenced him to twelve years in prison. See Tex. Pen. Code Ann. § 21.11 (West Supp. 2002). Appellant’s court-appointed attorney filed a brief concluding that this appeal is frivolous and without merit. The brief meets the requirements of Anders v. California, 386 U.S. 738 (1967), by presenting a professional evaluation of the record demonstrating why there are no arguable grounds to be advanced. See also Penson v. Ohio, 488 U.S. 75 (1988); High v. State, 573 S.W.2d 807 (Tex. Crim. App. 1978); Currie v. State, 516 S.W.2d 684 (Tex. Crim. App. 1974); Jackson v. State, 485 S.W.2d 553 (Tex. Crim. App. 1972); Gainous v. State, 436 S.W.2d 137 (Tex. Crim. App. 1969). A copy of counsel’s brief was delivered to appellant, and appellant was advised of his right to examine the appellate record and to file a pro se brief. No pro se brief has been filed.  We have reviewed the record and counsel’s brief and agree that the appeal is frivolous and without merit. We find nothing in the record that might arguably support the appeal. Counsel’s motion to withdraw is granted. The judgment of conviction is affirmed. __________________________________________ Mack Kidd, Justice Before Justices Kidd, Yeakel and Patterson Affirmed Filed: January 10, 2002 Do Not Publish 2 

35 F.3d 574 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. Richard Dee THOMAS, Plaintiff-Appellant,v.Ignacio BRIONES, individually and in his capacity as anOut-Court Coordinator for Utah State Prison; ColleenGabbitas, individually and in her capacity as an ExecutiveOfficer for the Utah State Prison; Lynn Jorgensen,individually and in his capacity as a Warden at the UtahState Prison; Ken Halterman, individually and in hiscapacity as a Corrections Investigator for the Department ofCorrections; Blake Nielsen, individually and in hiscapacity as the Classification Officer at the Utah StatePrison; Rick Rasmussen, individually and in his capacity asan FBI Agent for the State of Utah; Jeff Galli,individually and in his capacity as an employee for theDepartment of Corrections; Andrew Hunt, individually and inhis capacity as a Case Worker for the Department ofCorrections; Roxanne Bennett, individually and in hercapacity as an employee for the Utah Department ofCorrections, Defendants-Appellees. No. 94-4112. United States Court of Appeals, Tenth Circuit. Sept. 7, 1994. Before MOORE, ANDERSON, and KELLY, Circuit Judges. ORDER AND JUDGMENT1 1 After examining the briefs and appellate record, this panel has determined unanimously that oral argument would not materially assist the determination of this appeal. See Fed. R.App. P. 34(a); 10th Cir. R. 34.1.9. The cause is therefore ordered submitted without oral argument. 2 Richard Dee Thomas, a prisoner of the State of Utah, appeals from an order granting summary judgment dismissal of his pro se 42 U.S.C.1983 action. In his suit, Thomas contended defendants were to provide him with special protection and institutional housing in exchange for his acting as an informant. He alleged defendants failed to abide by their agreement. 3 The complaint against the sole federal defendant was dismissed because Thomas failed to aver the federal defendant acted under color of state law as required by 1983, and he was entitled to qualified immunity in any event. The state defendants were dismissed because they had either not participated in Thomas' institutional classification or because the undisputed facts demonstrated defendants did not breach any agreement made with him about his incarceration. The magistrate judge concluded as a matter of law, in the absence of a clear promise of particular classification, a prisoner has no liberty interest in the place of his institutional confinement. As a parallel, the court found from the uncontroverted evidence no such promise was made. It also found undisputed the changes in plaintiff's classification were the result of his own conduct violating institutional rules. 4 We have examined the record and conclude the findings and recommendations of the magistrate judge are fully supportable. Accordingly, we AFFIRM the judgment of the district court for the reasons stated in the Reports dated February 9, 1944 and February 25, 1944. 1 This order and judgment is not binding precedent, except under the doctrines of law of the case, res judicata, and collateral estoppel. The court generally disfavors the citation of orders and judgments; nevertheless, an order and judgment may be cited under the terms and conditions of the court's General Order filed November 29, 1993. 151 F.R.D. 470

438 N.E.2d 275 (1982) Gary Wayne TAYLOR, Appellant (Defendant below), v. STATE of Indiana, Appellee (Plaintiff below). No. 382S106. Supreme Court of Indiana. August 9, 1982. *276 Samuel S. Shapiro, Applegate & Shapiro, Bloomington, for appellant. Linley E. Pearson, Atty. Gen., Palmer K. Ward, Deputy Atty. Gen., Indianapolis, for appellee. HUNTER, Justice. The defendant, Gary Wayne Taylor, was convicted by a jury of robbery, a class A felony. Ind. Code § 35-42-5-1 (Burns 1979 Repl.). He was sentenced to a period of twenty years in the Indiana Department of Correction. In his direct appeal, he presents the following issues for our review: (1) Whether the juvenile court erred in failing to grant defendant's motion to dismiss based on jurisdictional grounds; *277 (2) Whether the juvenile court erred by overruling defendant's objection to the presence of news media at the juvenile waiver hearing; (3) Whether the juvenile court erred in admitting hearsay testimony at the waiver hearing; (4) Whether the juvenile court erred by overruling defendant's objection designed to limit the use of his confession to the single purpose of determining the best interests of the state vis-a-vis the child's welfare; and (5) Whether the trial court erred in overruling defendant's motion to suppress his tape-recorded confession for the reason that a valid waiver of juvenile rights had not occurred. The record reveals that in the early morning hours of December 24, 1980, Albert Steward, age 79, and Viola Steward, age 82, were robbed of $4,000 in their home in Monroe County, Indiana; in the course of the robbery, both Stewards were severely beaten. The subsequent police investigation culminated in the arrest of five persons. Among them was the sixteen year old defendant and his uncle, with whom defendant then resided. Ultimately, defendant was waived from juvenile to adult court, where he was found guilty. I. At the outset of the juvenile waiver hearing, defendant made a motion to dismiss the cause based on jurisdictional grounds. His motion was predicated on the bases that the formal prerequisites to the assumption of jurisdiction, as enunciated in Duty v. State, (1976) 169 Ind. App. 621, 349 N.E.2d 729, had not been satisfied. In Duty, the court outlined the procedural prerequisites to the assumption of jurisdiction over a juvenile. A four-step process was delineated: (1) the filing of a petition requesting that a child be declared a delinquent; (2) a preliminary investigation into the home, environment, and personal history of the child, as well as the circumstances or incident which prompted the petition; (3) a determination by the court that it will assume jurisdiction; and (4) the filing of a formal petition of delinquency, pursuant to the court's authorization. Accord, Summers v. State, (1967) 248 Ind. 551, 230 N.E.2d 320; Seay v. State, (1975) 167 Ind. App. 22, 337 N.E.2d 489. The requirements are statutory in nature. Ind. Code § 31-6-4-7 and 9 (Burns 1980). As such, noncompliance with the procedural prerequisites precludes the assumption of jurisdiction over a juvenile. Summers v. State, supra; Murphy v. State, (1980) Ind. App., 408 N.E.2d 1311; Duty v. State, supra; Seay v. State, supra; Ingram v. State, (1974) 160 Ind. App. 188, 310 N.E.2d 903. Defendant does not argue the various prerequisites were not discharged, or that the manner in which the requirements were discharged was somehow inadequate. Rather, defendant's claim of error is based on the fact that the juvenile court's order book did not contain entries which revealed the requirements had in fact been satisfied; to support his argument, he relies on the rule of law that a court speaks only through its official orders and entries. Meehan v. Meehan, (1981) Ind., 425 N.E.2d 157; Blum's Lumber & Crating, Inc. v. James, (1972) 259 Ind. 220, 285 N.E.2d 822. The failure of the court's order book to reflect the fact that the procedural prerequisites had been satisfied was improper; at the hearing on defendant's motion to dismiss, however, defendant conceded the docket sheet reflected the fact that the requirements had been satisfied. In these circumstances, the omissions in the order book, which apparently were the product of clerical oversight, cannot be characterized as reversible error. The purposes of the procedural requirements had been satisfied: the interests of the public and the juvenile had been evaluated and considered. The required documents had been filed; defendant and his mother were fully apprised of the matters therein. In this context the technical error of the court did not prejudice the substantial *278 rights of the defendant; the error was harmless. Ind.R.Ap.P. 15(E); Ind. Code § 35-1-47-9 (Burns 1979 Repl.); North v. State, (1980) Ind. App., 406 N.E.2d 657. Defendant also predicates his claim of error on the trial court's subsequent nunc pro tunc amendment of the order book to reflect compliance with the procedural prerequisites. He concedes the docket entries reflecting that compliance were sufficient written memorabilia to support the nunc pro tunc amendment of the order book. Russell v. State, (1981) Ind. App., 428 N.E.2d 1271; Huffman v. Huffman, (1981) Ind. App., 424 N.E.2d 456. He argues, however, that the nunc pro tunc entry was improper in that the court failed to give notice to defendant that the entry was to be made. It is true that nunc pro tunc entries may be made only after notice and the opportunity to be heard thereon has been provided to the parties. Stowers v. State, (1977) 266 Ind. 403, 363 N.E.2d 978; Apple v. Greenfield Banking Co., (1971) 255 Ind. 602, 266 N.E.2d 13. Inasmuch as defendant concedes the nunc pro tunc entry was properly supported and that, as reflected in the docket entries, the procedural prerequisites had been satisfied, it is difficult to perceive any harm to defendant by virtue of the fact that notice and an opportunity to be heard were not provided. Nor has defendant explained the manner in which prejudice inured to him by virtue of the lack of notice. The trial court's error consequently cannot be said to require that defendant's conviction be reversed. Ind.R.Ap.P. 15(E); Ind. Code § 35-1-47-9, supra; Blackburn v. State, (1973) 260 Ind. 5, 291 N.E.2d 686. II. Three days prior to the juvenile hearing, the Bloomington Herald-Telephone, a local newspaper, filed a written request with the court seeking access to the hearing. The following day, the court granted the request. Defendant maintains the juvenile court erred when it overruled his objection and permitted members of the local news media to attend the hearing; he argues the court's action violated Ind. Code § 31-6-7-10 (Burns 1979 Repl.). The statute reads in pertinent part: "Sec. 10. (a) All proceedings in the juvenile court involving adults charged with: "(1) contempt of court; or "(2) criminal charges; "shall be tried in open court. "(b) The juvenile court shall determine whether the public should be excluded from other juvenile proceedings. In making that determination, the court shall consider that the best interests of the safety and welfare of the community are generally served by the public's ability to obtain information about: "(1) the alleged commission of an act that would be murder or a felony if committed by an adult; or (2) the alleged commission of an act that would be part of a pattern of less serious offenses. "A copy of the public access or exclusion order shall be placed in the file of the proceedings." The defendant specifically argues that the court committed reversible error when it failed to enter a copy of the access order in the record of the proceedings. He suggests the error reveals "a complete disregard for the balancing of interests" involved in the "delicate decision" at hand. This Court has recognized that the issue whether the public and media representatives should be allowed access to a juvenile's records and court proceedings is a "sensitive" one. State ex rel. Shelbyville Newspapers, Inc. v. Shelby Superior Court, (1979) Ind., 396 N.E.2d 337, 340. Involved is a collision of significant public interests — the need to protect juveniles from the dissemination of information regarding minor offenses, as emphasized in State ex rel. Shelbyville Newspapers, Inc. v. Shelby Superior Court, supra, versus the extraordinary protections afforded by the constitutional guarantees of free speech and press. U.S.Const. amend. I; Ind.Const. art. 1, § 9. *279 The significance of the latter guarantees requires no lengthy discourse here. The historical bases of our constitutional guarantees of free speech and press have been repeatedly and extensively explained; the structural role and societal functions of unfettered and informed public debate have been recently and thoroughly detailed. Richmond Newspapers, Inc. v. Commonwealth of Virginia, (1980) 448 U.S. 555, 100 S.Ct. 2814, 65 L.Ed.2d 973; see also, Smith v. Daily Mail Publishing Co., (1979) 443 U.S. 97, 99 S.Ct. 2667, 61 L.Ed.2d 399; Nebraska Press Assoc. v. Stuart, (1976) 427 U.S. 539, 96 S.Ct. 2791, 49 L.Ed.2d 683; Sheppard v. Maxwell, (1966) 384 U.S. 333, 86 S.Ct. 1507, 16 L.Ed.2d 600; Matter of Chase (Fam.Ct. 1982) 112 Misc.2d 436, 446 N.Y.S.2d 1000. Often it has been recognized that the guarantees reflect and perpetuate the nation's profound commitment to the proposition that the integrity of public proceedings is preserved by public access thereto; concomitantly, it has been reiterated that the educative aspects of public exposure to the judicial process serve only to enhance public confidence in the system. See, e.g., Nebraska Press Assoc. v. Stuart, supra; Sheppard v. Maxwell, supra; Estes v. Texas, (1965) 381 U.S. 532, 85 S.Ct. 1628, 14 L.Ed.2d 543; Maryland v. Baltimore Radio Show, Inc., (1950) 338 U.S. 912, 70 S.Ct. 252, 94 L.Ed. 562. This Court recognized the significance of these considerations in Brown v. State, (1969) 252 Ind. 161, 172-3, 247 N.E.2d 76, 83: "The right of the news media to fairly and accurately report the news; the right of the defendant to a fair trial before an impartial tribunal free of the influence of generated prejudice and inflamed passion in the community; and the right of the citizens to fully comprehend and analyze the portent and direction of the administration of our court system are elements necessary to the attainment of justice. If any one of the rights fall, the rest also will surely fall, and the term `justice' will become hollow and meaningless in our constitutional system. Upon the judiciary devolves the duty to maintain, as well as human agency can, the fine and essential balance within and between such tripartite rights, for such a harmonious weighting is necessary to the preservation of `justice under the law.'" [Emphasis original.] Complementary considerations were examined by Chief Justice Burger in Richmond Newspapers, Inc. v. Commonwealth of Virginia, supra: "When a shocking crime occurs, a community reaction of outrage and public protest often follows. See H. Weihofen, The Urge to Punish 130-131 (1956). Thereafter the open processes of justice serve an important prophylactic purpose, providing an outlet for community concern, hostility, and emotion. Without an awareness that society's responses to criminal conduct are underway, natural human reactions of outrage and protest are frustrated and may manifest themselves in some form of vengeful `self-help,' as indeed they did regularly in the activities of vigilante `committees' on our frontiers. * * * * * * "People in an open society do not demand infallibility from their institutions, but it is difficult for them to accept what they are prohibited from observing. When a criminal trial is conducted in the open, there is at least an opportunity both for understanding the system in general and its workings in a particular case: ... ." Id., 448 U.S. at 571-2, 100 S.Ct. at 2824-5, 65 L.Ed.2d at 986. Juxtaposed with these constitutionally-based considerations is the public policy that juveniles should be protected from the dissemination of information regarding their minor offenses. Smith v. Daily Mail Publishing Co., supra; In re Gault, (1967) 387 U.S. 1, 87 S.Ct. 1428, 18 L.Ed.2d 527; State ex rel. Shelbyville Newspapers, Inc. v. Shelby Superior Court, supra. The social and philosophical underpinnings of the policy of confidentiality were elegantly summarized by Justice Rehnquist: "It is a hallmark of our juvenile justice system in the United States that virtually *280 from its inception at the end of the last century its proceedings have been conducted outside of the public's full gaze and the youths brought before our juvenile courts have been shielded from publicity. This insistence on confidentiality is born of a tender concern for the welfare of the child, to hide his youthful errors and `bury them in the graveyard of the forgotten past.' The prohibition of publication of a juvenile's name is designed to protect the young person from the stigma of his misconduct and is rooted in the principle that a court concerned with juvenile affairs serves as a rehabilitative and protective agency of the State. Publication of the names of juvenile offenders may seriously impair the rehabilitative goals of the juvenile justice system and handicap the youths' prospects for adjustment in society and acceptance by the public. This exposure brings undue embarrassment to the families of youthful offenders and may cause the juvenile to lose employment opportunities or provide the hardcore delinquent the kind of attention he seeks, thereby encouraging him to commit further antisocial acts. Such publicity also renders nugatory States' expungement laws, for a potential employer or any other person can retrieve the information the States seek to `bury' simply by visiting the morgue of the local newspaper. The resultant widespread dissemination of a juvenile offender's name, therefore, may defeat the beneficent and rehabilitative purposes of a State's juvenile court system." Smith v. Daily Mail Publishing Co., supra, 443 U.S. at 107-8, 99 S.Ct. at 2673, 61 L.Ed.2d at 407-8 (Rehnquist, J., concurring in judgment [citations and footnotes omitted]. The state's interest in preserving the anonymity of juvenile offenders is one which the United States Supreme Court has characterized as "a matter of its own policy in the administration of criminal justice." Davis v. Alaska, (1974) 415 U.S. 308, 319, 94 S.Ct. 1105, 1112, 39 L.Ed.2d 347, 355. Our General Assembly has established the policy and procedures governing the access or exclusion of the public from juvenile hearings. Ind. Code § 31-6-7-10, supra. The procedures accommodate the competing interests; inasmuch as those interests are of such significant import, we emphasize that our courts must strive to adhere strictly to the mandates of Ind. Code § 31-6-7-10, supra, both in form and substance; care and discernment should mark the court's approach to the balancing of interests, a matter which inherently requires a case-by-case analysis. State ex rel. Shelbyville Newspapers, Inc. v. Shelby Superior Court, supra; Matter of Chase, supra. Here, the court failed to enter a copy of its access order in the record, as required by Ind. Code § 31-6-7-10, supra. The state maintains that notwithstanding the court's noncompliance with the statutory procedural requirement, the record reflects that the access order was made in accordance with the substantive requirements of the statute. It relies on the court's oral statement of its rationale made at the outset of the waiver hearing: "Let the record also note that there has been in this cause a request for the case to be made available to the media and after consideration as to the gravity of the offense, the age of the child, and all the statutory considerations for the opening of this matter to the public, the Court has determined that it is appropriate in this case." We reject any implication that an oral statement satisfies the statutory requirement that a copy of the court's order be entered in the record. Reducing the ruling to written form insures that a careful examination of the competing interests has been made; a written order and enunciation of reasons therefor facilitates appellate review of the trial court's exercise of discretion. We are not enamored of the general nature of the substantive rationale proferred by the court for its ruling. Nonetheless, the crime with which defendant was involved — robbery resulting in bodily injury — is a felony if committed by an adult. Consequently, *281 it fell within that class of proceedings for which access and disclosure are deemed generally to serve the best interests of the public. Ind. Code § 31-6-7-10(b), supra. Coupled with the fact that the crime was a grave one which involved the beating and robbery of elderly residents within the confines of their home, it cannot be said that the trial court abused its discretion in permitting public access to the hearing. Id., State ex rel. Shelbyville Newspapers, Inc. v. Shelby Superior Court, supra; Matter of Chase, supra. It is noted that the state also has argued that defendant has failed to explain the manner in which he was prejudiced by the public and news media's access to his waiver hearing. It is true that defendant has not argued his fair trial rights were victimized by subsequent pretrial publicity, or that he was otherwise harmed. We reiterate, however, that the primary purpose of the juvenile access-exclusion rules is tangential to the juvenile-defendant's constitutional rights to a fair trial; it is, rather, the adverse impact on the potential rehabilitation of the juvenile which prompts the cloak of confidentiality. An error in that regard defies the express policy of the statutory scheme. Ind. Code § 31-6-1-1 (Burns 1980 Repl.). That concern demands judicious adherence to the provisions of Ind. Code § 31-6-7-10, supra. III. Defendant maintains the juvenile court erred when it permitted the state to introduce hearsay testimony at the waiver hearing. Over defendant's objections, police officers were allowed to relate statements made by the victims, as well as to testify that a co-defendant had implicated the juvenile-defendant. Defendant asserts the introduction of the testimony violated his right to confront the witnesses against him. To support his contention, defendant relies on constitutional precepts of juvenile law enunciated in Kent v. United States, (1966) 383 U.S. 541, 86 S.Ct. 1045, 16 L.Ed.2d 84, and Summers v. State, (1967) 248 Ind. 551, 230 N.E.2d 320, together with the right of confrontation as expressed by statute. Ind. Code § 31-6-3-1 (Burns 1980 Repl.); Ind. Code § 31-6-4-13 (Burns 1980 Repl.). The state relies on Clemons v. State, (1974) 162 Ind. App. 50, 59, 317 N.E.2d 859, 865, wherein the Court of Appeals held that "fundamental fairness does not require the exclusion of hearsay in the waiver hearing setting." But see, Simmons v. State, (1978) Ind. App., 371 N.E.2d 1316 (hearsay rule applies in juvenile proceedings). We do not reach the question whether hearsay evidence should be barred from juvenile waiver hearings; other circumstances are outcome-determinative. Significantly, defendant was charged with an offense which, if committed by an adult, is of class A felony status. Consequently, the state's petition to waive the defendant into the criminal justice system fell within the ambit of subsection "d" of Ind. Code § 31-6-2-4 (Burns 1980 Repl.), which reads: "(d) Upon motion of the prosecutor and after full investigation and hearing, the juvenile court shall waive jurisdiction if it finds that: "(1) the child is charged with an act that would be murder or a Class A or Class B felony if committed by an adult, except a felony defined by IC 35-48-4; "(2) there is probable cause to believe that the child has committed the act; and "(3) the child was sixteen (16) years of age or older when the act charged was allegedly committed; "unless it would be in the best interests of the child and of the safety and welfare of the community for him to remain within the juvenile justice system." [Emphasis added.] Assuming conditions 1, 2, and 3 of the statute are satisfied, the legislature has established a presumptive waiver unless it would be in the best interests of the juvenile and the community safety and welfare to retain the child with the juvenile system. Here, the record of the waiver hearing establishes that the juvenile-defendant was charged with robbery resulting in bodily *282 injury, a class A felony if committed by an adult. Ind. Code § 35-42-5-1 (Burns 1979 Repl.). The record includes a statement made by defendant to police officers. Admitted over his objection,[1] the statement included his confession that he had participated in the robbery of the Steward home on December 24, 1980. The record also reveals that the juvenile defendant was born on November 30, 1964, establishing that he had just passed his sixteenth birthday when the offense occurred. This evidence is sufficient to support the court's conclusion that the state had satisfied its burden to establish by a preponderance of the evidence that the conditions to a presumptive waiver were present. Imel v. State, (1976) 168 Ind. App. 384, 342 N.E.2d 897; Cartwright v. State, (1976) 168 Ind. App. 517, 344 N.E.2d 83. Inasmuch as it is not our prerogative to reweigh the evidence concerning the prosecutive merit of the charge, the admission of the hearsay testimony, even if improper, would not warrant reversal of the court's conclusion. Furthermore, the court found that the juvenile defendant had failed to establish that it would be in his best interests, as well as the community's welfare and safety, to retain him within the juvenile system. In its waiver order, the court cited his past history of delinquent acts and his "inability or refusal to be rehabilitated through juvenile services" which had been provided to him, and found that in light of the nature of his instant involvement, he represented a threat to the safety and welfare of the community. These determinations supplement the conclusion that no reversible error could be exhibited here. IV. Defendant maintains the juvenile court erred when it permitted his confession to be admitted for purposes other than determining the best interests of the juvenile and the community. He relies on Clemons v. State, supra, to support his contention. In Clemons, the Court of Appeals stated: "The juvenile's guilt or innocence is not at issue in a waiver hearing. * * * * * * "If the juvenile's confession is considered at all by the waiver hearing judge, it can only be considered as it relates to `the child's welfare and the best interests of the state.'" Id., 162 Ind. App. at 60-1, 317 N.E.2d at 866. The rationale for the court's statement was predicated on the language of Ind. Code § 31-5-7-14 (Burns 1971), the statute then in effect. Subsequent amendments to the statute, however, culminated in its repeal, effective October 1, 1979. Acts 1978, P.L. 136, §§ 57 & 58 p. 1286-7. In its stead, the General Assembly enacted Ind. Code § 31-6-2-4, supra, which has heretofore been quoted in relevant part. In order to waive a juvenile into the criminal justice system, the juvenile court is now expressly required to find that there is probable cause to believe he committed the offense charged. Id. That requirement does not demand a determination of guilt or innocence, but rather merely imposes the duty on the state to establish the prosecutive merit of its case. Purcell v. State, (1980) Ind. App., 406 N.E.2d 1255; Bey v. State, (1979) Ind. App., 385 N.E.2d 1153. Although the requirement consequently does not elevate the waiver hearing to one which is adjudicatory in nature, the enactment of Ind. Code § 31-6-2-4, supra, renders statements made by a juvenile admissible and probative on the elements necessary to a valid waiver — elements not required when Clemons was decided. There was no error here. V. Defendant asserts that once he had been waived into the criminal justice system, the trial court erred in admitting his confession. He argues that the state failed to establish that his confession had been *283 preceded by a valid waiver of his rights, as required by Ind. Code § 31-6-7-3 (Burns 1980 Repl.). He specifically argues that his confession was not preceded by an opportunity to consult with a person who had no interest adverse to him. That requirement exists in subsection "a" of the statute, which reads: "Sec. 3. (a) Any rights guaranteed to the child under the Constitution of the United States, the Constitution of Indiana, or any other law may be waived only: "(1) by counsel retained or appointed to represent the child, if the child knowingly and voluntarily joins with the waiver; or "(2) by the child's custodial parent, guardian, custodian, or guardian ad litem if: "(A) that person knowingly and voluntarily waives the right; "(B) that person has no interest adverse to the child; "(C) meaningful consultation has occurred between that person and the child; and "(D) the child knowingly and voluntarily joins with the waiver." [Emphasis added.] This Court has recently and repeatedly stated that the state bears a heavy burden to demonstrate that the opportunity for meaningful consultation, as embodied in the statute, has been satisfied. Williams v. State, (1982) Ind., 433 N.E.2d 769; Garrett v. State, (1976) 265 Ind. 63, 351 N.E.2d 30; Lewis v. State, (1972) 259 Ind. 431, 288 N.E.2d 138; see also, Deckard v. State, (1981) Ind. App., 425 N.E.2d 256. In Buchanan v. State, (1978) 268 Ind. 503, 507, 376 N.E.2d 1131, 1134, we stated: "Our constitutions provide certain rights for those restrained and suspected of criminal offenses, to protect them against unconscionable activity by the State in its quest to apprehend the guilty party. The State is required to respect those rights, to advise of them and, in the case of a juvenile suspect, to afford the juvenile and the mature person who, by nature, would have the best interest of the suspect uppermost in his thoughts, the opportunity to reflect upon the predicament before making what may be a critical decision." [Emphasis added.] Defendant relies on the emphasized language from Buchanan to support his claim. He maintains he was not provided the opportunity to consult with the person who had his best interests uppermost in mind. The record reveals the juvenile defendant was provided with the opportunity to speak with his mother prior to waiving his rights and giving the statement. As defendant argues, however, the record also reveals that defendant had not resided with his mother for at least a year prior to his arrest. Instead, he had lived with his uncle, who was also arrested for the robbery at issue. Defendant's mother and father had separated several years earlier. Mrs. Taylor conceded she had been unable to "handle" defendant when he had resided at her home; it was her opinion that defendant suffered from a lack of male supervision. After defendant had begun residing with his uncle (her brother), Mrs. Taylor stated she had continued to see him two to three times per month. The record also reveals that prior to defendant's statement to police, defendant was provided with the opportunity to speak in privacy with his mother, who had been advised of the charges he was facing. Both were advised of the constitutional rights due defendant; both indicated they understood those rights. They refused a second opportunity to consult alone; a waiver of rights form was then signed by defendant and his mother. Defendant's contention that his mother was not the proper person to act in consultation with him is largely predicated on his perception of their relationship. He testified that in his opinion, his mother did not care what happened to him; he also testified that he left home because he could not tolerate living with his mother and that he would have preferred the opportunity to consult with his father. *284 We reiterate our concern in Buchanan that the state should respect the rights of juveniles and strive to provide consultation with that person which, "by nature," would be concerned for the best interests of the juvenile. Here, the state was faced with a somewhat awkward situation, however. The adult with whom defendant had been residing for a year had also been arrested for the offense charged against defendant. While defendant had not resided with his mother during that time, the lapse in his residency with his father was of longer duration. In these circumstances, we are compelled to conclude that the state exercised adequate precaution to insure that defendant had the opportunity for meaningful consultation with a person who had no "interest" adverse to him. Bluitt v. State, (1978) 269 Ind. 438, 381 N.E.2d 458; Burnett v. State, (1978) 268 Ind. 618, 377 N.E.2d 1340. Extreme cases of hostility between parent and child might render consultation between that parent and his child inadequate. We recognize, however, that the statutory language was also designed to insure that the consulting adult does not stand to benefit by cooperating with the police and encouraging the juvenile to act in a manner adverse to his interests. Hypothetically speaking, that might have been the case had defendant's uncle been permitted to consult with him, for the uncle had also been arrested for the crime and potentially would have held interests adverse to the juvenile defendant. As it is, however, we conclude defendant's right to meaningful consultation was satisfied. For all the foregoing reasons, there was no reversible error in the juvenile and trial court proceedings and the judgment should be affirmed. Judgment affirmed. DeBRULER, PRENTICE and PIVARNIK, JJ., concur. GIVAN, C.J., concurs in result. NOTES [1] Defendant's contention that the confession was improperly introduced is discussed at Issues IV and V, infra.

575 F.2d 1286 UNITED STATES of America, Plaintiff-Appellee,v.Jerry Delona EVANS, Defendant-Appellant. No. 77-3665. United States Court of Appeals,Ninth Circuit. May 24, 1978. Kenneth McMullan (argued), San Diego, Cal., for defendant-appellant. Stephen V. Petix, Asst. U. S. Atty. (appeared), San Diego, Cal., for plaintiff-appellee. Appeal from the United States District Court for the Southern District of California. Before BARNES and KENNEDY, Circuit Judges, and BARTELS,* District Judge. PER CURIAM: 1 Defendant Evans appeals his conviction for transporting illegal aliens. Two passengers in Evans's car were identified as illegal aliens when he was in the process of seeking entrance into the Marine Corps Base at Camp Pendleton. He contends that incriminating statements which he made to a Border Patrol Agent the day after his arrest should have been suppressed because on the previous day he had stated to a Marine Corps Sergeant that he wanted an attorney. The Government argues that in view of the lapse of time, during which there were two intervening Miranda warnings, and the fact that Evans never again mentioned a desire for counsel, he had effectively waived his right to counsel. 2 Evans also argues that he was illegally detained by the guard at the entrance gate to Camp Pendleton at the time he sought entry. The Government urges that the brief detention, which lasted ten to 20 minutes as long as it took to question the passengers in defendant's car was required as part of the legitimate screening procedure for all persons seeking to enter the military installation, and was moreover consented to by Evans himself. There are but two issues: 3 1. Whether the statements of defendant were made after a voluntary, knowing, and intelligent waiver of his right to counsel? 4 2. Whether the discovery of the illegal status of defendant's alien passengers occurred during a reasonable detention for the purpose of questioning the two passengers observed in his vehicle, in order to determine defendant's eligibility to enter a military installation? 5 We answer both questions in the affirmative. 6 I. There was here no Miranda type error. Appellant relied on the issue raised in two recent Ninth Circuit cases: United States v. Flores-Calvillo, 571 F.2d 512, and United States v. Nixon, 571 F.2d 1121. Each of them rested on their panel's interpretation of Miranda v. Arizona, 384 U.S. 436, 474, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1965), and Michigan v. Mosley,423 U.S. 96, 101 n.1, 104 n.10, 109-110, 96 S.Ct. 321, 46 L.Ed.2d 313 (1975), which were stated to establish a per se rule that any interrogation of a person who has once expressed a desire for counsel cannot be resumed until counsel is present, even though the accused changed his mind. 7 Subsequent to the initial decisions in Flores-Calvillo and Nixon, an en banc decision of this Court rejected the per se rule, and held instead that a suspect in a criminal investigation can waive his right to counsel after having initially requested the assistance of an attorney. United States v. Rodriguez-Gastelum, 569 F.2d 482, 483, 486 (9th Cir. 1978). The original Nixon and Flores-Calvillo opinions were then withdrawn. We find here that the Government has clearly borne its "heavy burden" of demonstrating that the defendant voluntarily, "knowingly and intelligently waived his privilege against self-incrimination and his right to . . . counsel." Rodriguez-Gastelum, supra, 569 F.2d at 486. 8 II. Defendant's short detention at the gate to Camp Pendleton when he requested admission without a visitor's pass was in accordance with base regulations. Corporal Alvarez asked appellant's consent to interrogate the two aliens, and received it. This case is readily distinguishable from United States v. Vaughan, 475 F.2d 1262 (10th Cir. 1973) relied on by appellant's counsel. In Vaughan, the gate sentry, without consent, conducted a full search of the accused's truck. See United States v. Davis, 482 F.2d 893, 908 (9th Cir. 1973). 9 The Government having borne its "heavy burden" of showing that defendant Evans voluntarily, knowingly, and intelligently waived his right to counsel when he made his statements, Evans statements were therefore properly admitted. The brief detention of Evans at the gate while Corporal Alvarez questioned the passengers of his car was not in violation of the Fourth Amendment. 10 The judgment is AFFIRMED. 11 Let the remand to the District Court be issued forthwith. KENNEDY, Circuit Judge, concurring: 12 I concur in the judgment of the court and, since appellant was held in custody after initially requesting counsel, I offer a further explanation of the circumstances of the waiver. 13 Appellant's rights under Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966), were scrupulously honored by both the sergeant at Camp Pendleton and by the two border patrol agents. Appellant was twice informed of his rights at Camp Pendleton. On the day appellant was first detained the sergeant at the gate fully informed him of his rights as soon as the illegal aliens were discovered. Appellant was also advised that as a civilian he was not entitled to an appointed military attorney, but that civilian counsel would be appointed either by the court or when he was turned over to another agency. A border patrol agent arrived within forty-five minutes, and he also informed appellant of his Miranda rights. Neither the sergeant nor the agent questioned appellant. The following morning at the Chula Vista Border Patrol Station a second agent talked with appellant and appellant's rights were explained a third time. At this point appellant spoke briefly to the agent. After the agent informed appellant that the agent was aware of appellant's prior record, appellant made several incriminating statements. The failure of the Marine sergeant to supply instantly an attorney and the reiteration of the offer of counsel by the agents did not suggest that appellant's rights were not being respected, nor was the conduct of the sergeant or the agents in any other fashion conducive to such an impression. Cf. United States v. Nixon, 571 F.2d 1121 (9th Cir. 1978). The Government has met its heavy burden under United States v. Rodriguez-Gastelum, 569 F.2d 482 (9th Cir. 1978) (en banc), of showing that appellant voluntarily, knowingly, and intelligently waived his right to counsel and to remain silent. * Honorable John R. Bartels, Senior District Judge for the Eastern District of New York, sitting by designation

469 F.Supp. 552 (1979) VIRGINIA ACADEMY OF CLINICAL PSYCHOLOGISTS et al. v. BLUE SHIELD OF VIRGINIA et al. Civ. A. No. 78-0496-A. United States District Court, E. D. Virginia, Alexandria Division. April 9, 1979. *553 *554 Warwick R. Furr, II, Lewis, Mitchell & Moore, Vienna, Va., Timothy J. Bloomfield, Dunnells, Duvall, Bennett & Porter, Washington, D. C., for plaintiffs. R. Gordon Smith, McGuire, Woods & Battle, Richard L. Williams, Gilbert E. Schill, Jr., James H. Walsh, Richmond, Va., for Blue Shield of Va. Ronald M. Ayers, Heman A. Marshall, III, Woods, Rogers, Muse, Walker & Thornton, Roanoke, Va., for Blue Shield of Southwestern Va. Joel I. Klein, Rogovin, Stern & Huge, Washington, D. C., Francis J. Prior, Jr., Siciliano, Ellis, Sheridan & Dyer, Arlington, Va., for Neuropsychiatric Society of Va. MEMORANDUM WARRINER, District Judge. This anti-trust action has been brought by the Virginia Academy of Clinical Psychologists (VACP), the professional organization *555 of registered clinical psychologists in Virginia, and a practicing clinical psychologist, Dr. Robert J. Resnick, against Blue Shield of Virginia (BSV), Blue Shield of Southwestern Virginia (BSSWV), and the Neuropsychiatric Society of Virginia (NSV). The action is brought pursuant to Section 1 of the Sherman Act, 15 U.S.C. § 1, and the plaintiffs are seeking injunctive relief pursuant to 15 U.S.C. § 26. The gravamen of plaintiffs' complaint is that the practice of defendants, allegedly a result of a conspiracy amongst the defendants, of paying the fee of clinical psychologists for out-patient psychological services rendered to subscribers of Blue Shield only when these services are ordered by, supervised by, and billed through a physician, amounts to a conspiracy in restraint of trade in violation of Section 1 of the Sherman Act. As it is admitted that the policy complained of exists, the question for decision is whether it was the result of a contract, combination, or conspiracy and if so, whether such practice is a restraint of trade in violation of the Sherman Act. In view of the applicability of the McCarran-Ferguson Act to the medical insurance contracts in question here, the additional issue of whether the practice complained of amounts to a boycott will be considered. The Court, in its previous rulings on defendants' motion to dismiss and motion for summary judgment, has ruled that plaintiff VACP and plaintiff Resnick have standing to pursue this action. The Court has also ruled that plaintiffs are not guilty of laches and that it would not be appropriate to stay this action due to the pending State Corporation Commission proceedings. See memorandum opinion of Court filed 10 October 1978 and memorandum opinion and order of Court filed 13 November 1978. A conspiracy in restraint of trade that is solely intrastate with no effect on interstate commerce is not prohibited by Section 1 of the Sherman Act, 15 U.S.C. § 1. In a carefully reasoned opinion, the Third Circuit held that where a restraint on commerce decreases the amount of out-of-state equipment and supplies bought by the complainants, such a restraint is affecting interstate commerce and is thus prohibited by the Sherman Act. Doctors, Inc. v. Blue Cross of Greater Philadelphia, 490 F.2d 48, 50-54 (3rd Cir. 1973). In this case, there is testimony that plaintiff Resnick and other members of the VACP buy substantial amounts of out-of-state equipment and supplies and treat out-of-state patients. The amount of equipment and supplies bought by clinical psychologists decreases when their business decreases and since the complained of policy is shown to adversely affect plaintiffs' business, the Court holds that the policy has an effect on interstate commerce, as explained in Doctors. Defendant BSV and defendant BSSWV exist pursuant to a Virginia statutory scheme for pre-paid health care plans. Va. Code § 32-195.1 et seq. (1973 Repl.). BSV is authorized by the State Corporation Commission to operate throughout most of the Commonwealth east of the Blue Ridge Mountains, except for a small area in Northern Virginia. BSSWV is authorized by the State Corporation Commission to operate in Southwest Virginia. The plans were organized in the 1940s by medical doctors as a way of guaranteeing payment for provided medical services rendered by them to their subscriber-patients. Defendant NSV is a not-for-profit nonstock corporation whose members are psychiatrists-physicians who practice in Virginia. It is the professional organization of Virginia psychiatrists. Plaintiff VACP is the professional organization of clinical psychologists in Virginia. Clinical psychologists, including plaintiff Resnick and members of the VACP, are licensed as practitioners of "the healing arts" by the Virginia State Board of Medicine. Va.Code § 54-274 (1978 Repl.). In order to apply for a license as a clinical psychologist, a candidate must have a Ph. D. degree in clinical psychology and must have at least two years of approved supervised clinical experience, one of which must *556 be post-doctoral. The candidates are then given written and oral examinations by the Virginia Board of Psychology, and if they pass those examinations, the Board recommends to the Virginia State Board of Medicine that they be licensed. It is the Virginia State Board of Medicine which actually issues the license and subsequently regulates and monitors their activities. Since about 1962 major medical plans issued by the two Blue Shield defendants have included coverage for mental and nervous disorders and for psychotherapy as a method of treating those disorders. Since about 1972, defendant BSV has reimbursed a patient for psychotherapy rendered outside a hospital only if he is treated by a psychiatrist or if he is treated by a clinical psychologist upon reference to and supervision by a physician with the psychologist's services billed through the physician. BSSWV has followed such policy since its inception in 1945 with certain exceptions noted hereafter. Virginia law licenses both psychologists and psychiatrists to perform psychotherapy, Va.Code § 54-273 (1978 Repl.). Plaintiffs' complaint is that the policy of the Blue Shield defendants, allegedly arrived at by combination or conspiracy, of reimbursing patients who are treated by psychiatrists for psychotherapy but only reimbursing patients who are treated by clinical psychologists if the additional requirement of physician billing, supervision, and referral are met, adversely affects plaintiffs' competitive position as a result of a conspiracy in restraint of trade. Plaintiffs allege that in addition to the parties defendant, the Medical Society of Virginia, Blue Cross of Virginia, and Blue Cross of Southwestern Virginia are part of this cooperative undertaking in restraint of trade. These latter entities are not named as defendants. Unlike Blue Shield plans, Blue Cross plans deal solely with hospital costs and in-patient services. Plaintiffs acknowledged at trial that clinical psychologists are not capable of rendering in-patient psychotherapy in competition with psychiatrists in the absence of physician supervision. Thus only out-patient care is in contention in this case. The Court will first address the issue of whether BSV and BSSWV have combined or conspired together in restraint of trade. I Defendant BSSWV now directly reimburses patients for psychologists' out-patient services if the definition of "physician" in the subscriber's contract includes "psychologists." Such a definition is contained in approximately 75 per cent of the current contracts issued by BSSWV. Nervous and mental disorders are covered only in major medical contracts and in more than 90 per cent of these contracts the definition of "physician" includes "psychologists." BSSWV has always opposed the payment of psychologists directly but has agreed to direct payment in most of its contracts, as noted above, because the Bureau of Insurance of the State Corporation Commission had disapproved the form of a major medical contract submitted which did not include "psychologists" in the definition of "physician." This disapproval by the Bureau of Insurance followed the enactment of Va.Code § 32-195.10:1 (Supp.1978) by the General Assembly in 1973. This section is interpreted to require that psychologists, among others, must be reimbursed directly for covered services by prepaid health care plans where they are rendering services that they are licensed to perform.[1] Unbeknownst to the Board of Directors of BSSWV the contract language was changed by subordinate officials of BSSWV to meet the Bureau's objection. When the Board of Directors subsequently learned of the change inserted in their contracts, the Board decided to honor the provision but at the same time reiterated *557 its opposition, as a matter of principle, to direct payment to unsupervised clinical psychologists. Collaboration between BSSWV and BSV concerning the issue of payment to clinical psychologists has revolved in the main around the challenge in State tribunals to the Virginia statutory scheme requiring such direct payment. BSSWV and BSV sought to bring a declaratory judgment action in the State court. Then it was decided, in consultation with counsel for VACP, that a suit by a patient who was not reimbursed for the services of a clinical psychologist would be the best means of challenging the statute. This test case was filed but was subsequently non-suited at the instance of VACP. Finally, BSV brought the matter before the State Corporation Commission where it is pending or from which it is being appealed. Though BSSWV is not now directly participating in the State legal actions, its collaboration with BSV cannot afford a basis for a Sherman Act suit since the activity is protected by the First Amendment. California Motor Transport Co. v. Trucking Unlimited, 404 U.S. 508, 510-11, 92 S.Ct. 609, 30 L.Ed.2d 642 (1972); United Mine Workers v. Pennington, 381 U.S. 657, 669-670, 85 S.Ct. 1585, 14 L.Ed.2d 626 (1965); Eastern Rr. President's Conf. v. Noerr Motor Freight, Inc., 365 U.S. 127, 138, 81 S.Ct. 523, 5 L.Ed.2d 464 (1961). The only other joint activity between BSSWV and BSV centered around their participation in various national accounts, including the Commonwealth contract, the major medical insurance plan for employees of the Commonwealth. The Commonwealth contract involves defendant BSV, defendant BSSWV, and the Medical Service of the District of Columbia. BSV negotiated the contract with the Commonwealth, receives the premium paid by the Commonwealth, maintains subscriber records, and controls the administration of the contract. Defendant BSSWV did not participate in the negotiations, does not receive any direct payment from the Commonwealth, and does not exercise any control over the administration of the contract. Other than a requirement by the Commonwealth that all three Blue Shield organizations sign the contract, this contract is similar to other national accounts. In a national account the "control" Blue Shield organization negotiates the contract and determines the benefits available and rate to be paid for those benefits. Other plans, known as participating plans, act as agents for the control plan in administering the claims of subscribers who are members of the subscribing group residing in the service area of the participating plan. The participating plan makes payment only for those benefits covered by the contract between the control plan and the group. These national accounts exist to accommodate to the difference between a covered group's geographic dispersion and the specific territories assigned Blue Shield organizations by State regulatory agencies. Thus when there is a contract with a group whose beneficiaries reside in more than one Blue Shield area, national account coverage is provided. National accounts require cooperation among participating Blue Shield organizations. The Commonwealth contract and the other national contracts require just such cooperation between the two Blue Shield defendants. It is State law which divides the service areas and which thus compels the two Blue Shield defendants to cooperate in order to provide service throughout the Commonwealth. Such State regulatory activity is at the heart of the State action exemption to the anti-trust laws enunciated in Parker v. Brown, 317 U.S. 341, 350-1, 63 S.Ct. 307, 87 L.Ed. 315 (1943). In Lafayette v. Louisiana Power & Light Co., 435 U.S. 389, 413, 98 S.Ct. 1123, 1137, 55 L.Ed.2d 364, 383 (1977) it is stated "that the Parker doctrine exempts only anticompetitive conduct engaged in as an act of government by the State as sovereign." The cooperative activities of the two Blue Shield defendants in servicing national accounts is conduct made necessary by the State as sovereign. It is only the sovereign which regulates by force of law, and it is *558 State law that divides the Commonwealth into service areas thus forcing the Blue Shield defendants to cooperate on national accounts. The Court thus concludes that the national accounts, including the Commonwealth contract, in which both Blue Shield defendants are participants, are joint activity and contractual arrangements exempt from the Sherman Act by reason of the State action exemption. In any event, this cooperation or combination is not that which plaintiff decries and it is not shown to be in restraint of trade. II There is no evidence that defendant NSV acted in conjunction with defendant BSSWV in establishing the clinical psychologist payment policy. Plaintiff does not seriously so contend. The main thrust of plaintiffs' case is that such a combination or conspiracy existed between NSV and BSV. A review of the live testimony, the documentary evidence, and the deposition extracts convinces the Court that this corporate policy of BSV was promulgated by the management and the Board of Directors of BSV after consultation with various provider groups, including groups representing psychologists and psychiatrists. The final decision, however, to adopt the policy was made solely by BSV's policy making bodies. BSV had been inconsistent in its policy during the 1960's and early 1970's in regard to payment of clinical psychologists. There is evidence that clinical psychologists had been paid for services independently rendered and yet it is not clear that this was company policy. Instead it appears that it resulted from a lack of company policy. In any event, the explosion of claims for nervous and mental disorders which occurred in the late 1960's came to the attention of the then new president of BSV, Alden Flory, and in 1971 it was decided that policy controls were needed. In determining what should be the proper coverage for nervous and mental disorders the staff of BSV was instructed to secure the views of the various provider groups. Among those consulted were the Medical Society of Virginia, the Virginia Psychological Association, NSV, representatives of the Virginia Institute of Pastoral Care, psychiatric social workers, psychiatric nurses, and others. Although plaintiff VACP was not a separate entity at the time, the views of clinical psychologists were expressed through the Virginia Psychological Association. NSV closely cooperated with BSV and gave assistance to BSV as it formulated policies in regard to who should be paid for providing mental health care, how much they should be paid, when they should be paid, and for what they should be paid. On 3 March 1971, L. W. Hulley, Jr., M.D., the head of BSV's professional relations committee met with R. Terrell Wingfield, M.D., President of NSV. Over the next year there was a substantial amount of communication between the two organizations. On 19 May 1971 at Blue Shield's corporate headquarters, a special committee of NSV met with representatives of BSV and discussed a large number of items dealing with payment to psychiatrists and clinical psychologists. A second meeting was held on 9 June 1971 at Tucker Hospital in Richmond. An extensive survey of Virginia psychiatrists, including those who did not belong to NSV, regarding psychiatric practice was provided BSV by NSV. The insurance committee of NSV met with representatives of defendant BSV. The day before the adoption of BSV's interim corporate policy on 22 February 1972, the policy which set the general guidelines as to payment, representatives of BSV had met with representatives of NSV. These committee meetings were working meetings and the officials of NSV were of substantial assistance to the officials of BSV in formulating the policy at issue in this lawsuit. Defendant NSV notes that the report of its committee was never officially adopted by the membership of NSV but instead it was referred to the President of NSV for further work. It is also true that not all of defendant NSV's recommendations were adopted by defendant BSV. *559 Additionally, NSV points out that it took no position on the bill passed by the General Assembly mandating direct payment to psychologists. But this in no way detracts from the fact that NSV and BSV cooperated closely in 1971 and 1972. There is also no question that the two entities concurred that clinical psychologists should be paid for psychotherapy only when rendered under the supervision of a physician. The question for the Court is whether this cooperation amounted to a "contract, combination in the form of trust or otherwise, or conspiracy" according to the language of Section 1 of the Sherman Act, 15 U.S.C. § 1. As pointed out above, BSV also consulted with representatives of other provider groups. It was only after all such consultation that the management and Board of Directors of BSV decided that as only medical doctors could ultimately determine the medical necessity of treatment for nervous and mental disorders, clinical psychologists would only be reimbursed for services rendered where there was referral to, supervision by, and billing through a medical doctor. Though prior inquiry, consultation, and negotiation clearly took place, no contract was entered into, no combination was formed, and no conspiracy existed. Section 1 of the Sherman Act does not prohibit a business entity which needs information and advice from obtaining information and advice from other knowledgeable business entities. The operation of a medical insurance plan would be, for all practical purpose, impossible if consultation and cooperation with provider groups were barred. The problem of what constitutes a "contract, combination in the form of trust or otherwise, or conspiracy" has continually confronted the Courts. In United States v. Standard Oil Co., 316 F.2d 884, 896 (7th Cir. 1963), where 11 corporate defendants, all oil companies, were appealing their convictions of conspiracy to raise retail gasoline prices, the Court held that there can be no conspiracy where there is no conscious commitment to a common scheme. The Court noted that "certainly, any defendant which heard of Standard's price announcement was not thereby immobilized and precluded from acting in a normal fashion as its interests might dictate so long as it was not pursuant to an understanding or agreement." Standard Oil, 316 F.2d at 896. Similarly, BSV's decision to implement its policy on payment to psychologists does not become a conspiracy with NSV because both took essentially the same position. On the reasoning of Standard Oil, BSV is not liable for conspiracy for acting as its interests dictated because BSV's decision was an independent one. Additionally, in contrast to the instant case, the parties who acted in Standard Oil were competitors. And it is against competitors that the strictures of the anti-trust laws most stringently apply. See Ark Dental Supply Co. v. Cavitron Corp., 461 F.2d 1093, 1094 (3rd Cir. 1973); Joseph E. Seagram Sons, Inc. v. Hawaiian Oke Liquors, Ltd., 416 F.2d 71, 78 (9th Cir. 1969), cert. den. 396 U.S. 1062, 90 S.Ct. 752, 24 L.Ed.2d 755 (1970). In Scranton Construction Co. Inc. v. Litton Industries Leasing Corp., 494 F.2d 778 (5th Cir. 1974), cert. den. 419 U.S. 1105, 95 S.Ct. 774, 42 L.Ed.2d 800 (1975) the Court confronted a situation where defendant Litton engaged in rather unsavory business dealings for the express purpose of assuring that defendant United Cement received a certain subcontract on a construction project. Plaintiff, an unsuccessful bidder against defendant United Cement, alleged a conspiracy under the anti-trust laws between defendant Litton and defendant United Cement but the Court held that the independent business decisions of defendant Litton, though helpful to defendant United Cement, were not the bases of a combination or conspiracy. Scranton Construction, 494 F.2d at 782-83. So here, the independent business decision of BSV, though arguably helpful to NSV, does not form the basis of a combination or conspiracy with NSV. In sum, NSV cooperated closely with BSV by urging BSV to adopt the policies in *560 question and by advising BSV on their implementation. But this does not amount to a "contract, combination . . . or conspiracy" as used in Section 1 of the Sherman Act. Scranton Construction Co.; Standard Oil Co. III Even if it be found that the above activity amounts to an illegal contract, combination or conspiracy, the question of whether it operated in restraint of trade needs to be addressed for it is only those contracts, combinations and conspiracies "in restraint of trade or commerce" that are prohibited by Section 1 of the Sherman Act. NSV first contends that all its activity amounts to no more than taking a position on a matter of public interest and it is thus protected under the First Amendment. That question need not be dealt with at length because the private meetings between the representatives of defendants NSV and BSV which discussed the range of psychiatric benefits, who was to provide them, and who was to be paid for them, were not equivalent to taking a position on a matter of public interest. Though infected with a public interest, this was not the expression of a viewpoint concerning the provision of health care in a public forum. These were private consultations and working sessions where implementation of defendants' corporate policy was discussed. California Motor Transport Co. v. Trucking Unlimited, 404 U.S. 508, 515, 92 S.Ct. 609, 30 L.Ed.2d 642 (1972). The question remains, assuming the conspiracy, whether the policy is in restraint of trade. In approaching this question, the Court is mindful of the rule, recently reiterated in Continental T. V. Inc. v. GTE Sylvania, Inc., 433 U.S. 36, 49 n.15, 97 S.Ct. 2549, 53 L.Ed.2d 568 (1977) that anti-trust cases must be read in their factual context. The starting point in deciding the proper factual context for this case is deciding what sector of the economy is affected. Once the Court has identified the proper sector it can analyze whether defendants' actions have endangered competition within that sector. In other words, the Court looks to see who is competing with whom so as to understand whether defendants' actions restrain trade to the detriment of plaintiffs. Cf., John Lenore & Co. v. Olympia Brewing Co., 550 F.2d 495, 498-9 (9th Cir. 1977); In re Multi-district Vehicle Air Pollution, 481 F.2d 122, 126 (9th Cir. 1973); G.A.F. Corp. v. Circle Floor Co., Inc., 463 F.2d 752, 757 (2nd Cir. 1972), cert. dismissed, 413 U.S. 901, 93 S.Ct. 3058, 37 L.Ed.2d 1045 (1973). The fundamental premise of plaintiffs' case is that clinical psychologists are equal providers of therapy, in particular psychotherapy, with psychiatrists. It is true that both psychologists and psychiatrists professionally render psychotherapy to patients. But in the treatment of nervous and mental disorders, psychiatrists are capable of providing a full range of psychiatric treatments, not just psychotherapy. In addition, as medical doctors psychiatrists may render medical treatment and diagnosis. It is undisputed that clinical psychologists are not qualified to diagnose nervous and mental disorders and to decide from what source these disorders stem. What appears to be a nervous or mental condition is often the result of a physical illness or disturbance which a psychiatrist is qualified and licensed to analyze but which a clinical psychologist is not. Plaintiffs themselves acknowledge that the best practice for clinical psychologists to follow before psychotherapy is referral to a physician for a physical examination. This is unanimously agreed to be necessary so as to rule out a physical cause of the nervous or mental problem. Psychotherapy is to a substantial extent useless if the disease has a physical etiology. It is also undisputed that the only method of making sure that a physical disorder does not complicate treatment by a clinical psychologist is regular contact between the psychologist's patient and a medical doctor. Whether this be called supervision, or referral on a regular basis, the medical necessity for this practice, in most, if not all cases, is undisputed. *561 It thus appears that the clinical psychologist is not competitive with the psychiatrist in regard to the treatment of nervous and mental disorders unless the clinical psychologist is working under the supervision of a medical doctor. The competition, then, is, on the one hand, between the clinical psychologist working with a medical doctor and, on the other hand, the psychiatrist working alone. In this light, defendant BSV and defendant BSSWV treat the two competing entities equally so long as they both are shown to be providing medically necessary treatment. There is an exception to this equality of treatment. Clinical psychologists must submit their statement of fee to Blue Shield via the supervising physician. The Court can well understand that plaintiffs do not like to bill through a physician as a matter of professional pride. The evidence shows that billing through a medical doctor is a requirement of the Blue Shield plan as a means of ascertaining that the treatment given and billed for was medically necessary. This procedure also tends to promote contact between the clinical psychologists and the physicians at all stages of the treatment, and thus enhances the supervisory process. Plaintiffs, admitting the efficacy of referral and supervision, have not come forward with another plan that would be as economically and medically efficient. Indeed, Dr. William Dunn, then president of VACP, wrote the president of defendant BSV following a meeting on 14 October 1976, that "the arguments that you and your staff have tendered in defense of your position we recognize not only to be sound, but from a business point of view, virtually inevitable." On the facts presented, the Court concurs in this view. If one group of providers, equal in rendering service with a second group, were suing the other group of providers and the Blue Shield defendants because the Blue Shield defendants reimbursed subscribers who receive services from the second group but not the first, and such policy arose from a combination, contract or conspiracy, then a restraint of trade might well be stated. Proctor v. State Farm Mut. Auto. Ins. Co., 182 U.S.App.D.C. 264, 277-8, 561 F.2d 262, 275-6 (1977), vacated and remanded on other grounds, ___ U.S. ___, 99 S.Ct. 1417, 59 L.Ed.2d 631 (1979). But that is not this case. The medical necessity of supervision and referral along with the economic necessity of billing through a physician render this situation substantially different. Here, it is only within these conditions that the plaintiffs can render services competitive with psychiatrists. And with these conditions met, the defendant BSV treats plaintiffs without any competitive disadvantage. Without these conditions met, the clinical psychologists are not rendering a competitive service and and thus defendant's policy is not illegally restraining plaintiffs in their trade. As a final plea plaintiffs contend that even though the medical necessity of referral and supervision is not contested, the billing procedures cannot be defended on the basis of business necessity nor as a required check on medical necessity since other Blue Shield plans (including defendant BSSWV) and other health insurance companies do not require such procedures. Those cases are not before the Court. The billing procedures in the instant case are a reasonable means of accomplishing the end of assuring medical necessity and meeting business necessity. As there is no evidence before the Court that those goals are as adequately met by the procedures used by other Blue Shield plans the fact that other Blue Shield plans use different methods is of no moment. The Court has held, then, that defendants have engaged in no contract, combination or conspiracy and that the policies complained of are not in restraint of trade. Thus there is no violation of Section 1 of the Sherman Act. IV Considering the fact that the trial of this case revolved almost wholly around plaintiffs' contention that defendants' conduct amounted to a boycott, and considering *562 the fact that if the Court has erred in its holding that there is no Sherman Act violation the question arises whether the questioned activity, if not a boycott, is exempt from the prohibitions of the anti-trust laws by the McCarran-Ferguson Act, 15 U.S.C. 1012(b). McCarran-Ferguson partially exempts from the anti-trust laws "the business of insurance" to the extent such business is regulated by state law. The core of the business of insurance has been held to be "the relationship between the insurance company and the policyholder." S.E.C. v. National Securities, Inc., 393 U.S. 453, 460, 89 S.Ct. 564, 569, 21 L.Ed.2d 668 (1969). The question of what is the "business of insurance" for McCarran-Ferguson Act purposes has recently arisen in the context of Blue Shield plans in Group Life & Health Insurance Co. v. Royal Drug Co., Inc., ___ U.S. ___, 99 S.Ct. 1067, 59 L.Ed.2d 261 (1979). There the question for decision was whether contracts between participating pharmacies and Blue Shield of Texas which set the price for drugs sold by the pharmacies to Blue Shield subscribers were within the business of insurance exemption of the McCarran-Ferguson Act. The Court held that contracts between Blue Shield and providers, there the participating pharmacies, were not the business of insurance and thus were not exempt from anti-trust scrutiny. The contracts in question here are not between providers and Blue Shield but between subscribers and Blue Shield. These provisions define what medical services are covered in the contract and thus are at the core of the business of insurance. Dicta in Royal Drug, ___ U.S. at ___ -___, 99 S.Ct. at 1079, might be interpreted to indicate that Blue Shield organizations are wholly outside the business of insurance. The Court's discussion in Royal Drug is in the context of whether Congress considered Blue Shield plans to be engaged in the business of insurance when it passed the McCarran-Ferguson Act. Directly on point, however, is the footnote in Royal Drug, ___ U.S. at ___, n.37, 99 S.Ct. at 1082, n.37: "This is not to say that the contracts offered by Blue Shield to its policyholders, as distinguished from its provider agreements with participating pharmacies, may not be the `business of insurance' within the meaning of the Act." (Emphasis added.) This tentative exception coupled with the definition of the business of insurance in National Securities, leads this Court to hold that Blue Shield subscriber contract provisions concerning covered treatment for mental and nervous disease are partially exempt from anti-trust scrutiny by the McCarran-Ferguson Act. V The McCarran-Ferguson Act only provides partial exemption as it reads in part: "Nothing contained in this chapter [15 U.S.C. § 1011 et seq.] shall render the said Sherman Act [15 U.S.C. § 1 et seq.] inapplicable to any agreement to boycott, coerce, or intimidate." 15 U.S.C. § 1013(b). Plaintiffs do not claim coercion or intimidation but, as noted, the main thrust of plaintiffs' case centered around the claim that defendants' activity amounted to a boycott. Just recently the Supreme Court decided a conflict among the Circuit Courts of Appeal as to the definition of boycott in the McCarran-Ferguson Act. St. Paul Fire & Marine Ins. Co. v. Barry, 438 U.S. 531, 549, 98 S.Ct. 2923, 2934, 57 L.Ed.2d 932, 946 (1978) holds that the definition of boycott for McCarran-Ferguson Act purposes is the same as a boycott under the general anti-trust laws. It rejected the narrower reading that the boycott exception was meant only to apply to "`blacklists' of insurance companies or agents by other insurance companies or agents." Barry, 438 U.S. at 536, 98 S.Ct. at 2927, 57 L.Ed.2d 938, n.5. In the same footnote, the Supreme Court noted with apparent approval that the Fourth Circuit and the D.C. Circuit had previously adopted the broader reading of the definition of boycott. The Court will now consider the defendants' conduct in this case in light of the two cited circuit *563 court decisions which adopted the broad view. In Ballard v. Blue Shield of Southern W.Va., Inc., 543 F.2d 1075 (4th Cir. 1976), cert. denied, 430 U.S. 922, 97 S.Ct. 1341, 51 L.Ed.2d 601 (1977), it was alleged that the defendant Blue Shield corporations of West Virginia refused to deal on any terms with chiropractors. The Fourth Circuit ruled on appeal from the granting of a motion to dismiss that this concerted refusal to deal on any terms alleged a boycott under the McCarran-Ferguson Act. Such a refusal to deal does not exist in the instant case. There cannot be a refusal to deal when plaintiffs' complaint is that the terms on which they are dealt with are disadvantageous. Although Ballard might be seen as merely an exclusion from coverage, the Fourth Circuit, on an appeal from a dismissal, accepted the allegations to state a classic boycott case. Plaintiffs' complaint in this case is in regard to conditional coverage given to defendants' subscribers. The other case cited by the Supreme Court was Proctor. In Proctor, 182 U.S. App.D.C. 277-78, 561 F.2d at 275-76, Judge McGowan analyzed the term "boycott" in the McCarran-Ferguson context. Judge McGowan was dealing with a situation where it was alleged that defendant insurance companies would reimburse policyholders for automobile repairs if certain repair shops were used but not if other repair shops were used. Proctor held that placing conditions on the use of repair shops by the policyholder was not an unconditional or unreasonable refusal to deal and thus did not amount to a boycott. The line drawn between Judge Butzner in Ballard and Judge McGowan in Proctor appears to be that an unconditional refusal to deal or a refusal to deal except on unreasonable terms can amount to a boycott but a conditional refusal to deal, where the conditions are reasonable, does not amount to a boycott under McCarran-Ferguson. The facts in the instant case clearly fall in the latter situation. Defendants deal with clinical psychologists but only when their services are a result of referral and supervision and when the bill is forwarded to Blue Shield via the supervising physician. The Court has previously analyzed these requirements and finds them medically and economically necessary and reasonable. This Court believes, then, that the decision herein does not offend Ballard and is sanctioned by Proctor. Thus it appears that the McCarran-Ferguson exemption is applicable, that the activity is not a boycott, and that even if it would otherwise be illegal activity under the Sherman Act, McCarran-Ferguson removes any legally enforceable right plaintiffs might have had. For the foregoing reasons, judgment will be rendered for defendants. An appropriate order shall issue. NOTES [1] It is the constitutionality of this statute that is at issue in the State Corporation Commission proceeding mentioned above.

FILED NOT FOR PUBLICATION MAR 29 2017 UNITED STATES COURT OF APPEALS MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT KIT YEE KITTY LI, AKA Kit Yee Lee, No. 13-73041 AKA Kitty Li, AKA Kiyee Li, Agency No. A086-948-624 Petitioner, v. MEMORANDUM* JEFFERSON B. SESSIONS III, Attorney General, Respondent. On Petition for Review of an Order of the Board of Immigration Appeals Submitted February 14, 2017** San Francisco, California Before: W. FLETCHER and RAWLINSON, Circuit Judges, and GORDON,*** District Judge. * This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. ** The panel unanimously concludes this case is suitable for decision without oral argument. See Fed. R. App. P. 34(a)(2). *** The Honorable Andrew P. Gordon, United States District Judge for the District of Nevada, sitting by designation.  Petitioner Kit Yee Kitty Li appeals a decision from the Board of Immigration Appeals pretermitting her application for adjustment of status. We lack jurisdiction to consider her claims and therefore deny her petition for review. Because we lack jurisdiction to consider her claims, we also lack jurisdiction to grant her request to take judicial notice. In 2010 the Department of Homeland Security (“DHS”) initiated removal proceedings against Li, charging Li with two grounds of removability: Li had remained in the United States after her visa expired (8 U.S.C. § 1227(a)(1)(B)), and “at the time of entry or adjustment of status” she was “an alien who engaged in an offense which is described in 18 U.S.C. § 1956 or § 1957,” in violation of 8 U.S.C. § 1182(a)(2)(I), i.e. money laundering. The IJ upheld both these charges, ordered Li removed, and pretermitted her application for adjustment of status on the grounds that she was ineligible for a waiver of inadmissibility. The BIA found Li removable on the grounds that she had overstayed her visa. See 8 U.S.C. § 1227(a)(1)(B). The BIA also found that Li was ineligible for adjustment because she is inadmissible under 8 U.S.C. § 1182(a)(2)(I) as a result of her 2009 conviction for conspiracy to commit money laundering, but that she was not removable on this basis because she had not been admitted to the United States since she engaged in the offense. 2  Li concedes her removability but appeals the BIA’s decision to pretermit her application for adjustment of status. She argues that the DHS’s decision to charge her as removable under 8 U.S.C. § 1182(a)(2)(I), rather than under § 1182(a)(2)(A)(i)(I), was “arbitrary and capricious” in violation of 5 U.S.C. § 706, and a violation of her due process rights under the Fifth Amendment. Money laundering, Li argues, is a Crime Involving Moral Turpitude; thus, she could have been charged as removable under § 1182(a)(2)(A)(i)(I). Had the Attorney General so charged her, Li argues she would have been eligible for a waiver of inadmissibility under § 1182(h). The Attorney General’s charging decision therefore deprived her of an opportunity to apply for a waiver that would have made her eligible for adjustment of status. We lack jurisdiction to review the Attorney General’s decision not to charge Li as removable under § 1182(a)(2)(A)(i)(I) on the basis of her prior money laundering convictions. The decision about whether to seek an immigrant’s removal or initiate proceedings is not subject to judicial review. 8 U.S.C. § 1252(g); see Reno v. American-Arab Anti-Discrimination Committee, 525 U.S. 471, 482 (1999). Li cites no case law suggesting that we possess jurisdiction to review the Attorney General’s choice of charges in initiating proceedings. Cf. 3 Judulang v. Holder, 565 U.S. 42, 57-58 (2011) (choice of charges assumed to be within the discretion of the Attorney General). DISMISSED FOR WANT OF JURISDICTION. 4 

92 Ill.2d 248 (1982) 442 N.E.2d 136 THE PEOPLE OF THE STATE OF ILLINOIS, Appellant, v. RONALD BROWN, Appellee. No. 54984. Supreme Court of Illinois. Opinion filed September 17, 1982. Rehearing denied November 24, 1982. *251 Tyrone C. Fahner, Attorney General, of Springfield, and Richard M. Daley, State's Attorney, of Chicago (Melbourne A. Noel, Jr., and Mark L. Rotert, Assistant Attorneys General, of Chicago, and Marcia B. Orr, Joel A. Stein, Casimir J. Bartnik, Michael E. Shabat, Joan S. Cherry, and Randall E. Roberts, Assistant State's Attorneys, of counsel), for the People. Steven Clark, Deputy Defender, of the Office of the State Appellate Defender, of Chicago (Fe Fernandez, of Evanston, of counsel), for appellee. Judgment affirmed. JUSTICE MORAN delivered the opinion of the court: On August 27, 1979, the circuit court of Cook County granted a motion by the defendant, Ronald Brown, to dismiss an indictment against him for the murder of Tony Williams. The motion alleged post-indictment delay that violated defendant's right to a speedy trial. On appeal, the dismissal of the murder indictment was unanimously affirmed. 94 Ill. App.3d 609. The issues before this court are: (1) Did a mandamus proceeding on a separate charge toll the statutory period of limitations for trial in the Williams case? (2) Did the trial court err by denying the State's motion for a continuance and dismissing the indictment on the 158th day of the 160-day statutory term? A rather detailed recitation of the facts is necessary to portray the sequence of events leading to dismissal of the indictment. On April 29, 1976, defendant was arrested for the January 10 murder of Tony Williams. He remained in custody until May 18, 1977, when he was released on $25,000 bond. During this period, defendant did not seek to advance trial on the charge. From the date of his arrest to November 20, 1977, the case was continued 24 times. *252 On November 20, 1977, defendant was arrested and charged by information with the armed robbery of Michael Trice. He remained in custody until March 31, 1978, when he was released on $5,000 bond. From November 20, 1977, to July 3, 1978, the Williams murder case (for which the bond remained in effect) was continued 12 more times. On July 3, 1978, defendant was arrested and later charged with the aggravated kidnaping, armed robbery, and murder of Charles H. McGee. Defendant was never admitted to bail on the three McGee charges and has been incarcerated since July 3, 1978. On August 7, 1978, the trial court revoked defendant's bond on the Williams murder charge, and the case was continued by agreement until August 28, 1978. In the meantime, on August 8, 1978, defendant pleaded guilty to the Trice armed robbery and was sentenced to six years' imprisonment. On December 11, 1978, trial commenced on the McGee charges. On December 22, following a four-day bench trial, defendant was found guilty of the aggravated kidnaping, armed robbery, and murder of Charles H. McGee. The State had requested a death penalty hearing on the McGee murder and on January 29, 1979, the trial court held the Illinois death penalty statute unconstitutional. The State then filed a petition for writ of mandamus before this court. On November 21, 1979, this court vacated the trial court's order and remanded the cause for a sentencing hearing. (People ex rel. Carey v. Cousins (1979), 77 Ill.2d 531, cert. denied (1980), 445 U.S. 953, 63 L.Ed.2d 788, 100 S.Ct. 1603.) On May 7, 1980, defendant was sentenced to 80 years on the murder count, 30 years on the armed-robbery count and 15 years on the aggravated-kidnaping count, the sentences to run concurrently. From August 7, 1978, to January 29, 1979, the Williams *253 murder case was continued 19 additional times. On January 29, 1979, defendant for the first time demanded trial in the Williams case. On the State's motion, the trial court continued the cause to March 19, 1979, when a trial date was to be set. On this date defendant's trial counsel did not appear and defendant was represented by an associate of his trial counsel. The case was then continued by agreement to March 22, 1979. On March 22, the State informed the trial court it was still attempting to locate witnesses in the Williams case. In asking for a continuance, the State argued that as a result of the agreed continuance from March 19 to March 22, the statutory period of limitations would expire on July 19 (119 days from that time). The cause was then continued to July 19, 1979. On that date, the State argued for the first time that the statutory term was not running in the Williams case inasmuch as a final disposition had not been rendered on the McGee case. The State contended that section 103-5(e) of the Code of Criminal Procedure of 1963 (Code) (Ill. Rev. Stat. 1975, ch. 38, par. 103-5(e)) allowed it 160 days from the final judgment in the McGee case, which had not yet been rendered. Alternatively, the State argued that the statutory term was "160 days from March 22nd, 1979 [and] would end August 27th, 1979" (which was actually 158, rather than 160, days later). The State again requested a continuance to locate the missing witness in the Williams case. The trial court continued the case until the next day for a hearing on the State's efforts to locate the witness. On July 20, after hearing testimony from two investigators for the State, the trial court concluded that the State had not exercised due diligence in attempting to locate the witness. The State reiterated its earlier argument that the 160-day statutory term in the Williams *254 case began to run when defendant's attorney demanded trial and would not expire until August 27, 1979. On the State's motion, the trial court continued the case to August 27, 1979. On that date, the trial court denied the State's motion for another continuance, concluding that the State had not exercised due diligence and that it had not established any basis for the court to believe that the sought-after witness would be produced within a definite or a reasonable time. The judge then dismissed the indictment in the Williams case based upon the sixth and fourteenth amendments to the United States Constitution. The appellate court affirmed, concluding that dismissal of the indictment was proper under section 103-5(e) of the Code. It is the appellate court's interpretation of that statute that is before us on appeal. Section 103-5(a) of the Code provides that a person shall be tried by a court within 120 days from the date he is taken into custody. (Ill. Rev. Stat. 1975, ch. 38, par. 103-5(a).) Under section 103-5(b), if a person is released on bail or recognizance, he shall be tried within 160 days of his demand for trial. (Ill. Rev. Stat. 1975, ch. 38, par. 103-5(b).) Section 103-5(e) provides: "If a person is simultaneously in custody upon more than one charge pending against him in the same county * * * he shall be tried, or adjudged guilty after waiver of trial, upon at least one such charge before expiration relative to any of such pending charges of the period prescribed by subparagraphs (a) and (b) of this Section. Such person shall be tried upon all of the remaining charges thus pending within 160 days from the date on which judgment relative to the first charge thus prosecuted is rendered * * *; if either such period of 160 days expires without the commencement of trial of * * * any of such remaining charges thus pending, such charge or charges shall be dismissed and barred for want of prosecution unless delay is occasioned by the defendant * * * or by an interlocutory appeal; Provided, however, that if the court *255 determines that the State has exercised without success due diligence to obtain evidence material to the case and that there are reasonable grounds to believe that such evidence may be obtained at a later day the court may continue the cause on application of the State for not more than an additional 60 days." Ill. Rev. Stat. 1975, ch. 38, par. 103-5(e). The appellate court concluded, and it is not here in dispute, that at the time defendant pleaded guilty to the Trice armed robbery on August 8, 1978, he was simultaneously in custody on all three charges. Consequently, section 103-5(e) is applicable and the 160-day limitations period first commenced running on August 8, 1978. However, offenses allegedly committed prior to March 1, 1977, are governed by case law holding that any delay caused by defendant will start the statutory period anew from the date to which the cause has been continued. (See People v. Donalson (1976), 64 Ill.2d 536, 540; People v. Zuniga (1973), 53 Ill.2d 550, 553; People v. Lee (1969), 44 Ill.2d 161, 166.) As the appellate court determined, the three-day, by-agreement, continuance on March 19, 1979, delayed the commencement of the 160-day statutory term to March 22, 1979. The State argues that section 103-5(e) should be construed to allow an interlocutory appeal in one case to toll the 160-day period in another simultaneously pending case. The State asserts, based on this argument, that the writ of mandamus it filed in the McGee case on January 29, 1979, is in the nature of an interlocutory appeal, which tolled the 160-day statute of limitations in the Williams case. According to the State, the 160-day limitations period in the Williams case was tolled until May 7, 1980, when sentence was pronounced in the McGee case. This court has often held in statutory construction cases that legislative intent is to be derived primarily from a consideration of the legislative language itself. (People ex rel. Scott v. Schwulst Building Center, Inc. (1982), 89 Ill.2d 365, *256 371; Western National Bank v. Village of Kildeer (1960), 19 Ill.2d 342, 350.) In construing a statute, the language should be given its plain and ordinary meaning. (City of East Peoria v. Group Five Development Co. (1981), 87 Ill.2d 42, 46; Franzese v. Trinko (1977), 66 Ill.2d 136, 139. See People v. Dednam (1973), 55 Ill.2d 565, 568.) As quoted above, section 103-5(e) provides that a person "shall be tried upon all of the remaining charges thus pending within 160 days from the date on which judgment relative to the first charge thus prosecuted is rendered * * *; * * *." (Emphasis added.) The independent clause that follows the semicolon then indicates that "if * * * such period of 160 days expires without the commencement of trial of * * * any of such remaining charges thus pending, such charge or charges shall be dismissed * * * unless delay is occasioned by * * * an interlocutory appeal." Ill. Rev. Stat. 1975, ch. 38, par. 103-5(e). Nowhere does the statute provide that an interlocutory appeal filed in one of the simultaneously pending cases tolls the limitations period in another one of those cases. As defendant's brief points out, the legislature could have easily added the phrase "in other pending cases" after the words "interlocutory appeal." Rather, the legislature used the identical language for delineating exceptions for delay that was used in sections 103-5(a) and (b), which apply to only one case. In those sections, a case must be brought within the statutory period unless the delay is occasioned by an interlocutory appeal in that case. Moreover, if a defendant is in custody for only two offenses, the exception in section 103-5(e) extending the time past 160 days from the judgment in the first case necessarily refers to an interlocutory appeal in the second case — the case in which the time period is not met. There is no language in the statute to imply a different interpretation when more than two offenses are involved. It is consistent with the overall statutory language to conclude that the legislature chose to *257 reduce the State's burden when more than one offense is involved by giving the State 160 days, rather than 120, from the first judgment. In this case, as observed by the appellate court, there was no relationship demonstrated between the mandamus action in the McGee case and the delay in the Williams case. Indeed, the State reiterated that its delay in bringing defendant to trial on the Williams murder charge was due solely to its failure to locate and contact a witness. Under the facts and circumstance of this case, we hold that the mandamus proceeding in the McGee case did not toll the 160-day limitations period of section 103-5(e) in the Williams case. We note parenthetically that this interpretation of section 103-5(e) presents no conflict with our Rule 604(a)(4) (73 Ill.2d R. 604(a)(4)) cited by the State. The State also contends that the statutory period was tolled because the mandamus action in the McGee case was attributable to defendant. That exception is delineated in section 103-5(e), along with the interlocutory-appeal exception. However, by the same reasoning, there is nothing in the statute to indicate that a delay attributable to a defendant in a simultaneously pending case shall toll the statute in a separate case, particularly where the delay in one case is unrelated to the delay in bringing the second case to trial. Irrespective of the party to whom the mandamus is properly charged, that delay occurred in the McGee case and was not demonstrated to be related to the delay in bringing Williams to trial. Consequently, that exception does not operate to toll the term in the Williams case. The State next argues that even if the term is not tolled by the mandamus action in the other case, the trial court improperly dismissed the indictment two days before the end of the 160-day period. The State also argues that the trial court abused its discretion when it denied the State's motion for a continuance at the time of dismissal. As indicated above, the 160-day term commenced on *258 March 22, 1979. The State is correct in observing that the dismissal of the indictment in the Williams case on August 27, 1979, occurred two days before the expiration of the term. However, as the appellate court pointed out, the source of the miscalculation was the State. The State on two separate occasions informed the trial court that the 160-day term would end on August 27. There is nothing in the record to indicate that either party was aware of the two-day discrepancy. Nor, as the appellate court found, was there any bad faith or subterfuge in connection with this error. Moreover, the State never contended, nor does the record reveal, any realistic possibility that the witness for whom the State was looking could have been found in two days. This court has repeatedly held that section 103-5 is to be construed liberally so as to give effect to the constitutional right to a speedy trial (U.S. Const., amend. VI; Ill. Const. 1970, art. I, sec. 8) and each case is to be decided on its own facts (People v. Pearson (1981), 88 Ill.2d 210, 216; People v. Richards (1980), 81 Ill.2d 454, 459-60; People v. Fosdick (1967), 36 Ill.2d 524, 528-29). We conclude that, under the facts of this case, the trial court's dismissal of the Williams indictment on the 158th day of the term did not constitute reversible error. With respect to the trial court's denial of the State's motion for a continuance on August 27 to locate a witness, it is settled that granting additional time is a discretionary matter. The trial court's determination is reversible if there is an abuse of that discretion, which depends on the facts and circumstances at the time of the request. (People v. King (1977), 66 Ill.2d 551, 557; People v. Arndt (1972), 50 Ill.2d 390, 393; People v. Solomon (1962), 24 Ill.2d 586, 589, cert. denied (1962), 371 U.S. 853, 9 L.Ed.2d 87, 83 S.Ct. 94).) Under section 103-5(e), the court may continue the cause if it "determines that the State has exercised without success due diligence to obtain evidence material to the case and that there are reasonable grounds to *259 believe that such evidence may be obtained at a later day." In this case, two investigators testified at the July 20, 1979, hearing about their efforts to locate the State's witness. One investigator stated that in February and March 1979 he went to the witness' last known address, where he spoke to the landlord, that he went to her mother's address, and that he checked the post office and the Department of Public Aid for some lead to the witness' whereabouts. He did not recall performing any investigation with respect to this case after March. The other investigator testified that once, on July 18 (one day before the hearing), he attempted to locate the witness at her last known address, where he spoke to a neighbor, at her mother's address, and through the Department of Public Aid. He spent a total of approximately 2 1/2 hours. His testimony indicated, as noted by the trial judge, that this was the only investigation performed in the 119 days from March 22, 1979 (the date of the previous continuance), until July 19. Notwithstanding his belief that the State had not exercised due diligence, at the conclusion of the July 20 hearing the trial judge continued the case to August 27, the date on which the State contended the term would run. In so doing, the judge stated: "[A] reasonable time should be afforded so there will be no question but that all the reasonable opportunities which may be considered to be possible, reasonably have been afforded the State to present some witness before this Court * * *." On August 27, the State again requested a continuance to locate the witness. The only information the State could produce about her whereabouts was that she was reportedly somewhere in Mississippi and that the State believed it could find her. Thus, after several continuances and approximately six months in which to investigate, the State had not located its witness and even, in requesting another continuance, told the court: "Judge, all we can do is go out and look for that witness and try to get her. I can't give you a date. I can't *260 can't give you a time. I can't tell you we have a hundred percent chance of getting her, ninety-nine percent, eighty percent or zero percent. All I can say to this Court, as I would say to any other court or any other judge, is that we are asking for a continuance for the purpose of getting that witness who we believe we have an opportunity to find and bring in. That's all I can say." The record in this case reveals that at the time of the State's final request for a continuance, there was more than sufficient basis for the trial court's conclusions that the State did not exercise due diligence and that the State did not establish a sufficient basis for the court to believe the witness would be produced within a reasonable time. Accordingly, the trial court did not abuse its discretion in denying the State's motion for a continuance on August 27, 1979. For the above-stated reasons, the judgment of the appellate court, affirming the dismissal by the trial court of the Williams murder indictment, is affirmed. Judgment affirmed.

430 So.2d 1255 (1983) Troy W. SHATOSKA v. INTERNATIONAL GRAIN TRANSFER, INC. No. 82 CA 0772. Court of Appeal of Louisiana, First Circuit. April 5, 1983. Rehearing Denied May 20, 1983. *1257 Edward Shamis, Jr., Slidell, for plaintiffappellee. *1258 A. Clay Pierce, Jr., Baton Rouge, for defendant-appellant. Before COVINGTON, LANIER and ALFORD, JJ. LANIER, Judge. This is a suit for workmen's compensation benefits for total and permanent disability, medical payments and statutory penalties. Judgment was rendered in the trial court in favor of the employee awarding him compensation benefits for total and permanent disability,[1] recognizing his entitlement to medical benefits,[2] fixing the attorney fee to which his counsel is entitled,[3] granting him legal interest from date of judicial demand "for all monies awarded under this judgment", and casting the employer and its insurer for all costs. The trial court denied the claim for statutory penalties. This suspensive appeal followed. The employee answered the appeal seeking statutory penalties and a recognition of his entitlement to future medical expenses as they occur. FACTS In May of 1980, Troy Shatoska was employed as a dragline (crane) operator by International Grain Transfer, Inc. (International). The Rockwood Insurance Company (Rockwood) was the workmen's compensation insurer of International. On May 6, 1980, Shatoska went to work at 6:00 A.M. During the day, Shatoska felt badly and had pains on two occasions, once while lifting a ship hold cover, and once while operating the dragline. When the dragline crew commenced changing a section of the dragline's boom, Shatoska stayed inside the cab of the dragline and did not do the outside manual labor. He complained several times during the day of headache, tightness in the chest and indigestion. The crew worked until midnight on May 6, 1980. Shatoska went home with his son, ate supper and went to bed. At approximately 4:30 A.M. on May 7, 1980, Shatoska was awakened by severe chest pains and pain under his armpits. His son rushed him to the emergency room of the East Ascension Hospital in Gonzales, Louisiana. His condition was diagnosed as a sub-endocardial infarction (a form of heart attack). Shatoska remained in the hospital until he was discharged on May 18, 1980, when he was released and referred to his private physician. On June 9, 1980, Shatoska consulted Dr. R.R. Howard, a specialist in cardiology and internal medicine. He gave a history of sub-endocardial myocardial infarction. Dr. Howard gave him medication for this condition. Shatoska again visited Dr. Howard on July 7, 1980. He had no discomfort and his EKG showed improvement. Dr. Howard continued him on his medication. Shatoska again saw Dr. Howard on August 18, 1980, and complained of numbness in his hands. Dr. Howard advised him to try light work, but that he was not capable of doing heavy strenuous activities. Dr. Howard described Shatoska's condition as indicating progrometer warnings (possible future problems). On September 29, 1980, Shatoska again visited Dr. Howard and gave a history of feeling weak, but with no fainting spells. On November 6, 1980, Shatoska visited Dr. Howard and gave a history of pain associated with some old rib fractures. Examination revealed no evidence of angina at that time. On November 7, 1980, Shatoska was admitted to the coronary intensive care unit of the Slidell Memorial Hospital suffering with what was diagnosed as an acute anterolateral myocardial infarction (heart attack). He gave a history of working on his boat which precipitated this condition. Shatoska remained in the hospital until he was discharged on November 18, 1980. *1259 Shatoska testified that in October of 1981, he commenced working for Lake Contractors as a dragline operator making $9.00 an hour for doing the same type of work that he did for International. He was doing this same type of work on the date of the trial, January 15, 1982. Prior to October of 1981, he also worked as a dragline operator for Used Machinery in Slidell, Louisiana, receiving $9.00 per hour and doing the same type of work that he was doing for International. ACCIDENT If an employee receives personal injury by accident arising out of and in the course of his employment, his employer is liable for compensation benefit and medical payments. La.R.S. 23:1031. An accident occurs in the course of employment when it happens during the time of employment and at a place contemplated by the employment. An accident arises out of the employment when it results from some risk to which the employee is subjected in the course of his employment and to which he would not have been subjected had he not been so employed. When the performance of the usual and customary duties of a workman causes or contributes to a physical breakdown, the statutory requirements for an "accidental" injury are present. Guidry v. Sline Industrial Painters, Inc., 418 So.2d 626 (La.1982). Heart disease and heart attacks caused by the work done by an employee are "accidents" and are compensable under the Louisiana Workmen's Compensation Law. Adams v. New Orleans Public Service Inc., 418 So.2d 485 (La.1981); Roussel v. Colonial Sugars Company, 318 So.2d 37 (La.1975). CAUSATION The chain of causation required by La.R.S. 23:1031 is that the employment causes the accident, the accident causes injury, and the injury causes disability. Where there is proof of an accident and of the following disability without any intervening cause, it is presumed that the accident caused the disability. It is not necessary to determine the exact cause of the disability. Guillory v. United States Fidelity & Guaranty Insurance Company, 420 So.2d 119 (La.1982). The burden is on an employee to show by a preponderance of the evidence that the work effort, stress or strain in reasonable probability contributed in some degree to the heart accident.[4] If the activities in which the worker is engaged entail exertion, stress or strain greater than would be involved in everyday nonemployment life and he experiences a heart accident, he has made a prima facie showing that the accident arose out of, or was connected with, the employment. Guidry v. Sline Industrial Painters, Inc., supra, 418 So.2d at 633. The issue of whether or not Shatoska's employment caused his heart attack (accident) was intensely litigated in the trial court. Shatoska testified that he reported for work at 6:00 A.M. on May 6, 1980. He and his crew worked an 18 hour shift and left work at approximately midnight. He did not feel well all day. He attributed his discomfort to indigestion. He experienced chest pains sharper than any he had experienced before. He first experienced the pain while operating the dragline and subsequently when he was moving hatch covers. Keith Roche, the night foreman for International, testified that his crew was working maintenance on May 6, 1980. He was aware that Shatoska did not feel well all day. Shatoska complained of indigestion and headache and was allowed to remain in the cab of the dragline instead of doing the usual and customary work. Ronnie Shatoska, plaintiff's son, testified that his father complained of pains in his *1260 chest during the day which he attributed to indigestion. When the shift was over at midnight, Ronnie drove his father home in his father's truck because his father did not feel well. They went straight home, ate and went to bed. Ronnie's wife awakened him at about 4:30 A.M. on May 7, 1980, and advised him that his father was in severe pain. He drove his father to the East Ascension Hospital where he received treatment. Lynn Shatoska, plaintiff's brother, testified that he operated a dragline on the same shift. His testimony corroborates the other testimony regarding Troy Shatoska's symptoms on May 6, 1980. Lynn also testified that Troy talked of a tight feeling in his chest when they climbed the levee to get their vehicles to go home. Shatoska's treating physician, Dr. R.R. Howard, testified as follows: "Q Yes, sir. Do you feel that the condition that he suffers from now and which he suffered from when you first saw him was a result of the work that I just described to you? "A Now, you're getting into the old dogmatic problem that we have had since antiquity, of which comes first. He has hardening of the arteries and then the coronary arteries. The work certainly would aggravate it, but that is not really a—it is a cause, but it is not the actual cause. The actual cause is his aging process and the arthrogenesis of his coronary arteries causing an occlusion, lack of blood supply to a particular area of his heart. The heart muscle dies and an infarction occurs. This is a heart attack. It can be precipitated by exertion, it can be precipitated by stress of any sort. That is the best answer I could give you." (Emphasis added). After considering the above evidence, the trial judge determined that Shatoska suffered an on-the-job episode with his heart on May 6, 1980, which progressed to be a heart attack in the early morning hours of May 7, 1980, without intervening causes. This factual determination by the trial judge is not clearly wrong. Arceneaux v. Domingue, 365 So.2d 1330 (La.1978). See, for example, Chapman v. Belden Corporation, 414 So.2d 1283 (La.App. 3rd Cir.1982). In addition to proving that his employment caused his "accident", a claimant in a workmen's compensation case must also prove that the "accident" caused his injury and the injury caused his resulting disability. An employee's disability will be presumed to have resulted from an employment accident if before the accident the employee was in good health, but commencing with the accident the symptoms of the disabling condition appear and continuously manifest themselves. The evidence must show that there is a reasonable possibility of causal connection between the accident and the disabling condition. This presumption is not a conclusive one; rather, it compels the defendant to come forward with sufficient contrary evidence to rebut it. Hammond v. Fidelity & Casualty Company of New York, 419 So.2d 829, 831 (La.1982). The medical evidence of record shows that Shatoska was in reasonably good health prior to the heart attack of May 6-7, 1980, that commencing with this heart attack, his disabling condition appeared and continuously manifested itself through the heart attack of November 7, 1980, and until the time of trial. The two heart attacks permanently damaged Shatoska's heart and caused him a degree of disability. The defendants have presented no evidence to rebut either the legal presumption or the medical evidence presented. Shatoska has thus satisfactorily proven a causal relationship between his employment and subsequent disability. DISABILITY A workmen's compensation claimant is totally and permanently disabled if he is unable to engage in any gainful employment. La.R.S. 23:1221(2). Louisiana has also adopted the "odd-lot" *1261 doctrine which provides that a claimant is also totally and permanently disabled if he can establish that because of his physical impairment and other factors, such as mental capacity, education, and training, he can perform no services other than those which are so limited in quality or dependability that a reasonably stable market for them does not exist. Oster v. Wetzel Printing, Inc., 390 So.2d 1318 (La.1980). A claimant who is able to engage in some employment, though not necessarily the type of employment he was engaged in at the time of the accident, is considered to be only partially disabled. La.R.S. 23:1221(3); Dodd v. Nicolon Corporation, 422 So.2d 398 (La.1982); Stracener v. United States Fidelity & Guaranty Company, 420 So.2d 1101 (La.1982). The claimant in a workmen's compensation proceeding bears the burden of proving to a legal certainty and by a reasonable preponderance of the evidence the nature and extent of his disability. The issue of whether or not he has carried this burden must be determined by examining the totality of the evidence, including both lay and medical testimony. Daney v. Argonaut Insurance Company, 421 So.2d 331 (La.App. 1st Cir.1982). The testimony of Dr. Howard concerning the nature and extent of Shatoska's disability, in pertinent part, is as follows: "Q Okay. I see, sir. And continue on, if you would, with your letter of April 29th. Is there any other information in there that would be indicative of the duration of Mr. Shatoska's condition? "A Well, he's to restrict his physical activity because of the cardiac problem which is permanent and will be under care indefinitely. "Q Do you or would you term this probably a permanent condition? "A Yes. "Q Would it be in your view permanently disabling? "A Disabling to do heavy physical exertaion (sic). I will just leave it right there." Although Dr. Howard testified that Shatoska was disabled from doing work that involved "heavy physical exertion", he did not testify that Shatoska was disabled from engaging "in any gainful occupation for wages." La.R.S. 23:1221(2). Dr. Howard was of the opinion "... that it would be dangerous and detrimental to his physical well-being now and in the future..." for Shatoska to operate a dragline. However, he was also of the opinion that Shatoska could safely operate an automobile. At the time of his heart attack in May of 1980, Shatoska was earning $10.00 per hour as a dragline operator for International. At the time of the trial, although his doctor was of the opinion that it was potentially dangerous and detrimental to his health, Shatoska was working as a dragline operator earning $9.00 per hour. He had been working in this capacity for approximately six months prior to the trial date. Based on the evidence presently before us, we are unable to properly adjudicate the nature and extent of the employee's disability. The employee has introduced no evidence to show whether or not the services that he may safely render in his present condition are so limited in quality or dependability that a stable market for his labor does not exist, and is thus totally and permanently disabled under the "odd-lot" doctrine. If Shatoska is not permanently and totally disabled, then he is permanently and partially disabled within the purview of La. R.S. 23:1221(3). We are mindful that La. R.S. 23:1221(3) provides that compensation benefit payments based on permanent, partial disability are to be calculated at "sixtysix and two-thirds per centum of the difference between the wages the employee was earning at the time of the injury and any lesser wages which the injured employee actually earns in any week thereafter in any gainful occupation for wages, ...". However, we do not believe that it was the intention of the legislature that this language was to be literally applied in a situation *1262 where an employee is earning wages by doing work that is dangerous and detrimental to his health. If Shatoska falls in this category, his entitlement to benefits should be based on the difference between the wages he was earning at the time of the injury and any lesser wages that he could safely earn in a gainful occupation. We do not believe that it would be a good public policy to calculate permanent, partial disability benefits based on wages earned by an employee who is engaged in work which is dangerous to his health. We are most reluctant to remand matters to trial courts to take additional evidence because this further delays a final decision in the case. However, because of the peculiar facts and circumstances of the instant case, we believe that the interest of justice requires a remand. See, for example, Gardner v. Minnie, Inc., 339 So.2d 1247 (La.App. 1st Cir.1976). On the remand, the parties are ordered to present evidence on the following issues: (1) Are the services which Shatoska is capable of safely rendering in his present condition so limited in quality, quantity, or dependability that a market for his labor does not exist within which he can effectively compete? (2) If the answer to question number 1 is "No", then at what point in time did Shatoska reach maximum recovery for determining his entitlement to temporary, total disability payments pursuant to La.R.S. 23:1221(1) and what is his entitlement to benefits for permanent, partial disability pursuant to La.R.S. 23:1221(3) based on his present capacity to safely engage in a gainful occupation for wages? STATUTORY PENALTIES Under La.R.S. 22:658, if the insurer of an employer fails to make workmen's compensation benefit and medical payments, and this failure is found to have been arbitrary, capricious, or without probable cause, the insurer may be compelled to pay a penalty of 12% of the total amount of the claim, together with all reasonable attorney fees incurred by the claimant in the prosecution of the claim.[5] This statute is penal in nature and must be strictly construed. It should be utilized only in those instances in which the facts negate probable cause for nonpayment. The burden is on the claimant to prove entitlement to penalties. Hammond v. Fidelity & Casualty Company of New York, supra; Moore v. Millers Mutual Fire Insurance Company of Texas, 406 So.2d 708 (La.App. 2nd Cir.1981), writ denied 410 So.2d 1132 (La.1982); Batiste v. Pointe Coupee Constructors, Inc., 401 So.2d 1263 (La.App. 1st Cir.1981), writ denied 409 So.2d 615 (La.1981). Where there is a serious defense presented in good faith, the assessment of the statutory penalties is not appropriate. Furtado v. Alton Ochsner Medical Foundation, 413 So.2d 528 (La.App. 4th Cir.1982), writ denied 420 So.2d 171 (La.1982). The trial judge denied the claim for statutory penalties because "Travellers (sic) Insurance Company was the group medical insurer of defendant, International Grain, as well as the workmen's compensation insurer" and paid Shatoska's medical bills and certain disability benefits, and because "when the original medical claim was filed it indicated that plaintiff had suffered a heart attack, but that it was not job related." The record shows that Travelers had the International group health policy and paid Shatoska's medical bills and expenses under that policy's extended benefits coverage. Rockwood, and not Travelers, was the workmen's compensation insurer of International. However, the dismissing of the claim for statutory penalties was correct. *1263 The issues of whether or not Shatoska's employment caused his heart attack, and the nature and extent of Shatoska's disability, are serious issues upon which reasonable persons could disagree. Rockwood presented serious defenses in good faith on these issues and did not act arbitrarily, capriciously or without probable cause. CONCLUSION For the foregoing reasons, the judgments of the trial court which determined that Shatoska's employment caused his heart attacks and ultimate disability, recognized that Shatoska was entitled to medical benefits, fixed the fee due by Shatoska to his attorney, fixed the base rate upon which compensation benefits would be calculated, and cast the defendants for all costs in the trial court, are correct and are affirmed. That portion of the trial court judgment that determined Shatoska to be totally and permanently disabled is reversed and this issue is remanded to the trial court for further proceedings consistent with this opinion. The judgment of the trial court granting the employee legal interest from date of judicial demand for all sums awarded is not correct. Legal interest should be awarded on each weekly compensation benefit from its date due until paid. Crockett v. St. Paul Insurance Company, 413 So.2d 949 (La.App. 1st Cir.1982). The appellants are cast for all costs of this appeal. AFFIRMED IN PART, REVERSED IN PART, AND REMANDED. NOTES [1] Weekly benefits would be based on a weekly wage of $311. La.R.S. 23:1221(2) and 23:1202(1). [2] La.R.S. 23:1203. [3] La.R.S. 23:1141. [4] Proof by a preponderance of evidence exists when the evidence taken as a whole, shows that the fact sought to be proved is more probable than not. Schouest v. J. Ray McDermott & Co., Inc., 411 So.2d 1042 (La.1982). [5] The penalty provisions of La.R.S. 23:1201.2 are applicable to employers only when they are not adequately covered by insurance. Chipman v. Insurance Company of North America, 389 So.2d 432 (La.App. 2nd Cir.1980); Wiley v. Southern Casualty Insurance Company, 380 So.2d 214 (La.App. 3rd Cir.1980); Gauthier v. Employers National Insurance Company, 316 So.2d 769 (La.App. 1st Cir.1975), writ refused 320 So.2d 911 (La.1975).

147 F.2d 284 (1945) M. C. PARRISH & CO. v. COMMISSIONER OF INTERNAL REVENUE. No. 11171. Circuit Court of Appeals, Fifth Circuit. February 14, 1945. *285 R. B. Cannon, of Fort Worth, Tex., for petitioner. Harold C. Wilkenfeld, Sewall Key, and Helen R. Carloss, Sp. Assts. to the Atty. Gen., Samuel O. Clark, Jr., Asst. Atty. Gen., and J. P. Wenchel, Chief Counsel, Bureau of Internal Revenue, and Rollin H. Transue, Sp. Atty., Bureau of Internal Revenue, both of Washington, D. C., for respondent. Before SIBLEY, HOLMES, and WALLER, Circuit Judges. HOLMES, Circuit Judge. The Tax Court sustained deficiencies assessed by the Commissioner with respect to petitioner's income and excess profits tax returns for the calendar years 1937, 1939, and 1940. The decisive question upon review is whether profits, realized by petitioner through the purchase of non-interest-bearing treasuring warrants of the State of Texas at a discount and holding them until paid, were exempt from gross income as interest on state obligations under Section 22(b) (4) of the Revenue Act of 1936. During the depression years following 1930 the State of Texas, finding its cash resources limited, adopted the practice of issuing warrants for the purchase of services and supplies needed to operate its institutions. These warrants bore no interest and were payable on call. Some of those who sold to the state were unable or unwilling to wait until the warrants were paid to receive their compensation in cash, so it became the practice for such sellers to increase the price for the services or commodities sold by an amount sufficient to enable such sellers immediately to discount the warrants to purchasers thereof at a price equivalent to that which would have been charged for a cash sale. Petitioner was incorporated in Texas in 1935 to engage in the business of purchasing these warrants at a discount, and the income sought to be taxed was earned in that manner. Section 22(b) (4), supra, provides that there shall not be included in gross income interest received by the taxpayer upon obligations of a state.[1] This statute is to be strictly construed against the taxpayer;[2] its requirements are not met unless the state actually pays interest or a discount pursuant to the terms of an obligation incurred by the state in the exercise of its borrowing power.[3] The warrants were not issued by the state at a discount, and they made no provision for interest. The redemption value of each warrant was fixed at the exact contract price agreed upon for the goods and services purchased. Whether the warrants were called within one day, one year, or five years after their issuance, the redemption price was the same. The arrangement was strictly analogous to a sale on credit wherein the agreed price was slightly in excess of that charged for a cash transaction. Moreover, the warrants were issued by the state under its purchasing power, not its borrowing power. The taxpayers' profits from these transactions did not result from the payment of interest on state obligations within the contemplation of the taxing statutes.[4] Affirmed. NOTES [1] 26 U.S.C.A. Int.Rev.Code, § 22(b) (4). [2] Helvering v. Stockholm, etc., Bank, 293 U.S. 84, 55 S.Ct. 50, 79 L.Ed. 211. [3] United States Trust Co. of New York v. Anderson, 2 Cir., 65 F.2d 575, 89 A. L.R. 994, certiorari denied 290 U.S. 683, 54 S.Ct. 120, 78 L.Ed. 589; Holley v. United States, 6 Cir., 124 F.2d 909, certiorari denied, 316 U.S. 685, 62 S.Ct. 1276, 86 L.Ed. 1757. [4] Daniel Bros. v. Commissioner of Internal Revenue, 5 Cir., 28 F.2d 761.

314 F.2d 654 UNITED STATES of America, Appellee,v.Francis Peter CROSBY et al., Appellants. No. 189, Docket 27811. United States Court of Appeals Second Circuit. Argued Jan. 25, 1963.Decided March 5, 1963. O. John Rogge, New York City, for appellant Leo B. Mittelman. Arnold N. Enker, New York City (Vincent L. Broderick, U.S. Atty., for the Southern District of New York, Sheldon H. Elsen, Asst. U.S. Atty., on the brief), for the United States. Before FRIENDLY, KAUFMAN and MARSHALL, Circuit Judges. FRIENDLY, Circuit Judge. 1 This is an appeal by Leo B. Mittelman from an order of Judge MacMahon in the Southern District of New York denying his motion, under F.R.Crim.Proc. 35, to correct an alleged illegality in the sentence on the conviction we affirmed in United States v. Crosby, 294 F.2d 928 (2 Cir., 1961), cert. denied, Mittelman v. United States, 368 U.S. 984, 82 S.Ct. 599, 7 L.Ed.2d 523 (1962). In view of the painstaking recital of the facts in the cited opinion, there is no need for us to detail these here. 2 Mittelman was convicted on two counts, Two and Fifty. Judge MacMahon sentenced him to the maximum prison term of five years on each, the sentences to run consecutively; however, the judge suspended the sentence on Count Fifty and directed that at the end of the Count Two sentence Mittelman should be placed on probation for five years. He claim is that the two sentences constitute double punishment for a single offense, a result prohibited by In re Snow, 120 U.S. 274, 7 S.Ct. 556, 30 L.Ed. 658 (1887), and many other cases. Since the objective was to correct 'an illegal sentence, not re re-examine errors occurring at the trial or other proceedings prior to the imposition of sentence,' Hill v. United States, 368 U.S. 424, 430, 82 S.Ct. 468, 472, 7 L.Ed.2d 417 (1962), and since relief under F.R.Crim.Proc. 35, unlike 28 U.S.C. 2255, is not dependent on a right to immediate release if the claim is established, compare Heflin v. United States, 358 U.S. 415, 420, 79 S.Ct. 451, 3 L.Ed.2d 407 (1959) (concurring opinion of five justices), resort to Rule 35 was procedurally proper. However, Mittelman did not sustain his claim on the merits. 3 Count Two of the indictment contained 21 numbered paragraphs. The first paragraph charged that Mittelman and others devised a scheme and artifice to defraud and to obtain money and property by means of false and fraudulent pretenses, representations, and promises from stockholders and persons whom they would induce or seek to induce to become stockholders in Texas-Adams Oil Company. Paragraph 2 incorporated Count One of the indictment, in which Mittelman was not involved; paragraphs 3-20 recited various acts done in pursuance of the scheme. Several of these paragraphs referred to use of the mails, and paragraph 21, which differentiated Count Two from Counts Three through Thirty-two, averred the mailing to one Ethel Davis Lake of a report to stockholders dated November 25, 1955, which report was alleged in paragraph 16 to contain false and fraudulent misrepresentations concerning the growth of Texas-Adams since the new management had taken control on September 27. At the end of Count Two reference was made to the mail fraud statute, 18 U.S.C. 1341, and the aiding and abetting statute, 18 U.S.C. 2. 4 With Count Thirty-three the tenor of the indictment charged. Counts Thirty-three through Forty-nine alleged that Mittelman and others1 unlawfully made use of the mails to sell common stock of Texas-Adams to various persons, 'there not then being in effect with the Securities and Exchange Commission a registration statement as to such security.' Reference was made in each of these counts to 15 U.S.C. 77e(a)(1) or (2) and 77x. Count Fifty alleged that Mittelman conspired with co-defendants and other persons to violate the registration provisions of the Securities Act, 15 U.S.C. 77e(a)(1) and (2) and 77x, 'in the manner and by the means set forth more fully in paragraphs two (2) through five (5) of Count One, and three (3) through twenty (20) of Count Two of this indictment.' Some of the overt acts alleged were essentially the same as some of those described in Count Two. Reference was made to the conspiracy statute, 18 U.S.C. 371. 5 Relying particularly on Braverman v. United States, 317 U.S. 49, 63 S.Ct. 99, 87 L.Ed. 23 (1942), Mittelman contends that Counts Two and Fifty charged a single agreement to defraud. The reliance is misplaced. The indictment in Braverman charged, in separate counts, conspiracy to violate seven distinct sections of the internal revenue laws relating to distilled spirits; however, the Government conceded, 317 U.S. at 52, 63 S.Ct. at 101, that 'only a single agreement to commit the offenses alleged was proven,' and the court held that only a single penalty could be imposed, even though the agreement had several illegal objectives. Appellant might come within Braverman if Count Two had charged a conspiracy to violate the mail fraud statute.2 However, Count Two did not allege an agreement, the gist of the offense of conspiracy, 18 U.S.C. 371, but rather a substantive violation of the mail fraud statute. It is elementary that, with limited exceptions not here relevant, separate sentences may be imposed for violating a criminal statute and for conspiring to violate it. Pinkerton v. United States, 328 U.S. 640, 642-644, 66 S.Ct. 1180, 90 L.Ed. 1489 (1946). Indeed, this may be done even when the sole evidence of commission of the substantive offense is participation in the conspiracy, which makes the defendant an aider or abettor of the substantive crime. Pinkerton v. United States, supra, at 645-648, 66 S.Ct. at 1183-1184. Pinkerton thus bears a fortiori against appellant, who was convicted of substantive violation of one statute and conspiracy to violate another. 6 It is of no consequence that the proof of the substantive violation of the mail fraud statute may have disclosed an agreement to perform the violation in concert; what is critical for the permissibility of separate sentences for substantive offenses and for conspiracy is that the former 'do not require more than one person for their commission.' Pereira v. United States, 347 U.S. 1, 11, 74 S.Ct. 358, 364, 98 L.Ed. 435 (1954). The joinder of the various counts in one indictment, F.R.Crim.Proc. 8(a), does not make them one for purposes of punishment. See Hill v. United States, 306 F.2d 245 (9 Cir., 1962). Finally, appellant is not aided by his citation of Maraker v. United States, 370 U.S. 723, 82 S.Ct. 1573, 8 L.Ed.2d 803 (1962), where defendants who had been acquitted on a conspiracy charge were freed from subsequent prosecution under indictments charging the substantive offenses which constituted the overt acts alleged in the conspiracy case. We are not required to decide whether if Mittelman had first been indicted and convicted only under Count Two, he could thereafter be indicted and tried for the conspiracy charged in Count Fifty; the double jeopardy and due process problems under the Fifth Amendment raised by that question are not present when the counts are joined in a single indictment and trial. See United States v. Sabella, 272 F.2d 206, 211-212 (2 Cir., 1959). 7 Affirmed. 1 The 'others' included the defendants characterized in our previous opinion as the 'broker' defendants, but did not include Crosby 2 We say 'might' because, in contrast to the Government's concession in the Braverman case, the evidence here might have warranted a jury in finding that Mittelman had participated in two separate conspiracies, perhaps involving different groups of co-conspirators, with the separate objectives of violating the mail fraud statute and the registration provisions of the Securities Act. See 317 U.S. at 52, 63 S.Ct. at 101. We are not required to decide this

CLD-106 NOT PRECEDENTIAL UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT ___________ No. 12-3883 ___________ ERIC LLOYD, Appellant v. J.T. SHARTLE ____________________________________ Appeal from the United States District Court for the District of New Jersey (D.C. Civil No. 1-11-cv-01419) District Judge: Honorable Jerome B. Simandle ____________________________________ 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 31, 2013 Before: RENDELL, JORDAN and GARTH, Circuit Judges (Opinion filed: February 14, 2013 ) _________ OPINION OF THE COURT _________ PER CURIAM Eric Lloyd, a federal prisoner proceeding pro se, appeals from the United States District Court for the District of New Jersey’s order denying his petition pursuant to 28 U.S.C. § 2241, in which he challenged his prison disciplinary hearing and resulting sanctions. For the following reasons, we summarily will affirm. Lloyd was formerly housed at the Federal Correctional Institution at Fort Dix (FCI-Fort Dix). While confined at FCI-Fort Dix, he was served with Incident Report No. 2008224, which charged him with violations of Code 108, Possession of a hazardous tool (cell phone); Code 297, Use of the telephone for non-criminal activity; and Code 327, Unauthorized contact with the public. The report indicated that during a review of property confiscated from Lloyd’s locker, prison officials had discovered an email address and password associated with one of his known moniker’s. The officials subsequently discovered that the email address had been used to create a Facebook account. After reviewing the Facebook account, the officials concluded that Lloyd had been posting updates to the account from inside FCI-Fort Dix using a cell phone. Lloyd was advised of his rights and he verbally denied the charges in the report. An initial hearing was held at which Lloyd made no statements. The matter was ultimately referred to a Disciplinary Hearing Officer (“DHO”). Lloyd was provided with written notice of the DHO hearing and given a written statement of his rights at the hearing. He signed forms indicating that he did not wish to have a staff representative or witness. At the hearing, Lloyd denied the charges, stating that he never possessed a cell phone and that his family set up the Facebook account and would update it after receiving instructions from him on the prison phone. No cell phone was discovered among Lloyd’s possessions, but multiple posts to his Facebook account provided circumstantial evidence 2 that he possessed one.1 Following the hearing, the DHO issued a written decision finding that Lloyd committed the acts charged and setting forth his reasoning and the evidence relied upon. Lloyd was sanctioned to disciplinary segregation, loss of good conduct time, loss of phone privileges, loss of visiting privileges, and loss of commissary privileges. Lloyd’s ensuing appeals through the BOP administrative remedy process were denied. Lloyd then filed a petition in the District Court, arguing that he should not have been charged with violating Code 108 because prison officials never found a cell phone and, in any case, a cell phone is not a “hazardous tool.” Lloyd argued that, at a minimum, his charge should have been reduced to a less severe Code 305 violation, possession of anything not authorized, as was done in previous cases involving other inmates. The District Court, construing these as arguments under the Due Process and Equal Protection Clauses, denied Lloyd’s petition. Lloyd thereafter filed this appeal, and Appellee subsequently filed a motion to summarily affirm. We have jurisdiction to hear this appeal under 28 U.S.C. §§ 1291 and 2253(a). We review a District Court’s legal conclusions de novo. Marshall v. Hendricks, 307 F.3d 36, 50 (3d Cir. 2002). We review the District Court’s factual findings for clear error. See Ruggiano v. Reish, 307 F.3d 121, 126 (3d Cir. 2002). 1 These included: “I got a new phone I’m having problems getting it turned on . . . I should be back on tomorrow so if u don’t hear from me that’s the reason”; “This is my new number []”; “I just burned my phone out so I got a major headache”; “I called u twice from the prison phone but u didn’t answer . . . I’ll try to hit you tomorrow . . . Do not say anything about a cell phone”; and “I had to be in federal prison with no A/C and 3  It is well established that “[p]rison disciplinary proceedings are not part of a criminal prosecution, and the full panoply of rights due a defendant in such proceedings does not apply.” Wolf v. McDonnell, 418 U.S. 539, 556 (1974). Still, minimum procedural protections must apply to prison disciplinary proceedings when a prisoner’s good conduct time is at stake, including (1) advance written notice of the disciplinary charges; (2) an opportunity, when consistent with institutional safety or correctional goals, to call witnesses and present documentary evidence in defense; and (3) a written statement by the factfinder of the evidence relied on and the reasons for the disciplinary action. Id. at 563-67. Revocation of good time credit comports with procedural due process where the findings of the prison disciplinary board are supported by “some evidence” in the record. See Superintendent, Mass. Corr. Inst. v. Hill, 472 U.S. 445, 454 (1985). The “some evidence” standard is quite deferential, requiring the reviewing court to consider only whether there was any evidence in the record that could support the conclusion reached by the prison disciplinary decisionmaker. See id. We agree with the District Court that Lloyd’s due process rights were not violated during the disciplinary proceedings. He received advance written notice of the disciplinary charges, an opportunity to present a defense during a hearing, and a written decision explaining the reasoning and evidence relied upon. Although Lloyd argues that the evidence was insufficient because a cell phone was never found, the DHO’s decision they stop selling fans.” There were also photos on the Facebook page which the report noted could only have been taken with a camera phone from inside prison. 4 is clearly supported by “some evidence,” namely the Facebook posts which strongly suggest that Lloyd was updating the account from within the institution. Those posts consisted not only of explicit references to possessing a cell phone within the prison, but also of pictures apparently taken with a camera phone from inside the institution. We also agree with the District Court that Lloyd’s equal protection rights were not violated by the disciplinary proceedings. In order to succeed on such a claim, Lloyd must demonstrate that the decisionmakers in his case acted with a discriminatory purpose. See McCleskey v. Kemp, 481 U.S. 279, 292 (1987). Here, he alleges only that two other inmates previously had their Code 108 violations for possessing a cell phone eventually reduced to lesser charges. See Rhodes v. Robinson, 612 F.2d 766, 775 (3d Cir. Pa. 1979) (explaining that “[b]ecause the punishment handed down in any case of prisoner misconduct is determined on the basis of the facts of the particular case, the equal protection clause cannot require exact uniformity in degrees of punishment”). For the foregoing reasons, we will grant Appellee’s motion and summarily affirm the order of the District Court. 5 

29 Cal.3d 574 (1981) 629 P.2d 502 174 Cal. Rptr. 701 ANTONIO MICHAEL MARTINEZ, Petitioner, v. THE SUPERIOR COURT OF PLACER COUNTY, Respondent; THE PEOPLE, Real Party in Interest. Docket No. S.F. 24226. Supreme Court of California. June 18, 1981. *576 COUNSEL Blackmon, Wasserman & Blicker and Clyde M. Blackmon for Petitioner. Quin Denvir, State Public Defender, as Amicus Curiae on behalf of Petitioner. No appearance for Respondent. George Deukmejian, Attorney General, Robert H. Philibosian, Chief Assistant Attorney General, Arnold O. Overoye, Assistant Attorney General, Edmund D. McMurray and Willard F. Jones, Deputy Attorneys General, for Real Party in Interest. OPINION TOBRINER, J. In this proceeding we must determine whether petitioner Antonio Martinez should be granted a change of venue for trial *577 on charges pending against him in Placer County. Denying the motion, the trial court ruled against the sought change of venue. Our independent evaluation of the record, however, discloses a reasonable likelihood that a fair and impartial trial cannot be conducted in Placer County. We explain, therefore, why we have concluded that the venue should be changed. Petitioner Martinez is charged by information with one count of murder (Pen. Code, § 187), three counts of robbery (§ 211), and one count of attempted robbery (§§ 664, 211). The People set forth special circumstances on the murder count (former § 190.2, subd. (c)(3)(i)) and, with respect to the robbery counts, allege use of weapons under sections 12022 and 12022.5. The prosecution initially charged Allen Davis as a codefendant; his case was severed for separate trial in June 1979; he was acquitted on August 30, 1979. On September 28, 1979, petitioner moved for change of venue for his trial, then scheduled for November 13, 1979, on grounds that, because of pretrial publicity concerning the charges against him, he could not obtain a fair and impartial trial in Placer County. After denial of the motion, Martinez filed a petition for writ of mandate seeking to compel the trial court to grant a change of venue. An alternative writ has issued and trial has been stayed pending resolution of this matter. (1) A pretrial writ of mandate is an appropriate remedy to compel a change of venue. (Frazier v. Superior Court (1971) 5 Cal.3d 287 [95 Cal. Rptr. 798, 486 P.2d 694]; Fain v. Superior Court (1970) 2 Cal.3d 46 [84 Cal. Rptr. 135, 465 P.2d 23]; Maine v. Superior Court (1968) 68 Cal.2d 375, 378-379 [66 Cal. Rptr. 724, 438 P.2d 372].) On a pretrial writ, as on appeal from judgment of conviction, the appellate court must make an independent evaluation of the circumstances surrounding a defendant's claim for change of venue and must satisfy itself de novo that a fair trial is or was obtainable in the county of original venue. (People v. Harris (1981) 28 Cal.3d 935, 948 [171 Cal. Rptr. 679, 623 P.2d 240]; People v. Welch (1972) 8 Cal.3d 106, 113 [104 Cal. Rptr. 217, 501 P.2d 225]; Frazier v. Superior Court, supra, 5 Cal.3d at p. 293; People v. Tidwell (1970) 3 Cal.3d 62, 69 [89 Cal. Rptr. 44, 473 P.2d 748]; Maine v. Superior Court, supra, 68 Cal.2d at p. 382.) (2) The standard to guide the reviewing court finds expression in Maine: "`A motion for change of venue or continuance shall be granted whenever it is determined that because of the dissemination of potentially prejudicial material, there is a reasonable likelihood that in the absence *578 of such relief, a fair trial cannot be had.... A showing of actual prejudice shall not be required.'" (68 Cal.2d at p. 383.) The phrase "reasonable likelihood" denotes a lesser standard of proof than "more probable than not." (Frazier, supra, 5 Cal.3d at p. 294.) Further, when the issue is raised before trial, any doubt as to the necessity of removal to another county should be resolved in favor of a venue change. (Fain, supra, 2 Cal.3d at p. 54; Maine, supra, 68 Cal.2d at pp. 387-388; Corona v. Superior Court (1972) 24 Cal. App.3d 872, 875 [101 Cal. Rptr. 411].) With these general principles in mind, we examine the record in this case and attempt to isolate the factors which, in Maine and the cases that followed, have been considered criteria of the potential for prejudice from pretrial publicity. Factors to be considered include the extent and kind of the publicity as well as the size of the community in which the crime occurred. The nature and gravity of the crime serves as an important factor. We also consider the standing of the victim and the accused in the community. (Maine, supra, 68 Cal.2d at p. 385; Frazier, supra, 5 Cal.3d at p. 293; Fain, supra, 2 Cal.3d at pp. 51-52.) (3a) Our analysis convinces us that the controlling factors in the instant case which compel a change of venue are (1) the extensive publicity over a period of a year prior to the venue motion, especially the publicity attendant on the trial of the alleged accomplice Davis, (2) the size of Placer County, and (3) the nature of the crime, involving the gravest possible consequences to the accused. We find also significant, but less important and not controlling here, the status of the victim and the accused in the community. 1. The nature and extent of publicity evidences community bias and poses a danger to a fair trial. The charges against petitioner stem from an attempted robbery of the Owl Club Bar in Roseville on the evening of July 14, 1978, and the robbery of the Onyx Club, also in Roseville, on the morning of July 15, 1978. During the Onyx Club robbery, George Robert Alves was shot and killed. For more than a year before petitioner moved to change venue, three local newspapers (the Auburn Journal, Press-Tribune, and Sacramento *579 Bee) covered petitioner's pending trial.[1] Commencing with front page pictures of petitioner and Davis in chains shortly after their arrest, the press followed the legal maneuverings that attend capital cases and, in almost daily articles, followed the testimony and developments in the trial of codefendant Davis. Petitioner submits 97 newspaper articles to support his motion for change of venue. The press gave substantial coverage to the fact that the accused forced the patrons to lie face down on the floor during the robbery and shot the victim at close range in the back, reportedly because the killer mistook him for a police officer. Of the 13 articles which dealt directly with the death penalty aspects of the case, 10 mentioned the death penalty in the headlines; 3 articles dealt with the dismissal of the special circumstances against Davis and bore headlines indicating that petitioner was still charged with a capital offense. One headline, in the Auburn Journal, proclaimed "DEATH PENALTY OK IN ONYX KILLING," arguably implying that the law approves imposition of that penalty on the person who killed Alves. The media also devoted extensive coverage to the proceedings involving codefendant Davis. The press reported the prosecutor's theory that the Onyx Club robbers were narcotic addicts seeking money to buy heroin. Davis defended by presenting an alibi and contending that the petitioner and Raul Hernandez, a prosecution witness testifying under a grant of immunity, robbed the Onyx Club. Some of the articles contained information potentially prejudicial to an impartial determination of petitioner's guilt or innocence. In reporting on the prosecutor's opening statement in the Davis trial, the Press-Tribune said, "[p]rosecutors believe he [Martinez] killed Alves." When the trial court ruled that Davis could not be charged with special circumstances, the Auburn Journal reported that the allegation was dismissed "because he didn't fire the gun which killed George Robert Alves in a Roseville bar." In one article a deputy district attorney is quoted as saying: "We will amend the special circumstances allegation to fit our charges of Martinez being the gunman and Davis being the *580 aider to and abettor to the murder." The Sacramento Bee headlined "MURDER WITNESS INVOKES FIFTH AMENDMENT," reporting that Hernandez had admitted being petitioner's crime partner in other robberies and that he helped dispose of the weapon used in the Onyx Club killing. The net effect of the coverage was to suggest to the persons who were potential jurors in the trial of his case the probability that petitioner was the actual killer. Petitioner also directs our attention to the newspaper articles which report the conflicts which have surfaced in the community because of the prosecutor's inability to secure a conviction in the Davis and other cases. After noting the lack of staff in the district attorney's office, the chief of police stated: "The prosecution doesn't have the luxury of an outside defense attorney who can hire his own investigator." In the same article the sheriff and district attorney are quoted as deploring their inability to put all the evidence before the jury: "If the jury had been able to hear and see all the evidence we had, it probably would have voted differently." Petitioner urges that statements of this nature will have the effect of leading people to believe that the problems in the prosecution's cases resulted from the lack of staff and the exclusion of evidence because of technicalities and not from the defective proof which might have indicated a defendant's innocence. The Attorney General contends, however, that the articles do not cast light on petitioner "in an inflammatory or sensational manner" nor evidence any form of hostility toward him. Even if true, these observations do not control. "A reasonable likelihood of unfairness may exist even though the news coverage was neither inflammatory nor productive of overt hostility. [Citation.] When a spectacular crime has aroused community attention and a suspect has been arrested, the possibility of an unfair trial may originate in widespread publicity describing facts, statements and circumstances which tend to create a belief in his guilt." (Corona, supra, 24 Cal. App.3d at p. 877.) "[I]t is significant here that in Maine press coverage was neither inflammatory nor particularly productive of overt hostility." (Tidwell, supra, 3 Cal.3d at p. 70.) Similarly, venue was changed in Steffen v. Municipal Court (1978) 80 Cal. App.3d 623 [145 Cal. Rptr. 782], in which defendants were charged with solicitation of an act of prostitution, although the coverage "has not been inflammatory or particularly hostile, nor has it, in any sense, involved petitioners by name." (Id., at p. 626.) *581 Thus, the fact that we do not face here an extreme example of an inflammatory and hostile press, such as that described in Frazier, supra, 5 Cal.3d 287, or, more recently in People v. Harris, supra, 28 Cal.3d 935, does not negate the adverse effect of the publicity involving petitioner nor obviate our consideration of that factor in our ultimate resolution of the venue issue. Indeed, the fact that the prosecution sought the death penalty gave the case pre-eminence in the media. The element of sensationalism, always present in reporting of events concerning a capital case, became all the more pronounced in the instant case by the "preview" of the events that unfolded in the trial of codefendant Davis. Much of the information presented to the public in the daily media coverage of the Davis trial, as outlined above, caused extreme prejudice to petitioner. "The goal of a fair trial in the locality of the crime is practically unattainable when the jury panel has been bathed in streams of circumstantial incrimination flowing from the news media." (Corona, supra, 24 Cal. App.3d at p. 878.) In this case, not only did the alleged crime partners point the finger at petitioner, but presumably knowledgeable officials also made statements indicating their belief in petitioner's guilt. We conclude, therefore, that the nature and extent of the publicity is a factor which in this case weighs in favor of a change of venue. 2. Although not alone determinative, the size of the population of Placer County weighs in favor of a change of venue. To evaluate the impact of the press coverage we must also consider the size of the community from which the jury panel will be selected. In a small town, in contrast to a large metropolitan area, a major crime is likely to be embedded in the public consciousness with greater effect and for a longer time. (Maine, supra, 68 Cal.2d at p. 387.) Thus, when, despite extensive and even sensational coverage, a trial is scheduled in a populous urban area (Harris, supra, 28 Cal.3d at p. 949; People v. Manson (1976) 61 Cal. App.3d 102, 189 [132 Cal. Rptr. 265]) the courts have denied petitions for change of venue. On the other hand, when trial is scheduled in a small rural community, even though the publicity is not inflammatory and not hostile toward the defendant, the courts have granted such a change. (Corona, supra, 24 Cal. App.3d at p. 877.) In Fain, supra, 2 Cal.3d at page 52, we determined that Stanislaus County, with a population of 184,600, was too small to dissipate the effects *582 of extensive pretrial publicity. In Frazier, supra, 5 Cal.3d 287, we rendered the same finding with respect to Santa Cruz County which had a population of 123,700. And in Steffen v. Municipal Court, supra, 80 Cal. App.3d 623, the court ordered a change of venue from San Mateo County, the 11th most populous county in the state with almost 600,000 residents. Placer County, with a population of 106,500, counts a lesser population than any of the counties described above; it is the 29th in population size of the 58 counties of California. While size of community does not in itself resolve the venue issue, it clearly composes an important factor which in the present case weighs toward the necessity of a change of venue. 3. The nature and gravity of the offense, capital murder, is a primary consideration in requiring a change of venue. The peculiar facts or aspects of a crime which make it sensational, or otherwise bring it to the consciousness of the community, define its "nature"; the term "gravity" of a crime refers to its seriousness in the law and to the possible consequences to an accused in the event of a guilty verdict. The Attorney General contends this case does not qualify for either category; he characterizes petitioner as a person "of no particular status," accused of murder in a "nondescript" Roseville bar holdup. This characterization ignores publicity given to the fact that the victim was shot in the back, while lying on the floor, because the killer mistakenly thought him to be a police officer. Indeed, one newspaper article referred to the tavern as the "scene of a cold-blooded killing." Petitioner suggests that the coverage had the effect of portraying him and Davis as "cold-blooded" killers. Another potential effect of coverage stressing the shooting in the back of one believed to be a policeman is to create the impression of an "execution-style" murder of the worst sort. The Attorney General argues that the nature of the charged offense does not compare to the bizarre, heinous, and often multiple, killings for which in other cases change of venue has been granted. Under the mandate of Maine, however, we must approach each case on an individual basis; each factor is worthy of consideration even if "isolated and alone" it would not compel a change of venue. (68 Cal.2d at p. 388.) *583 The seriousness of the charged crime stands out clearly. Murder is a crime of utmost gravity; inasmuch as the state is seeking the death penalty, it is a crime of the gravest consequences to petitioner. Because it carries such grave consequences, a death penalty case inherently attracts press coverage; in such a case the factor of gravity must weigh heavily in a determination regarding the change of venue. The Attorney General intimates that a change of venue in the instant case would require that venue be changed in every murder case. A significant circumstance that distinguishes petitioner's case from other murder cases, however, lies in the publicity which attended the trial of his codefendant, including police statements that the orders of the court in that case prevented the prosecution from presenting its whole case to the jury. The press reported the fact that codefendant Davis based his defense on alibi and claimed that the petitioner and Hernandez committed the robbery. Hernandez likewise pointed the finger at petitioner and, until Hernandez refused to testify further, his testimony received widespread publicity. In Fain, supra, 2 Cal.3d 46, this court discussed the potential for prejudice fomented by a second trial; in that case, a prosecution for murder and other crimes, we granted a change of venue prior to retrial of the penalty phase. Although guilt was no longer in issue, the issue of life or death remained, and an impartial jury was equally, if not more, crucial at that stage of the proceedings. We concluded that, because the community had already been exposed to massive publicity in the trial, appeal, and reversal of penalty, "it would be difficult to find many local residents who have not been influenced by it in some degree." (Id., at p. 52.) The State Public Defender, appearing as amicus, contends that the difference between death penalty cases and those incurring lesser punishments presents a point so significant that a special rule should apply. He proposes that in any capital case in which there has been extensive publicity, a presumption should arise in favor of a requested venue change. "A rebuttable presumption of this nature would give proper weight to the fact that `death is different,' as is the role of the jury in a capital case, yet allow the prosecution the opportunity to shoulder the burden of showing that a change of venue is unnecessary to protect the defendant's right to a fair trial." *584 We see no need at this time for so drastic a change in the procedural rules for change of venue, and we formulate no special rules for capital cases. First, the matter is more appropriately directed to the Legislature. Second, the existing rule that all doubts should be resolved in favor of a change of venue when ruling on a pretrial motion for change of venue provides both the trial and the appellate court with sufficient flexibility, after consideration of all the evidence, to insure a fair trial in any death penalty case that has been given extensive publicity. 4. (4) The status of the victim and the accused in the community are significant but not controlling factors in assessing the necessity for change of venue. The victim's status in the community counts as a factor in assessing the risks of prejudice arising from a trial in the community. (Maine, supra, 68 Cal.2d at p. 385.) In some cases, we have noted that the victim was well known or well liked, or both, in the community, in contrast to the fact the defendant was a stranger to the community. (Maine, supra, 68 Cal.2d at p. 385 ["popular teenage couple"]; Fain, supra, 2 Cal.3d at p. 9 ["popular athlete"]; Frazier, supra, 5 Cal.3d 287 ["prominent surgeon and family"].) On the other hand, the victims in Corona, supra, were "anonymous transients" (24 Cal. App.3d at p. 877). (3b) Although the trial court correctly stated that the victim was "no public figure," his status nonetheless appears to be significant. At the time of the murder, he was employed as a brakeman for the largest single employer in Roseville, Southern Pacific Railroad; virtually every newspaper article described him as a Southern Pacific brakeman. The victim's prominence in the public eye thus derives from the status of his employer, and that factor undoubtedly engendered community sympathy. On the other hand, the press described petitioner in terms unlikely to evoke the sympathy or concern of the community. The newspapers repeatedly referred to the fact that when arrested petitioner had been confined in the state rehabilitation center for drug abuse because of parole violation. The district attorney's opening statement in the Davis trial, which was widely reported, claimed that a conspiracy to obtain funds for buying heroin set the scene for the robbery and murder. A witness testifying for the prosecution under immunity reportedly also stated that defendants had planned the robbery in order to obtain money to buy heroin. Petitioner, a member of a minority group and an *585 alleged heroin addict, "friendless in the community," represents exactly the type of defendant whom pretrial publicity can most effectively prejudice. (Maine, supra, 68 Cal.2d at p. 388.) 5. Conclusion. Based upon the record and our evaluation of it in terms of the factors outlined above, we conclude that there is a reasonable likelihood that petitioner will not receive a fair and impartial trial in Placer County. No one factor controls our determination that a change of venue is appropriate here; rather we weigh all of the factors and, mindful of our duty, resolve all doubts in favor of petitioner. The publicity, although not as sensational and inflammatory as in some cases in which venue has been changed, did not abate for any period in the year prior to the scheduled trial. It was especially persistent and pervasive during the Davis trial, at which time the media reported testimony and statements which painted petitioner as the killer, tending to create a belief in his guilt. Further, the publicity pervaded a community of a size which undoubtedly experiences major crimes less frequently than does an urban community. The publicity therefore works a greater impact and, we can assume, remains the focus of attention and concern for a longer period of time than in a larger community. Here the press described the murder as a "cold-blooded" killing, and its perpetrator as an indiscriminate "cop" killer. Such characterizations can easily become embedded in the consciousness of the community, especially a small one. In addition, the situation is exacerbated by the status of petitioner, who is a heroin addict. Finally, but most significant in our view, is the gravity of the crime that is charged and its consequences to petitioner. We believe that, when a defendant's life is at stake, the rule that all doubts be resolved in favor of venue change, takes on particular significance. Neither an accused whose life hangs in balance nor the authorities charged with enforcing and administering the law should be required to face the possibility of a second trial when, as here, we face acute dangers to an impartial trial and when we can avoid them by the simple expedient of a change of venue. Let a peremptory writ of mandate issue directing the Superior Court of Placer County to grant the motion for change of venue, hold a hearing *586 to determine a place where a fair and impartial trial can be had, and transfer the cause to that place. Bird, C.J., Newman, J., Rattigan, J.,[*] and Hanson (P.D.), J.,[*] concurred. RICHARDSON, J. I respectfully dissent, believing that Placer County can afford a fair trial to petitioner. Generally, a change of venue is granted when the defendant demonstrates a reasonable likelihood that in the absence of such relief, such an impartial trial cannot be had. (People v. Welch (1972) 8 Cal.3d 106, 113 [104 Cal. Rptr. 217, 501 P.2d 225]; Frazier v. Superior Court (1971) 5 Cal.3d 287, 294 [95 Cal. Rptr. 798, 486 P.2d 694]; Maine v. Superior Court (1968) 68 Cal.2d 375, 383 [66 Cal. Rptr. 724, 438 P.2d 372].) It is our duty to make an independent evaluation of the record and to satisfy ourselves de novo that the defendant can obtain a fair and impartial trial, considering the nature and gravity of the offense, the size of the community, the status of the defendant in the community, the popularity and prominence of the victim, and the nature and extent of the news coverage. (People v. Salas (1972) 7 Cal.3d 812, 818 [103 Cal. Rptr. 431, 500 P.2d 7, 58 A.L.R.3d 832].) Considering carefully all of these pertinent factors, I conclude that petitioner has failed to establish a reasonable likelihood that he will not be able to obtain an unbiased jury in Placer County. The charged homicide was, allegedly, a drug-related shooting incident to a robbery at a bar. Although murder is a crime of the utmost gravity, this particular offense was neither sensational in nature nor did it arouse the same sense of community shock or indignation generally associated with cases in which change of venue has been granted. (See, e.g., Frazier v. Superior Court, supra, 5 Cal.3d 287; People v. Tidwell (1970) 3 Cal.3d 62 [89 Cal. Rptr. 44, 473 P.2d 748]; Maine v. Superior Court, supra, 68 Cal.2d 375; Corona v. Superior Court (1972) 24 Cal. App.3d 872 [101 Cal. Rptr. 411] [involving bizarre, sensational, and multiple victim murder cases].) It differed little from the all too numerous killings routinely occurring in California, 2,941 in 1979. (Cal. Dept. of Justice, Crim. Justice Profile (1979) p. 22.) *587 Secondly, Placer County is neither so small nor unsophisticated as to render unlikely the selection of an unprejudiced jury from its populace. Connected by California's major freeways, this highly mobile community stretches from the Sacramento metropolitan area (population approaching 1 million) to the Nevada state line. It is served by numerous television and radio stations, and several newspapers. With a population in excess of 109,000, Placer County is the home of industry, agriculture, and popular resort areas. Many of its people, while living in Placer County, work in the Capital of California, commuting daily. Its industries include electronics, a major railroad, fruit, lumber product manufacturers and resort activities. Its people are neither parochial nor xenophobic but both informed and representative. Far from being remote or isolated, it is traversed by U.S. Highway 80, one of the nation's busiest transcontinental highways. It may be accurately described as very much in the mainstream of modern California life. There are no particular facets of either the defendant or victim which are likely to generate community antipathy towards the defendant or sympathy towards the victim. The defendant's status as a Mexican-American does not make him the object of any community hatred nor is he a member of any unpopular subculture. (Cf. Frazier, supra, at p. 295.) Placer County is a community of many ethnic groups, including Japanese, Chinese, blacks, American Indians, and Filipinos. I find significance in the fact that petitioner's codefendant, who was acquitted by a panel of Placer County jurors, was of Indian and Mexican descent, and in the absence of any showing of anti-Hispanic prejudice, there is no reason to believe that petitioner's minority status would prohibit his receiving a fair trial in Placer County. Additionally, as in People v. Hathcock (1973) 8 Cal.3d 599, 620 [105 Cal. Rptr. 540, 504 P.2d 476], in which we upheld denial of a change of venue, petitioner is no stranger or newcomer to the county and thus no additional prejudice is engendered. The victim, on the other hand, was a stranger, a nonresident transient worker with no particular prominence in Placer County. His fate drew no particular expressions of broad public sympathy or community antipathy towards petitioner, in marked contrast to the victims in Maine, Frazier or Tidwell. For example, in Maine the victims were described as "prominent" and "a popular teenage couple from respected families in the area." (68 Cal.2d at pp. 388, 385); in Frazier, the victims were "prominent local citizens" (5 Cal.3d at p. 293); in Tidwell the victims were described as "well known members of the community," and it was *588 noted that the husband was a member of one of the oldest families in the valley and the brother-in-law of the sheriff, while his wife worked in a local drugstore and was known to many members of the community (3 Cal.3d at p. 65). In the case before us, as in other cases in which a change of venue has been found unnecessary, there was nothing about the victim that was likely to engender marked community feeling for the victim or against his accused assailants. (Hathcock, supra, at p. 620; People v. Sommerhalder (1973) 9 Cal.3d 290, 304 [107 Cal. Rptr. 289, 508 P.2d 289].) The majority stresses that the victim was employed as a Southern Pacific Railroad Company brakeman, noting that the railroad is the largest employer in Roseville. However, jurors will be summoned from throughout the entire county's population, of which Southern Pacific employs less than 2 percent. It is hardly likely that the county would see this case as the murder of "one of us." In my view, any sharpened loyalties or sympathy generated by the victim's employment may be appropriately identified and challenged on voir dire. Finally, the pretrial publicity in this case fails to disclose that petitioner will be unable to obtain a fair and impartial trial. The news articles and releases were no different in degree or intensity than the usual reporting of any homicide of this type. (People v. Carter (1961) 56 Cal.2d 549, 572 [15 Cal. Rptr. 645, 364 P.2d 477]; People v. Mendes (1950) 35 Cal.2d 537, 542 [219 P.2d 1].) Maine focused primarily upon "prejudicial newspaper publicity which either caused or reflected widespread hostility to the defendant in the community," suggesting that in determining whether a reasonable likelihood of prejudice exists in a particular case, the court must consider the "extent of the hostility engendered toward a defendant." (Maine, supra, at pp. 382, 388.) As acknowledged by the majority, the extent and nature of the news coverage was neither highly sensational nor inflammatory. The absence of any hostility in the press accounts before us stands in sharp contrast with the adverse publicity and public sentiments expressed in the Corona and Frazier cases in which changes of venue were ordered. Many of the news articles emphasized by petitioner involve totally unrelated cases, and others only vaguely refer to the charged offense before us. Those that report on petitioner's case are, for the most part, accurate factual accounts of the preliminary proceedings which would not attract unusual interest in this case. Only one article describes the *589 bar as the "scene of a cold-blooded killing." In my view, any potentially prejudicial impact of this one article is hardly determinative. Similarly, the fact that the case is one which may invoke the death penalty does not, standing alone, constitute sufficient reason for a change of venue. Several articles describing the district attorney's lack of an adequate budget and staffing, have, of course, statewide implications and any remote influence these facts might have upon prospective jurors would exist in any venue in the state. As noted, petitioner's codefendant was tried in Placer County, and acquitted with an alibi defense. The pretrial publicity in that case presented no difficulty in the selection of impartial jurors. These jurors demonstrated no difficulty overcoming any prejudice arising from the "execution-type" murder charged against a minority defendant. Petitioner has also asserted an alibi defense, and the fact that his codefendant was acquitted and pointed the finger at petitioner does not, in my view, itself constitute such additional pretrial prejudice as would outweigh the demonstrated impartiality of Placer County jurors in acquitting that codefendant. I also find significance in the fact that nearly three years have passed since the offense, and it is reasonable to believe that any pretrial publicity will have subsided by the time of petitioner's trial. It is a sad fact that in the interim period many other homicides have been committed. In this connection, the Placer County District Attorney's office conducted a study of potential jurors (see People v. Martinez (1978) 82 Cal. App.3d 1 [147 Cal. Rptr. 208]), which study concluded that 89 percent of those interviewed failed to recognize the name of the case. Over half of those failed to recall having either read or heard about the case when it was described to them; less than 5 percent had formed any opinion of guilt or innocence; and 85 percent believed they could decide the case solely on evidence presented in the courtroom. I thus conclude on the record before us that it is probable that petitioner would be able on voir dire to select a panel of unbiased jurors from prospective jurors drawn in Placer County. In Hovey v. Superior Court (1980) 28 Cal.3d 1 [168 Cal. Rptr. 128, 616 P.2d 1301], we adopted a special procedure for capital cases (individualized voir dire) to achieve the very goal we seek to advance here — a fair and impartial jury. The assertions of the majority as to the potential prejudice of pretrial publicity in this particular case are, at *590 this point, purely speculative, properly tested on voir dire. If the trial court on voir dire becomes persuaded that an impartial jury cannot be obtained a motion for change of venue can then be entertained and granted. The record before us reflects that the charged offense was not so spectacular or bizarre as to have aroused the attention of the community; the defendant is relatively obscure; the victim lacked prominence; the community from which the jury will be drawn is of average size; the pretrial publicity was neither sensational nor inflammatory; and there has been a very substantial time lapse. These factors in combination persuade me that the motion for change of venue should be denied at this point. The record does not suggest any reasonable likelihood that Placer County cannot give defendant a trial that is as impartial and fair as any trial that he would receive in any other county in the state. I would retain the cause in Placer County until that inability became reasonably demonstrable. Mosk, J., concurred. The petition of real party in interest for a rehearing was denied July 15, 1981. Rattigan, J.,[*] and Hanson (P.D.), J.,[*] participated therein. Mosk, J., and Richardson, J., were of the opinion that the petition should be granted. NOTES [1] The three newspapers have a combined daily circulation in the county of 36,463, roughly equivalent to one-third of the county's population. Based upon calculations of the voting population and the newspaper circulation, at least one-half of the potential jurors in the county have been exposed to the press coverage of petitioner's case. [*] Assigned by the Chairperson of the Judicial Council.

IN THE COURT OF CRIMINAL APPEALS OF TEXAS NO. PD-0038-14 CHRISTOPHER ADRIAN MILLER, Appellant v. THE STATE OF TEXAS ON STATE’S PETITION FOR DISCRETIONARY REVIEW FROM THE SECOND COURT OF APPEALS TARRANT COUNTY M EYERS, J., filed a dissenting opinion. DISSENTING OPINION The majority states that “strict application of the corpus delicti rule is unnecessary” when the multiple crimes confessed to “are sufficiently proximate that the underlying policy reason for the rule is not violated.” Really? Just two months ago, this same majority was called upon in Butcher v. State, No. PD-1662-13, 2015 Tex. Crim. App. LEXIS 39 (Tex. Crim. App. Jan. 28, 2015), to look at the “underlying policy reason” of the safe release provision of the kidnapping statute. There, however, the majority was quick to avoid any  Miller dissent - Page 2 resolution of that particular question and dispatched with any attempt to apply the legislature’s actual intent with the provision, to promote the safe release of kidnapping victims. There is no valid reason to erode the corpus delicti rule here and now. It has been a tenet of our state’s judicial system and still serves the important purpose of protecting those who, for any number of reasons, may give a false confession. While changing the rule in the way the majority does might be an attractive solution in this case, I believe it largely removes the protection that the rule was meant to ensure.1 Unfortunately, just as they have done in the past, the majority is retroactively applying their new doctrine in Appellant’s case.2 I disagree with the majority’s altering of the corpus delicti rule and, therefore, I respectfully dissent. Meyers, J. Filed: April 15, 2015 Publish 1 The facts of this case and the nature of the crimes make loosening the corpus delicti rule particularly appealing here. However, in the big picture, we should not erode a rule that provides so important a protection. I believe that doing so will result in exactly what the rule is supposed to guard against–the conviction of innocent individuals. 2 For example, in Proctor v. State, 967 S.W.2d 840, 844 (Tex. Crim. App. 1998), this court held, for the first time, that the statute of limitations is a rule that must be implemented only upon the request of the defendant, rather than an absolute requirement for the State to prove in every prosecution. The court had no problem applying that rule to the appellants’ cases retroactively. Id. at 845. 

UNITED STATES COURT OF APPEALS FIFTH CIRCUIT _______________ No. 95-40551 (Summary Calendar) _______________ ARTHUR W CARSON, Plaintiff-Appellant, versus OLGA A PERRY; TDC INMATE TRUST FUND, Defendants-Appellees. _______________________________________________ Appeal from the United States District Court For the Eastern District of Texas 6:92-CV-506 _______________________________________________ June 6, 1996 Before HIGGINBOTHAM, DUHÉ, and EMILIO M. GARZA, Circuit Judges. PER CURIAM:* Arthur W. Carson appeals the district court's grant of the defendants' motion for summary judgment in Carson's 42 U.S.C. § 1983 action regarding the withdrawal of funds from his prison trust fund account.1 We affirm the judgment of the district court. * Pursuant to Local Rule 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 Local Rule 47.5.4. 1 Carson alleged in his suit that his constitutional rights were violated based on errors that occurred involving his prison trust fund account. The district court granted the defendants' motion for summary judgment because the court found that Carson did not experience any monetary loss as a result of  We review a district court's grant of summary judgment de novo applying the same standard as the district court. Resolution Trust Corp. v. Camp, 965 F.2d 25, 28 (5th Cir. 1992). Summary judgment is appropriate if there is no dispute as to a material fact, and the moving party is entitled to judgment as a matter of law. FED. R. CIV. P. 56(c). When a party moves for summary judgment, the nonmoving party must either submit facts to establish that the moving party's allegations are questionable, or demonstrate that the allegations are not properly supported. Camp, 965 F.2d at 29. Carson pursues the later course by arguing that the affidavit which accompanied the defendants' motion was insufficient summary judgment evidence. Specifically, Carson contends that the affidavit contained hearsay, was prepared in anticipation of litigation, and was not based on the affiant's personal knowledge. FED. R. CIV. P. 56(e) provides that "affidavits shall be made on personal knowledge, shall set forth such facts as would be admissible in evidence, and shall show affirmatively that the affiant is competent to testify to the matters stated therein." We have held that an affidavit can adequately support a motion for summary judgment when the affiant's personal knowledge is based on a review of her employer's business records and the affiant's position with the employer renders her competent to testify on the particular issue which the affidavit concerns. See F.D.I.C. v. these errors. -2- Selaiden Builders, Inc., 973 F.2d 1249, 1254-55 n.12 (5th Cir. 1992) (lawsuit involving promissory notes), cert. denied, 507 U.S. 1051, 113 S. Ct. 1944, 123 L. Ed. 2d 650 (1993); Camp, 965 F.2d at 29 (same). We will be particularly reluctant to reverse a summary judgment based on such an affidavit when there is no reason for the court to doubt the veracity of the affiant's testimony. See Camp, 965 F.2d at 29 (stating that the court "would not hesitate to reverse summary judgment had Appellants pointed to evidence in the record to the effect that they had a legitimate fear" that the affiant's testimony concerning a promissory note was untrue). We see no reason not to apply this pragmatic approach to this case. The defendants' motion for summary judgment was supported by an affidavit from John Michael Turner. Turner testifies in his affidavit that as the Assistant Director for Local Funds at the Texas Department of Criminal Justice, Institutional Division ("TDCJ-ID"), he is charged with the supervision of the Education and Recreation Accounting Department and Inmate Trust Fund of TDCJ- ID. Turner further states that he is the custodian of the inmate trust fund records, which are maintained in the regular course of business on each inmate incarcerated in the TDCJ-ID. Based on his review of Carson's inmate trust fund records for the disputed time period, Turner then details the series of transactions that occurred involving Carson's account. Turner explains in the affidavit that although the TDCJ-ID's accounting system is -3- confusing and errors did occur with Carson's account, the errors were corrected and Carson did not experience any monetary loss. Given Turner's position as the custodian of the inmate trust fund records at TDCJ-ID and his carefully detailed account of the transactions involving Carson's account, we find that Turner's affidavit was adequate support for the defendants' motion for summary judgment. Furthermore, we note that there is no reason to doubt the accuracy of Turner's affidavit because Carson's trust fund account records were on file with the court and were considered by the district court when it ruled on the defendants' motion for summary judgment.2 For the foregoing reasons, the judgment of the district court is AFFIRMED. 2 Carson also contends that the district court erred by denying his motion for a continuance to obtain discovery to oppose the defendants' summary judgment motion. Carson argues that he needed documents that were introduced at an earlier hearing to demonstrate that the defendants' allegations in the motion for summary judgment were false. We have reviewed the record and conclude that the district court acted within its sound discretion in denying Carson's motion. See Liquid Drill, Inc. v. U.S. Turnkey Exploration, Inc., 48 F.3d 927, 930 (5th Cir. 1995) (stating standard as abuse of discretion). -4- 

757 N.W.2d 484 (2008) PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Tara N. GIVENS, Defendant-Appellant. Docket No. 136816. COA No. 278600. Supreme Court of Michigan. November 25, 2008. Order On order of the Court, on receipt of notice that the defendant died during the pendency of the appeal, the Court, on its own motion, dismisses the application for leave to appeal as moot.

In The Court of Appeals Ninth District of Texas at Beaumont ____________________ NO. 09-01-073 CV ____________________ In the Interest of N.V.D., a child On Appeal from the 410th District Court Montgomery County, Texas Trial Cause No. 99-09-05519-CV OPINION Tammy Lynn Dougherty appeals the jury verdict terminating her parental rights with her son, N.V.D. The Texas Department of Protective and Regulatory Services ("Department") initiated the suit shortly after N.V.D.'s first birthday, after the child was diagnosed with failure to thrive and hospitalized for pneumonia and dehydration. Dougherty presents three issues in her appeal. In issue one Dougherty complains that the trial court failed to conduct a permanency review hearing and sign a permanency review order within statutory guidelines. The trial court timely extended the dismissal date from September 18, 2000, to March 11, 2001. See Act of May 31, 1997, 75th Leg., R.S., ch. 1022, § 90, 1997 Tex. Gen. Laws 3733, 3768 (amended 2001) (current version at Tex. Fam. Code Ann. § 263.401 (Vernon 2002)). Dougherty does not challenge the trial court's jurisdiction, but argues that she was harmed by the trial court's failure to conduct a subsequent permanency review hearing within 120 days of the previous permanency review hearing. The initial permanency hearing must be conducted within 180 days of the date the trial court renders a temporary order appointing the Department as temporary managing conservator of the child. See Tex. Fam. Code Ann. § 263.304(a) (Vernon 2002). The initial permanency review hearing was timely held on January 24, 2000. A subsequent permanency hearing must be held no later than the 120th day after the date of the last permanency review hearing. Tex. Fam. Code Ann. § 263.305 (Vernon 2002). The trial court timely conducted the April 24, 2000, permanency review. The Department concedes that the November 30, 2000, subsequent permanency hearing was not timely conducted. The delay is attributable to the fact that the appellant obtained a continuance of the July 24, 2000, trial setting, over the Department's objection. At the July 10, 2000, hearing on the motion for continuance, Dougherty's counsel advised the trial court that her client had originally intended to relinquish her rights, but had gone away for a few months and experienced a change of heart, so that counsel needed additional time to obtain another home study. The trial court conducted a pre-trial hearing on August 21, 2000, but did not conduct a permanency review hearing at that time. There is nothing in the record to indicate that trial counsel requested a permanency review hearing at this time. The trial court's docket sheet indicates that a September 7, 2000, trial setting was also continued on the motion of the respondent. Dougherty raised the failure to conduct a permanency review hearing for the first time in a motion for summary judgment filed November 8, 2000. At a November 20, 2000, hearing, the Department's counsel advised the court that the Department had conducted permanency planning team meetings with the foster family and any interested members of the child's family. The trial court conducted a permanency review hearing on November 30, 2000, and denied the motion for summary judgment on December 7, 2000. Dougherty argues that the trial court's inaction deprived her of the opportunity to work toward reunification. According to the appellant, the trial court doubled the frequency of the visits after the November 30, 2000, hearing. Had the extra visits commenced in August, she reasons, the evidence from those visits "would have made a significant difference in a jury finding." Because it did so in November, Dougherty assumes that the trial court would have ordered home visits in August. This conclusion is far too speculative, considering that Dougherty had disappeared for several months, did not exercise her visitation rights between November 17, 1999, and June 23, 2000, and at the November 30, 2000, hearing, Dougherty's counsel was still trying to obtain an amended home study that would alter the previous recommendation against permitting N.V.D. to return to the Dougherty household. The appellant assumes the quality of evidence gleaned from three extra months of contact would have improved her chances of convincing the jury that she was capable of parenting, but she does not specify what additional evidence would have been developed had the home visits commenced on an earlier date. As it was, Dougherty was not deprived of access to her child during the period of time in question and the jury did hear testimony about home visits. The appellant asserts that "[s]ince no permanency review hearing was conducted the Court could not determine whether the intervention by the grandmother, parenting classes, or a change of circumstances would alleviate or mitigate the cause necessitating the placement of the child in foster care or work towards reunification of the family." Actually, the trial court conducted three permanency review hearings. Parenting classes and intervention by the maternal grandmother did not affect the placement of the child in November 2000, so we have no reason to believe that those factors would have differently influenced the court in August 2000. The delay in conducting a subsequent permanency hearing was unfortunate. However, that delay was attributable to Dougherty's requests to continue the trial setting, and trial counsel's failure to timely request a permanency review hearing. The trial court conducted the hearing as soon as the lapse was brought to its attention, and the appellant has not demonstrated that the delay probably caused the rendition of an improper judgment. Further, we believe that, had trial counsel timely requested a permanency review hearing, and the court denied the request, the proper remedy would be to file a writ of mandamus with the appellate court. Issue one is overruled. Issue two urges, "The Department failed to make reasonable efforts toward reunification after the removal of the child as set forth by the statutory guidelines." The appellant argues that the Department violated federal law by not making reasonable efforts towards reunification of the family. See 42 U.S.C.A. § 671(a)(15) (West Supp. 2002). Our legislature implicitly incorporated the requirements for federal funding into the Family Code. See Tex. Fam. Code Ann. §§ 261.001- 265.003 (Vernon 2002)(Subtitle E, Protection of the Child). In its initial order for protection, the trial court found that "all reasonable efforts, consistent with time and circumstances and pursuant to 42 U.S.C. §§ 671(a)(15) and 672(a)(1), have been made by the Petitioner to prevent or eliminate the need for removal of the child the subject of this suit from the home and to make it possible for the child to return home, but it is not in the child's best interest to remain at home." At that time, the Department had provided family-based services for two months, including in-home counseling, a psychological examination for Dougherty, day care, and payment of an electric bill. Dougherty does not dispute the propriety of the initial removal, but argues that the trial court erred in failing to grant her Motion Notwithstanding the Verdict based upon the Department's subsequent failure to make reasonable efforts to reunify the family. The original petition pleaded for termination as an alternative to reunification. The family service plan dated October 5, 1999, identifies adoption as the Department's long range goal for permanency. The requirement to show by clear and convincing evidence that the termination is in the best interest of the child subsumes the reunification issue and guarantees the constitutionality of termination proceeding. Edwards v. Texas Dep't of Protective and Regulatory Servs., 946 S.W.2d 130, 139 (Tex. App.--El Paso 1997, no writ). A separate consideration of alternatives to termination is not required. Id. Therefore, we will consider issue two in conjunction with the appellant's challenge to the jury's finding that the parent-child relationship between Dougherty and N.V.D. should be terminated. Issue three contends the "evidence was factually insufficient to support the jury finding that termination of the appellant's parental rights was in the best interest of the child." The appellate standard for reviewing termination findings is whether the evidence is such that a factfinder could reasonably form a firm belief or conviction about the truth of the State's allegations. Interest of C.H., 89 S.W.3d 17, 25 (Tex. 2002). The factors examined in ascertaining the best interest of a child include: 1) the desires of the child; 2) the emotional and physical needs of the child now and in the future; 3) the emotional and physical danger to the child now and in the future; 4) the parental abilities of the individuals seeking custody; 5) the programs available to assist these individuals to promote the best interest of the child; 6) the plans for the child by these individuals or by the agency seeking custody; 7) the stability of the home or proposed placement; 8) the acts or omissions of the parent which may indicate that the existing parent-child relationship is not a proper one; and 9) any excuse for the acts or omissions of the parent. See Holley v. Adams, 544 S.W.2d 367, 371-72 (Tex. 1976). The appellant argues that N.V.D.'s treating physician misdiagnosed him with failure to thrive due to failure to feed. The medical evidence supports the diagnosis. At birth N.V.D. weighed eight pounds, above average, and was twenty inches in height. By three months of age, N.V.D. had fallen to the 5th percentile on the weight chart. Dougherty's testifying expert, a pediatrician named Allen Kline testified that a baby experiencing a lack of caloric intake should rapidly advance to the 10th to 75th percentile on the growth chart once he is cared for properly. Dr. Kline did not see a rapid weight gain following removal in N.V.D.'s case. Generally speaking, some children initially diagnosed as failure to thrive actually have constitutional growth failure. After examining the child, Dr. Kline reported that he could neither say that N.V.D. had failure to thrive, nor that N.V.D. did not have failure to thrive. On September 6, 2000, he stated, "After review of all the medical records available, it appears that the mother and maternal grandmother are incompetent care givers and that this child would flourish better in a caring foster environment. They both smoke and neither seem to understand the importance of staying with the child while hospitalized. They also went to the ER after midnight with a two week old rash." After examining the child a second time, on October 17, 2000, Dr. Kline reported that, at two years of age, N.V.D.'s skeletal bone age was delayed six months. Dr. Kline stated, "This in itself is not a diagnostic finding to separate organic from non-organic [failure to thrive] but does add to the definition that [failure to thrive] does exist." At trial, Dr. Kline stated that he could rule out an organic cause for N.V.D.'s failure to thrive and agreed that the May 1999 diagnosis of failure to thrive was "an adequate judgment." While an intern, Dr. Emily Frye attended N.V.D. during his July 1999 hospitalization for failure to thrive and severe eczema. She was told that the maternal grandmother was the child's primary care giver. She recalled that N.V.D. was usually alone in the hospital, although the family was asked to stay with him. The child gained 70 grams every day that he was hospitalized. The family was provided with a food plan and medication for the eczema; they were encouraged to make a food journal for recording everything eaten by the child. They were told not to smoke around the child. Further monitoring revealed that N.V.D.'s growth rate and skin condition worsened. Dougherty never personally brought the child to the clinic after the hospitalization. In August 1999, Frye reported that the child, who had gained one pound while hospitalized, had decreased in weight from 18 pounds 6 ounces to 17 pounds 12 ounces from his previous visit. When N.V.D. was hospitalized in September, Dr. Frye noted that neither the mother nor the grandmother was following the instructions for the baby's care. When Dr. Frye told the grandmother that N.V.D. needed to be given his bottle, the grandmother placed the bottle in the crib without picking up the child or encouraging him to feed. When Dr. Frye examined him in September 2000, N.V.D. was still below normal in weight, but his length and head circumference were catching up. The curve indicated on N.V.D.'s growth chart was a positive finding. Dr. Glenn Minter, Emily Frye's supervising physician, testified that N.V.D's weight became lower on the graph than the length and the head circumference, indicating failure to thrive. Medical tests revealed no organic cause for the condition. Dr. Minter testified that a non-organic cause of failure to thrive usually implies lack of feeding, care, and attention. The medical personnel treating N.V.D. in September 1999 noted in N.V.D.'s medical records that N.V.D. was not being adequately changed and fed, that his mother yelled at the baby for vomiting and did not hold him, and she was "very oblivious to the child's needs." In Dr. Minter's opinion, N.V.D.'s major problem was failure to thrive for failure to feed. Dr. Kline opined that Dougherty's rights should not be terminated because she has not abused the child; her problem is a lack of parenting skills. He noted that by obtaining a certificate of completion of a course of Systematic Training for Effective Parenting, Dougherty, her mother, and her mother's companion had demonstrated that they really did want the child. Dougherty also relies upon the testimony of the Department's psychologist, Michael R. Gilhousen, that a person with an I.Q. of 69, such as the appellant, is capable of learning. However, Gilhousen, also testified that, in his opinion, Dougherty would not be able to raise her child on her own. According to Gilhousen, the appellant suffers from a mental or emotional illness or mental deficiency that renders her unable to care for the physical, emotional, and mental needs of the child, now and throughout his minority. The Department argues that N.V.D. is medically needy due to severe eczema and allergies. He requires daily skin treatments and a weekly allergy shot. He is allergic to cigarette smoke, and Dougherty has not quit smoking. Neither have the other two adult occupants of the home. At trial, Dougherty could not recall what N.V.D.'s food allergies were, but stated that a list was on the refrigerator. The lack of bonding between mother and child was noted by the hospital staff. Dougherty does not have a high school diploma or GED; she is unemployed and supported entirely by her mother. Dougherty's mother testified that she had previously made a sworn statement that it was not in N.V.D.'s best interest for Dougherty to be his sole managing conservator. Although Dougherty's mother was willing to raise the child at the time of trial, she had initially declined to accept responsibility for the child and had been referred to Child Protective Services several times during Dougherty's childhood. The grandmother indicated that appellant had been called a failure-to-thrive baby too. She testified that she had been effectively acting as N.V.D.'s mother during the time he was diagnosed with failure to thrive and removed from her home. Dougherty contends that there is no evidence to establish that the emotional and physical needs of the child, now and in the future, would be met by the termination of the parent-child relationship. We understand the appellant's argument to be that, by failing to work to reunify the family, the Department failed to rule out the possibility that skills gained in her parenting classes would enable her to raise N.V.D. Dougherty did not describe what skills she developed or training she received in her parenting class. Neither could Dougherty's mother relate her experience with the parent class that she took in September, other than to say, "Well, I believe anytime you take up anything like that, you are going to learn something. You learn to be a little more patient, listen a little more. Don't jump the gun so fast, so to speak." The jury heard testimony regarding the in-home visit on December 19, 2000. The CASA advocate, Sharon Kerr, testified that, over the course of observing eleven visits at the Department and five hours of in-home visits, it was very apparent to her that Dougherty did not know how to properly care for the child. Although she did not smell smoke when she arrived for the in-home visit, by the time she left both she and the baby reeked of smoke because Dougherty kept going to a bedroom to smoke. The foster mother had provided food, but at lunch time, the Doughertys made no effort to feed the child. We must give due consideration to the evidence that the jury could have found to be clear and convincing. Unless its finding is so against the great weight of the evidence that it is clearly wrong and unjust, we cannot disturb the jury's verdict. Although appellant disputed the medical diagnosis of failure to thrive for failure to feed, the totality of the evidence is more than sufficient to allow the factfinder to form a firm belief or conviction that the diagnosis was accurate. The evidence that Dougherty was incapable of ever caring for N.V.D. on her own was essentially unchallenged. The extent and efficacy of the family support system was disputed, but the jury could reasonably form a firm belief or conclusion that the support available to Dougherty would not be sufficient to enable her to meet N.V.D.'s needs. Notwithstanding the evidence that the Department never considered reunification as a viable plan for permanency in this case, the evidence is not so weak that the jury could not form a firm belief that termination of the mother's parental rights was in the child's best interest. Issues two and three are overruled. The judgment is affirmed. AFFIRMED. PER CURIAM Submitted on February 6, 2003 Opinion Delivered March 13, 2003 Before McKeithen, C.J., Burgess and Gaultney, JJ.

IN THE SUPERIOR COURT OF THE STATE OF DELAWARE THE STATE OF DELAWARE, ) Plaintiff, ) ex. rel. ) ) WILLIAM SEAN FRENCH, ) C.A. No. N13C-06-289 PRW CCLD Plaintiff-Relator, ) Vv. ) ) OVERSTOCK.COM, INC., ) Defendant. ) Submitted: March 21, 2019 Decided: June 28, 2019 Corrected: July 10, 2019 ORDER FOR ENTRY OF FINAL JUDGMENT UNDER SUPERIOR COURT CIVIL RULE 54(b) FOR DAMAGES AND PENALTIES Upon consideration of the Motion for Entry of Final Judgment Under Superior Court Civil Rule 54(b) (the “Motion”) filed by the State of Delaware and Plaintiff- Relator William Sean French (“Plaintiffs”) (D.I. 988); the Post-Verdict Memorandum of Law on Plaintiffs’ Remedies (the “Remedies Memorandum”) filed by Defendant Overstock.com, Inc. (“Overstock”) (D.I. 991); Overstock’s Response in Opposition to Plaintiffs’ Request for Attorneys’ Fees and Costs (the “Opposition’”) (D.I. 992); the oral arguments presented by the parties on the Motion, the Remedies Memorandum and the Opposition (D.I. 1016); the supplemental letters filed by the Plaintiffs and Overstock (D.I. 1018; D.I. 1019); and the complete record of this proceeding: (1) After a six-day trial in September 2018, a jury found Overstock to have knowingly violated the Delaware False Claims and Reporting Act (“DFCRA”) by failing to report and remit dormant gift card balances to the State of Delaware. The total amount of the jury verdict was $2,953,826.40 for violations of the DFCRA in 2010, 2011, 2012 and 2013. Prior to submission to the jury, the parties stipulated that any potential damages judgment would be reduced by 18% to reflect the maximum cost of goods sold as permitted by the DFCRA. That reduces the verdict to $2,422,137.65. (2) Post-verdict, Plaintiffs filed their Motion requesting that the Court enter judgment in the amount of $10,846,294.77, consisting of: (a) civil penalties in the amount of $44,000; (b) treble damages in the amount of $7,266,412.94; (c) attorneys’ fees in the amount of $2,756,225.60!; and (d) costs in the amount of $779,656.23. (3) Overstock filed its Remedies Memorandum proposing: (a) civil penalties in the amount of $22,000; (b) a reduction to the treble damages requested by Plaintiffs; and (c) an award of attorneys’ fees calculated via the lodestar method.” Plaintiffs calculated attorneys’ fees employing the common fund doctrine. 2 “The lodestar method multiplies hours reasonably expended against a reasonable hourly rate to produce a ‘lodestar,’ which can then be adjusted through application of a ‘multiplier,’ to account for additional factors such as the contingent nature of the case and the quality of the attorney’s work.” Americas Mining Corp. v. Theriault, 51 A.3d 1213, 1253 (Del. 2012). De (4) Overstock then filed its Opposition more directly addressing Plaintiffs’ request for attorneys’ fees and costs claimed in the amount of $3,535,881.83. According to Overstock, Plaintiffs failed in their submission to demonstrate that the specific fees and costs claimed are reasonable or reasonably related to Plaintiffs’ claims against Overstock and the Court should, therefore, simply reject their request. If not, Overstock says, the Court should at least reduce said amount via calculation using the relevant factors set out in 6 Del. C. §1205(a). (5) Section 1205(a)—DFCRA’s damages and penalties provision—reads: Any person who .. . [k]knowingly makes, uses, or causes to be made or used a false record or statement material to an obligation to pay or transmit money or property to the Government, or knowingly conceals or knowingly and improperly avoids or decreases an obligation to pay or transmit money to the Government shall be liable to the Government for a civil penalty of not less than $5,500 and not more than $11,000 for each act constituting a violation of this section, plus 3 times the amount of damages which the Government sustained because of the act of that person.’ (6) DFCRA’s §1205(a) further requires a violator to pay “the costs of a civil action brought to recover any such penalty or damages, including payment of 3 DEL. CODE. ANN. tit. 6, § 1205(a) (2009). The 2009 version of the DFCRA is applicable to this case. See, e.g., State ex rel. French v. Card Compliant LLC, 2018 WL 4183714, at *2 n.7 (Del. Super. Ct. Apr. 30, 2018) (“All parties agreed that the version of the DFCRA’s Administrative Proceedings Bar extant from June 30, 2000, to July 23, 2013, was applicable here.”’). -3- reasonable attorneys’ fees and costs.”4 With respect to the determination of reasonable attorneys’ fees and costs, the statute provides: [T]he court shall consider, without limitation, whether such fees and costs were necessary to the prosecution of the action, were incurred for activities which were duplicative of the activities of the Department of Justice in prosecuting the case, or were repetitious, irrelevant or for purposes of harassment, or caused the defendant undue burden or unnecessary expense.” (7) So, as the prevailing party, Plaintiffs are entitled to an award comprised of civil monetary penalties, treble damages, and reasonable attorneys’ fees and costs under §1205(a). The Court Will Enter A Final Judgement on Penalties and Damages (8) Superior Court Civil Rule 54(b) allows the Court to “direct the entry of a final judgment upon one or more but fewer than all of the claims or parties only upon an express determination that there is no just reason for delay... .”° (9) In deciding whether there is “just reason for delay,” the Court must consider: “(1) the hardship or injustice suffered by the moving party in the absence of the final judgment; and (2) the interest of judicial administration and judicial ‘ Id. ° Id. 6 Super. Ct. Civ. R. 54(b). economy.”’ This decision is left to the discretion of the Court; however, the long- established policy against piecemeal appeals requires this Court to exercise that 39 66 discretion “sparingly,” “cautiously,” and “frugally.”® (10) The Court finds that there is no just reason for delay in entering final judgment in this case with respect to the award for penalties and treble damages while the Court resolves the remaining issues regarding attorneys’ fees and costs. Plaintiffs have articulated concerns regarding their ability to collect on any judgment against Overstock due to the reported impending sale of the company. The Court finds that if such a sale rendered Plaintiffs unable to collect its damage award, hardship and injustice would be suffered. This is especially true given the fact that Plaintiffs began litigating the issues in this suit in 2013. (11) Inresolving the amount of the verdict and damage award, the Court has considered Overstock’s arguments that, in its view, the amount of the trebled damages “is both inappropriate and excessive.” Sufficient Evidence Supported the Jury’s Verdict on Damages. (12) The Court is unpersuaded by Overstock’s post-verdict claims of insufficient evidence to support the jury’s damages finding here. The Court 7 Lima Delta Co. v. Glob. Aerospace, Inc., 2016 WL 1169125, at *2 (Del. Super. Ct. Mar. 17, 2016). 8 See Lima Delta Co., 2016 WL 1169125, at *2; In re Tri-Star Pictures, Inc., Litig., 1989 WL 112740, at *1160 (Del. Ch. Sept. 26, 1989). -5- continues to abide by its rulings made when it admitted the evidence from which this figure was derived. As the jury was properly instructed, the damages accrued from Overstock’s DFCRA violations need not be established by Plaintiffs “with mathematical precision, but the law does not permit recovery of damages based only on speculation or conjecture. Rather, there must be a reasonable basis for determining the damages that are alleged here—that is, the unredeemed gift card values that Overstock had an obligation to report and transmit under Delaware’s Unclaimed Property Law.”? (13) That instruction and the jury’s verdict are consistent with a reasonable view of the facts and Delaware law. Plaintiffs were required to prove their damages by a preponderance of the evidence.'? But, Delaware does not “require certainty in the award of damages where a wrong has been proven and injury established.”" Indeed, “[t]he quantum of proof required to establish the amount of damage is not as great as that required to establish the fact of damage.”'? Responsible estimates of ? Charge to the Jury, State ex rel. French v. Overstock, C.A. No. N13C-06-289 PRW CCLD, at 14 (Del. Super. Ct. Sept. 20, 2018) (D.L. 982). Ig Charge to the Jury, at 14 (“Under Delaware law, Plaintiffs may only recover damages that have be proven by a preponderance of the evidence.”). 7 Del. Express Shuttle, Inc. v. Older, 2002 WL 31458243, at *15 (Del. Ch. Oct. 23, 2002) (quoting Red Sail Easter Ltd. Partners, L.P. v. Radio City Music Hall Prods., Inc., 1992 WL 251380, at *7 (Del. Ch. Sept. 29, 1992)). 7 Total Care Physicians, P.A. v. O’Hara, 2003 WL 21733023, at *3 (Del. Super. Ct. July 10, 2003). -6- damages that lack mathematical certainty are permissible so long as the fact finder had a basis to make such a responsible estimate.'? Here the jury did—Overstock’s own reporting to Card Compliant. To the extent Overstock says those records were unreliable or not fully understood, Overstock was free to and did present its counter evidence to the jury. Unfortunately for Overstock, the jury did not accept its self- serving, after-the-fact accounting of what should have been reported, what was redeemed, or what should have been transmitted. (14) Public policy has led Delaware and other courts to show a general willingness to make a wrongdoer “bear the risk of uncertainty of a damages calculation where the calculation cannot be mathematically proven.”'* And when the extent of damages is made more difficult to ascertain by the nature of the wrongful act itself, it would be “a perversion of fundamental principles of justice” to deny reasonable and adequate relief to the injured and relieve the wrongdoer from 7 Beard Research, Inc. v. Kates, 8 A.3d 573, 613 (Del. Ch. 2010), aff'd sub nom. ASDI, Inc. v. Beard Research, Inc., 11 A.3d 749 (Del. 2010). 14 See, e.g., Story Parchment Co. v. Paterson Parchment Paper Co., 282 U.S. 555, 556 (1931) (“[W]hatever uncertainty there may be in this mode of estimating damages is an uncertainty caused by the defendants’ own wrongful act; and justice and sound public policy alike require that he should bear the risk of the uncertainty thus produced.”); Boyce v. Soundview Tech. Gp., Inc., 464 F.3d 376, 391 (2d Cir. 2006) (“[W]here the existence of damage is certain, and the only uncertainty is as to its amount . . . the burden of uncertainty as to the amount of damage is upon the wrongdoer.”); Great Am. Opportunities, Inc. v. Cherrydale Fundraising, LLC, 2010 WL 338219, at *23 (Del. Ch. Jan. 29, 2010) (“[P]ublic policy suggests that the wrongdoer should be required to “bear the risk of uncertainty of a damages calculation where the calculation cannot be mathematically proven.”). He making adequate amends for his act.!° Given the totality of the trial record, the Court simply cannot agree with Overstock. The Court need only assure itself that when setting damages the jury did not overlook some lack of Plaintiffs’ proof on the issue and “supply the omission by speculation or conjecture.”'® A review of the entire trial record supports the jury’s finding here was based on evidence, not speculation. (15) Our Supreme Court has been very clear: “Under Delaware law, enormous deference is given to jury verdicts” on damages.'’ The same principles applied in other post-verdict challenges to damage verdicts (e.g. Additur and Remittitur) guide the Court here. “[A]s a practical test, a court presented with a request [to substitute its own judgment for the jury’s] must review the record and determine whether the jury’s award of damages is within a range supported by the evidence.”!® Here, the Court has. And “[a]s long as there is a sufficient evidentiary basis for the amount of the award, the jury’s verdict should not be 1S Total Care Physicians, P.A., 2003 WL 21733023, at *3. 16 Henne v. Balick, 146 A.2d 394, 396 (Del.1958). See Pioneer Hi-Bred Int'l v. Holden Found. Seeds,35 F.3d 1226, 1245(8"Cir. 1994) (“If it is speculative and uncertain whether damages have been sustained, recovery is denied. But if the uncertainty lies only in the amount of damages, recovery may be had if there is proof of a reasonable basis from which the amount can be inferred or approximated.”). "7 Wilhelm v. Ryan, 903 A.2d 745, 754 (Del. 2006) (quoting Young v. Frase, 702 A.2d 1234, 1236 (Del. 1997)). e Id. at 1237. disturbed.”!? Here, there is; so this jury’s verdict will not be. Statutorily Mandated Treble Damages Are Not Excessive (16) DFCRA’s §1205(a) provides that a false claims violator “shall be liable to the Government for . . . 3 times the amount of damages which the Government sustained because of the act of that person.””° The parties agree that were the jury’s adjusted damages award trebled, the result would be $7,266,412.94. Such an award of damages, Overstock says, is unconstitutional under the Excessive Fines Clauses of the Eighth Amendment of the United States Constitution and Article I, § 11 of Delaware Constitution. While the award is substantial, this Court cannot say that it is unconstitutional. (17) No doubt, the Eighth Amendment’s Excessive Fines Clause is an incorporated protection applicable to the States under the Fourteenth Amendment’s Due Process Clause.” No doubt, any examination of the merits of Overstock’s excessiveness claim under either the Delaware or Federal Constitution would be guided by the same principles and case law because the protections under Article I, Section 11 are generally viewed as coextensive with the Eighth 19 Td 7 DEL. CODE. ANN. tit. 6, (2009). a Timbs v. Indiana, 139 S.Ct. 682, 689 (2019). -9- Amendment’s protections.” And, no doubt, because treble damages provisions in false claims Acts certainly have a punitive element, they have been subject to Excessive Fines analyses under the Eighth Amendment.” (18) “Protection against excessive punitive economic sanctions secured by the Clause is . . . both ‘fundamental to our scheme of ordered liberty’ and ‘deeply rooted in this Nation’s history and tradition.””** But, while the Court may rightly take a skeptical view when scrutinizing fines,’° it still “accord[s] substantial deference to the judgment of the General Assembly” which, under our system of government, “ha[s] broad initial authority to determine the appropriate penalties” for wrongdoing.”° (19) True enough, DFCRA’s treble damages provision is meant to deter and punish actual financial wrongdoing that specifically harms the State. But that provison also has “a compensatory side, serving remedial purposes in addition to a See Sanders v. State, 585 A.2d 117, 144 (Del. 1990); State v. Cannon, 190 A.2d 514, 515 (Del. 1963). 28 United States ex. rel. Drakeford v. Tuomey, 792 F.3d 364, 387 (4" Cir. 2015); United States v. Mackby, 261 F.3d 821, 831 (9 Cir. 2001). 24 Timbs, 139 S.Ct. at 689 (quoting McDonald v. City of Wilmington, 561 U.S. 742, 767 (2010). 7 Id. i Sanders, 585 A.2d at 144. -10- punitive objectives.””’ As the United States Supreme Court observed: “There is no question that some liability beyond the amount of the fraud is usually necessary to compensate the Government completely for the costs, delays, and inconveniences occasioned by fraudulent claims.””* Moreover, the injury occasioned by any false claims violation is “not merely the amount of the fraud itself, but also ancillary costs, such as the costs of detection and investigation, that routinely attend the Government’s efforts to root out deceptive practices directed at the public purse.”” And this includes those occasioned by “reverse” false claims like those here.*° (20) In this case, Overstock was found to have engaged in not just a single violative act or omission under DFCRA; Overstock’s was a years-long pattern of activity. And while Overstock may give short shrift to the economic impact of its false claims violations, wrongfully withholding millions from escheatment deprived all Delaware citizens the opportunity to derive the benefits from the funds it retained. The trial evidence convincingly demonstrated that Overstock did this not for the rightful owners of its unredeemed gift cards, but for its own economic gain. (21) When considering all of the evidence, and the considerations of 27 Cook County, Illinois v. United States, 538 U.S. 119, 130 (2003). 28 Id. (internal quotations omitted). a United States v. Halper, 490 U.S. 435, 445 (1989). = See, e.g., United States v. Bourseau, 2006 WL 3949169 (S.C. Cal. Dec. 1, 2006). -11- compensation, punishment, and deterrence that underlie DFRCA’s treble damages provision, the Court finds the trebled damage amount of $7,266,412.94 is not grossly disproportional to Overstock’s level of culpability and the harm it caused.*! Lodestar Method Should Be Used to Calculate Attorneys’ Fees and Costs (22) With respect to attorneys’ fees and costs, the Court finds that the “lodestar method” is the proper method for calculating an award of attorneys’ fees and costs under the DFCRA. (23) As mentioned before, DFCRA’s §1205(a) requires a violator to pay “the costs of a civil action brought to recover any such penalty or damages, including payment of reasonable attorneys’ fees and costs.” Lodestar has become the most oft-used method for determining reasonable attorneys’ fees in cases involving fee- shifting statutes. And the method is particularly appropriate for use in cases where the fee awards are meant “to compensate individuals whose actions in commencing, pursuing or settling litigation, even if taken solely in their own name and for their own interest, benefit a class of persons not participating in the litigation.”>? Perhaps that is why it has “achieved dominance in the federal courts.” As observed by the 31 United States v. Bajakajian, 524 U.S. 321, 334 (1998) (Monetary sanctions violate the Excessive Fines Clause when they are “grossly disproportional to the gravity of a defendant's oftense.”’). 7 Lindy Bros. Builder, Inc. v. Am. Radiator & Standard Sanitary Corp., 487 F.2d 161, 165 (3d Cir. 1973). 33 Gisbrecht v. Barnhart, 535 U.S. 789, 801 (2002). -12- United States Supreme Court, although “imperfect,” the lodestar method “has several important virtues”: (1) it “produces an award that roughly approximates the fee that the prevailing attorney would have received if he or she had been representing a paying client who was billed by the hour in a comparable case”; (2) it is readily administrable; and (3) the lodestar calculation is “objective,” thereby cabining a trial judge’s discretion, permitting meaningful judicial review, and 4 Certainly, the lodestar method is not producing reasonably predictable results. well-suited for all fee award situations.*° But, “[a]s this Court has observed earlier [in this litigation], case law on the federal False Claims Act, the DFCRA’s federal analogue, is informative when interpreting our state false claims statute.”°° And lodestar, for good reason, has been readily accepted for use in federal False Claims Act cases.>” 7 Perdue v. Kenny A. ex rel Winn, 559 U.S. 542, 551-52 (2010). 7 E.g., Americas Mining Corp., 51 A.3d 1213, 1254 (Del. 2012) (Delaware Supreme Court notes that for common fund fee awards “[i]n particular, we explicitly disapproved the Third Circuit’s ‘lodestar method.’”). 36 State ex rel. French v. Card Compliant LLC, et. al., 2018 WL 4183714, *5 & n.33 (Del. Super. Ct. Apr. 30, 2018). at See, e.g., United States ex. rel. Vuwuru v. Jadhav, 555 F.3d 337, 356-57 (4th Cir. 2009); United States ex rel. Washington v. Morad, 2017 WL 1250912, at *3 (E.D. La. Apr. 5, 2017) (“Though the Fifth Circuit has not directly addressed what standard to use to determine reasonable attorneys’ fees in qui tam False Claims Act cases, other circuits and other district courts in this Circuit have used the lodestar method.”); Gonter v. Hunt Valve Co., Inc., 510 F.3d 610, 616 (6th Cir. 2007); United States v. Everglades College, Inc., 855 F.3d 1279, 1292-93 (11 Cir. 2017). -- (24) The Court hereby directs the parties to confer on a method for and the scheduling of submission of Plaintiffs’ evidence—to the Court and Overstock—that supports Plaintiffs’ requested fees and costs. That evidence should include detailed records distinguishing between time and money spent on Plaintiffs’ case against Overstock and its case against other, former co-defendants.*® (25) The Court retains jurisdiction over this matter to determine the extent of Plaintiffs’ attorneys’ fees and costs.>? The Court will enter judgment with respect to attorneys’ fees and costs after its review of the evidence provided by Plaintiffs. (26) The Court, having considered each party’s submissions, HEREBY ORDERS that Judgment is now entered in favor of Plaintiffs and against Overstock as follows: (a) Civil penalties of $5,500.00 per violation for years 2010, 2011, 2012, and 2013, for a total penalty award of $22,000.00; and (b) Treble damages in the amount of $7,266,412.94. 38 This lodestar approach requires that the Court first calculate the number of documented hours reasonably expended by Plaintiffs’ attorneys. The Court excludes from that calculation hours that are excessive, redundant, or otherwise unnecessary. The Court must then determine a reasonable hourly rate or rates for the allowed hours, a determination that is often benchmarked to the prevailing rates in the community for lawyers of like qualifications, experience, and competence. The resulting numbers are multiplied to yield the lodestar amount, which the Court may then adjust based on other factors. The Court will employ methods and standards accepted by the federal and Delaware courts. See, e.g., Perdue v. Kenny A. ex rel Winn, 559 U.S. 542, 551-52 (2010); Immedient Corp. v. Health Trio, Inc., 2007 WL 656901, at *3 (Del. Super. Ct. Mar. 5, 2007). 7 E.g., NRG Barriers, Inc., v. Jelin, 1996 WL 473281 (Del. Ch. Aug. 12, 1996) (Court of Chancery after entering final judgment on all other claims and issues under Rule 54(b), retained jurisdiction to determine the extent of attorneys’ fees and costs). -14- Post-judgment interest shall be stayed pending final judgment on the remaining fees and costs issues; it shall then accrue at the statutory rate from the date of the Final Order of Judgment and until the Judgment is paid in full. ing IT IS SO ORDERED this~10" day of July, 2019. Paul R. Wallace, Judge Original to Prothonotary cc: Counsel via File and Serve -15- 

535 U.S. 1080 HORNERv.COCKRELL, DIRECTOR, TEXAS DEPARTMENT OF CRIMINAL JUSTICE, INSTITUTIONAL DIVISION. No. 01-8983. Supreme Court of the United States. May 20, 2002. 1 C. A. 5th Cir. Certiorari denied.

217 P.2d 617 (1950) 121 Colo. 470 CITY & COUNTY OF DENVER et al. v. GEORGE WASHINGTON LODGE ASS'N. No. 16292. Supreme Court of Colorado, en Banc. April 3, 1950. J. Glenn Donaldson, Denver, Charles H Haines, Denver, for plaintiffs in error. Omar E. Garwood, Denver, Milton C. Garwood, Denver, for defendant in error. *618 STONE, Justice. Defendant in error, plaintiff below, is a holding corporation for the use and benefit of a Masonic lodge, and its property is alleged to be held and owned strictly and exclusively for mutual, fraternal, benevolent and charitable purposes. On September 18, 1946, it contracted for the purchase of the real estate here concerned for the sole purpose, as is alleged, of building and maintaining thereon a building suitable for the use of said Masonic lodge, and has paid the sum of $23,000 on the $30,000 purchase price. Upon signing the contract, plaintiff made application to the Municipal Zoning Board for re-zoning to permit the erection of a Masonic Temple on the property and the classification was changed so to permit. An architect, as a friendly gesture, prepared a first sketch for submission to the Zoning Board. So far as appears from the record, no further plans have been prepared. On August 11, 1947, plaintiff association executed a lease of said property to the City and County of Denver for the term of two years from and after the 15th day of August, 1947, for the consideration of $1.00, for use of said property for junior base ball and soft ball fields, with the proviso that "if lessor does not expect to make use of the said property within the next succeeding year, lessee may hold over as a tenant from year to year thereafter." This action was brought for declaratory judgment determining the right to exemption of said property from taxation. Section 5, article X, of our Constitution, under which exemption is claimed, reads: "Property, real and personal, that is used solely and exclusively * * * for strictly charitable purposes, * * * shall be exempt from taxation, unless otherwise provided by general law." Section 22, chapter 142, '35 C.S.A., insofar as here pertinent, reads: "The following classes of property shall be exempt from general taxation, to wit: * * * Fourth—Lots with the buildings thereon, if said buildings are used for strictly charitable purposes." Upon hearing, the trial court found in favor of plaintiff, saying: "As indicated by counsel, the Supreme Court of Colorado has gone pretty far in liberalizing and interpreting the Constitutional provision exempting certain property from taxation. For this case to be decided in favor of the plaintiff would require only another step in the same direction. From all indications, I think the Court will go that other step in this case. "The expenditure of $23,000.00 for the purchase of the lots, the preparation of quite elaborate plans and specifications for a building, and an application to the City for re-zoning, are all things that could be considered by the Court in the same class as tearing down an old house. It is a very small step to take. This is not a case which would require a reversal of the trend indicated by the decisions of our Supreme Court in the past." The trial court correctly noted the trend indicated by the decisions of this court. That trend has been evident in our decisions as to the rule of construction in regard to exemptions from taxation. In County Commissioners v. Colorado Seminary, 12 Colo. 497, 21 P. 490, it was held that a limitation on the taxing power should be strictly construed, and every reasonable doubt resolved against it. In Bishop & Chapter of Cathedral of St. John v. Treasurer of Arapahoe County, 29 Colo. 143, 68 P. 272, it was said: "The general rule is that exemptions from taxation are strictly construed, but this rule is not applied with full vigor to the character of exemptions under consideration. In other words, provisions exempting property used for educational purposes are less strictly construed than those exempting property used for ordinary gain or profit." In Colorado Seminary v. Board of County Commissioners of Arapahoe County, 30 Colo. 507, 71 P. 410, 411, it was said that, "The construction should be reasonably strict, but not so strict as to defeat the obvious intention of the general assembly." In Pitcher v. Miss Wolcott School Ass'n, 63 Colo. 294, 165 P. 608, 609, L.R.A. 1917B, 1095, it was said that the Bishop & Chapter of Cathedral of St. John case, supra, "is authority for a liberal construction of the provisions for exemptions," but that, "the meaning of the law must be ascertained by a construction within its spirit, purpose, and policy not opposed to its letter." In Horton *619 v. Colorado Springs Masonic Bldg. Society, 64 Colo. 529, 173 P. 61, 63, L.R.A.1918E, 966, it was said regarding construction of tax exemption statutes: "This court has heretofore adopted the liberal or broader rule," and this rule of liberal construction has been subsequently followed in numerous decisions, but not without vigorous dissent. This trend is apparent in the application of the fourth subdivision of the statute, which exempts "lots with the buildings thereon, if said buildings are used for strictly charitable purposes." Such exemption in no uncertain words requires: (1) that there be a building or buildings on the property, and (2) that such buildings be then used for strictly charitable purposes. In El Jebel Shrine Ass'n v. McGlone, 93 Colo. 334, 26 P.2d 108, after citing cases in which structures were held to be "buildings" under an arson statute, and under a mechanics' lien law, although not fully completed, we held that a mere foundation constituted a "building" as required under the tax exemption statute. The second requirement of the statute, that the building be presently used for strictly charitable purposes, was not explored. Apparently future intent was deemed equivalent to present use. In McGlone v. First Baptist Church, 97 Colo. 427, 50 P.2d 547, 550, we held that the tearing down of the buildings on a property preliminary to the erection of a new building to be used for religious or charitable purposes was sufficient evidence of bona fide continuing intention to construct a building for charitable use to bring the lots within the exemption statute. In the present case, we are asked to go one step further and hold that the mere purchase under contract of a vacant property, with a general intent at some future date to erect thereon a building to be used for a charitable purpose, would, by some legal fiction, create both a building and establish its present use for a strictly charitable purpose. It is not surprising, in view of the former decisions of this court, that the trial court so held. However, a departure is nonetheless a departure because it is made step by step, and it appears high time for this court to determine, not merely how far we have departed from the last departure, but whether we have departed from the requirements of the statute itself. That statute does not exempt lots intended as building sites if the buildings to be erected are intended to be used for strictly charitable purposes, but only lots with the buildings thereon if said buildings are used for strictly charitable purposes. When, as here, there is neither the present charitable use nor the vestige of a building in which such use might be carried on, there appears to be no possible basis for exemption, except sympathy for a purpose which we may regard as commendable. As said by Mr. Justice Holland, in the dissenting opinion in McGlone v. First Baptist Church, supra, "The erection of a building, or part of a building such as would bring this property within the meaning of the exemption provision of the Constitution and statute, as well as the rule announced by this court, is only a possibility. Exemptions from taxes are neither based, nor allowed, on possibilities." In deciding the El Jebel case more than sixteen years ago, this court took judicial notice of the fact that the existence of a world-wide depression had prevented the completion of many similar buildings. Today we cannot be blind to the fact that the property there involved, situated in close proximity to the State Capitol grounds, remained through many years unused for any purpose, the building still incomplete, the property exempt from taxation and the original intent long obscured. Under similar constitutional and statutory provisions, it has been generally held in other jurisdictions that property held with the intention of erecting thereon at some future time buildings for purely charitable purposes is not exempt from taxation. Among the cases involving the construction of similar statutes may be noted the following: Montana Catholic Missions v. Lewis and Clarke County, 13 Mont. 559, 35 P. 2, 22 L.R.A. 684; Presbyterian Board of Relief v. Fisher, 68 N.J.L. 143, 52 A. 228; Institute of Holy Angels v. Borough of Ft. Lee, 80 N.J.L. 545, 77 A. 1035; Babcock v. Leopold Morse Home, 225 Mass. 418, 114 N.E. 712; Philadelphia v. Jewish Hospital Ass'n, 148 Pa. 454, 23 A. 1135. *620 Accordingly, we must hold that the property described in plaintiff's complaint is not exempt from taxation and may and should be assessed for taxation as other property not exempt. The judgment is reversed and the case remanded for further proceedings not inconsistent with the views herein expressed. HILLIARD, C. J., dissents. JACKSON, HAYS, ALTER, MOORE and HOLLAND, JJ., concur.

423 F.Supp. 645 (1976) SECURITIES AND EXCHANGE COMMISSION, Plaintiff, Securities Investor Protection Corporation, Applicant, v. KELLY, ANDREWS & BRADLEY, INC., et al., Defendants. No. 71 Civil 5469. United States District Court, S. D. New York. September 28, 1976. Theodore H. Focht, General Counsel, Securities Investor Protection Corp., Washington, D. C., for applicant. Gasperini & Savage, New York City, for trustee; Patrick W. McGinley, New York City, of counsel. OPINION EDWARD WEINFELD, District Judge. This is an application by the Trustee for approval of his final account, and a joint application by him and his counsel (a law firm of which he is a senior partner) for final and additional compensation of $77,002 (counsel $68,722; Trustee $ 8,280). Heretofore interim allowances were made to the Trustee and his attorneys for the period from December 15, 1971 through November 30, 1974, which totalled $72,500 (counsel $62,500; Trustee $10,000). For this period they now request an additional $46,716 (counsel $41,916; Trustee $4,800), which they state represents "the balance of [their] uncompensated time." For the period from December 1, 1974 through June 30, 1976, for which no previous application has been made, they request a total of $30,286 (counsel $26,806; Trustee $3,480). Thus, for their combined services in the administration *646 of this estate they seek total compensation of $149,502. Applying the criteria governing such applications,[1] the request is excessive and far from reasonable. Indeed this Court is of the view that even the total sum of $115,000 suggested by SIPC in partial opposition to the petitioners' application is in excess of what is fair and reasonable compensation. Despite the voluminous affidavits submitted in justification of the requested allowances and the massive report of the Trustee, what emerges is in large measure a routine administration or liquidation of a brokerage firm in accordance with the requirements of the Securities Investor Protection Act of 1970.[2] SIPC correctly states that this was not an involved and complicated liquidation. In fact, only 186 customers and thirty broker-dealers filed claims; only three claimants in each category (a total of six) objected to the Trustee's determination.[3] Furthermore, in this aspect of the administration the Trustee had the assistance of an accounting firm which, among its other activities, reviewed every claim that was filed. For their services the accountants received $27,262.55. The litigation involving contested claims[4] and the SEC action[5] were heard by this Court, which, of course, is familiar with the problems involved therein. As this Court stated in a somewhat parallel situation: A court is presumed to be knowledgeable as to fees generally charged by attorneys and the quality of services rendered ...; equally it may be presumed to be knowledgeable as to the reasonable time and the number of attorneys required to perform services competently and effectively in furthering the success of a litigation.[6] A detailed analysis of the time logged by senior partners, partners, associates and paralegals strongly suggests that it was more than was reasonably required to bring matters to an orderly and expeditious conclusion. As to the state court action brought by petitioners on a broker's blanket bond wherein they appealed from an adverse decision on their motion for summary judgment, the Court finds that in this instance, too, there has been an excess of time logged. The fact that petitioners were unsuccessful in that litigation does not mean they are not to be compensated; by the same token they are not entitled to excessive compensation or to be paid at rates as if they had achieved a favorable result. Some idea of the measure of excess charge for services may be gleaned by a reference to but one of a number of such instances: "Research was done by paralegals and law clerks to determine the procedure for perfecting an appeal in the Appellate Division . . .."[7] One would assume that competent attorneys are familiar with proper procedure. No purpose would be served by reference to other items of similar import. The excessive time spent by the Trustee and his counsel is by itself sufficient reason to reduce the requested compensation. In addition, the application places undue emphasis on time expended, which is by no means the controlling factor in evaluating the services.[8] According to petitioners' own evaluation, the "Net benefit to Estate" of *647 their services was $189,960.55. The total fee they seek is over three-fourths of the net amount they claim to have benefited the estate. Their evaluation of "Net benefit to the Estate" is questionable. They compute it by adding "Total Claims disallowed" in the sum of $175,000 to claims and receipts recovered in the sum of $96,780.15, and deducting therefrom the total claims paid out. The total claims disallowed were in the main items that were either improper or spurious, or in some instances not challenged. These hardly qualify as a benefit or recovery to the estate. They were attempts to obtain payments that were not warranted. Petitioners properly resisted them, but it distorts matters to imply that by their rejection or disallowance the estate was specially benefited through petitioners' efforts. Upon a study of the entire record this Court is satisfied that an additional payment of $17,500 (counsel $16,000; Trustee $1,500), making a total of $90,000, will represent the outer limits of fair and reasonable compensation. The motion to approve the final report and account is granted. Enter order accordingly. NOTES [1] SIPC v. Charisma Sec. Corp., 371 F.Supp. 894 (S.D.N.Y.), aff'd, 506 F.2d 1191 (2d Cir. 1974). [2] 15 U.S.C. § 78aaa, et seq. [3] A seventh objection was filed, but the claim was settled. [4] SEC v. Kelly, Andrews & Bradley, Inc., 385 F.Supp. 948 (S.D.N.Y.1974). [5] SEC v. Kelly, Andrews & Bradley, Inc., 341 F.Supp. 1201 (S.D.N.Y.1972). The applicants herein were not the attorneys representing plaintiff in that case and played no part in the conduct of the trial. [6] Blank v. Talley Indus., Inc., 390 F.Supp. 1, 4 (S.D.N.Y.1975). [7] Application for Allowance of Compensation, ¶ 48. [8] See Blank v. Talley Indus., Inc., 390 F.Supp. 1, 5 (S.D.N.Y.1975); Levin v. Mississippi River Corp., 377 F.Supp. 926, 931 (S.D.N.Y.), aff'd without opinion, 508 F.2d 836 (2d Cir. 1974).

Filed 6/23/16 P. v. Tepelikyan CA2/1 NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA SECOND APPELLATE DISTRICT DIVISION ONE THE PEOPLE, B259332 Plaintiff and Respondent, (Los Angeles County Super. Ct. No. BA377408) v. YERVAND TEPELIKYAN, Defendant and Appellant. APPEAL from a judgment of the Los Angeles County Superior Court, Edmund Wilcox Clarke, Judge. Affirmed. Benjamin Owens, under appointment by the Court of Appeal, for Defendant and Appellant. Kamala D. Harris, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Lance E. Winters, Senior Assistant Attorney General, Michael R. Johnsen and Wyatt E. Bloomfield, Deputy Attorneys General, for Plaintiff and Respondent. ________________________  SUMMARY Defendant and appellant Yervand Tepelikyan appeals from a judgment entered after a jury convicted him of one count of assault with a firearm (Pen. Code, § 245, subd. (a)(2)),1 one count of discharge of a firearm with gross negligence (§ 246.3, subd. (a)), and one count of carrying a loaded, unregistered handgun (§ 12031, subd. (a)(1)). The jury also found to be true that on the assault count Tepelikyan personally used a firearm within the meaning of sections 1203.06, subdivision (a)(1) and 12022.5, subdivision (a). He was sentenced to a middle term of three years on the assault charge, with four years consecutive on the firearm enhancement and eight months consecutive on the carrying charge, for an aggregate term of seven years and eight months. A two-year concurrent sentence on the discharge count was stayed under section 654. On appeal, Tepelikyan contends the court erred in his first trial by failing to instruct on self-defense as to the carrying charge and erred in not staying his sentence on the carrying charge under section 654. We affirm. FACTS AND PROCEEDINGS BELOW I. Prosecution Evidence in First Trial2 On the evening of October 6, 2010, three people in a car—an African-American man (John Doe 1), a White man (John Doe 2) and a Hispanic woman—pulled into a shopping center on North Western Avenue in Los Angeles and the two men went into Harold’s Cigar Market, where Tepelikyan worked. Allen Zaroyan, an employee at a restaurant in the same shopping center as the cigar store, testified: Tepelikyan followed the two men into the store and, when they exited, followed them into the parking lot and began arguing with John Doe 1. During 1 Further statutory references are to the Penal Code. 2 As Tepelikyan’s arguments on appeal relate to his conviction of one count of carrying a loaded, unregistered firearm after the first trial, we do not summarize the evidence in the second trial. 2 the argument, Tepelikyan went back inside the store and returned with a gun. Tepelikyan held the gun pointed straight up and continued arguing with John Does 1 and 2, and all three were yelling at each other and screaming, “Fuck you.” Tepelikyan yelled, “Fuck you, nigger” to John Doe 1 and pointed the gun at John Doe 2 who was approximately six feet away and then pointed the gun at John Doe 1. Tepelikyan fired two shots into the air and continued arguing with John Does 1 and 2. Tepelikyan then went back into the cigar shop and John Does 1 and 2 left on foot.3 When Tepelikyan came back out of the cigar shop again he had two guns and ran toward Western Avenue, yelling “I’ll shoot you” but John Does 1 and 2 had left the area. Tepelikyan then pointed his guns at a passing African-American pedestrian, Reginald McCoy, and said, “I’m going to shoot you, nigger.” McCoy testified that he went to buy food at a market in the same shopping center as Harold’s Cigar Store and passed Tepelikyan and the others arguing. While inside the market McCoy heard the arguing and someone saying, “I’ll kill any nigger.” When McCoy went outside, he saw Tepelikyan come out of the cigar store with a gun and shoot the gun into the air. John Does 1 and 2 and the woman were standing on the blacktop of the parking lot about three to four feet from Tepelikyan when he fired. They did not leave. Both sides continued arguing and cursing at each other. John Does 1 and 2 did not have any weapons in their hands and had their hands balled into fists during the argument. At some point, Tepelikyan went back into the store and came out with two guns. Tepelikyan said, “I’ll kill any nigger” and “Do you have a problem, nigger?” and John Doe 1 said, “Shoot me then.” Tepelikyan then shot in the air with both guns. Tepelikyan then approached McCoy, pointing a gun at McCoy, and asked, “You got a problem, nigger?” and McCoy responded, “Whoa. Chill,” and raised his hands with 3 Zaroyan testified that at some point earlier during the argument, the woman left in the car. Later in his testimony, Zaroyan stated that John Doe 2 left in the car with the woman. 3 palms out. While Tepelikyan had his gun pointed at McCoy, the other three got in their car and left. When Police Officer Aaron Green arrived at the shopping center, several people directed him north and Officer Green looked in that direction and saw Tepelikyan throw a handgun over a chain link fence. Officer Green and his partner detained Tepelikyan. Officer Green and his partner then went to the chain link fence and his partner went over the fence and retrieved two handguns. One of the guns was a .22 caliber handgun registered to Tepelikyan and the other was a .25 caliber handgun that was unregistered. Officer Green found two .25 caliber spent cartridge casings and two live .25 caliber rounds4 in the parking area of the shopping center. Police Officer Adrian Maxwell interviewed McCoy in March 2011. In the interview, McCoy told Maxwell that the people in the argument “were getting ready to start fighting. It was going beyond the argument and they were getting ready to fight.” II. Defense Evidence in First Trial The defense did not present any evidence. III. Conviction and Sentencing On March 11, 2014, the jury at the first trial found Tepelikyan guilty of one count of carrying a loaded, unregistered handgun but could not reach a verdict on the remaining counts, resulting in a mistrial being declared on those counts. The jury in the second trial found Tepelyikan guilty of one count of assault with a firearm against McCoy and one count of discharge of a firearm with gross negligence and found to be true the firearm use allegation as to the assault count. The second jury was unable to reach a verdict on the count for assault with a firearm against John Doe 1, resulting in a mistrial being declared on that count, and found the hate crime allegation 4 Officer Green stated the live rounds may have been dropped or may have been manually ejected from the gun by pulling the slide. 4 not true.5 Tepelikyan was sentenced to an aggregate term of seven years and eight months consisting of a middle term of three years on the assault charge, four years consecutive on the firearm enhancement, and eight months consecutive on the carrying charge. A two-year concurrent sentence on the discharge count was stayed under section 654. DISCUSSION On appeal, Tepelikyan contends the trial court committed an instructional error and a sentencing error. We disagree and affirm. I. Instructional Error Tepelikyan argues that the trial court erred during the first trial in failing to give an instruction on self-defense as to count 4—carrying a loaded, unregistered handgun in public. “A defendant is entitled to instruction on request on any defense for which substantial evidence exists. [Citations.] However, the trial court need give a requested instruction concerning a defense only if there is substantial evidence to support the defense.” (People v. Miceli (2002) 104 Cal.App.4th 256, 267.) Substantial evidence means “evidence from which a jury composed of reasonable persons could conclude that the facts underlying the particular instruction exist.” (People v. Blair (2005) 36 Cal.4th 686, 744-745.) If the evidence is minimal and insubstantial, the trial court need not instruct on the defense. (People v. Flannel (1979) 25 Cal.3d 668, 684 & fn. 12 [it is not the case that “jury instructions must be given whenever any evidence is presented, no matter how weak”], overruled on another ground in In re Christian S. (1994) 7 Cal.4th 768, 777.) “The trial court is not required to present theories the jury could not reasonably find to exist.” (People v. Oropeza (2007) 151 Cal.App.4th 73, 78.) We review the trial court’s determination de novo and independently decide whether there 5 The trial court granted Tepelikyan’s motion at the end of the prosecution’s evidence in the second trial to dismiss the count charging Tepelikyan with assault with a firearm against John Doe 2. 5 was substantial evidence in the record to support the requested instruction. (People v. Alvarez (1996) 14 Cal.4th 155, 217.) At the first trial, according to the police officer who interviewed McCoy, McCoy stated that although McCoy could not tell what the argument was about, “they were getting ready to start fighting. It was going beyond the argument and they were getting ready to fight.” In discussing jury instructions with counsel, the court stated that this testimony “provided the necessary evidence to give the self-defense instruction.” The court explained: “[T]here are three people against one. [¶] I’m not saying I as a juror would find that to be a justification, or that the response was reasonable, but I think it’s enough evidence to put it to the jury.” The trial court gave an instruction on self-defense as to the three assault counts and the discharge count–on which the court eventually declared a mistrial—but not on count 4 for carrying a loaded firearm in public. To support a self-defense instruction, there must be substantial evidence that the defendant (1) reasonably believed that he was in imminent danger of suffering bodily injury or was in imminent danger of being touched unlawfully; (2) reasonably believed that the immediate use of force was necessary to defend against that danger; and (3) used no more force than was reasonably necessary to defend against that danger. (CALCRIM No. 3470; People v. Romero (1999) 69 Cal.App.4th 846, 853.) Here, the evidence at the first trial showed that Tepelikyan twice walked away from the argument in the parking lot in order to go into his store to retrieve the guns, while John Does 1 and 2 remained outside. Thus, there was no substantial evidence that Tepelikyan reasonably believed he was in imminent danger from any of the victims when he came back outside the store carrying loaded guns to resume arguing.6 6 The evidence showed that Tepelikyan at one point had two guns, one of which was registered to him and one which was not registered, and he was charged with only one count of carrying a loaded firearm that was not registered to him. 6 II. Sentencing Error Tepelikyan contends that the trial court erred by not staying his concurrent sentence on count 4 for carrying a loaded, unregistered firearm in public under section 654 given his conviction and sentence in count 2 for assault with a firearm against McCoy. The purpose of section 654 is to ensure that punishment is commensurate with a defendant’s culpability. (People v. Meeks (2004) 123 Cal.App.4th 695, 705.) Courts have construed section 654 broadly, restricting punishment for multiple offenses committed with a single objective. In Neal v. State of California (1960) 55 Cal.2d 11, 19, the Supreme Court held where a course of conduct violates more than one statute but is part of an indivisible transaction with a single intent or objective, section 654 applies, and the trial court may impose only one sentence. But where a defendant entertains multiple criminal objectives that are “independent and not incidental to each other,” the court may impose separate punishment even where the violations were otherwise part of an indivisible course of conduct. (People v. Sok (2010) 181 Cal.App.4th 88, 99.) “It is the defendant’s intent and objective that determines whether the course of conduct is indivisible. [Citation.] . . . ‘“[i]f all of the offenses were merely incidental to, or were the means of accomplishing or facilitating one objective, the defendant may be found to have harbored a single intent and therefore may only be punished once.”’” (People v. Le (2006) 136 Cal.App.4th 925, 931; see People v. Alford (2010) 180 Cal.App.4th 1463, 1466.) If section 654 applies, the proper procedure is to impose a concurrent term and then stay it. (See People v. Hernandez (2005) 134 Cal.App.4th 1232, 1238-1239.) Where a court imposes a concurrent term but does not stay the term, we infer the court found defendant had multiple intents or objectives in committing the offenses and rejected the applicability of section 654. (People v. Alford, supra, 180 Cal.App.4th at p. 1466.) Where a court erroneously fails to stay a concurrent term in violation of section 654, it acts in excess of its jurisdiction and the sentence is unauthorized. (People v. Cuevas (2008) 44 Cal.4th 374, 380, fn. 3.) 7  The trial court has broad latitude in determining whether section 654 applies in a given case. (People v. Garcia (2008) 167 Cal.App.4th 1550, 1564.) The determination whether the defendant harbored more than one intent or objective is a factual one that will not be reversed on appeal unless unsupported by substantial evidence. (People v. Saffle (1992) 4 Cal.App.4th 434, 438.) We review the trial court’s factual finding, whether implicit or explicit, in the light most favorable to the prevailing party, presuming the existence of every fact the factfinder could reasonably deduce from the evidence. (People v. Tarris (2009) 180 Cal.App.4th 612, 620.) Here, the evidence showed Tepelikyan argued with John Does 1 and 2 before going into the store to retrieve the first gun, returning outside to continue arguing, fired the gun into the air, going back inside the store, obtaining a second gun, resuming his confrontation with John Does 1 and 2 and firing either one or both guns into the air, before turning to McCoy and pointing one of the guns at McCoy, asking McCoy if he had a problem, and then chasing McCoy. Viewed in the light most favorable to the prosecution, this evidence supports a finding that Tepelikyan harbored a separate objective in assaulting McCoy, that was independent and separate from his earlier objective to arm himself for his confrontation with John Does 1 and 2. DISPOSITION The trial court judgment is affirmed. NOT TO BE PUBLISHED. CHANEY, J. We concur: ROTHSCHILD, P. J. JOHNSON, J. 8 

IN THE DISTRICT COURT OF APPEAL FIRST DISTRICT, STATE OF FLORIDA RICHARD F. BRYANT, NOT FINAL UNTIL TIME EXPIRES TO FILE MOTION FOR REHEARING AND Appellant, DISPOSITION THEREOF IF FILED v. CASE NO. 1D17-0287 FLORIDA COMMISSION ON OFFENDER REVIEW, Appellee. _____________________________/ Opinion filed September 13, 2017. An appeal from the Circuit Court for Leon County. Karen A. Gievers, Judge. Richard F. Bryant, pro se, Appellant. Rana Wallace, General Counsel, Florida Commission on Offender Review, Tallahassee, for Appellee. PER CURIAM. Upon consideration of appellant's response to the Court's order of April 3, 2017, the appeal is dismissed without prejudice to seek review upon rendition of a final order in the circuit court proceeding. MAKAR, OSTERHAUS, and WINOKUR, JJ., CONCUR. 

541 U.S. 940 KEITHv.UNITED STATES. No. 03-7380. Supreme Court of United States. March 22, 2004. 1 C. A. 5th Cir. Certiorari denied. Reported below: 73 Fed. Appx. 35.

416 F.2d 1330 PERIODICAL DISTRIBUTORS, INC., Plaintiff-Appellant,v.The AMERICAN NEWS COMPANY, Inc., Union News Company, Inc., Henry Garfinkle, Pacific News Company, Inc. and The Manhattan News Company, Inc., Defendants-Respondents. No. 52. Docket 33055. United States Court of Appeals Second Circuit. Argued September 30, 1969. Decided October 20, 1969. Arthur C. Fink, New York City (Fink, Weinberger & Levin, Robert D. Stern, Norman Solovay, New York City, on the brief), for plaintiff-appellant. Eugene Frederick Roth, New York City, for defendants The American News Co., Inc., Union News Co., Inc., and Henry Garfinkle. Sidney A. Florea, New York City, for defendant Manhattan News Co., Inc. Harry Amer, New York City (Michael P. Direnzo, New York City, on the brief), for defendant Pacific News Co., Inc. Before FRIENDLY, SMITH and FEINBERG, Circuit Judges. PER CURIAM: 1 Plaintiff Periodical Distributors, Inc. appeals from a judgment for defendants in this private antitrust suit after a lengthy non-jury trial before Henry N. Graven, J.1 in the United States District Court for the Southern District of New York. Appellant is a periodical wholesaler in New York. Appellee Garfinkle or his family control appellees The American News Company, Inc., Union News Company, Inc., and Manhattan News Company, Inc. At the time suit was commenced, American News was the parent of Union News,2 which owns a large number of retail newsstands in the metropolitan area. Manhattan News is a wholesaler of periodicals, as is the remaining appellee Pacific News Company, Inc. 2 Appellant contends that defendants conspired to restrain competition in periodical distribution with the connivance of the Newspaper & Mail Deliverers' Union and others, principally by use of access to the Union News retail outlets as a club to prevent competition, and that defendants have monopolized or attempted to monopolize the submarket of terminal newsstands in the metropolitan area. The district judge found that there was no conspiracy, as alleged, that the termination of plaintiff's franchise from Select Magazines, Inc. for Nassau and Suffolk Counties was due to that company's desire to get rid of the burden of subsidies to plaintiff, that plaintiff did not prove wrongful conduct of defendants in connection with distribution of periodicals by Union News at LaGuardia Airport, that plaintiff did not establish unlawful restraint, monopoly or attempted monopoly by defendants in connection with periodical distribution in the New York metropolitan area, and that plaintiff had not proved the existence of the alleged submarket of terminal newsstands. 290 F.Supp. 896, 909. 3 This action has been pending since 1960. Plaintiff had a full and fair opportunity to establish its case at trial. On the basis of the record before the trial judge, we do not see how his findings can properly be regarded as clearly erroneous. Although plaintiff argues that evidence was improperly excluded at trial, the judge clearly acted well within his discretion. In a motion to remand based upon "newly discovered material," plaintiff relies heavily on two newspaper articles published in July and early August, 1969 and makes further serious charges against defendants. Although these accusations may well merit investigation, they relate primarily to very recent events. The motion papers do not justify disturbing the findings of the court below as to occurrences of many years ago. 4 Judgment affirmed. Notes: 1 Senior Judge of the Northern District of Iowa, sitting by designation 2 Apparently since then, Union News has been merged into American News

273 Cal.App.2d 353 (1969) ROY J. WARD et al., Plaintiffs and Appellants, v. COUNTY OF RIVERSIDE et al., Defendants and Respondents. Civ. No. 9220. California Court of Appeals. Fourth Dist., Div. Two. May 23, 1969. Taylor & Smith and Edward F. Taylor for Plaintiffs and Appellants. Ray T. Sullivan, Jr., County Counsel, and Gerald J. Geerlings, Deputy County Counsel, for Defendants and Respondents. McCABE, P. J. The petitioners prayed for a writ of mandate and prohibition directing the Board of Supervisors of Riverside County to vacate their order of August 18, 1967, [fn. 1] denying a permit and to substitute an order granting petitioners a conditional use permit to operate a rock quarry, portable rock crusher equipment and portable asphalt plant on certain property owned by them in the unincorporated area of Riverside County, zoned M-3. Under this zone several uses required a conditional use permit. One such use was that applied for by petitioners. On May 3, 1967, the petitioners applied for a permit as required by the ordinance with the Riverside County Planning Commission (Commission). After a hearing, the Commission recommended, by a letter dated June 27, 1967, to the *355 board of supervisors (Board) that such be granted subject to certain conditions. The Board considered the question on July 3, 1967, at its first meeting following the receipt of the Commission recommendation. At that meeting, by unanimous vote of the Board the case was ordered back to the Commission "for further conditions." On July 10, 1967, an appeal to the Board from the recommendation of the Commission was filed by four land owners, who had property within close proximity to that of petitioners. The Commission reconsidered the matter and by a letter dated July 14, 1967, the Planning Director recommended the Board hold a public hearing on the application. [fn. 2] On July 17, 1967, the Board set a public hearing for August 14, 1967 on the application. The Board's minutes of August 14, 1967, indicate at that hearing three people spoke in favor of the permit being issued; 12 people spoke against issuance and no one else desired to speak; approximately 60 persons in the audience raised their hands in opposition; and a petition was presented containing 3,121 signatures in opposition to the permit. In addition, the county planning director made an oral presentation and photographs of rock crushing plants were filed as exhibits. At the end of the hearing, the application for the permit was denied by a 4-0 vote of the Board. Petitioners make two arguments: (1) The Board's denial of their permit is contrary to the county zoning ordinance and in excess of its jurisdiction; and (2) there is no substantial evidence to support the Board's action in denying the permit. Under Riverside County Zoning Ordinance No. 348, section 3.1, the application for a permit for the above kind of activity must demonstrate "that the proposed use will not endanger the public health or safety or conflict with or be adverse to the general welfare." Under provisions of article XVIII of this ordinance the initial decision to grant or deny a permit is made by the Commission. This decision to be made within a reasonable time after the closing of the hearing and must be filed with the clerk of the Board, not more than 15 days after the making of such decision. The clerk must place the notice of decision on the Board's agenda for the next regular meeting *356 which is held five or more days after such notice has been filed. Under section 18.26 (7), a part of article XVIII, the granting or denial of an application by the Commission becomes final seven days after it is placed on the Board's agenda, with no action on the part of the Board, unless either: (a) an appeal to the Board is made by the applicant or an owner of property within 300 feet of the property subject to the use permit, or (b) the Board transfers the application to it for further proceedings. In the instant case the petitioners argue that neither procedure was followed, but rather the Board within the seven days ordered the matter sent back to the Commission for consideration of further conditions. Although an appeal by four land owners was filed after that order was made and within the seven days, it is undisputed that the four land owners were not qualified under the ordinance to appeal to the Board because they did not own land within 300 feet of the subject land. Petitioners' first argument, narrowly stated, is whether the Board's July 3, 1967 order sending the matter back to the Commission for consideration of further conditions, satisfied the requirements of section 18.26(7)(b) that the Board order the application transferred to it for further proceedings. It is noted that once the application is transferred to the Board, under section 18.26(8)(c), the Board can refer the matter back to the Commission as it did; however, the question is whether it can do so without first formally transferring the matter to the Board. The respondents agree the July 3, 1967 minute order of the Board does not specifically state that the Board ordered the matter transferred to itself; however, they argue such was clearly the Board's intent. Such intent it is argued was manifest in the Board's proceeding to order the matter back to the Commission, transferral to the Board being a precondition of such action. The respondents argue that informality is typical of the actions of all governing bodies and that the Legislature has recognized this in Government Code, section 65801, which reads as follows: "Formal rules of evidence or procedure which must be followed in court shall not be applied in zoning matters, except to the extent that a county or city may provide therefor. No action, inaction or recommendation regarding any zoning matter by any legislative body or any administrative body or official of any county or city shall be held void or invalid or be set aside by any court on the ground of the *357 improper admission or rejection of evidence or by reason of any error, irregularity, informality, neglect or omission (hereinafter called 'error') as to any matter pertaining to petitions, applications, notices, finding, records, hearings, reports, recommendations, appeals or any matters of procedure whatever, including, but not limited to, those included in this section, unless after an examination of the entire case, including the evidence, the court shall be of the opinion that the error complained of was prejudicial, and that by reason of such error the party complaining or appealing sustained and suffered substantial injury, and that a different result would have been probable if such error had not occurred or existed. There shall be no presumption that error is prejudicial or that injury was done if error is shown." [Italics added.] [1] No cases were cited nor have we found any interpreting this section; however, the meaning is clear: A court may not disturb zoning actions because of procedural irregularities unless from an examination of the entire record it concludes that prejudice resulted. [2] We need not decide in the instant case whether there was a procedural irregularity since petitioners have not provided us with a reporter's transcript of the public hearing before the Board; further, petitioners have not specified how they were in any way prejudiced by the instant procedure; and lastly, from a review of the minute order in the clerk's transcript it appears that the Board at the hearing on August 14 heard testimony from 16 different people, received other evidence and only then denied the permit.petitioners would appear to be relying upon a technicality. Their argument is without merit because they have not shown how they were in any way prejudiced. The cases cited by petitioners do not support their argument. In Johnston v. Board of Supervisors, 31 Cal.2d 66 [187 P.2d 686], the Supreme Court held that a board of supervisors could not issue a zoning permit where under their local zoning ordinance approval is first required of the planning commission, and it had previously rejected the permit. Johnston is factually very distinct from the instant case wherein the Board had full authority to issue or deny the permit and the only exception taken was to a possible procedural technicality. In Saks & Co. v. City of Beverly Hills, 107 Cal.App.2d 260, 264-265 [237 P.2d 32], the court found prejudice, in that the public hearing on the zoning question was not before a fair and impartial tribunal. In Redwood City Co. of Jehovah's Witnesses, Inc. v. City of Menlo Park, 167 Cal.App.2d 686, *358 697-698 [335 P.2d 195], the court found all standards in the zoning ordinance to be complied with and, therefore, the council's action in denying the permit was arbitrary and capricious. All the cases are clearly distinguishable from the instant case. There being no authority to the contrary, Government Code, section 65801, applies. Therefore, even assuming there was a procedural irregularity, we find it immaterial since there is no showing of prejudice as required by that section. Petitioners' second argument suffers from a similar infirmity in that the appellate court cannot review the substantiality of the evidence in support of the Board's denial of petitioners' permit without a transcript of the evidence presented to the Board on August 14, 1967.petitioners attack the minute order of August 14, 1967, as not enumerating substantial evidence on which the Board's decision was based. While it is true the minute order is lacking such a statement, this does not mean that the Board's decision was not based upon substantial evidence, but merely that such evidence was not enumerated in the minute order.petitioners have not cited any statutory or other authority that the Board was required to enumerate in the minute order the evidence relied on in its decision. [3] As stated in the case of Perry v. Chatters, 121 Cal.App.2d 813, 815 [264 P.2d 228], "In order to state a cause of action the petition for a writ of mandate must set forth facts showing that plaintiff is entitled to the relief he seeks." [4] Merely stating that the defendant Board's decision was not supported by the evidence, without specifying wherein the evidence produced was insufficient, amounts to a failure of the petition to contain an essential allegation upon which relief can be predicated. In the case of County of Contra Costa v. Social Welfare Board, 199 Cal.App.2d 468, 471 [18 Cal.Rptr. 573], a proceeding in mandamus, the court said: " '... the plaintiff must either attach to the complaint a complete transcript of all the evidence upon which the authority acted ... or, at the minimum, must allege the substance of all of the evidence which the authority did receive and further aver with particularity the elements, aspects and the principles wherein such evidence, considered in the light of the plaintiffs' contention, supports the conclusion that the authority abused the discretion vested in it.' " [5] The petitioners have the burden of proof since there is *359 a presumption the agency regularly performed its official duty, (Cal. Administrative Mandamus (Cont.Ed. Bar) pp. 217-218; Evid. Code, 664). This burden has not been met. It is undenied that the August 14, 1967 public hearing and proceedings were tape recorded and a transcript of them could have been obtained. From the minute order there is no doubt but that the Board heard testimony from both sides and allowed all who wished to speak on the matter an opportunity to do so. Under the circumstances, we cannot find there is insufficient evidence in support of the Board's action. Judgment affirmed. Kerrigan, J., and Tamura, J., concurred. NOTES [fn. 1] 1. The petition is probably referring to the order of August 14, 1967, as the record does not disclose any order of August 18, 1967. [fn. 2] 2. The text of the letter was as follows: "Pursuant to the order of your honorable Board dated July 10, 1967, on the above matter that additional conditions be recommended, it is respectfully recommended that your honorable Board hold a public hearing for the purpose of giving the matter further consideration. It appears that considerable misunderstanding has arisen with respect to the operation, its location and type of equipment proposed."

                                                   NUMBER 13-11-00356-CV                                    COURT OF APPEALS                        THIRTEENTH DISTRICT OF TEXAS                            CORPUS CHRISTI - EDINBURG ____________________________________________________________   CITY OF MCALLEN, TEXAS,                                                         Appellant,                                                                v.   MCALLEN POLICE OFFICERS UNION,                                        Appellee. ____________________________________________________________                                 On Appeal from the 93rd District Court                                         of Hidalgo County, Texas. ____________________________________________________________                                  MEMORANDUM OPINION                Before Chief Justice Valdez and Justices Rodriguez and Garza Memorandum Opinion Per Curiam   Appellant, City of McAllen, Texas, filed an appeal from a judgment entered by the 93rd District Court of Hidalgo County, Texas, in cause number C-3039-10-B.  Appellant has filed a motion to dismiss the appeal on grounds that appellees have filed a notice of nonsuit in the trial court which has been granted, rendering this appeal moot.  Appellant requests that this Court dismiss the appeal. The Court, having considered the documents on file and appellant=s motion to dismiss the appeal, is of the opinion that the motion should be granted.  See Tex. R. App. P. 42.1(a).  Appellant=s motion to dismiss is granted, and the appeal is hereby DISMISSED.  Costs will be taxed against appellant. See Tex. R. App. P. 42.1(d) ("Absent agreement of the parties, the court will tax costs against the appellant.").  Having dismissed the appeal at appellant=s request, no motion for rehearing will be entertained, and our mandate will issue forthwith.   PER CURIAM Delivered and filed the 21st day of July, 2011.          

UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 03-7801 ROBERT ALLEN SARTORI, Plaintiff - Appellant, and STANDLY HEARD; ADULA WALI, a/k/a Linwood Earl Duffie; REGINALD OUTLAW; MELVIN HARRIS; LARRY GARY, JR.; GREGORY GANT; NATHAM WEAVER, Plaintiffs, versus ROY COOPER; ALL DISTRICT ATTORNEYS IN NORTH CAROLINA, Defendants - Appellees. Appeal from the United States District Court for the Eastern District of North Carolina, at Raleigh. James C. Fox, Senior District Judge. (CA-02-875-5-F) Submitted: April 28, 2004 Decided: May 18, 2004 Before WILLIAMS and KING, Circuit Judges, and HAMILTON, Senior Circuit Judge. Affirmed by unpublished per curiam opinion. Robert Allen Sartori, Appellant Pro Se. Unpublished opinions are not binding precedent in this circuit. See Local Rule 36(c). - 2 - PER CURIAM: Robert Allen Sartori filed a civil action captioned under 42 U.S.C. §§ 1981, 1983 (2000). The district court concluded Sartori’s claims sounded in habeas, dismissed Sartori’s claims under 42 U.S.C. §§ 1981, 1983 (2000), and instructed him to particularize his complaint to comply with the requirements of 28 U.S.C. § 2254 (2000). Sartori’s amended complaint failed to comply with the district court’s instruction, and the district court denied relief. Sartori moved for reconsideration. The district court noted that Sartori “shows the court that his previous motion to amend actually sought to amend the relief requested” and that Sartori “argues that his claim should now be construed as a discrimination suit under §§ 1981 and 1983, and not as a petition for habeas corpus.” The district court nonetheless denied the motion for reconsideration, holding that “[r]egardless, the plaintiff’s claim will still be dismissed.” Sartori appeals from the district court’s order and order on reconsideration denying relief on his amended complaint. We have reviewed the record and find no reversible error. See Sartori v. Cooper, No. CA-02-875-5-F (E.D.N.C. filed Sept. 26, 2003; entered Sept. 29, 2003 & filed Oct. 23, 2003; entered Oct. 27, 2003). Accordingly, we affirm. We dispense with oral argument because the facts and legal contentions are adequately presented in the materials before the court and argument would not aid the decisional process. AFFIRMED 

Filed 5/7/14 P. v. Mines CA5 NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA FIFTH APPELLATE DISTRICT THE PEOPLE, Plaintiff and Respondent, F066167 v. (Super. Ct. No. 1252640) STEVEN OSCAR MINES, OPINION Defendant and Appellant. THE COURT* APPEAL from a judgment of the Superior Court of Stanislaus County. John D. Freeland, Judge. Mark J. Shusted, under appointment by the Court of Appeal, for Defendant and Appellant. Office of the State Attorney General, Sacramento, California, for Plaintiff and Respondent. -ooOoo- * Before Kane, Acting P.J., Poochigian, J., and LaPorte, J.† † Judge of the Kings Superior Court assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.  Appellant, Steven Oscar Mines, appeals from the denial of his postjudgment motion to correct his presentence custody credits. Following independent review of the record pursuant to People v. Wende (1979) 25 Cal.3d 436, we affirm. FACTUAL AND PROCEDURAL HISTORY On March 30, 2010, the Stanislaus County District Attorney filed an information charging appellant and three codefendants with three counts of robbery (counts 1-3/Pen. Code, § 211)1 and one count of participating in a criminal street gang (§ 186.22, subd. (a)). Counts 1 through 3 also charged Mines and his codefendants with a gang enhancement (§ 186.22, subd. (b)(1)) and a firearm use enhancement (§ 12022.53, subds. (b) & (e)(1)). On June 28, 2010, Mines pled guilty to the robbery offense charged in count 1 and to the lesser included offense of grand theft from a person (§ 487, subd. (c)) in counts 2 and 3 in exchange for the dismissal of the remaining count and enhancements and a stipulated term of five years. Additionally, after Mines waived time, the court sentenced him to the stipulated five-year term consisting of the aggravated term of five years on his robbery conviction and a concurrent midterm of two years on each of his grand theft from a person convictions. The court also awarded Mines presentence custody credits of 690 days consisting of 600 days of presentence actual custody credit and 90 days of presentence conduct credit. On July 23, 2012, Mines wrote a letter to the trial court asking the court to award him an additional 15 days of presentence custody credit. On September 12, 2012, the court issued a minute order increasing Mines’s presentence custody credits to 698 days consisting of 607 days of presentence actual custody credit and 91 days of presentence conduct credit. 1 All further statutory references are to the Penal Code. 2  On November 7, 2012, Mines filed his appeal from the September 12, 2012, order. Mines’s appellate counsel has filed a brief which summarizes the facts, with citations to the record, raises no issues, and asks this court to independently review the record. (People v. Wende, supra, 25 Cal.3d 436.) Mines has not responded to this court’s invitation to submit additional briefing. Following an independent review of the record, we find that no reasonably arguable factual or legal issues exist. DISPOSITION Mines’s request for judicial notice of a motion he mailed to the trial court on March 28, 2013, and the minute order of the April 15, 2013, hearing on the motion is denied. The judgment is affirmed. 3 

535 F.2d 1399 Edward H. HARNED, Jr., Petitioner-Appellant,v.Robert J. HENDERSON, Superintendent, Auburn CorrectionalFacility, Respondent-Appellee. No. 908, Docket 75-2146. United States Court of Appeals,Second Circuit. Argued April 6, 1976.Decided June 29, 1976. Jeffrey I. Zuckerman, New York City, for petitioner-appellant. Ralph L. McMurry, Asst. Atty. Gen., New York City (Louis J. Lefkowitz, Atty. Gen. for the State of New York, New York City, Samuel A. Hirshowitz, First Asst. Atty. Gen., New York City, of counsel), for respondent-appellee. Before ANDERSON, MULLIGAN and MESKILL, Circuit Judges. PER CURIAM: 1 This is an appeal from an order of the Hon. Orrin G. Judd, Judge, United States District Court for the Eastern District of New York, entered on October 17, 1975, which dismissed appellant's petition for a writ of habeas corpus. We vacate and remand in light of the Supreme Court's decision in Henderson v. Morgan, --- U.S. ----, 96 S.Ct. 2253, 48 L.Ed.2d ---, 44 U.S.L.W. 4910, 19 Crim.L.Rep. 3133 (1976), aff'g 516 F.2d 897 (2d Cir., 1975). There the Court held that a guilty plea cannot be voluntary (and hence is violative of due process) unless the defendant was informed by court or counsel of the elements of the offense to which he pleads. In the instant case the petitioner pleaded guilty in state court to burglary in the first degree, one element of which is the causation of physical injury. N.Y. Penal Law § 140.30(2). While Judge Judd below determined that petitioner never admitted the commission of actual physical injury,* the record before us does not indicate whether or not Harned was advised of all the elements of burglary in the first degree. Accordingly we will vacate and remand for further consideration in light of Morgan. * Such an admission is itself not necessarily required for a valid guilty plea; see North Carolina v. Alford, 400 U.S. 25, 91 S.Ct. 160, 27 L.Ed.2d 162 (1970)

828 F.2d 17Unpublished 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.Willard Lake SELF, Plaintiff-Appellant,v.Earl BESHEARS, Gene T. Cousins, William Carroll, CharlesCreecy, Frank Evans, John Patseavouras, Aaron Johnson, Cpt.Baker; Lt. Shields, Lt. Crump, Lt. King, Lt. Wilson, Lt.Norwood, Cpt. Williams, Cpt. Avery, David Weaver, VanTaylor, Bryan Rhodes, Sgt. Williams, Albert Claster Jones,Ofc. Hunsucker, Joel Evans, Ofc. Davis, Sgt. Benthall, Ofc.Moseley, Ofc. Hunter, W. L. Murphy, Sgt., Sgt. Vaughn, J.M.Smith, Ofc., Wayne True, Mr. Gordon, Sgt. Moore, State ofNorth Carolina, Supt. Ernest Hughes, All the above in theirindividual and official capacities, Defendants-Appellees. No. 87-7133 United States Court of Appeals, Fourth Circuit. Submitted July 27, 1987.Decided August 20, 1987. Willard Lake Self, appellant pro se. Sylvia Hargett Thibaut, Assistant Attorney General, for appellees. Before WIDENER and CHAPMAN, Circuit Judges, and BUTZNER, Senior Circuit Judge. PER CURIAM: 1 A review of the record and the district court's opinion accepting the recommendation of the magistrate discloses that this appeal from its order refusing relief under 42 U.S.C. Sec. 1983 is without merit. Because the dispositive issues recently have been decided authoritatively, we dispense with oral argument and affirm the judgment below on the reasoning of the district court. Self v. Beshears, C/A No. 86-904-CRT, (E.D.N.C., Apr. 17, 1987). 2 AFFIRMED.

Pursuant to Ind. Appellate Rule 65(D), this Memorandum Decision shall not be regarded as precedent or cited before FILED Jul 06 2012, 9:26 am any court except for the purpose of establishing the defense of res judicata, collateral estoppel, or the law of the case. CLERK of the supreme court, court of appeals and tax court ATTORNEY FOR APPELLANT: ATTORNEYS FOR APPELLEE: BRIAN J. MAY GREGORY F. ZOELLER South Bend, Indiana Attorney General of Indiana RICHARD C. WEBSTER Deputy Attorney General Indianapolis, Indiana IN THE COURT OF APPEALS OF INDIANA SANTOS C. LOPEZ, ) ) Appellant-Defendant, ) ) vs. ) No. 71A03-1109-CR-480 ) STATE OF INDIANA, ) ) Appellee-Plaintiff. ) APPEAL FROM THE ST. JOSEPH SUPERIOR COURT The Honorable J. Jerome Frese, Judge Cause No. 71D03-1004-FC-69 July 6, 2012 MEMORANDUM DECISION - NOT FOR PUBLICATION BRADFORD, Judge  Appellant-Defendant Santos Lopez appeals his conviction for Class B felony Unlawful Possession of a Firearm by a Serious Violent Felon.1 Specifically, Lopez contends that the evidence is insufficient to support his conviction. We affirm. FACTS AND PROCEDURAL HISTORY At some point during the afternoon on April 4, 2010, Suzetta Tucker and her mother were returning to Tucker’s apartment in the West Jefferson Apartments in Mishawaka. A blue vehicle pulled into the entrance of the apartment complex just in front of Tucker. The blue vehicle stopped, not leaving Tucker with enough room to pull around it. Tucker “tapped” her car horn but the blue vehicle did not move. Tr. p. 18. A few moments later, Tucker honked her car horn for a longer period. The blue vehicle did not move. After Tucker honked her car horn, she noticed Lopez get out of the back-passenger seat of the blue vehicle. Lopez faced Tucker’s vehicle, pulled up his shirt, pulled a firearm from his pants, and pointed the firearm at Tucker’s vehicle. Tucker observed that the firearm was, at least in part, silver, but did not know what type of firearm it was. At this same time, Christon Watson, a resident of the apartment complex, observed a man pointing a dark, semiautomatic handgun at a vehicle and notified police. Tucker stayed in her vehicle, called the police, and provided them with the blue vehicle’s license plate number. Lopez eventually got back into the blue vehicle, and the blue vehicle pulled forward into the parking area. Tucker stayed on the phone with police as she pulled forward into the parking area. Tucker watched as Lopez again exited the blue vehicle and began to chase another vehicle. 1 Ind. Code § 35-47-4-5 (2009). 2 Tucker saw Lopez brandishing the firearm at the other vehicle before he re-entered the blue vehicle, which then drove off. Tucker initially described the perpetrator as a black male, but subsequently identified Lopez, who is Hispanic, as the perpetrator. Tucker picked Lopez out of a photo array shown to her by police on April 5, 2010, and then again at trial. Mishawaka Police Officer Bruce Faltynski responded to the calls about the disturbance at the West Jefferson Apartments. As he approached the entrance to the apartment complex, Officer Faltynski observed a blue vehicle matching the description provided by Tucker and Watson leaving the complex. Officer Faltynski activated his emergency lights and sirens. The blue vehicle, however, did not stop.2 Officer Faltynski followed the blue vehicle, sometimes at speeds nearing eighty to ninety miles per hour, until the blue vehicle crashed. Both the driver and Lopez were taken into custody.3 On April 6, 2010, the State charged Lopez with Class D felony intimidation, Class A misdemeanor carrying a handgun without a license, and Class C felony unlawful possession of a handgun by a serious violent felon. On April 15, 2010, the State amended the charging information to include a charge of Class B felony possession of a firearm by a serious violent felon. On April 21, 2011, Lopez waived his right to a jury trial. On August 8, 2011, the State withdrew the Class C felony unlawful possession of a handgun by a serious violent felon charge. 2 At some point after Officer Faltynski activated his emergency lights and sirens, the blue vehicle stopped momentarily while an unidentified female passenger exited the vehicle. 3 No firearm was recovered from the vehicle. The State’s theory is that Lopez threw the firearm from the vehicle before Lopez and the driver were apprehended. A firearm was recovered from along the route driven by the blue vehicle during the flight from the apartment complex. 3  Following a bench trial, the trial court found Lopez not guilty of Class D felony intimidation, and guilty of Class A misdemeanor carrying a handgun without a license and Class B felony unlawful possession of a firearm by a serious violent felon. The trial court merged the misdemeanor carrying a handgun without a license conviction into the unlawful possession of a firearm by a serious violent felon conviction. On August 31, 2011, the trial court imposed a twelve-year term of incarceration with five years suspended and three years on supervised probation. This appeal follows. DISCUSSION AND DECISION Lopez contends that the evidence is insufficient to support his conviction for Class B felony unlawful possession of a firearm by a serious violent felon. When reviewing the sufficiency of the evidence to support a conviction, appellate courts must consider only the probative evidence and reasonable inferences supporting the verdict. It is the fact-finder’s role, not that of appellate courts, to assess witness credibility and weigh the evidence to determine whether it is sufficient to support a conviction.… The evidence is sufficient if an inference may reasonably be drawn from it to support the verdict. Drane v. State, 867 N.E.2d 144, 146-47 (Ind. 2007) (citations, emphasis, and quotations omitted). Inconsistencies in witness testimony go to the weight and credibility of the testimony, “the resolution of which is within the province of the trier of fact.” Jordan v. State, 656 N.E.2d 816, 818 (Ind. 1995). Upon review, appellate courts do not reweigh the evidence or assess the credibility of the witnesses. Stewart v. State, 768 N.E.2d 433, 435 (Ind. 2002). In order to convict Lopez of Class B felony unlawful possession of a firearm by a 4 serious violent felon, the State was required to prove that Lopez was a serious violent felon who knowingly or intentionally possessed a firearm. Ind. Code § 35-47-4-5(c). A “serious violent felon” is a person who has been convicted of committing a serious violent felony or attempting to commit or conspiring to commit a serious violent felony. Ind. Code § 35-47-4- 5(a). “A person engages in conduct ‘intentionally’ if, when he engages in the conduct, it is his conscious objective to do so.” Indiana Code § 35-41-2-2(a) (2009). “A person engages in conduct ‘knowingly’ if, when he engages in the conduct, he is aware of a high probability that he is doing so.” Indiana Code § 35-41-2-2(b). Pursuant to Indiana Code section 35-47-4-5(b), the class of felonies referred to as serious violent felonies includes dealing in or manufacturing cocaine or a narcotic drug. In the instant matter, Lopez stipulated to the fact that he had prior convictions for Class B felony dealing in a narcotic drug and Class B felony dealing in cocaine, and that as a result of these convictions, qualified as a serious violent felon for the purposes of Indiana Code section 35-47-4-5. Thus, the remaining question is whether Lopez knowingly or intentionally possessed a firearm. Lopez claims that the evidence is insufficient to prove that he possessed a firearm because Tucker initially provided an inconsistent identification of Lopez. Lopez acknowledges that he stipulated to the fact that Tucker identified him out of a photo array the day after the alleged incident occurred and concedes that Tucker identified him as the perpetrator at trial. Lopez, however, argues that these identifications are insufficient to prove that he possessed a firearm because the identifications are inconsistent with Tucker’s initial 5 statement to police in which she described the individual who pointed a gun at her as a black man. A single eyewitness’s testimony is sufficient to sustain a conviction. Badelle v. State, 754 N.E.2d 510, 543 (Ind. Ct. App. 2001), trans. denied. Any inconsistencies in identification testimony go only to the weight of that testimony, as it is the task of the fact-finder to weigh the evidence and determine the credibility of the witnesses. Id. We do not weigh the evidence or resolve questions of credibility when determining whether the identification evidence is sufficient to sustain a conviction. Id. Rutherford v. State, 866 N.E.2d 867, 871 (Ind. Ct. App. 2007); see also Lee v. State, 735 N.E.2d 1112, 1115 (Ind. 2000). Here, the evidence demonstrates that although Tucker initially told the investigating officers that the person who possessed, pointed, and brandished the firearm was a black male, she consistently identified Lopez as the individual who possessed, pointed, and brandished the firearm on April 4, 2010. Tucker identified Lopez from a photo array provided by police on April 5, 2010, and again identified Lopez as the perpetrator at trial. The trial court, acting as the fact-finder, weighed the inconsistencies between Tucker’s initial statement and subsequent identifications and determined that Tucker’s identification of Lopez was credible. Lopez’s claim to the contrary amounts to an invitation for this court to reweigh the evidence and to re-evaluate issues of credibility, which, again, we will not do. See Rutherford, 866 N.E.2d at 871. At trial, Tucker positively identified Lopez as the person who emerged from the blue vehicle that had stopped immediately in front on her own vehicle, pulled the firearm from his pants, and pointed the firearm at her. Tucker further identified Lopez as the person who 6 brandished the firearm after he approached another vehicle. The trial court determined that this testimony was sufficient to prove that Lopez knowingly or intentionally possessed a firearm. We agree. The judgment of the trial court is affirmed. VAIDIK, J., and CRONE, J., concur. 7 

468 F.Supp.2d 251 (2006) UNITED STATES of America, Plaintiff, v. Sean BUCCI, Defendant. No. 03-CR-10220-MEL. United States District Court, D. Massachusetts. December 28, 2006. *252 *253 Gary Zerola, Michael F. Natola, Robert M. Goldstein, Boston, MA, for Defendant. MEMORANDUM AND ORDER LASKER, District Judge. Sean Bucci moves: (1) to dismiss the indictment because of the destruction of evidence by the government; (2)to dismiss Count Five of the Second Superseding Indictment on statute of limitations grounds; and (3) to dismiss the Second Superseding Indictment on grounds of alleged vindictive prosecution. For the reasons set forth below, the motions are DENIED. A federal criminal complaint was filed against Bucci and several co-defendants on June 4, 2003, alleging that the defendants conspired to distribute and distributed marijuana. Bucci was indicted on July 1, 2003. The government filed a superseding indictment on February 3, 2005, which charged Bucci with conspiring to distribute 1000 kilograms of marijuana, rather than the 100 kilograms alleged in the original indictment. A Second Superseding Indictment, filed on July 28, 2005, added charges of conspiracy to commit money laundering, money laundering, structuring, and tax evasion. I. Motion to Dismiss Based on the Destruction of Evidence On June 13, 2003 the DEA sent a notice to the U.S. Attorney's Office expressing its intention to destroy all but a representative sample of the 453 pounds of marijuana it seized in connection with this case, pursuant to its normal procedures. The letter advised that the marijuana would be destroyed within sixty days unless, prior to the expiration of the sixty-day period, the DEA received written notice from the U.S. Attorney's Office requesting to preserve the marijuana. Bucci filed a motion to preserve the evidence on June 24, 2003, which the government opposed on technical grounds. The majority of the marijuana was destroyed on August 11, 2003, leaving eleven representative samples from each package seized, weighing a total of 6.8 pounds. Nearly two years later, in June 2005, Bucci filed a motion to re-weigh the evidence, but was informed that most of the marijuana had been destroyed. Bucci now seeks dismissal of the indictment because of the destruction of the marijuana evidence. He maintains that the government was on notice that Bucci took action to preserve the evidence and that the government was obligated to write a letter to the DEA to ensure that it was not destroyed. Bucci argues that the government's failure to do so has resulted in a violation of Bucci's due process rights, by depriving him of the opportunity to inspect and weigh the marijuana he is charged with possessing. Bucci contends that he is left without a means to challenge the government's charges since he cannot conduct his own tests or otherwise refute the government's assertion that the marijuana weighed 453 pounds. Bucci argues that the weight of the marijuana is a significant issue in this case. While the government may deserve censure for its failure to take action to preserve the marijuana in question, Bucci nevertheless fails to meet the standard for proving a due process violation based on the destruction of evidence. As the First Circuit recently explained, to prevail on such a claim a defendant must show: (1) either that the evidence had an exculpatory value that was apparent prior to its destruction or that the government acted in bad faith in destroying potentially useful evidence; and (2) that the evidence was irreplaceable. See Olszewski III v. Spencer, 466 F.3d 47, 55-58 (1st Cir.2006); see also Arizona v. Youngblood, 488 U.S. 51, *254 56-58, 109 S.Ct. 333, 102 L.Ed.2d 281 (1988); California v. Trombetta, 467 U.S. 479, 488-489, 104 S.Ct. 2528, 81 L.Ed.2d 413 (1984). Addressing the threshold question of whether the destroyed evidence was apparently exculpatory or merely potentially useful, the government argues persuasively that the marijuana is at most potentially useful. The government maintains that the destroyed marijuana is properly characterized as inculpatory. It is difficult to see how such a large quantity of marijuana could be not only exculpatory, but exculpatory in a way that was readily apparent prior to its destruction. Since the marijuana in this case was at most potentially useful, to prevail on his claim Bucci must prove bad faith on the part of the government. He has not done so. Bucci maintains that the government was on notice that he wanted the evidence preserved, but the government let the DEA destroy the majority of the marijuana anyway. Nevertheless, although this is the case, it is not sufficient to establish bad faith on the part of the government. While the marijuana was ultimately destroyed, the DEA preserved representative samples and documented the process in photographs and videotapes. There is no indication that the evidence was destroyed out of animus or an effort to conceal exculpatory information. In sum, since there is no evidence of bad faith, which is the first element of a due process violation based on the destruction of potentially useful evidence, Bucci's motion to dismiss must fail. Moreover, Bucci has not established that the marijuana was irreplaceable, a finding that is required under the governing precedents. Evidence is irreplaceable if its destruction leaves defendants "without alternate means of demonstrating their innocence." See Trombetta, 467 U.S. at 490, 104 S.Ct. 2528. The Supreme Court concluded in Trombetta that alternatives existed for challenging the government's drunk driving allegations without the actual breath samples, where the defendant remained free to inspect the breathalyzer machine, argue that other factors influenced its findings, and cross-examine the officer who administered the test. See id. Under Trombetta, Bucci's irreplaceability argument fails, since he may still challenge the accuracy of the DEA's testing equipment, test the representative samples himself, and cross examine the individuals who weighed the marijuana. The case upon which Bucci primarily relies, United States v. Belcher, 762 F.Supp. 666 (W.D.Va.1991), is readily distinguishable. In Belcher, the alleged marijuana plants were destroyed before any tests were conducted to confirm the officer's visual determination that they were, in fact, marijuana plants. As a result, the court properly concluded that the defendants were deprived the opportunity to challenge the allegations against them since the plants were never tested before they were destroyed, and the defendants therefore lacked means to refute the government's assertion that the plants were marijuana. See Belcher, 762 F.Supp. at 672. In contrast, Bucci is free to re-test the remaining marijuana or challenge the tests and measurements that have been conducted. For the foregoing reasons, Bucci's motion to dismiss based on the destruction of evidence is DENIED. II. Motion to Dismiss Based on the Statute of Limitations Bucci contends that Count Five of the Second Superseding Indictment must be dismissed on statute of limitations grounds. Since the Second Superseding *255 Indictment was returned on July 28, 2005, the relevant date for statute of limitations purposes is July 28, 2000. Count Five charges Bucci with violating 18 U.S.C. § 1957 by "engaging in monetary transactions in property derived from specified unlawful activity." More specifically, the indictment alleges that on or about July 28, 2000, Bucci deposited approximately $222,179.88 in to his account at First Massachusetts Bank with proceeds derived from the sale of a controlled substance. Bucci contends that the $222,179.88 deposit referred to in Count Five was actually deposited on July 27, 2000. The back of his deposit slip is marked with the bank's date and time stamp indicating it was deposited on July 28, 2000 at 14:30, or 2:30pm. However, according to the bank's customer service representative, Heather Mellow, the bank changes the date stamp at 2pm each day. As a result, all deposits made after 2pm are stamped with the date of the following business day. Since the deposit slip indicates that it was submitted at 2:30pm, after the date stamp was changed, Bucci maintains that the deposit was actually made on July 27. Accordingly, Bucci argues that because the five-year statute of limitations expired on July 27, 2005, the day before the Second Superseding Indictment was returned, the charge should be dismissed. The government does not challenge Bucci's showing that he physically submitted the money to the bank on July 27, 2000. The government contends however, that Bucci continued to be "engaged" in a money laundering transaction within the meaning of Section 1957 until the money was posted to Bucci's account on July 28. On this basis, the government maintains that the statute of limitations does not bar Count Five. The issue presents a difficult question that has not been addressed by the First Circuit. Strong, well-reasoned arguments have been presented on both sides. However, given the language of the relevant statute, which applies to defendants who "knowingly engage[ ]" in certain monetary transactions, I conclude that Bucci remained "engaged" in the monetary transaction until the deposit process was completed on July 28, 2000. 18 U.S.C. § 1957(a). The only published Court of Appeals opinion on this issue appears to be the Seventh Circuit's decision in United States v. Li, 55 F.3d 325 (7th Cir.1995). In Li, the Seventh Circuit construed a similar money laundering statute involving the laundering of monetary instruments, 18 U.S.C. § 1956, which applies to a defendant who, "knowing that the property involved in a financial transaction represents the proceeds of some form of unlawful activity, conducts or attempts to conduct" a financial transaction involving illegally obtained funds. 18 U.S.C. § 1956(a)(1). Since the statute defines "conducts" as "initiating, concluding, or participating in initiating or concluding a transaction," 18 U.S.C. § 1956(c)(2), the court held initiating a deposit was sufficient to complete the financial transaction element of the offense. See United States v. Li, 55 F.3d 325, 330 (7th Cir.1995). The court concluded that the offense was committed when the deposit was initiated, rather than when the deposit was fully processed and that the defendant's conviction was correctly vacated on statute of limitations grounds. See id. Unlike Li, Bucci is charged with violating 18 U.S.C. § 1957, which applies to a defendant who "knowingly engages or attempts to engage in a monetary transaction in criminally derived property . . ." 18 U.S.C. § 1957(a). The difference in the language of Section 1956 as compared to Section 1957 is significant. Section 1956 *256 defines "conduct[ing]" a transaction to include "initiating" a transaction. By contrast, Section 1957 applies to defendants who "engage" in a financial transaction, without further defining the term. The Li precedent is distinguishable because it relies heavily on the definition of a particular term in Section 1956 ("conducts") that does not appear in Section 1957. Relying on the ordinary meaning of "engage," the government argues that an individual is "engaged" in a monetary transaction until it is completed. According to the bank's representative, Bucci would have received a deposit slip indicating that his deposit was a "next day transaction." He was therefore put on notice that the bank would not consider the transaction complete until the next business day. In these circumstances, I find it reasonable to conclude that Bucci was "engaged" in the monetary transaction until his deposit was processed on July 28, 2000. The charged action therefore occurred within the statute of limitations period. For these reasons, Bucci's motion to dismiss Count Five of the Second Superseding Indictment on statute of limitations grounds is DENIED. III. Motion to Dismiss For Vindictive Prosecution Bucci argues that the Second Superseding indictment should be dismissed due to vindictive prosecution. He maintains that the government's true motivation for superseding was its concern about Bucci's website, "whosarat.com," and its resulting animus toward Bucci. For largely the same reasons stated in this Court's November 20, 2006 Memorandum and Order denying Bucci's motion to compel discovery relating to vindictive prosecution, this motion to dismiss is DENIED. To succeed on a vindictive prosecution claim the defendant must prove by objective evidence that the prosecutor acted with an improper prosecutorial motive and that the charges were brought solely to penalize the defendant. See United States v. Goodwin, 457 U.S. 368, 380 n. 12, 102 S.Ct. 2485, 73 L.Ed.2d 74 (1982). To establish vindictive prosecution a defendant must either: (1) produce evidence of "actual vindictiveness" or (2) demonstrate a sufficient likelihood of vindictiveness to warrant a presumption of prosecutorial vindictiveness. See United States v. Stokes, 124 F.3d 39, 45 (1st Cir.1997); United States v. Marrapese, 826 F.2d 145, 147 (1st Cir.1987). "Actual vindictiveness" requires direct evidence that the prosecutor was motivated by a desire to punish the defendant for asserting legal rights, a standard that has been characterized as a "rare" and "exceedingly difficult" to meet. See Goodwin, 457 U.S. at 380-81, 102 S.Ct. 2485; United States v. Gary, 291 F.3d 30, 34 (D.C.Cir.2002). Bucci has not presented direct evidence of actual vindictiveness by the prosecution. The evidence he presents in support of his motion, such as the timing of the superseding indictment and the various articles and documents expressing concern over whosarat.com, does not constitute direct proof of prosecutorial motive. Nor has Bucci offered sufficient evidence to create a "realistic likelihood of vindictiveness" warranting a rebuttable presumption of vindictiveness. Echoing his prior discovery motion, Bucci cites as evidence of vindictiveness articles, statements, and alerts from local, state, and federal law enforcement officials expressing concern about the whosarat.com website and its potential impact on law enforcement. While these documents clearly illustrate that various levels of government are worried about the website, they do not establish animus or vindictiveness. The fact that the government is concerned about whosarat.com does not establish a *257 "realistic likelihood" that it chose to seek superseding indictments against Bucci to penalize him for creating the site. Nor does this concern prove that the prosecution was motivated by animus toward Bucci. Given that the majority of the articles and documents Bucci cites were issued after the first superseding indictment was returned, they do not offer insight into the government's motivations just prior to its decision to supersede. Similarly, the timing of the superseding indictments fails to establish a realistic likelihood of vindictiveness sufficient to warrant a rebuttable presumption. As discussed in this Court's November 20 Memorandum and Order, the first superseding indictment was not entered until February 2005, six months after Bucci set up the website in August 2004. The length of time that elapsed between the website's creation and the superseding indictments, coupled with prosecutors' significant discretion in making charging decisions, the timing of the indictments do not establish a reasonable likelihood of vindictiveness. Moreover, the precedent Bucci primarily relies upon for support, United States v. P.H.E. Inc., 965 F.2d 848 (10th Cir.1992), which was considered in connection with Bucci's motion to compel discovery on this issue, is readily distinguishable. In P.H.E., the evidence of vindictiveness presented included written letters from the prosecutor clearly explaining that the goal of his multiple prosecution scheme was to run pornography publishers like P.H.E. out of business. P.H.E., 965 F.2d at 850. Bucci simply has not presented any comparable evidence of impermissible prosecutorial motive in this case. Statements of concern about whosarat.com included newspaper articles or alerts, are not nearly as persuasive evidence of vindictiveness as a prosecutor's written statement that the government's intention is to attack pornography producers from all angles. In contrast to P.H.E., none of the documents Bucci cites indicate that the government's purpose in seeking the superseding indictments is to shut down the website. Finally, the new evidence Bucci provides in connection with his vindictive prosecution claim lacks the detail and documentary support necessary to give it any significant evidentiary value. Bucci asserts for the first time that he "knows of at least one case where a defendant was offered a potential reduction in his sentence if he could assist in the shutting down of the website." (Defendant's Motion to Dismiss Superseding Indictment Based on Vindictive Prosecution at 9). Bucci does not identify the "case" to which he is referring, nor does he provide any affidavits or further evidence to substantiate this claim. Without more, this assertion does not provide significant support for Bucci's vindictive prosecution claim. Bucci's motion to dismiss for vindictive prosecution is therefore DENIED. Bucci's motion to dismiss, motion to dismiss Count Five of the Second Superseding Indictment on statute of limitations grounds, and motion to dismiss the Second Superseding Indictment for vindictive prosecution are each DENIED. It is so ordered.

NOT RECOMMENDED FOR FULL-TEXT PUBLICATION File Name: 10a0247n.06 No. 08-1922 FILED Apr 21, 2010 UNITED STATES COURT OF APPEALS LEONARD GREEN, Clerk FOR THE SIXTH CIRCUIT JEROME EDWARD BRAY, ) ) Petitioner-Appellant, ) ) ON APPEAL FROM THE UNITED v. ) STATES DISTRICT COURT FOR THE ) EASTERN DISTRICT OF MICHIGAN JOHN CASON, Warden, ) ) Respondent-Appellee. ) ) Before: COOK and McKEAGUE, Circuit Judges; and HOOD, District Judge.* COOK, Circuit Judge. Petitioner-Appellant Jerome Bray, currently serving a life sentence, appeals the district court’s denial of his petition for habeas relief pursuant to 28 U.S.C. § 2254, alleging violations of his Fifth Amendment right against self-incrimination and Sixth Amendment right to effective assistance of counsel. We affirm the judgment and deny the petition. I. After receiving information from jailhouse informant Ned Davis about cocaine dealers in the area, Westland police officers watched the residence at 515 Tobin Street in Inkster, Michigan for three days: February 27, February 28, and March 3, 1997. On February 27 and 28, the officers observed Bray make frequent, brief stops at the apartment. On March 3, officers again watched Bray * The Honorable Joseph M. Hood, United States District Judge for the Eastern District of Kentucky, sitting by designation. No. 08-1922 Bray v. Cason arrive at the apartment and, shortly thereafter, exit carrying a knapsack. This time, the police pursued Bray as he drove away, apprehended him, and found approximately 1,400 grams of crack cocaine and 1,975 grams of powdered cocaine in his car. A later search of the Tobin Street residence produced drugs, drug paraphernalia, and firearms. Following his arrest, police advised Bray of his constitutional rights and he acknowledged that he understood. Bray then admitted that: he sometimes sold drugs, he intended to sell the drugs found in his car when given instructions to do so, and the guns in the residence belonged to him. He also wrote a statement admitting wrongdoing and expressing the hope that his cooperation with police might lessen his punishment. Though Bray contested the voluntariness of these admissions in the state trial court, an evidentiary hearing convinced the court to deny suppression, finding the statements voluntarily given. At trial, the defense argued that Bray was in California during the last two weeks of February and that the person the police saw going in and out of the residence on those dates was Bray’s cousin, Deon Brown. Bray’s aunt, sister, and friend testified to corroborate the story. But though Bray’s sister produced documents purporting to show his absence from work during the period in question, prosecution witness Valerie Sovinski, the custodian of records where Bray worked, impeached the sister’s testimony. According to Sovinski, the records produced by Bray’s sister at trial were not company records. Indeed, the company’s records undermined the defense’s account, showing that Bray worked during the period in question. -2- No. 08-1922 Bray v. Cason The jury convicted Bray of possessing 650 grams or more of cocaine with intent to deliver, Mich. Comp. Laws §333.7401(2)(a)(i), possessing less than five kilograms of marijuana with intent to deliver, Mich. Comp. Laws §333.7401(2)(d)(iii), and being a felon in possession of a firearm, Mich. Comp. Laws §750.224f. The trial court sentenced Bray to concurrent terms of life imprisonment for the cocaine conviction, two to four years for the marijuana conviction, and two to five years for the firearm conviction. After exhausting his state remedies, Bray sought habeas relief in the district court. The district court held an evidentiary hearing on several of Bray’s claims, but denied relief. We granted a certificate of appealability to consider Bray’s Fifth and Sixth Amendment claims. II. We review the district court’s legal determinations de novo and its factual findings for clear error. Ege v. Yukins, 485 F.3d 364, 371 (6th Cir. 2007). Under the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA), we may not grant a writ of habeas corpus unless the state-court adjudication “was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States; or . . . 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)(1)–(2). AEDPA confines our inquiry to the last state-court decision on the merits. Joseph v. Coyle, 469 F.3d 441, 450 (6th Cir. 2006). We apply AEDPA deference to Bray’s Fifth -3- No. 08-1922 Bray v. Cason Amendment claim and to those Sixth Amendment claims the state courts “adjudicated on the merits,” while reviewing de novo those ineffectiveness claims the state courts refused to address.1 A. Admission of Confession Bray first alleges that the state trial court violated his Fifth Amendment right against self- incrimination when it admitted into evidence his custodial statements to the police, which he contends were involuntarily given in reliance on a promise of leniency. Specifically, Bray argues that the police led him to believe that if he provided a statement and cooperated with police, he might be prosecuted in federal court rather than state court (where he faced a penalty of life imprisonment without the possibility of parole). According to Bray, the inducement of a federal prosecution in return for his statement rendered his confession involuntary. Bray cites Bram v. United States, 168 U.S. 532 (1897), for the proposition that “to be admissible, [a confession] must be free and voluntary; that is, must not be extracted by any sort of threats or violence, nor obtained by any direct or implied promises, however slight, nor by the exertion of any improper influence.” Id. at 542–43 (quotation marks and citation omitted). But Bram does not supply the standard for evaluating voluntariness. Arizona v. Fulminante, 499 U.S. 1 Bray presented these claims in a pro se motion to supplement his appeal. The district court found the claims “fairly presented” for purposes of AEDPA’s exhaustion requirement, 28 U.S.C. § 2254(b)(1)(A), an issue the State does not raise on appeal and that we need not resolve because we deny relief on the merits. 28 U.S.C. § 2254(b)(2) (“An application for a writ of habeas corpus may be denied on the merits, notwithstanding the failure of the applicant to exhaust the remedies available in the courts of the State.”). -4- No. 08-1922 Bray v. Cason 279, 285–86 (1991). Instead, when determining whether police coercion rendered a defendant’s statement involuntary, we inquire whether, considering the totality of the circumstances, law enforcement overbore the will of the accused. Mincey v. Arizona, 437 U.S. 385, 401–02 (1978). Thus, although police promises of leniency can be objectively coercive in certain circumstances, a statement about possible leniency upon cooperation does not render a confession unconstitutional. United States v. Craft, 495 F.3d 259, 263–64 (6th Cir. 2007). The state trial court held an evidentiary hearing on the admissibility of Bray’s statements. At the hearing, Officer Scott Murray—who questioned Bray following his arrest—testified; Bray did not. Citing Murray’s testimony that Bray provided a statement before they discussed any potential deal and that Murray informed Bray that only the prosecutor had the power to make a deal, the trial court ruled that Bray gave his statement “voluntarily.” The Michigan Court of Appeals likewise found “no evidence” that officers promised Bray leniency in exchange for his statement and upheld the trial court’s conclusion that Bray’s confession was “the product of free and deliberate choice rather than police coercion.” People v. Bray, No. 229481, 2003 WL 1387141, *at 3 (Mich. Ct. App. Mar. 18, 2003). Our review of the record confirms this conclusion. Although Bray cites Officer Murray’s wavering testimony regarding whether he contacted the Federal Drug Enforcement Agency on Bray’s behalf, he offers no evidence demonstrating coercive police conduct or that his will was overborne. Indeed, Bray’s written statement indicated that authorities did not promise him anything for his -5- No. 08-1922 Bray v. Cason answers. Thus, we find that in affirming the trial court’s denial of Bray’s motion to suppress, the Michigan Court of Appeals did not unreasonably apply clearly established federal law or unreasonably determine the facts. B. Ineffective Assistance Bray also catalogues numerous alleged violations of his Sixth Amendment right to the effective assistance of counsel. The two-prong framework set forth in Strickland v. Washington, 466 U.S. 668 (1984), which requires a showing of deficient performance and prejudice, governs our review of these claims. Failure to Move to Suppress Bray argues that his pre-trial counsel rendered constitutionally ineffective assistance by failing to move to suppress the evidence police seized from the Tobin Street residence. At the federal evidentiary hearing, Bray’s lawyer testified that he opted to not file a motion to suppress because he “doubt[ed] [Bray] would have standing” to challenge the search warrant. “Where defense counsel’s failure to litigate a Fourth Amendment claim competently is the principal allegation of ineffectiveness, the defendant must also prove that his Fourth Amendment claim is meritorious . . . .” Kimmelman v. Morrison, 477 U.S. 365, 375 (1986). Fourth Amendment protections apply when a person possesses a legitimate expectation of privacy in the invaded place. Rakas v. Illinois, 439 U.S. 128, 143 (1978). Bray, who merely cites testimony that he visited the -6- No. 08-1922 Bray v. Cason residence and that documents with his name were found in the residence, fails to demonstrate that he possessed a reasonable expectation of privacy in the place searched and, therefore, cannot prove the merit of his underlying Fourth Amendment claim. Moreover, even presuming deficient performance and a meritorious Fourth Amendment claim, Bray cannot establish prejudice. Under Strickland, Bray must show “a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different.” Strickland, 466 U.S. at 694 (1984). Excluding the drugs, drug paraphernalia, and firearms recovered from the apartment, the evidence against Bray remains insurmountable. The officers’ testimony that they observed Bray leave the apartment with a knapsack later found to contain over three kilograms of cocaine, in conjunction with Bray’s confession, constitute overwhelming evidence of guilt. Trial Errors Bray offers a litany of alleged errors2 committed by his trial counsel, including counsel’s failure to investigate his sister’s testimony and to discern the falsity of the employment records; failure to object to “bad acts” testimony; improper questioning of witnesses; failure to present the defense that the cocaine belonged to Deon Brown; failure to investigate alibi witnesses; and refusal to allow Bray to testify on his own behalf. Even if Bray could demonstrate that his lawyers’ performance fell below an objective standard of reasonableness with respect to some—or all—of his 2 The state courts addressed only some of these errors. For ease (and because AEDPA deference is not outcome-determinative), we uniformly apply Strickland de novo. -7- No. 08-1922 Bray v. Cason claims, the alleged errors did not prejudice his case. Given the strength of the state’s uncontradicted and overwhelming evidence—namely, that Bray possessed three-and-a-half kilograms of cocaine when arrested by police on March 3 and confessed to police that he sold drugs, intended to sell the drugs he possessed when arrested, and owned the firearms in the residence, we remain convinced that any errors made by counsel did not affect the outcome of the trial. Conflict of Interest Finally, Bray argues that his trial counsel labored under a conflict of interest by representing Ned Davis, the confidential informant, and Deon Brown, his cousin, and that these purported conflicts rendered counsel’s assistance ineffective. We apply a slightly-altered Strickland test to conflict-of-interest ineffectiveness claims. When an actual conflict exists, we presume prejudice, Cuyler v. Sullivan, 446 U.S. 335, 349–50 (1980), but “only if the defendant demonstrates that counsel ‘actively represented conflicting interests’ and that ‘an actual conflict of interest adversely affected his lawyer’s performance.’” Strickland, 466 U.S. at 687 (quoting Cuyler, 446 U.S. at 348). Ned Davis Although the right to counsel encompasses a “correlative right to representation that is free from conflicts of interest,” Wood v. Georgia, 450 U.S. 261, 271 (1981), a defendant may knowingly, intelligently, and voluntarily waive his right to conflict-free counsel. United States v. Straughter, 950 F.2d 1223, 1234 (6th Cir. 1991). A waiver’s validity depends upon the particular facts and -8- No. 08-1922 Bray v. Cason circumstances of a case. Edwards v. Arizona, 451 U.S. 477, 482 (1981) (quoting Johnson v. Zerbst, 304 U.S. 458, 464 (1938)). The state appellate court held that Bray waived his right to conflict-free counsel with regard to Ned Davis. At the beginning of the trial, the prosecutor inquired about a possible conflict of interest implicated by the defense’s representation of both Ned Davis and Bray. Specifically, the prosecutor informed the court that, at the pretrial evidentiary hearing on the confession, Bray’s current attorneys represented Davis, while a different attorney represented Bray. Counsel for Bray responded that “no conflict affected the adequacy of representation.” Defense counsel then continued: “The information that we would seek to obtain from Mr. Davis goes to establishing the police officers’ interest, bias and prejudice in this case. It in no way compromises Mr. Davis.” Despite these assurances that no conflict existed, the prosecutor persisted, asking the court to inform Bray of the conflict on the record. This colloquy followed: PROSECUTOR: That’s why I ask that the Court inquire of the defendant. They don’t waive his rights. He’s got to get up and the Court’s got to inform him there may be a conflict of interest and does he recognize that and does he want to go forward. COURT: Mr. Bray, you understand that? BRAY: Yes. COURT: All right [sic]. You understand that what [the prosecutor] is saying is that because your attorneys also represent or represented Mr. — what’s his name again? -9- No. 08-1922 Bray v. Cason ... PROSECUTOR: Ned Davis, Your Honor. COURT: Mr. Ned Davis; that if they call him as a witness there may be some conflict in their representation of you, that perhaps they may not be looking out for your best interest because they may be looking at the interest of Mr. Davis versus yours. Now, have you discussed this with your lawyers? BRAY: Yes. COURT: You think there is a conflict at all? You think that in any way you’re being—you would be harmed or you would get less than one hundred percent loyalty from your attorneys on this matter because of that? BRAY: No, sir. The colloquy reveals that the court informed Bray of the possibility of a conflict of interest and that he had discussed the matter with counsel. Though the trial judge could have conducted a more thorough inquiry, the state court did not unreasonably hold “that [Bray] was aware of the alleged conflict of interest and that he waived it.” Bray, 2003 WL 1387141, *at 4. Moreover, even if we agreed with Bray’s argument that the waiver was somehow defective, his claim would still fail. Bray speculates that a conflict of interest prevented defense counsel from calling Davis as a witness, but provides no information substantiating the existence of an actual -10- No. 08-1922 Bray v. Cason conflict by, for example, identifying inconsistent defenses or privileged communications. Bray not only fails to identify an actual conflict, he also fails to show how his lawyers’ decision not to call Davis constituted deficient performance. Davis’s testimony bore no relevance to the crux of the case against him: his actual possession of three-and-a-half kilograms of cocaine. Bray’s inability to show that “an actual conflict of interest adversely affected his lawyer’s performance” prevents us from presuming prejudice. Given the overwhelming evidence of guilt against him, Bray cannot satisfy Strickland’s prejudice standard without this presumption. Deon Brown Bray registers a similar conflict-of-interest claim regarding defense counsel's representation of his cousin, Deon Brown. The State and Bray dispute whether this claim involves concurrent representation, which would trigger a presumption of prejudice, or successive representation, which would not. Because we hold that Bray cannot prevail even with the benefit of the presumption of prejudice, we decline to resolve the issue. Bray can avoid an analysis of prejudice, which he would lose, only if he demonstrates that an actual conflict of interest adversely affected his representation. Cuyler, 446 U.S. at 349–50. In support of his claim, Bray urges us to consider a November 2001 affidavit in which Brown stated that he wished to testify on Bray’s behalf, but counsel informed him that it would be “detrimental” to his own case. The magistrate judge correctly found the affidavit inadmissible as hearsay for purposes of evaluating the alleged conflict. Without the affidavit, Bray presents only “hypothetical -11- No. 08-1922 Bray v. Cason conflicts”—conflicts our precedent explicitly rejects. United States v. Mays, 77 F.3d 906, 908 (6th Cir. 1996). Because Bray cannot establish an actual conflict, this claim, too, lacks merit. III. We deny Bray’s petition. -12- 

543 U.S. 866 CRAWFORDv.MISSISSIPPI. No. 03-11056. Supreme Court of United States. October 4, 2004. 1 Sup. Ct. Miss. Certiorari denied. Reported below: 867 So. 2d 196.

Fourth Court of Appeals San Antonio, Texas MEMORANDUM OPINION No. 04-12-00629-CV Luis A. URIBE, Appellant v. Sara Rodriguez Sara Rodriguez URIBE, Appellee From the County Court at Law No. 1, Webb County, Texas Trial Court No. 2012-CVO-000027-C1 Honorable Alvino (Ben) Morales, Judge Presiding Opinion by: Rebeca C. Martinez, Justice Sitting: Catherine Stone, Chief Justice Karen Angelini, Justice Rebeca C. Martinez, Justice Delivered and Filed: August 30, 2013 REVERSED AND REMANDED Luis A. Uribe brings this restricted appeal challenging the trial court’s rendition of an amended decree of divorce in a bill of review proceeding. We reverse the judgment granting the amended decree of divorce and remand the case to the trial court for further proceedings. BACKGROUND On July 13, 2004, Luis filed a petition for divorce against Sara Uribe in cause number 2004-CVG-001255-C1. On May 17, 2005, the parties purportedly reached an agreement in which Luis was to be appointed permanent managing conservator of the couple’s daughter and Sara was  04-12-00629-CV to be appointed possessory conservator, with standard visitation rights, to be supervised, and child support set at $161.00 per month. Entry of the divorce decree was allegedly scheduled for a later date. Sometime thereafter, Luis apparently filed a petition to terminate Sara’s parental rights. Although the record before us does not include Luis’s petition, Sara alleges in her petition for bill of review that: the case was called on November 13, 2007; all parties were present; visitation rights were converted to supervised at Safe Haven, twice a week; and the case was reset to December 3, 2007, for termination of parental rights. Following a multitude of resets and no-shows on both sides, a “trial on the merits on the divorce action and termination of parental rights” was held over three years later, on August 12, 2008. Sara and her attorney were not present; Luis, his attorney, and the child’s attorney ad litem were present. The divorce was granted, Luis was appointed permanent managing conservator, and Sara’s parental rights were terminated. On November 13, 2008, the trial court signed the final decree of divorce. On January 9, 2012, Sara filed a petition for bill of review claiming a meritorious defense to the action to terminate her parental rights. Sara claimed that the May 17, 2005 agreement should control and that she had neither actual nor constructive notice of the setting to terminate her parental rights because she was incarcerated from January 23, 2008 until July 19, 2010. Sara further alleged that her meritorious defense was not presented due to fraud, accident, or wrongful act by Luis, or official mistake by a clerk. Sara therefore requested restoration of her parental rights. Sara demanded a jury trial. On March 21, 2012, a hearing was conducted on Sara’s bill of review. Neither Luis nor his attorney appeared. Without hearing any evidence, the trial court granted the bill of review and asked that another divorce decree be submitted for entry. The next day, the trial court signed an “Amended Final Decree of Divorce (On Bill of Review).” In the amended decree, the trial court -2-  04-12-00629-CV ordered the provisions of the Final Decree of Divorce in cause number 2004-CVG-001255-C1 cancelled, null, and void, and further ordered that the Amended Final Decree of Divorce (on Bill of Review) take the place of, and supersede, all of the provisions of the Final Decree of Divorce signed on November 13, 2008. The trial court found that both parties appeared on May 17, 2005, together with their attorneys, and announced that they had reached a final agreement disposing of all issues; specifically, that Luis would be appointed Permanent Managing Conservator, and Sara would be appointed Possessory Conservator, with standard visitation rights granted to Sara, to be supervised, and that child support would be set at $161.00 per month. The trial court noted that the child’s attorney ad litem was not present at the May 17, 2005 hearing. On September 19, 2012, Luis filed his notice of restricted appeal. On appeal, he argues the trial court erred in granting the bill of review and setting aside the 2008 divorce decree without hearing any evidence and in rendering the 2012 amended divorce decree. DISCUSSION Restricted Appeal To obtain relief through a restricted appeal, Luis must establish that: (1) he filed notice of restricted appeal within six months after the judgment was signed; (2) he was a party to the underlying suit; (3) he did not participate in the hearing that resulted in the judgment and did not timely file any post-judgment motions or requests for findings of fact and conclusions of law; and (4) error is apparent on the face of the record. Ins. Co. of State of Pa. v. Lejeune, 297 S.W.3d 254, 255 (Tex. 2009) (citing Alexander v. Lynda’s Boutique, 134 S.W.3d 845, 848 (Tex. 2004)); see also TEX. R. APP. P. 26.1(c), 30. Here, the only issue is whether error is apparent on the face of the record. The face of the record consists of all the papers on file in the appeal, including the reporter’s record. Norman Commc’ns v. Tex. Eastman Co., 955 S.W.2d 269, 270 (Tex. 1997) (per curiam); Flores v. Brimex Ltd. P’ship, 5 S.W.3d 816, 819 (Tex. App.—San Antonio 1999, no pet.). -3-  04-12-00629-CV “It necessarily follows that review of the entire case includes review of legal and factual insufficiency claims.” Osteen v. Osteen, 38 S.W.3d 809, 813 (Tex. App.—Houston [14th Dist.] 2001, no pet.) (citing Norman Commc’ns, 955 S.W.2d at 270); see also In re Gravitt, 371 S.W.3d 465, 471-72 (Tex. App.—Houston [14th Dist.] 2012, orig. proceeding [mand. denied]) (“Review by restricted appeal affords the appellant a review of the entire case, just as in an ordinary appeal, with the only restriction being that any error must appear on the face of the record.”). Bill of Review A bill of review is an equitable action brought by a party to a prior action who seeks to set aside a judgment that is no longer appealable or subject to motion for new trial. See Baker v. Goldsmith, 582 S.W.2d 404, 406 (Tex. 1979); Elliott v. Elliott, 21 S.W.3d 913, 916 (Tex. App.— Fort Worth 2000, pet. denied). Rule 329b(f) of the Texas Rules of Civil Procedure provides that “[o]n expiration of the time within which the trial court has plenary power, a judgment cannot be set aside by the trial court except by bill of review for sufficient cause . . .” TEX. R. CIV. P. 329b(f). The “sufficient cause” upon which a judgment may be set aside on bill of review is narrowly construed because of the policy favoring finality of judgments. See King Ranch, Inc. v. Chapman, 118 S.W.3d 742, 751 (Tex. 2003). In order to set aside a judgment by bill of review, a claimant is normally required to prove the following three elements: (1) a meritorious defense to the cause of action alleged to support the judgment; (2) which she was prevented from making by the fraud, accident or wrongful act of the opposing party or official mistake; (3) unmixed with any fault or negligence of her own. 1 1 Relying on Petro-Chemical Transport, Inc. v. Carroll, 514 S.W.2d 240, 245 (Tex. 1974), Luis contends that Sara must prove a “meritorious ground of appeal” instead of a “meritorious ground of defense.” In Petro–Chemical, the Supreme Court approved the use of a bill of review for a defendant who fully participated in a trial on the merits in the underlying cause but did not file a motion for new trial or appeal because the district clerk failed to give notice that the judgment had been signed. Id.; Ramsey v. State, 249 S.W.3d 568, 573 (Tex. App.—Waco 2008, no pet.). In lieu of establishing a meritorious claim or defense with regard to the underlying claim, the Court held that a bill-of- review plaintiff in this scenario must establish “a meritorious ground of appeal.” Ramsey, 249 S.W.3d at 573. We -4-  04-12-00629-CV Baker, 582 S.W.2d at 406-07. But when a bill-of-review plaintiff claims a due process violation for lack of notice of a trial setting, she is relieved of proving the first two elements set out above. Peralta v. Heights Med. Ctr., Inc., 485 U.S. 80, 84, 87 (1988); Mabon Ltd. v. Afri-Carib Enterprises, Inc., 369 S.W.3d 809, 812 (Tex. 2012) (per curiam); Caldwell v. Barnes (Caldwell II), 154 S.W.3d 93, 96-97 (Tex. 2004) (per curiam). And the third element, lack of negligence, is conclusively established if the bill-of-review plaintiff can prove she was never served with process. Mabon Ltd., 369 S.W.3d at 812-13; Caldwell II, 154 S.W.3d at 97. The Texas Supreme Court has made clear that entry of a post-answer default judgment against a defendant who did not receive notice of the trial setting or dispositive hearing constitutes a denial of due process under the Fourteenth Amendment of the United States Constitution. LBL Oil Co. v. Int’l Power Servs., Inc., 777 S.W.2d 390, 390-91 (Tex. 1989). We review a trial court’s ruling on a bill of review under an abuse-of-discretion standard. See Ramsey v. State, 249 S.W.3d 568, 574 (Tex. App.—Waco 2008, no pet.). In reviewing the grant or denial of a bill of review, we indulge every presumption in favor of the trial court’s ruling and will not disturb that ruling unless the trial court abused its discretion. Narvaez v. Maldonado, 127 S.W.3d 313, 319 (Tex. App.—Austin 2004, no pet.). Analysis Luis contends the trial court erred in granting the bill of review and rendering the amended divorce decree because there was no evidence offered in support of the bill of review. Because Sara claimed she never received notice of the setting that resulted in the termination of her parental rights, Sara was relieved of proving a meritorious defense which she was prevented from making disagree that the Petro-Chemical standard applies here. Sara did not participate in the underlying proceeding which resulted in the rendition of the 2008 divorce decree and the termination of her parental rights; in her petition for bill of review, she alleges that she had neither actual nor constructive notice of the setting to terminate parental rights. -5-  04-12-00629-CV by the fraud, accident or wrongful act of the opposing party or official mistake. See Mabon Ltd., 369 S.W.3d at 812-13; Caldwell II, 154 S.W.3d at 97; see also Lopez v. Lopez, 757 S.W.2d 721, 723 (Tex. 1988) (per curiam). While Luis argues that Sara’s petition for bill of review was not sufficient to establish the elements required to grant a bill of review, nothing in the record before us contradicts Sara’s claim of lack of notice or affirmatively demonstrates that she was provided notice of the setting. See Caldwell v. Barnes (Caldwell I), 975 S.W.2d 535, 536 (Tex. 1998). Given the proof of lack of notice, the third requirement of a traditional bill of review—lack of negligence on Sara’s part—was conclusively established. See Mabon Ltd., 369 S.W.3d at 812-13; Caldwell II, 154 S.W.3d at 97. Accordingly, Sara met all three requirements for proceeding with her bill of review. We therefore conclude that the bill of review was properly granted. We disagree, however, that the trial court had the authority to render the amended decree of divorce without retrying the case. Once the bill of review is granted, the complained-of judgment is set aside and the parties are returned to their original postures in the suit for divorce. A new trial is thus required. See Boateng v. Trailblazer Health Enters., L.L.C., 171 S.W.3d 481, 492 (Tex. App.—Houston [14th Dist.] 2005, no pet.) (after prima facie proof of meritorious defense was presented, trial court erred in rendering new judgment without proceeding with discovery and trial regarding merits of bill-of-review petition). Here, the reporter’s record of the bill of review proceeding consists of seven pages, including the cover sheet and the court reporter’s certification. There was no evidence or testimony presented at the hearing. The record is simply devoid of any evidence to support the “Amended Final Decree of Divorce (On Bill of Review).” See TEX. FAM. CODE ANN. § 6.701 (West 2006); Vazquez v. Vazquez, 292 S.W.3d 80, 84 (Tex. App.—Houston [14th Dist.] 2007, no pet.) (if respondent in divorce case fails to answer or appear, petitioner must still present evidence to support material allegations in the petition). -6-  04-12-00629-CV Accordingly, while we conclude that the bill of review was properly granted and the 2008 divorce decree was therefore properly set aside, the trial court erred when it rendered a new divorce decree without retrying the case. See Boateng, 171 S.W.3d at 492. Luis has thus established that error is apparent on the face of the record before us and that he is entitled to prevail on his restricted appeal. See Lejeune, 297 S.W.3d at 255. CONCLUSION Based on the foregoing, we hold the trial court erred in rendering the amended decree of divorce without retrying the case. We therefore reverse the trial court’s judgment and remand the case to the trial court for a new trial. Rebeca C. Martinez, Justice -7- 

FILED NOT FOR PUBLICATION FEB 24 2016 MOLLY C. DWYER, CLERK UNITED STATES COURT OF APPEALS U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT UNITED STATES OF AMERICA, No. 13-50555 Plaintiff - Appellee, D.C. No. 8:12-cr-00241-JVS-1 v. MEMORANDUM* JESUS QUINONES-CHAVEZ, Defendant - Appellant. Appeal from the United States District Court for the Central District of California James V. Selna, District Judge, Presiding Argued and Submitted September 2, 2015 Pasadena, California Before: O’SCANNLAIN, FISHER, and BYBEE, Circuit Judges. Jesus Quinones-Chavez appeals his jury convictions and sentence for conspiring to bring aliens into the United States, 8 U.S.C. §§ 1324(a)(1)(A)(v)(I), (a)(1)(A)(i), (a)(1)(B)(i), bringing aliens to the United States for private financial * This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. gain, 8 U.S.C. § 1324(a)(2)(B)(ii), and aiding and assisting an alien convicted of an aggravated felony to enter the United States, 8 U.S.C. § 1327. I Quinones argues that his Due Process and Confrontation Clause rights were violated by the exclusion of a self-exculpatory statement he claims to have made during his post-arrest interview. But unlike the interviewing officer’s testimony about Quinones’ admission, that purported statement was inadmissible hearsay. See Fed. R. Evid. 801(d)(2)(A); United States v. Ortega, 203 F.3d 675, 682 (9th Cir. 2000). Due Process forbids the government from knowingly introducing false evidence. See Napue v. Illinois, 360 U.S. 264, 269 (1959). It does not, however, mandate that a court allow a defendant to place his inadmissible statements “before the jury without subjecting [himself] to cross- examination.” United States v. Fernandez, 839 F.2d 639, 640 (9th Cir. 1988) 2 (per curiam). If Quinones wished to communicate his version of events, he could have testified.1 Likewise, Quinones’ Confrontation Clause rights were not violated by limiting his cross-examination of the officer to admissible testimony. Defense counsel extensively cross-examined the officer about his motivations for arresting and subsequently Mirandizing Quinones. Such questioning was adequate to allow the jury to “appropriately draw inferences relating to the 1 In his concurrence, Judge Fisher agrees with our ultimate conclusion, but insists that Quinones’ claim should be analyzed under the “common law rule of completeness.” We decline to address this issue, which was waived. See Cruz v. Int’l Collection Corp., 673 F.3d 991, 998 (9th Cir. 2012) (explaining that an appellate court reviews “only issues which are argued specifically and distinctly in a party’s opening brief” (citation omitted)). Moreover, leaving aside the fact that this Court has never held that the rule of completeness applies to oral statements, see Ortega, 203 F.3d at 682, the record here clearly indicates that the district court “carefully and thoroughly considered the government’s proffered statements from the post-arrest interview and correctly determined that those statements were neither misleading nor taken out of context,” United States v. Liera-Morales, 759 F.3d 1105, 1111 (9th Cir. 2014). The court engaged in an extended colloquy with defense counsel concerning Quinones’ version of his post-arrest interview, and even permitted defense counsel to elicit a yes or no answer from Agent Rodriguez as to whether Quinones said more than just that he was the driver of the boat. We fail to see how the district court’s ruling in this regard could possibly be construed as an abuse of discretion. See United States v. Collicott, 92 F.3d 973, 983 (9th Cir. 1996). 3 reliability of the witness.” Slovik v. Yates, 556 F.3d 747, 752 (9th Cir. 2009) (citation omitted). II Quinones next argues that the officer’s testimony that “multiple witnesses” identified Quinones as the driver of the smuggling boat violated the Confrontation Clause because only some of these witnesses testified. But that testimony emerged only after defense counsel opened the door by eliciting testimony concerning these witnesses. See United States v. Reyes-Alvarado, 963 F.2d 1184, 1187 (9th Cir. 1992) (“[A]ppellants may not seek reversal on the basis of their own evidentiary errors.” (citation omitted)); Burgess v. Premier Corp., 727 F.2d 826, 834 (9th Cir. 1984). Even more importantly, the officer’s testimony was introduced for the non- hearsay purpose of explaining the officer’s motivation to Mirandize Quinones. See United States v. Cruz-Diaz, 550 F.3d 169, 176-77 (1st Cir. 2008); see also United States v. Jiminez, 564 F.3d 1280, 1288 (11th Cir. 2009). Further, the trial judge’s limiting instruction—although imperfect—was sufficient to cure any possibly prejudicial effect and was not plain error. III 4  The trial court properly excluded evidence concerning two absent witnesses. Quinones claims that one witness’s statement that Quinones was “on top getting fuel” should have been admitted under Rule 803(3) because the witness also said he would not identify the driver out of fear. But Rule 803(3) by its very terms forbids this kind of maneuver. See Fed. R. Evid. 803(3) (declaring “a statement of memory or belief to prove the fact remembered or believed” inadmissible under the rule); United States v. Emmert, 829 F.2d 805, 810 (9th Cir. 1987) (“If the reservation in the text of the rule is to have any effect, it must be understood to narrowly limit those admissible statements to declarations of condition—‘I’m scared’—and not belief—‘I’m scared because Galkin threatened me.’”) (citation and emphasis omitted). Likewise, the trial judge correctly ruled that evidence of a second absent witness’s criminal conviction was inadmissible. Because the agent’s reference to “multiple witnesses” was not hearsay, that witness’s credibility was simply not at issue. See Fed. R. Evid. 806 (limiting attacks on a declarant’s credibility to instances in which hearsay has been admitted). IV 5  Quinones’ conviction under 8 U.S.C. § 1327 was valid. Section 1327 makes it a crime to “knowingly aid[] or assist[]” an inadmissible alien to enter the United States where that alien has been convicted of an aggravated felony that also qualifies as a crime of moral turpitude under 18 U.S.C. § 1182(a)(2). For purposes of § 1327, the term “aggravated felony” includes “an offense relating to . . . counterfeiting [or] forgery.” 18 U.S.C. § 1101(a)(43)(R). One alien Quinones transported had been convicted of “manufactur[ing], distribut[ing], or sell[ing] false documents to conceal the true citizenship or resident alien status of another person” in violation of California Penal Code § 113. Quinones contends that this crime qualifies as neither an aggravated felony nor a crime of moral turpitude under § 1327. He also argues that recent Supreme Court precedent requires the government to prove Quinones knew the nature of the alien’s crimes. We disagree. Section 1101(a)(43)(R) offers a broad definition of an aggravated felony. See Rodriguez-Valencia v. Holder, 652 F.3d 1157, 1159 (9th Cir. 2011) (per curiam) (“[W]hen Congress added convictions relating to counterfeiting to the definition of aggravated felony, it was well understood . . . that the generic crime of counterfeiting extended far beyond the imitation of currency.”); Albillo- 6 Figueroa v. INS, 221 F.3d 1070, 1073 (9th Cir. 2000) (noting that the ‘relating to’ language in § 1101(a)(43)(R) covers “a range of activities beyond those of counterfeiting or forgery itself”). Quinones nonetheless argues that § 113 does not qualify because it lacks an explicit “intent to defraud” element that this Court has sometimes required. See Morales-Alegria v. Gonzales, 449 F.3d 1051,1056 (9th Cir. 2006). But the California Supreme Court has observed that the elements of § 113 are: “(1) the manufacture, distribution or sale of false documents; and (2) the intent to conceal the true citizenship or resident alien status of another person.” People v. Rizo, 996 P.2d 27, 30 (Cal. 2000) (quotation marks omitted). Moreover, in Rodrigez-Valencia, our Court held that an underlying criminal statute may constitute an aggravated felony under § 1101(a)(43)(R) where the underlying offense does not explicitly require an intent to defraud but is by its nature “an inherently fraudulent crime.” Rodriguez- Valencia, 652 F.3d at 1160 (citation omitted). Because any crime committed 7 under § 113 requires an intent to defraud, there is little doubt that § 113 is an “inherently fraudulent crime” and thus qualifies as an aggravated felony.2 Quinones’ argument that § 113 does not qualify as a crime of moral turpitude is similarly unconvincing. “A crime having as an element the intent to defraud clearly is one involving moral turpitude,” and may be ascertained by “the statutory definition or by the nature of the crime.” McNaughton v. INS, 612 F.2d 457, 459 (9th Cir. 1980) (per curiam). The crime prohibited in § 113 is one that by nature involves both an intent to produce counterfeit documents and the intent to conceal the immigration status of others wrongfully. See Rizo, 996 P.2d at 30. Because the intent to defraud is inseparable from the acts encompassed by § 113, the district court rightly determined that § 113 is a crime of moral turpitude. 2 Quinones attempts to avoid this conclusion by distinguishing the “intent to defraud” and the “intent to deceive.” But that argument proves too much. The Supreme Court has observed that the term defraud means “to deprive of some right, interest, or property by deceit.” See United States v. Yermian, 468 U.S. 63, 73 n.12 (1984) (citation and internal quotation marks omitted). The manufacture, distribution, or sale of false documents undeniably deprives the government of its exclusive legal right to issue valid identification, and deprives those receiving such documents of their valid legal interest in confirming the conveyer’s true citizenship status. See, e.g., 18 U.S.C. § 1028 (criminalizing various uses of “false identification document[s],” and defining such documents as “not issued by or under the authority of a governmental entity” but appearing to be so issued). 8  Finally, contrary to Quinones’ assertion, recent Supreme Court precedent is consistent with our Court’s holding that § 1327 does not require the government to prove a defendant knew why the alien he was transporting was inadmissible. See United States v. Flores-Garcia, 198 F.3d 1119 (9th Cir. 2000). In Flores-Figueroa v. United States, 556 U.S. 646 (2009), the Supreme Court explicitly recognized that “context” may suggest that a mens rea term does not apply to all elements in a crime, id. at 652, and one Justice specifically cited § 1327 as an example, id. at 660 (Alito, J., concurring in part and concurring in the judgment). Quinones’ conviction under § 1327 was valid, and his sentence was not unreasonable. AFFIRMED. 9  FILED United States v. Quinones-Chavez, No. 13-50555 FEB 24 2016 FISHER, Circuit Judge, concurring in part, dissenting in part and concurring MOLLY C.inDWYER, the CLERK U.S. COURT OF APPEALS judgment: I join in the judgment and in the reasoning of the majority with the exception of the discussion in part I. I would hold the district court erred by failing to recognize its discretion under the rule of completeness to permit the defense to cross examine the government’s witness regarding Quinones’ postarrest statement. Because the error was harmless, however, I concur in the result. Agent Rodriguez testified Quinones admitted to driving the smuggling boat. This testimony was important to the prosecution because it suggested Quinones had confessed to bringing aliens into the United States and contradicted his defense that he was a mere passenger. Quinones maintains he actually told Rodriguez he drove the boat only while the captain was urinating and fixing the engine, evidence that would support his defense that he was not part of the smuggling operation. He contends the government “sliced and diced” his words into a confession by eliciting testimony solely about the incriminating portion of his statement while omitting testimony about the exculpatory portion. The district court refused to allow Quinones to cross examine Rodriguez about the exculpatory part of the statement, concluding “[t]he rule of completeness . . . does not apply because the 1 statements were made orally” rather than in writing. In the alternative, the court ruled that, even if the rule of completeness applied to unrecorded oral statements, the court would be compelled to exclude the testimony Quinones sought to elicit from Rodriguez as inadmissible hearsay, citing United States v. Ortega, 203 F.3d 675, 682 (9th Cir. 2000). The court advised Quinones that if he wished to contest the government’s portrayal of his role on the boat, he would have to waive his Fifth Amendment privilege and testify himself. I would hold the district court misapplied the rule of completeness. Although the rule of completeness as partially codified in Rule 106 of the Federal Rules of Evidence is limited to written and recorded statements, the common law rule of completeness continues to carry weight, and it applies broadly not only to written and recorded statements but also to unrecorded oral statements. The common law rule of completeness, moreover, trumps the hearsay rule. Thus, the district court had discretion to permit Quinones to cross examine Rodriguez regarding his complete postarrest statement. The court abused its discretion by ruling otherwise. A. The Common Law Rule of Completeness Applies to Unrecorded Oral Statements The district court properly recognized the rule of completeness codified by 2 Rule 106 applies solely to written and recorded statements, not to unrecorded oral statements. Under Rule 106, when “a party introduces all or part of a writing or recorded statement, an adverse party may require the introduction, at that time, of any other part . . . that in fairness ought to be considered at the same time.” Fed. R. Evid. 106. “For practical reasons, [Rule 106] is limited to writings and recorded statements and does not apply to conversations.” Fed. R. Evid. 106 advisory committee’s note. Rule 106, however, is not the final word on the rule of completeness. Under the common law, the rule of completeness “cover[s] not only writings taken out of context, but also . . . the truncated use of acts, declarations, and conversations.” 21A Kenneth W. Graham, Jr., Federal Practice and Procedure § 5072 (2d ed. 2015). As both this court and the Supreme Court have recognized, the common law rule of completeness continues to operate independently notwithstanding its partial codification in Rule 106. See Beech Aircraft Corp. v. Rainey, 488 U.S. 153, 171-72 (1988) (applying the common law rule of completeness even after it was “partially codified” in Rule 106); United States v. Collicott, 92 F.3d 973, 983 n.12 (9th Cir. 1996) (recognizing Rule 611(a) “grants district courts the same authority regarding oral statements which [Rule] 106 grants regarding written and recorded statements” (alteration in original) (quoting United States v. Li, 55 F.3d 325, 329 3 (7th Cir. 1995))); cf. United States v. Liera-Morales, 759 F.3d 1105, 1111 (9th Cir. 2014) (citing Collicott, 92 F.3d at 983 & n.12 and assuming without deciding the common law rule of completeness applies to oral statements).1 District courts’ authority to apply the common law rule is reenforced by Rule 611, which states “[t]he court should exercise reasonable control over the mode and order of examining witnesses and presenting evidence so as to . . . make those procedures effective for determining the truth,” Fed. R. Evid. 611(a), and “restates in broad terms the power and obligation of the judge as developed under common law principles,” Fed. R. Evid. 611 advisory committee’s note. In applying this rule, district courts should “exercise common sense and a sense of 1 In Beech Aircraft, the government questioned a witness about whether he made certain statements in a letter, then used evidentiary objections to prevent the opposing party from cross examining the witness about other parts of the letter to show its overall meaning differed from the misleading impression given by the government’s selective presentation. Although “much of the controversy” in the case “centered on whether Rule 106 applies,” the Supreme Court found it “unnecessary to address that issue” because under the common law rule of completeness, it was “obvious[] that when one party has made use of a portion of a document, such that misunderstanding or distortion can be averted only through presentation of another portion, the material required for completeness is . . . admissible.” Beech Aircraft, 488 U.S. at 172. Beech Aircraft’s embrace of the common law completeness doctrine without determining whether Rule 106 applied demonstrates the common law rule survives independently of Rule 106. See 21A Graham, supra, § 5073 n.1 (“In Beech Aircraft Corp. v. Rainey, the Supreme Court held that adoption of Rule 106 did not repeal the common law completeness doctrine; hence, that doctrine can be invoked for completeness where Rule 106 does not apply.” (citation omitted)). 4 fairness” and “require[] a party offering testimony as to an [oral] utterance to present fairly the ‘substance or effect’ and context of the statement” such that “the testimony . . . ‘at least represent[s] the tenor of the utterance as a whole, and not mere fragments of it.’” United States v. Castro, 813 F.2d 571, 576 (2d Cir. 1987) (quoting 7 J. Wigmore, Evidence § 2099 (Chadbourn rev. 1978)). A district court abuses its discretion under Rule 106 when it excludes part of a statement if “the edited version . . . ‘distorts the meaning of the statement or excludes information substantially exculpatory of the declarant.’” United States v. Dorrell, 758 F.2d 427, 434-35 (9th Cir. 1985) (quoting United States v. Kaminski, 692 F.2d 505, 522 (8th Cir. 1982)). The same standard should apply to oral statements under the common law rule of completeness operating through Rule 611(a). Thus, if the partial statement elicited from Rodriguez on direct examination was misleading under the Dorrell standard, Quinones should have been permitted to elicit the complete statement on cross examination of Rodriguez. B. The Common Law Rule of Completeness Should Be Construed to Trump the Hearsay Rule In my view, the district court also erred in ruling it was compelled to exclude the remainder of Quinones’ statement under the hearsay rule. To be sure, the district court was correct that the hearsay rule was implicated here. The 5 government was free to elicit testimony from Rodriguez about Quinones’ postarrest statement because Quinones and the government were party opponents. See Fed. R. Evid. 801(d)(2). But were Quinones to elicit testimony from Rodriguez about the remainder of the same postarrest statement, the statement would be hearsay because Quinones would be offering his own out-of-court statement rather than the statement of an opposing party. See Fed. R. Evid. 801(c), 802. Wise courts and commentators, however, have concluded the rule of completeness should override, or “trump,” the hearsay rule in this specific context. See, e.g., 21A Graham, supra, § 5072 (“[T]he common law doctrine carries with it what Professor Nance calls ‘the trumping function’; that is, evidence that falls within the completeness doctrine is [admissible2] even though it would otherwise be inadmissible under some other rule of evidence. Thus, the opponent can introduce what would otherwise be hearsay to complete a truncated statement offered by the proponent.” (footnotes omitted)); Stephen A. Saltzburg et al., Federal Rules of Evidence Manual § 106.02 (11th ed. 2015) (“A party should not 2 Although this word appears as “inadmissible” in the original text, this is clearly a typographical error in context and in light of the citation to Professor Nance’s law review article. See Dale A. Nance, A Theory of Verbal Completeness, 80 Iowa L. Rev. 825, 839 (1995). 6 be able to admit an incomplete statement that gives an unfair impression, and then object on hearsay grounds to completing statements that would rectify the unfairness. The appropriate way to resolve the hearsay issue is to hold that the party who offers an incomplete statement or document forfeits any hearsay objection to completing evidence that is necessary to correct a misleading impression.”); Dale A. Nance, Verbal Completeness and Exclusionary Rules Under the Federal Rules of Evidence, 75 Tex. L. Rev. 51, 54 (1996) (“If a proponent has evidence of the opponent’s admission, the proponent may well be tempted to introduce the part of that admission that is most damaging to the opponent, secure in the knowledge that the opponent cannot respond. The completeness doctrine vitiates this maneuver by assuring the introduction of all parts of the admission that are demanded by the opponent and that affect the inferences that may legitimately be drawn from the part of the utterance the proponent has chosen to introduce. Thus, the completeness doctrine serves a trumping function in that it trumps exclusionary rules that would otherwise prevent the opponent’s response.”); United States v. Bucci, 525 F.3d 116, 133 (1st Cir. 2008) (“[O]ur case law unambiguously establishes that the rule of completeness may be invoked to facilitate the introduction of otherwise inadmissible evidence.”); United States v. Sutton, 801 F.2d 1346, 1368 (D.C. Cir. 1986) (“Rule 106 can adequately fulfill its function 7 only by permitting the admission of some otherwise inadmissible evidence when the court finds in fairness that the proffered evidence should be considered contemporaneously. A contrary construction raises the specter of distorted and misleading trials, and creates difficulties for both litigants and the trial court.”); United States v. Castro-Cabrera, 534 F. Supp. 2d 1156, 1160-61 & n.6 (C.D. Cal. 2008) (“[T]he Rule of Completeness was designed to prevent the Government from offering a ‘misleadingly-tailored snippet.’ . . . . Although the Rule of Completeness cannot serve as an end run around the prohibition on inadmissible hearsay, this principle does not allow the Government to offer abridged portions of statements that distort the meaning of a statement.” (quoting Collicott, 92 F.3d at 983)). Indeed, when courts have refused to recognize the common law rule’s trumping function, some judges have come to regret that decision. See United States v. Adams, 722 F.3d 788, 826-27 & n.31 (6th Cir. 2013) (criticizing the Sixth Circuit’s “bar against admitting hearsay” under the rule of completeness as “leav[ing] defendants without redress” for “the government’s unfair presentation of the evidence” and suggesting en banc reconsideration of that rule). The trumping function served by the rule of completeness is all the more important where, as here, a criminal defendant’s constitutional right against self- incrimination is involved. As numerous courts have recognized, a criminal 8 defendant should not be forced to choose between leaving the government’s distorted presentation unanswered and surrendering the Fifth Amendment right not to testify. See Sutton, 801 F.2d at 1370 (“Since this was a criminal case [the defendant] had a constitutional right not to testify, and it was thus necessary for [the defendant] to rebut the government’s inference with the excluded portions of these recordings.”); United States v. Marin, 669 F.2d 73, 85 n.6 (2d Cir. 1982) (“[W]hen the government offers in evidence a defendant’s confession and in confessing the defendant has also made exculpatory statements that the government seeks to omit, the defendant’s Fifth Amendment rights may be implicated.”); United States v. Walker, 652 F.2d 708, 713-14 (7th Cir. 1981) (observing “the Government’s incomplete presentation may have painted a distorted picture of [the criminal defendant’s] prior testimony which he was powerless to remedy without taking the stand” and acknowledging that “[f]orcing the defendant to take the stand in order to introduce the omitted exculpatory portions of [a] confession . . . is a denial of his right against self-incrimination” (alternations in original) (quoting 1 J. Weinstein & M. Berger, Weinstein's Evidence ¶ 106[01] (1979)) (internal quotation marks omitted)); cf. Simmons v. United States, 390 U.S. 377, 394 (1968) (“[O]ne constitutional right should [not] 9 have to be surrendered in order to assert another.”).3 I do not read our case law as precluding us from applying the trumping principle here and making it a part of our circuit law. Neither United States v. Ortega, 203 F.3d 675 (9th Cir. 2000), nor United States v. Fernandez, 839 F.2d 639 (9th Cir. 1988), expressly bars a district court from allowing a criminal defendant to introduce otherwise inadmissible evidence under the common law rule of completeness when the prosecution abuses the asymmetric hearsay rule to introduce a misleadingly tailored snippet of the defendant’s statement.4 In Ortega, 3 Even when a criminal defendant chooses to testify, the trumping function remains important. Absent trumping, the defendant could testify to the issues (i.e., underlying facts), but could not, consistent with the hearsay rule, testify to the remainder of the truncated statement offered by the prosecution. Testifying to the underlying facts may not be as effective as providing the complete statement. See Nance, A Theory of Verbal Completeness, supra, at 846-47 n.68 (“One might argue that trumping the hearsay rule is unnecessary in view of the opponent’s opportunity to testify directly to the issues, one of the factors that seems to warrant the asymmetry in the admissions exception in the first place. This opportunity, however, will often be inadequate, since a trier of fact ignorant of the true tenor of the hearsay is likely to discount the in-court, self-serving testimony in favor of the out-of-court, adverse admission.” (citation omitted)). 4 We have held “Rule 106 does not compel admission of otherwise inadmissible hearsay evidence.” Collicott, 92 F.3d at 983 (citations and internal quotation marks omitted); see also Ortega, 203 F.3d at 682 (citing Collicott, 92 F.3d at 983). But we have never so held regarding the common law rule of completeness, which is the relevant doctrine here. Nor have we ever held district courts lack discretion under Rule 106 or the common law rule to admit otherwise inadmissible hearsay when the government abuses the hearsay rule to introduce (continued...) 10 the common law rule of completeness was not implicated, because we concluded “[t]he officer’s testimony did not distort the meaning of Ortega’s statements.” 203 4 (...continued) misleading evidence. See Castro-Cabrera, 534 F. Supp. 2d at 1161 (“[W]hile the Rule of Completeness cannot be used in a general sense as an end run around the usual rules of admissibility, each analysis must be done on a case-by-case basis in order to avoid the injustice of having the meaning of a defendant’s statement distorted by its lack of context.”). As Castro-Cabrera intimates, our cases declining to recognize a trumping function of Rule 106 have not involved manipulation of the hearsay rule to introduce a “misleadingly-tailored snippet,” let alone in a criminal trial when a defendant cannot correct the distortion except by waiving his privilege against self-incrimination. See id. at 1161 n.6 (distinguishing Ortega and Collicott on the ground that “there is not an indication in either [case] that the offered portions of statements created distortion or misrepresentation of the meaning of the statement”); Ortega, 203 F.3d at 683 (“The officer’s testimony did not distort the meaning of Ortega’s statements because Ortega testified to the statements not mentioned by the officer.”); Collicott, 92 F.3d at 983 (“[T]he purpose of Rule 106 would not be served if Zaidi’s statements were admitted because there was no concern in this case that Collicott introduced a misleadingly-tailored snippet from Zaidi’s statement to Kehl.”). See also United States v. Mitchell, 502 F.3d 931, 965 (9th Cir. 2007) (“The inculpatory statements elicited on direct examination of Agents Kirk and Duncan were not taken out of context or otherwise distorted.” (citing Ortega, 203 F.3d at 683, and United States v. Nakai, 413 F.3d 1019, 1022 (9th Cir. 2005))); Nakai, 413 F.3d at 1022 (“In neither instance was the unadmitted hearsay necessary to place the admitted statement in context.” (citing Ortega, 203 F.3d at 682)); United States v. Burreson, 643 F.2d 1344, 1349 (9th Cir. 1981) (holding the district court did not abuse its discretion under Rule 106 when it “carefully considered the entire transcript, and added material to the excerpt offered by the government to put it in proper context . . . [but] concluded that the portion appellants wished to submit was irrelevant and was inadmissable hearsay”). Whatever the limits of the trumping function of the rule of completeness, at minimum it should apply in the particular circumstances where the government has abused the asymmetrical nature of the hearsay rule in a criminal trial and exclusion under the hearsay rule would implicate a criminal defendant’s Fifth Amendment right not to testify on his or her own behalf. 11 F.3d at 683. Furthermore, we held requiring the defendant to rely on his own testimony as to his exculpatory statements “did not infringe upon his Fifth Amendment right not to testify because he had already testified prior to the officer’s testimony.” Id. (emphasis added). In Fernandez, there was no issue of completeness, as the defendant sought to elicit his standalone denial made to an FBI agent following his arrest. See 839 F.2d at 640. Thus, Fernandez says nothing about the scope of the rule of completeness. *** In sum, I would hold the district court misapprehended the rules of evidence in two significant respects. First, the court erred by limiting the rule of completeness to written and recorded statements; under Rule 611, the court was free to avail itself of the common law rule of completeness, which extends to unrecorded oral statements as well. Second, I would hold the rule of completeness serves a trumping function that overrides the hearsay rule in limited circumstances. Nonetheless, I concur in the result reached by the majority because I cannot say the district court’s misapprehensions regarding the scope of its authority were prejudicial. See United States v. Morales, 108 F.3d 1031, 1040 (9th Cir. 1997) (en banc). Quinones failed to make an adequate offer of proof to show that Rodriguez would have testified to the alleged exculpatory statement. See Fed. R. Evid. 12 103(a)(2). When asked on cross examination whether Quinones had said anything else “about him driving the boat,” Rodriguez testified: “He said he also needed money, and he was coming here to see family.” Rodriguez did not testify or suggest that Quinones had said he drove the boat only while the captain was otherwise occupied. Although Rodriguez’s response was stricken upon objection, he most likely would have given the same answer had the court permitted Quinones to cross examine him about the complete postarrest statement. Because Quinones has proffered no basis to conclude Rodriguez would have offered the alleged exculpatory testimony if the challenged cross examination had been allowed, I cannot conclude the district court’s misunderstandings regarding the rule of completeness were prejudicial. 13 

Opinion issued November 13, 2018 In The Court of Appeals For The First District of Texas ———————————— NO. 01-17-00761-CV ——————————— JOSHUA CONLAN, Appellant V. JADE POE, Appellee On Appeal from the County Court at Law No. 4 Travis County, Texas Trial Court Case No. C-1-CV-005454 MEMORANDUM OPINION Appellant, Joshua Conlan, has failed to timely file a brief. 1 See TEX. R. APP. P. 38.6(a) (governing time to file brief), 38.8(a) (governing failure of appellant to 1 Pursuant to its docket equalization authority, the Supreme Court of Texas transferred the appeal from the Court of Appeals for the Third District of Texas to file brief). After being notified that this appeal was subject to dismissal, appellant did not adequately respond. See id. 42.3(b) (allowing involuntary dismissal of case). Accordingly, we dismiss the appeal for want of prosecution. See id. 38.8(a), 42.3(b). We dismiss any pending motions as moot. PER CURIAM Panel consists of Justices Keyes, Bland, and Lloyd. this Court. See Misc. Docket No. 17-9128 (Tex. Sept. 28, 2017); see also TEX. GOV’T CODE ANN. § 73.001 (West 2015) (authorizing transfer of cases). 2 

77 F.3d 1304 John M. MERRETT, Solomon Clayton, Jr., Cecelia A. Clayton,Plaintiffs-Appellants,v.James T. MOORE, Commissioner, FDLE, Leonard Mellon, Exec.Director, Florida Dept. of Highway Safety & MotorVehicles, Lawrence Crow, Chief, LakelandPolice Dept., Jerald Vaughn,Defendants-Appellees. No. 93-2510. United States Court of Appeals,Eleventh Circuit. Feb. 26, 1996. Edward W. Stafman, Stafman & Friedlander, Tallahassee, FL, for appellants. Charlie McCoy, James A. Peters, Asst. Atty. Gen., Dept. of Legal Affairs, Tallahassee, FL, for Mellon, Butterworth and Dempsey. John P. Booth, Asst. General Counsel, Charlie McCoy, Fla. Dept. of Law Enforcement, Tallahassee, FL, for Moore & Dempsey. Reynolds E. Pitts, Jr., Fuller, Johnson & Farrell, P.A., Pensacola, FL, Patrick J. Farrell, Robert W. Ritsch, Fuller, Johnson & Farrell, P.A., Tallahassee, FL, for Cities of Lakeland, Mailtand & Largo Police Depts., Crow, Doyle, Vaughn and Ervin. Appeal from the United States District Court for the Northern District of Florida (No. TCA 84-7198-WS); William Stafford, Judge. ON PETITION FOR REHEARING EN BANC (Opinion July 25, 1995, 11th Cir., 58 F.3d 1547) Before TJOFLAT, Chief Judge, KRAVITCH, HATCHETT, ANDERSON, EDMONDSON, COX, BIRCH, DUBINA, BLACK, CARNES and BARKETT, Circuit Judges. PER CURIAM: 1 The Court having been polled at the request of one of the members of the Court and a majority of the Circuit Judges who are in regular active service not having voted in favor of it (Rule 35, Federal Rules of Appellate Procedure; Eleventh Circuit Rule 35-5), the Suggestion of Rehearing En Banc is DENIED. 2 BARKETT, Circuit Judge, dissenting, in which KRAVITCH and HATCHETT, Circuit Judges, join: 3 I respectfully dissent from the court's denial of en banc rehearing in this case, which makes us the first circuit court in the country to legalize roadblocks to intercept illegal drugs. Such a case deserves careful consideration by the entire court. 4 Heretofore, federal courts have allowed very few exceptions to the Fourth Amendment requirement that law enforcement officers possess at least articulable suspicion before stopping a vehicle: namely, at fixed checkpoints near border crossings to preclude illegal immigration, United States v. Martinez-Fuerte, 428 U.S. 543, 566-67, 96 S.Ct. 3074, 3086-87, 49 L.Ed.2d 1116 (1976); and at fixed and temporary checkpoints to ensure compliance with traffic-related laws, such as driver license, vehicle registration and drunk driving laws, see Michigan Dept. of State Police v. Sitz, 496 U.S. 444, 455, 110 S.Ct. 2481, 2488, 110 L.Ed.2d 412 (1990); United States v. McFayden, 865 F.2d 1306, 1313 (D.C.Cir.1989). 5 This case, however, upholds temporary, unannounced roadblocks established on the pretext of ensuring compliance with traffic-related laws, but admittedly designed to intercept illegal drugs. While law enforcement officers checked driver licenses and vehicle registrations at the roadblocks, other officers walked drug dogs around the vehicles to sniff for illegal drugs. Motorists could not leave the line leading up to a roadblock without being chased down by an officer and subjected to a license and registration check and a drug-dog sniff of their vehicles. Illegal drugs were found in only one of the 1300 vehicles stopped. 6 During prohibition seventy years ago, the Supreme Court observed that "[i]t would be intolerable and unreasonable if a prohibition agent were authorized to stop every automobile on the chance of finding liquor...." Carroll v. United States, 267 U.S. 132, 153-54, 45 S.Ct. 280, 285, 69 L.Ed. 543 (1925) (emphasis added). In my view, permitting law enforcement officers to stop every vehicle at a roadblock based on the mere possibility that one or more of the vehicles passing through will contain illegal drugs--evidence of a crime completely unrelated to highway safety--is similarly intolerable and unreasonable. The en banc court should carefully consider the ramifications of extending the roadblock exception to permit such roadblocks. 7 Likewise, the entire court should consider the following conclusions underlying the opinion: 8 I. A roadblock established on the pretext of ensuring compliance with traffic-related laws, but admittedly designed to intercept illegal drugs, is not unreasonably pretextual and therefore unconstitutional; 9 II. The reasonableness of a roadblock seizure can be determined under the balancing test of Brown v. Texas, 443 U.S. 47, 99 S.Ct. 2637, 61 L.Ed.2d 357 (1979), without giving any consideration to the roadblock's primary purpose--the interception of illegal drugs--or to the roadblock's effectiveness, or lack thereof, in serving that purpose; and 10 III. A motorist in a line leading up to a roadblock is not "seized" under the Fourth Amendment, where a law enforcement officer in a patrol car is visibly positioned to, and does, chase down motorists who leave the line, and subjects the motorists to a license and registration check and the car to a canine sniff. 11 * The panel holds that "where the state has one lawful purpose sufficient to justify a roadblock [such as a license and registration check], that the state also uses the roadblock to intercept illegal drugs does not render the roadblock unconstitutional." Merrett v. Moore, 58 F.3d 1547, 1550-51 (11th Cir.1995). Under our longstanding precedent, however, when a law enforcement officer stops a car on the basis of a traffic violation to investigate the possibility that the car is carrying drugs, the stop is unconstitutional if a reasonable officer would not have made the traffic stop in the absence of the illegitimate motive. See, e.g., United States v. Valdez, 931 F.2d 1448, 1451 (11th Cir.1991); Amador-Gonzalez v. United States, 391 F.2d 308, 313 (5th Cir.1968). 12 In this case, the government conceded that it would not have established the roadblocks absent its desire to intercept drugs. The panel, however, finds our pretext cases inapplicable because they involved roving rather than roadblock stops. The panel reasons that because "one officer's individual discretion does not affect the determination of who is stopped [at roadblocks] ..., the pretext analysis, as set out in our [roving patrol] precedents, does not fit...." Merrett, 58 F.3d at 1550 n. 2. 13 Police officer discretion is not the primary concern of our pretext cases, however. While these cases recognize the danger posed by the discretion exercised by officers on roving patrol, they are grounded on the more fundamental concern that officers will attempt to evade the requirements of the Fourth Amendment by using a traffic stop to detain someone for a purpose that would not lawfully support a detention. In both cases, "the police engage[ ] in a deliberate scheme to evade the requirements of the Fourth Amendment...." Amador-Gonzalez, 391 F.2d at 314 (quotation omitted). Moreover, the problem with discretion continues to exist with roadblocks, but at a higher level. A discriminatory purpose easily could lead to the establishment of roadblocks at the ingress or egress to particularly unfavored neighborhoods. 14 Although the Supreme Court has not directly considered the question of pretextual stops, it has indicated that this type of roadblock is unreasonably pretextual and therefore unconstitutional. In Texas v. Brown, 460 U.S. 730, 103 S.Ct. 1535, 75 L.Ed.2d 502 (1983), the Court reviewed a decision where a court had suppressed evidence seized at a roadblock on the ground that the officer had to change his position in order to see the evidence, allegedly rendering the plain-view doctrine inapplicable. Id. at 734-35, 103 S.Ct. at 1539-40. Holding that the plain view doctrine did apply, the Court emphasized that there was "no suggestion that the roadblock was a pretext whereby evidence of [a] narcotics violation might be uncovered in 'plain view' in the course of a check for driver's licenses." Id. at 743, 103 S.Ct. at 1544; see also South Dakota v. Opperman, 428 U.S. 364, 376, 96 S.Ct. 3092, 3100, 49 L.Ed.2d 1000 (1976) (upholding inventory search because "there is no suggestion whatever that this standard procedure ... was a pretext concealing an investigatory police motive"). 15 As the Tenth Circuit explained in United States v. Morales-Zamora, 974 F.2d 149 (10th Cir.1992), when considering a roadblock identical to the ones before us, "[i]t would seem to follow [from the opinion in Texas v. Brown ] that had the roadblock [there], which was designed to check for driver's licenses and registration, been but a pretext to look for "plain view" evidence of more serious crimes, the seizure of the [evidence] would have constituted a violation under the Fourth Amendment." Id. at 152. Applying Brown, the court reasoned as follows: "[h]aving concluded that the primary reason for the roadblock stop of Zamora's car was not to check her driver's license, but to ascertain, with the aid of an ever-present sniffing canine, whether she possessed drugs, it follows that the stop was pretextual and all that occurred thereafter was tainted." Id. at 153; see also McFayden, 865 F.2d at 1312-13 (observing that driver license roadblock could be conducted in a way indicating that its principal purpose was to detect crimes unrelated to licensing, in which case "a subterfuge might result in an infringement of Fourth Amendment rights"). II 16 The panel also holds that the roadblock seizures were reasonable under the test set forth in Brown v. Texas, 443 U.S. 47, 99 S.Ct. 2637, 61 L.Ed.2d 357 (1979). Under this test, the reasonableness of a seizure is determined by balancing " the gravity of the public concerns served by the seizure, the degree to which the seizure advances the public interest, and the severity of the interference with individual liberty." Id. at 51, 99 S.Ct. at 2640. The Supreme Court has explained that "[w]hat is reasonable, of course, depends on all of the circumstances surrounding the search or seizure and the nature of the search or seizure itself." Skinner v. Railway Labor Executives' Ass'n, 489 U.S. 602, 619, 109 S.Ct. 1402, 1414, 103 L.Ed.2d 639 (1989) (emphasis added; quotation omitted). 17 In determining the reasonableness of the roadblock seizures, however, the panel does not consider all of the circumstances surrounding the seizures. Instead, it focuses exclusively on the driver license and vehicle registration aspects of the roadblocks, that is, on the public's interest in ensuring compliance with license and registration laws and on the roadblock's effectiveness in advancing that interest. See Merrett, 58 F.3d at 1551-53. By ignoring the primary purpose of the roadblocks--intercepting illegal drugs--and the ineffectiveness of the roadblocks in serving that purpose, the panel, in my view, fails to engage in a meaningful balancing under Brown and Skinner, and loses sight of the historical concern with protecting citizens from wholesale governmental searches and seizures in the absence of probable cause or reasonable suspicion. III 18 Finally, the panel concludes that the intrusiveness of the roadblocks was minimal, largely because it finds that the motorists were "seized" only after they reached the front of the line leading up to the roadblocks. The motorists were seized while waiting in line, however, if "the police conduct would have communicated to a reasonable [motorist] that the [motorist] was not free" to leave the line. Florida v. Bostick, 501 U.S. 429, 439, 111 S.Ct. 2382, 2389, 115 L.Ed.2d 389 (1991); United States v. Mendenhall, 446 U.S. 544, 551-55, 100 S.Ct. 1870, 1875-78, 64 L.Ed.2d 497 (1980). 19 The evidence showed that before reaching the actual roadblocks, some motorists waited in line for up to forty-five minutes (during rush hour) with no viable alternate routes and an officer in a chase car positioned to stop any motorist attempting to leave. The evidence further showed that motorists who left the line were stopped by an officer and subjected to license and registration checks and drug-dog sniffs of their cars. It seems pretty clear to me that this evidence, viewed in the light most favorable to the motorists, supports a finding that a reasonable motorist would not have felt free to leave the line. 20 The panel reasons that the presence of the chase car "just as likely assures motorists that they can expedite their confrontation with law enforcement by turning around." Merrett, 58 F.3d at 1552 n. 10. Expediting the encounter, however, is not the same as ending the encounter. In my view, freedom to leave the line means freedom to leave the line without being stopped. See Bostick, 501 U.S. at 439, 111 S.Ct. at 2389 (emphasizing that defendant may not have been seized because he might have felt free to "terminate the encounter"); Mendenhall, 446 U.S. at 555, 100 S.Ct. at 1878 (finding no seizure where defendant had no reason to believe "she was not free to end the conversation [with law enforcement officers] ... and proceed on her way ") (emphasis added). Thus, a reasonable factfinder could find that the motorists were seized not only at the roadblock, but also while waiting in line, significantly increasing the intrusiveness of the seizures. 21 I believe the panel further minimizes the intrusiveness of the roadblocks by limiting its intrusiveness analysis to the stop's duration. In Sitz, the Supreme Court confirmed that a stop's intrusiveness on motorists' privacy interests is not limited to the duration of the stop, but includes "the fear and surprise engendered in law-abiding motorists by the nature of the stop." Sitz, 496 U.S. at 452, 110 S.Ct. at 2486; see also Skinner, 489 U.S. at 619, 109 S.Ct. at 1414 (holding that reasonableness of seizure depends on all surrounding circumstances). The temporary, unannounced roadblocks in this case were set up in such a way that motorists could not avoid an encounter involving numerous officers handling aggressive police dogs; indeed, at least one motorist was attacked by a dog. The panel's analysis, however, does not consider the fear and surprise that such a sight would engender in a law-abiding motorist. IV 22 As the Supreme Court has observed, 23 Automobile travel is a basic, pervasive, and often necessary mode of transportation to and from one's home, workplace, and leisure activities. Many people spend more hours each day traveling in cars than walking on the streets. Undoubtedly, many find a greater sense of security and privacy in traveling in an automobile than they do in exposing themselves by pedestrian or other modes of travel. Were the individual subject to unfettered governmental intrusion every time he entered an automobile, the security guaranteed by the Fourth Amendment would be seriously circumscribed. 24 Delaware v. Prouse, 440 U.S. 648, 662-63, 99 S.Ct. 1391, 1400-01, 59 L.Ed.2d 660 (1979). In my view, this opinion comes perilously close to permitting unfettered government intrusion on the privacy interests of all motorists. For this reason and those discussed above, I would grant rehearing en banc.

89 F.3d 830 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.UNITED STATES of America, Plaintiff-Appellee,v.Robert Tyrone COLBERT, Defendant-Appellant. No. 96-6412. United States Court of Appeals, Fourth Circuit. Submitted June 20, 1996.Decided July 2, 1996. Appeal from the United States District Court for the Eastern District of Virginia, at Richmond. Richard L. Williams, Senior District Judge. (CR-92-147) Robert Tyrone Colbert, Appellant Pro Se. John Granville Douglass, OFFICE OF THE UNITED STATES ATTORNEY, Richmond, Virginia, for Appellee. E.D.Va. DISMISSED. Before HALL, WILKINS, and HAMILTON, Circuit Judges. PER CURIAM: 1 Appellant appeals from the district court's order denying his 28 U.S.C. § 2255 (1988) motion. We have reviewed the record and the district court's opinion and find no reversible error. Accordingly, we deny a certificate of appealability and dismiss on the reasoning of the district court. United States v. Colbert, No. CR-92-147 (E.D.Va. Dec. 14, 1995). 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. 2 DISMISSED.

Opinions of the United 2002 Decisions States Court of Appeals for the Third Circuit 7-15-2002 Houser v. Comm Social Security Precedential or Non-Precedential: Non-Precedential Docket No. 01-4089 Follow this and additional works at: http://digitalcommons.law.villanova.edu/thirdcircuit_2002 Recommended Citation "Houser v. Comm Social Security" (2002). 2002 Decisions. Paper 392. http://digitalcommons.law.villanova.edu/thirdcircuit_2002/392 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 2002 Decisions by an authorized administrator of Villanova University School of Law Digital Repository. For more information, please contact Benjamin.Carlson@law.villanova.edu.  NOT PRECEDENTIAL UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT _______________ No: 01-4089 _______________ CHERYL HOUSER, Appellant v. JOANNE B. BARNHART, COMMISSIONER OF SOCIAL SECURITY {Pursuant to F.R.A.P. 43(c)(2)} Appeal from the United States District Court for the Western District of Pennsylvania (D.C. Civil Action No. 00-cv-01636) District Judge: Honorable Gustave Diamond Submitted Under Third Circuit LAR 34.1(a) on May 2, 2002 Before: ROTH and STAPLETON, Circuit Judges POLLAK*, District Judge (Opinion filed July 15, 2002) * Honorable Louis H. Pollak, District Court Judge for the Eastern District of Pennsylvania, sitting by designation O P I N I O N ROTH, Circuit Judge: Plaintiff-Appellant Cheryl Houser appeals a District Court order granting summary judgment to the Commissioner of Social Security. The order affirmed the Commissioner’s final decision to deny Houser’s claim for supplemental security income (SSI) under title XVI of the Social Security Act, 42 U.S.C. 1381-1383f. We agree with the District Court that substantial evidence supports the Commissioner’s finding that Houser could perform a limited range of light work. Houser’s ability to perform light work makes her ineligible for SSI, and therefore we will affirm the decision of the District Court. Before bringing her disability claim in federal court, Houser exhausted her administrative remedies by obtaining a hearing and decision from an Administrative Law Judge and by seeking review of the ALJ’s decision from the Appeals Council. The ALJ’s decision became the final decision of the Commissioner on July 21, 2000, when the Appeals Council denied Houser’s request for review. The District Court had subject matter jurisdiction to review the Commissioner’s final decision under 42 U.S.C. 1383(c)(3), and we have appellate jurisdiction, under 28 U.S.C. 1291, over the District Court’s order granting summary judgment in favor of the Commissioner. In both her appeal to the District Court and to us, Houser has challenged the Commissioner’s final decision on the ground that it is not supported by substantial evidence. Our review of the evidentiary basis for the Commissioner’s decision is quite limited, however. Substantial evidence is "such relevant evidence as a reasonable mind might accept as adequate to support a conclusion." Morales v. Apfel, 225 F.3d 310, 316 (3d Cir. 2000). Where the Administrative Law Judge’s findings of fact leading to the Commissioner’s decision are supported by substantial evidence, a reviewing court is bound by those findings, even if it would have decided the inquiry differently. Under this limited standard of review, and for reasons set forth more fully in the District Court opinion, we agree that there is substantial evidence in the record reflecting Houser’s ability to perform light work. The District Court noted evidence in the record from Houser’s treating physician, Dr. Estonilo. Dr. Estonilo indicated that Houser could lift up to 25 pounds occasionally and 10 pounds frequently, that she could sit for substantial periods of time, and that she could endure two to six hours of walking and standing during an eight-hour work day. There was also evidence in the record that Houser was able to care for two small children on a daily basis, perform duties necessary to maintain a four-member household, and travel to do laundry and grocery shopping. Finally, the District Court noted that the ALJ considered and rejected Houser’s countervailing contention that she was unable to function due to multiple impairments. We have reviewed Houser’s arguments that she is unable to perform light work and find them unavailing. Her contentions are, in essence, nothing more than invitations to displace the ALJ’s evaluation of the evidence mentioned above. Houser would have us ignore the evidence of her ability to function and credit other evidence reflecting multiple impairments and subjective proof of injury. It is not our role to weigh the evidence in that manner, however, and we see no reason to disturb the Commissioner’s decision under the deferential standard of review applicable to this case. We will affirm the District Court’s decision to grant summary judgment in favor of the Commissioner. By the Court, /s/ Jane R. Roth Circuit Judge 

232 So.2d 1 (1970) Lloyd C. HAGAMAN, Russell Stratton, Jr., Nancy Malloy (Mrs. W.P.), Individually, and As Employees of the Office of the Governor; and Wilbur Brewton and John C. Behringer, Individually, Appellants, v. William C. ANDREWS, Chairman, Elvin L. Martinez, Vice Chairman, Harold G. Featherstone, William G. James, Joe Lang Kershaw, Charles Nergard, Jerome Pratt, and Leonard V. Wood, As and Constituting the Elections Committee of the House of Representatives of Florida, and Capital City Second National Bank of Tallahassee, a Banking Association under the Laws of the United States, Appellees. No. 39237. Supreme Court of Florida. February 12, 1970. Rehearing Denied February 25, 1970. *2 Gerald Mager, Julius F. Parker, Jr., of Parker, Foster & Madigan, Tallahassee, for appellants. William G. O'Neill, of O'Neill & Trammell, Ocala, Joseph C. Jacobs and E.C. Deeno Kitchen, of Ervin, Pennington, Varn & Jacobs and Charles S. Ausley, of Ausley, Ausley, McMullen, McGehee & Carothers, Tallahassee, for appellees. *3 ADKINS, Justice. This is a direct appeal from a final judgment of the Circuit Court construing Sections 3(c) (1), 4(a) and 5, all contained in Art. III, Fla. Const. (1968), F.S.A. This case arose when Capital City Second National Bank, herein referred to as "the Bank," filed its complaint seeking a declaratory judgment to determine the Bank's duty to respond to a subpoena duces tecum issued by the Committee on Elections of the House of Representatives of Florida requiring one of its officers to appear before the Committee and produce the Bank's records of deposits and disbursements of money by an organization known as "The Governor's Club." Five individuals, none of whom were connected with the Bank, but part of whom were admittedly connected with The Governor's Club were allowed to intervene. The Bank is basically in the position of a stakeholder seeking a determination as to whether its legal duty to respect the privacy and confidence of its depositor must yield to the power of the Committee to subpoena its records. The real controversy is between those interested in The Governor's Club on the one hand (hereinafter referred to as the "Appellants") and the Committee on Elections (hereinafter referred to as the "Committee") on the other. The trial judge ordered, inter alia, that the Bank respond to the subpoena duces tecum issued by the Committee and that the Appellants abide by the subpoena. The trial judge also held that the members of The Governor's Club or others having knowledge relating to The Governor's Club may be required to divulge their knowledge as to membership of The Governor's Club. The Appellants first contend that Sec. 3(c) (1), Art. III, Fla. Const. (1968) does not authorize the conduct and initiation of investigation while the Legislature is in special session and in the absence of a requisite consent by each House. Sec. 3(c) (1), Art. III, Fla. Const. (1968) reads as follows: "The governor, by proclamation stating the purpose, may convene the legislature in special session during which only such legislative business may be transacted as is within the purview of the proclamation, or of a communication from the governor, or is introduced by consent of two-thirds of the membership of each house." On November 7, 1969, the Governor issued an Executive Proclamation calling the Legislature into special session for ten days and limiting such call as follows: "* * * for the sole and exclusive purpose of adopting legislation to implement and properly fund the sixteen-year road building program for the State of Florida and to select 1970 election primary dates." On December 1, 1969, the Legislature convened in special session at which time the House of Representatives adopted House Resolution 18-A which provides as follows: "* * * 1. It shall be the duty of the committee to make as complete an investigation as time permits of the course of conduct relating to the election process on the part of any person or group of persons which would constitute a violation of the Florida Statutes or which would interfere with the orderly processes of elections or which would hold up to disrepute the elective process. 2. Such investigations shall be conducted with the purpose of reporting to the house of representatives and to the legislature any activities of any person or group of persons which would indicate that corrective legislation requiring disclosure of the solicitation, collection, or disbursement of funds by or in behalf of candidates or public officials from private sources, fund raising, or contributors is desirable or necessary." *4 This resolution was adopted by two-thirds vote of the House only and was never submitted to the Senate for its concurrence. Appellants contend that the resolution and the conduct of the investigation pursuant thereto by the Committee is null and void as not being in compliance with Sec. 3(c) (1), Art. III, Fla. Const. (1968). This contention is without merit. Although Sec. 1, Art. III, Fla. Const. (1968) places the legislative power in a single entity, the Legislature of the State of Florida consisting of a Senate and a House of Representatives, Sections 2 and 5, of this Article grant to each House, acting independently of the other, numerous powers such as judging the qualifications and elections of its members, electing officers, determining its rules of procedure, disciplining its own members and conducting investigations. Immediately following each general election the Legislature is required to convene for the exclusive purpose of organization and selection of officers. Sec. 3(a), Art. III, Fla. Const. (1968). At the organization session held on November 12, 1968, the House of Representatives adopted the report of the Rules Committee requiring the Speaker to appoint the membership of standing committees, including the Committee on Elections, beginning with the organization session. Journal of the House of Representatives (organization session 1968) page 10. The Elections Committee was appointed at that time. Journal of the House of Representatives (organization session 1968) page 25. Sec. 7, Ch. 69-52 (Sec. 11.141, Fla. Stat., F.S.A.) contains the following provisions: "(2) The house of representatives is authorized to designate standing committees in such number as it may determine to be necessary, which shall include a committee on rules and calendar and a committee on house administration. "(3) When created and designated by rule of the respective house, such standing committees shall exist until the next ensuing general election, both during and between sessions, and shall be empowered to exercise all lawful functions and authority heretofore exercised by both standing and interim committees, including, but without limitation to, those provided by Section 5, Article III, State Constitution and by this chapter." By this general law the Standing Election Committee continues to exist until the general election of 1970, "both during and between sessions." The calling of the special session did not diminish the powers or duties of the Committee. Just as the Senate's concurrence would be unnecessary in filling a vacancy in the office of Sergeantat-Arms in the House of Representatives, and just as the concurrence of the House would be unnecessary when the Senate declines to confirm an appointment, so it is that the concurrence of the Senate is unnecessary in the adoption of a resolution of the House of Representatives directing the Elections Committee to make an investigation. Either the House of Representatives or the Senate, acting independently of the other during a special session, can perform many autonomous functions, one of which is conducting necessary investigations, since these are incidents to the proper functioning of a legislative body. The adoption of Resolution 18-A cannot be regarded as "legislative business" within the meaning of Sec. 3(c) (1), Art. III, Fla. Const. (1968), since the instructions of the House of Representatives to its Standing Committee on Elections does not require the concurrence or cooperation of the Senate. See In Re Advisory Opinion to the Governor, 64 Fla. 16, 59 So. 782. The Appellants cite State v. Schoonover, 146 W. Va. 1036, 124 S.E.2d 340 (1962) and State ex rel. Fatzer v. Anderson, 180 Kan. 120, 299 P.2d 1078, 1079 (1956) in support of their contention that the Legislature had no power to adopt Resolution 18-A during the special session. In each of these cases *5 it appears that the resolution creating the investigating committee was adopted at a special session, while in the case sub judice the Committee was created at the organization session in November 1968, as authorized by Sec. 3(a), Art. III, Fla. Const. (1968). Furthermore, the Florida Committee is authorized to perform its functions under the provision of a general law, Chapter 69-52, which was concurred in by both the House of Representatives and the Senate, and became effective July 1, 1969. Appellants further contend that the Committee is without authority to carry on its investigation subsequent to the adjournment of the Legislature. Chapter 69-52 is completely dispositive of this question by virtue of the following provisions: "Each standing and select committee shall meet at such times as it shall determine and shall abide by the general rules and regulations adopted by its respective house to govern the conduct of meetings by such committees." Sec. 8, Ch. 69-52, (Fla. Stat. § 11.142, F.S.A.) "Each standing or select committee or subcommittee thereof, is authorized to invite public officials and employees and private individuals to appear before the committee for the purpose of submitting information to it. Each such committee shall be authorized to maintain a continuous review of the work of the state agencies concerned with its subject area and the performance of the functions of government within each such subject area, and for this purpose to request reports from time to time, in such form as the committee shall designate, concerning the operation of any state agency and presenting any proposal or recommendation such agency may have with regard to existing laws or proposed legislation in its subject area." Sec. 9(1), Ch. 69-52 (Fla. Stat. § 11.143, F.S.A.) "In order to carry out its duties each such committee, whenever required, may issue subpoena and other necessary process to compel the attendance of witnesses before such committee, and the chairman thereof shall issue said process on behalf of the committee. The chairman or any other member of such committee may administer all oaths and affirmations in the manner prescribed by law to witnesses who shall appear before such committee for the purpose of testifying in any matter about which such committee may desire evidence." Sec. 9(3) (a), Ch. 69-52 (Fla. Stat. § 11.143, F.S.A.) "Each such committee, whenever required, may also compel by subpoena duces tecum the production of any books, letters, or other documentary evidence it may desire to examine in reference to any matter before it." Sec. 9(3) (b), Ch. 69-52 (Fla. Stat. § 11.143, F.S.A.) "Should any witness fail to respond to the lawful subpoena of any such committee at a time when the legislature is not in session or, having responded, fail to answer all lawful inquiries or to turn over evidence that has been subpoenaed, such committee may file a complaint before any circuit court of the state setting up such failure on the part of the witness. On the filing of such complaint, the court shall take jurisdiction of the witness and the subject matter of said complaint and shall direct the witness to respond to all lawful questions and to produce all documentary evidence in his possession which is lawfully demanded. The failure of any witness to comply with such order of the court shall constitute a direct and criminal contempt of court, and the court shall punish said witness accordingly." Sec. 9(4) (b), Ch. 69-52 (Fla. Stat. § 11.143, F.S.A.) When Resolution 18-A was adopted by the House of Representatives it merely set forth the scope of the inquiry to be made by the Committee, since the authority for the inquiry had previously been established by Chapter 69-52. This general law is in conformity with the provisions of Sec. 5, *6 Art. III, Fla. Const. (1968), which reads as follows: "Each house, when in session, may compel attendance of witnesses and production of documents and other evidence upon any matter under investigation before it or any of its committees, and may punish by fine not exceeding one thousand dollars or imprisonment not exceeding ninety days, or both, any person not a member who has been guilty of disorderly or contemptuous conduct in its presence or has refused to obey its lawful summons or to answer lawful questions. Such powers, except the power to punish, may be conferred by law upon committees when the legislature is not in session. Punishment of contempt of an interim legislative committee shall be by judicial proceedings as prescribed by law." (Emphasis supplied) Appellants contend that the procedural requirements of this constitutional provision were violated by the mechanical process of the issuance of the subpoenas, in that only the Speaker of the House, and not the Committee chairman, can issue a subpoena if the Legislature is in session. This contention is also without merit. The process by which the Committee procures the attendance of witnesses is a matter of procedure. Sec. 4(a), Art. III, Fla. Const. (1968) requires that "each House shall determine its rules of procedure." Pursuant to this command the House of Representatives enacted Rule 6.14, which provides in part: "Rule 6.14 Witnesses — Notwithstanding any of the rules as otherwise set forth herein, the following shall be deemed supplemental and cumulative to all of said rules: * * * "(c) In order to carry out its duties each standing or select committee, whenever required, may issue subpoena and other necessary process to compel the attendance of witnesses before such committee, and the chairman thereof shall issue said process on behalf of the committee * * *." Sec. 5, Art. III, Fla. Const. (1968), quoted above, does not require the Speaker to issue subpoenas and Rule 6.14 does not conflict with its provision. Appellants further contend that the Committee cannot undertake an investigation of the affairs of private individuals and of private organizations without doing violence to the constitutional guarantees contained in Sec. 12, Declaration of Rights, Fla. Const. (1968) and the First and Fourteenth Amendments of the Constitution of the United States. It is further contended that the lower court erred in holding these constitutional provisions inapplicable for the reason that The Governor's Club was not a private organization. In Watkins v. United States, 354 U.S. 178, 77 S.Ct. 1173, 1179, 1 L.Ed.2d 1273, Text 1284 (1957), the United States Supreme Court made several observations concerning legislative inquiry, one of which reads as follows: "We start with several basic premises on which there is general agreement. The power of the Congress to conduct investigations is inherent in the legislative process. That power is broad. It encompasses inquiries concerning the administration of existing laws as well as proposed or possibly needed statutes. It includes surveys of defects in our social, economic or political system for the purpose of enabling the Congress to remedy them. It comprehends probes into departments of the Federal Government to expose corruption, inefficiency or waste." (Emphasis supplied) From the evidence the trial judge made the following findings concerning the nature of The Governor's Club: "The case before the court might present difficulties were it not for the frank statement made by the Governor to the committee and the testimony identifying *7 the form letter used in procuring membership in The Governor's Club. "The statement of the Governor, a copy of which was filed before the court very clearly indicates that revenues of The Governor's Club were and are disbursed under the immediate supervision of the Governor or those in his office and directly under his authority. These funds are disbursed in three general areas: "(1) In the payment of expenses of the Governor in the performance of his duty to take care that the laws be faithfully executed but with reference to which legislative appropriations were not made or were inadequate. "(2) In the payment of what might be termed quasi-official expenses of the Governor such as attending governors' conferences and out of state entertainment of prospective large investors in Florida when state appropriations were not made or were inadequate. "(3) Payment of purely political expenses of the Governor's non-official but political activities. "A form letter used to solicit membership in The Governor's Club indicated quite clearly that those who became members would have the privilege of `* * * regular meetings with the Governor and a direct telephone line to him.' (Note: This contact is the Governor — the chief executive of the State — as is distinguished from the individual who occupies that office.) "The form of application indicates that each membership costs exactly $500.00 but the form also shows that one individual or company can purchase any number of memberships. "There has been no effort to establish before the court that there has been any membership in The Governor's Club purchased from any improper motive or that any of the funds of The Governor's Club have been spent for any unworthy purpose." The Circuit Judge correctly held that The Governor's Club has functioned in such a manner so closely related to the office of the Governor that it is not such a private organization as to place it beyond the scope of proper legislative investigation as to sources of revenue and its expenditures of that revenue. It is not unusual for a private club to take on attributes of government. See Smith v. Allwright, 321 U.S. 649, 64 S.Ct. 757, 88 L.Ed. 987 (1944); Terry v. Adams, 345 U.S. 461, 73 S.Ct. 809, 97 L.Ed. 1152 (1953), an election case, holding that a private club created for public purpose of designating candidates in a preliminary election as nominees to appear on the ballot in the Democratic primary was a state agency, hence persons could not be denied participation because of race. The interest of the Appellants in their associational privacy having been asserted, we have for decision the question of whether the public interest overbalances conflicting private ones. Whether there was justification for the investigation turns on the substantiality of Florida's interest in obtaining the identity of the members of The Governor's Club when weighed against the individual interest which the Appellants assert. See Uphaus v. Wyman, 360 U.S. 72, 79 S.Ct. 1040, 3 L.Ed.2d 1090 (1959), where the Court held that the State's interest in protecting itself against subversion outweighed the associational privacies of persons whose names appeared on a list of camp guests. We cannot simply assume, however, that every legislative investigation is justified by a public need that overbalances any private rights affected. To do so would be to abrogate the responsibility placed by the Constitution upon the Judiciary to insure that the Legislature does not unjustifiably encroach upon an individual's right to privacy nor abridge his liberty, his speech, or assembly, nor engage upon unwarranted *8 witch hunts. The solution is not to be found in testing the motives of the Committee members, as their motives alone would not vitiate an investigation which had been instituted by the House of Representatives if the legislative purpose is being served. The theory of a Committee inquiry is that the Committee members are serving as the representatives of the Legislature in collecting information for a legislative purpose and are acting as the eyes and ears of the Legislature in obtaining facts upon which the full Legislature can act. Watkins v. United States, supra. The Committee is attempting to investigate The Governor's Club in order to deter mine the donors, the amount of contributions, and the amount and purpose of expenditures. This purpose is clearly stated in House Resolution 18-A quoted above. Receipts and disbursements of candidates for public office have always been regarded as an appropriate subject for statutory regulation and public disclosure. Fla. Stat. §§ 99.161, 99.172, and 99.183, F.S.A. relate to these matters. Similar laws applicable to the financing of political activities of persons in office who are eligible for re-election are also a proper matter for legislative consideration. The elective process does not end on election day nor does the legitimate interest of the Legislature in contributions cease when the candidate is elected. Many classes of persons are prohibited from making contributions to candidates for public office. Certainly, there is justification in determining the interest represented by an individual contributor to an organization, such as The Governor's Club, so the Legislature will be able to determine the necessity of enacting additional laws. Also, the Legislature in its wisdom could place other classes of persons within categories prohibited by statute from making contributions. Also, the limitation on maximum contributions for candidates for public office is a proper subject of investigation. Furthermore, the purpose of the contributions and what a contributor is receiving for his contribution are proper matters of investigation. The case of Gibson v. Florida Legislative Investigation Committee, 372 U.S. 539, 83 S.Ct. 889, 9 L.Ed.2d 929 (1963), relied upon by Appellants, is not in conflict with the result we reach. The United States Supreme Court in its opinion said: "* * * we rest our result on the fact that the record in this case is insufficient to show a substantial connection between the Miami branch of the N.A.A.C.P. and Communist activities which the respondent Committee itself concedes is an essential prerequisite to demonstrating the immediate, substantial, and subordinating state interest necessary to sustain its right of inquiry into the membership lists of the association." The record in the case sub judice is sufficient to show a substantial connection between The Governor's Club and the activities of the Government of the State of Florida. The record amply demonstrates the substantial State interest necessary to sustain the right of the committee to inquire into the membership list of the association. The lower court was correct in ordering the Bank to comply with the subpoena and subpoena duces tecum of the Committee. Unquestionably, the Committee has the power and the authority to issue a subpoena duces tecum for the production before it of any books, papers, documents and records germane to the subject of its investigation. There is no evidence before the Court on which we can ground a determination that the subpoena duces tecum was too broad or that the papers and documents were not pertinent to the subject of inquiry. See A S P, Inc. v. Capital Bank & Trust Company, 174 So.2d 809 (La. App. 1965). The case of Milohnich v. First National Bank of Miami Springs, 224 So.2d 759 (Fla.App.3d 1969), relied upon by Appellants, does not attempt to *9 deal with disclosure required by the government or under compulsion of law. In summary, the Court is aware of the financial sacrifices made by many citizens when they assume public office and the problems involved in securing sufficient public funds to meet the budgets of many public offices. Perhaps the use of private donations may be a solution, but surely the Legislature has the right to be just as inquisitive concerning the use of private funds in the operation of the office as in the campaign for election to the office. An elective official owes to his constituents not only his time and his devoted service, but also his intelligence and his conscience. A public officer after election who seeks pledges from eager or interested electors may well be no longer a representative of the electors, but a messenger boy. In fact, the bare possibility of the existence of such a situation could shatter public confidence in government and "hold up to disrepute the electorate process." This is a proper subject of investigation as authorized by Resolution 18-A. Also, the giving of funds by individuals of wealth and by private associations to enforce some particular law or group of laws, which they single out from the great body of the statutes, is shocking to the law-abiding, public-spirited citizen. This is a subject of overriding and compelling state interest which may require legislative prohibition or regulation after an appropriate investigation as to those who contribute, the amount of their contributions, and the ultimate use of the funds. The sum and substance of the whole matter is the right of the citizen to know about The Governor's Club, or similar organizations, for this right instills confidence in government, just as the right to speak and be heard improves government. The Judgment of the Lower Court is affirmed. CARLTON and BOYD, JJ., and RAWLS, District Court Judge, concur. FALK, Circuit Judge, concurs specially with opinion. OWEN, District Court Judge, dissents with opinion. DREW, J., dissents with opinion. FALK, Circuit Judge (Concurring specially). I concur in the majority opinion, but would like to point out that moderation and caution should be the rule when the Committee on Elections exercises its power of inquiry involving the Chief Executive of the State of Florida, the head of a coequal branch of government. If not surrounded by reasonable limitations, the power of inquiry can lead to abuses and encroachment on individual liberties. It should not be exercised merely for the sake of disclosure, to the detriment of the citizen under interrogation. Legitimate legislative action is the ultimate objective and the prime justification for the inquiry. Gibson v. Florida Legislative Investigation Committee, Fla., 108 So.2d 729. I further am of the opinion that the records subpoenaed should not have to be publicly exposed or delivered to the Committee or to anyone else or to be filed, but that the official custodian or witness familiar with its contents can be required to refer to them to authenticate his or her testimony. This was the procedure approved by this Court in Gibson v. Florida Legislative Investigation Committee supra; so that those who are legitimate and good faith members of the Governor's Club are adequately protected against any embarrassment which might follow upon the unjustifiable publication of the entire list of members. *10 OWEN, District Court Judge (dissenting). I concur that the defendant Committee on Elections of the House of Representatives was legally authorized to conduct investigations subsequent to the adjournment of the legislature and that its authority to issue subpoenas was validly exercised. The basis of my dissent, upon which I would reverse the judgment of the trial court and quash the subpoenas in question, is the clear lack of a nexus between the information sought and a subject of overriding and compelling state interest. At the outset it should be made clear that in my opinion that portion of House Resolution 18-A which made it the duty of the committee to investigate conduct which would constitute a violation of the Florida Statutes clearly exceeded constitutional bounds. Section 3, Art. II, Fla. Const. (1968) prohibits members of the legislative branch from exercising any powers appertaining to the executive or judicial branches of the government, unless expressly provided in the constitution. It has long been a settled principle of constitutional law that an investigation of an alleged violation of existing law is a function which is exclusively vested in the judicial branch of government. Kilbourn v. Thompson, 103 U.S. 168, 26 L.Ed. 377 (1880); 16 C.J.S. Constitutional Law § 122. We are, of course, not here concerned with a legislative committee appointed pursuant to Sec. 17, Art. III, Fla. Const. (1968) to investigate charges against the Governor. House Resolution 18-A expressly provided that the purpose of the committee conducting such investigations [as were constitutionally authorized] was so that the committee could report to the House of Representatives any activities which would indicate that corrective legislation requiring disclosure of the solicitation, collection, or disbursement of funds by or in behalf of candidates or public officials from private sources, fund raising, or contributors is desirable or necessary. The information which the committee was seeking through use of the subpoenas under attack here was within the area of constitutionally protected rights of speech and of association. It is an essential prerequisite to the validity of an investigation which intrudes into the area of such constitutionally protected rights that the state convincingly show a substantial relation between the information sought and a subject of overriding and compelling state interest. Gibson v. Florida Legislative Investigation Committee, 372 U.S. 539, 83 S.Ct. 889, 9 L.Ed.2d 929 (1963). Thus, the question squarely presented is whether the state has convincingly shown such a substantial relationship between the information sought and the purpose of its inquiry. I think that question must be answered in the negative. The committee was already aware of the activities of The Governor's Club, including the method and means of the solicitation, collection and disbursement of its funds. The statement of the Governor which was before the trial court clearly indicated that revenues of The Governor's Club were disbursed under the immediate supervision of the Governor or those in his office and directly under his authority, in three general areas. The committee could easily infer that at least some of those who elected to become members did so for other than altruistic purposes since the invitation to membership suggested that members would have access to the Governor's ear. With this information available, what cogent benefit would the committee derive from having the names and addresses of the members, the amounts paid for membership, and the exact dates, amounts and purposes of expenditures from The Governor's Club funds which would justify the substantial abridgement of constitutional freedoms which such disclosure would effect? I certainly can see none which was presented to the trial court nor argued in the briefs before this court. Appellees insist that a disclosure of such information could well show violation of existing law. Possibly this is what the appellee *11 expects to accomplish, either by establishing that membership had been purchased by persons or corporations who were prohibited by law from making political contributions, or by establishing that the funds when received became state funds and should have been deposited in the state treasury. See Advisory Opinion to the Governor, Fla. 1967, 200 So.2d 534. Whatever the motive behind the committee's zeal to search out possible violations of law on the part of the Governor, it is clear that the committee did not have constitutional authority to engage in that type of investigation under House Resolution 18-A. Once we eliminate from the committee's scope any search for possible violation of existing law, we can focus upon the limited area within which such inquiry would have a legitimate purpose, to-wit: the determination of whether corrective legislation requiring disclosure is desirable or necessary. The majority opinion, in touching on this area, suggests that the information sought to be obtained through the subpoenas would enable the legislature to make a determination of the necessity of legislation which would place other classes of persons within the categories prohibited by statute from making political contributions, or legislation which would change the limitation on maximum contributions, or legislation which could prohibit contributors from receiving any type of benefit from the state. While I agree that these are proper subjects of legislative inquiry, I cannot agree that the disclosure of the constitutionally protected information is essential (or even helpful) to the legislature in reaching a determination of the necessity of corrective legislation on any of these subjects. We must assume that the goal of any corrective legislation recommended by the committee on elections is to improve the election process, eliminating from it any matters which could foreseeably interfere with the orderly processes of election or which would hold up to disrepute the elective process. Assuming that such an organization as The Governor's Club does not violate existing law, would the election process be improved by prohibiting such organizations in the future? If an organization of this type is objectionable as a detriment to orderly elective processes, it is because of its existence per se, and not because of those who might at any given time constitute its membership. Patently, the identify of its membership should not be a factor in the philosophical determination of whether such an organization should be prohibited. Likewise, should the legislature deem it an improvement on the election process to permit such organizations to exist provided they be made subject to regulations concerning public disclosure of membership and finances (as well as any other restrictions or limitations) such a determination must of necessity be based upon a purely philosophical view that such regulations and restrictions are in the best interest of the public. Could it possibly be successfully contended that the legislature's determination of the desirability of regulating such organizations in the future would hinge upon or even be remotely affected by a subjective scrutiny and evaluation of the present membership of The Governor's Club? The membership could and probably would change from time to time. Would one set of members "pass inspection" resulting in a decision that regulation was not desirable, while another set of members might be determined to be persona non grata resulting in a legislative determination at that time that because of the particular identity of the membership, regulation of such organizations had become desirable? The answer must surely be apparent on the face of the question. If the present existence of The Governor's Club and its method of operation creates a potential for political activities which the legislature feels should be either prohibited or restricted, such potential exists irrespective of the present membership, and that potential is neither increased nor decreased by the committee obtaining the information which it seeks through the subpoenas in question. *12 I make no effort to condone either the existence of The Governor's Club or the manner in which the same is operated. But the right of its members to constitutional guarantees of associational freedom must not be abridged under the guise of legislative investigation. In my opinion this case is squarely controlled by the principles enunciated in the Gibson case, supra, and I would reverse that portion of the order requiring the appellants to comply with the subpoenas issued by the committee. DREW, Justice (dissenting). I am in complete accord with the views expressed and the conclusions reached in Judge Owens' dissent. It is particularly noteworthy that during the December 1969 Special Session of the Legislature, the Florida Senate dealt with the problem involved here by the simple expedient of unanimously enacting Senate Bill 30-A[1] on December 8, 1969. This bill was received in the House on December 9th, placed temporarily in the Committee on Rules and Calendar, but died there on adjournment of the Special Session. It is also of interest to note that during the same special session Senator Thomas introduced Senate Bill 11-A[2] relating to the same subject. The Senate Journal of December 3, 1969, reflects that such bill was stricken from the Journal because it was *13 not within the purview of the Governor's call and did not, on introduction, receive 2/3 consent of the Senate membership. As I read the record here, Senate Bill 30-A would, if enacted into law, accomplish that which appears to be the concern of the House. The Senate obviously did not feel the necessity of an investigation in order to reach the conclusion that such legislation was in the public interest. Moreover, the principle of separation of powers is basic in our form of government. It is recognized in our new Constitution in these words: "Branches of Government. — The powers of the state government shall be divided into legislative, executive and judicial branches. No person belonging to one branch shall exercise any powers appertaining to either of the other branches unless expressly provided herein." Fla. Const.art. II, § 3 (1968). Great restraint should be observed by each of the three branches of government toward the other if the purposes of our forefathers is to be served. The tendency to abandon these basic — I think almost sacred — principles has produced infinitely more problems than it has solved. Current events emphasize the wisdom of George Washington in his farewell address more than 150 years ago when he said: "The spirit of encroachment tends to consolidate the powers of all the departments into one and this creates a real despotism. A just estimate of that love of power, and proneness to abuse it, which predominates in the human heart, is sufficient to satisfy us of the truth of this position. The necessity of reciprocal checks in the exercise of political power has been evinced by experiments ancient and modern, some of them in our own country and under our own eyes. Let there be no change by usurpation. It is the customary weapon by which free governments are destroyed. The precedent must always greatly overbalance — in permanent evil — any partial or transient benefit which the use can at any time yield." Judge Owen points out that this investigation is not being undertaken pursuant to the power to impeach especially vested in the House by the Constitution. Where this power is invoked the investigation may be as broad and expansive as necessary to determine whether the Governor is guilty of "misdemeanor in office." But, where the Governor — the Chief Executive — is the subject of such charges, it should be unmistakably clear that the investigation is for that purpose. This great authority of the Legislative Branch over the Executive and Judicial should be, and has always been, exercised with great restraint. In this area of possible conflict between coordinate branches of government, great power should be exercised with equally great caution and restraint. For these, as well as the reasons stated by Judge Owen, I dissent from the majority. NOTES [1] "A bill to be entitled AN ACT relatlating to public officers; requiring the filing of annual statements of any contributions received and expenditures made from such contributions; providing penalties; providing an effective date. "Be It Enacted by the Legislature of the State of Florida: "Section 1. When used in this act `public officer' means a person holding an elective national, state, county, or municipal office. "Section 2. Each public officer shall file an annual statement containing a list of all contributions received and expenditures made from such contributions by such officer or on his behalf by any political club, or other fund, from which he derives personal or political benefit with the names and addresses of such person or persons making such contributions or receiving payment from such expenditures and the dates thereof. Contributions shall include but not be limited to donations in excess of ten dollars ($10) made to fund-raising dinners and other affairs. The statement shall be sworn to by the public officer as being a true, accurate, and total listing of all of said contributions and expenditures. "Section 3. The statement shall be filed prior to May 15 of each year with the department of state for a state or national office, the clerk of the circuit court for a county office, and the city clerk of the municipality for a municipal office. "Section 4. If any public officer fails to comply with this act, he shall be deemed guilty of a misdemeanor in office and shall be punished by fine not exceeding two thousand five hundred dollars ($2,500) or by imprisonment in the county jail not exceeding twelve (12) months, and shall be deemed guilty of neglect of duty in office, and shall be subject to removal from office or to impeachment or to expulsion from the senate or house of representatives, as the case may be. "Section 5. This act shall take effect January 1, 1970." [2] "A bill to be entitled AN ACT relating to state officers and employees; prohibiting the solicitation of funds by any state officer or employee from any person who has or seeks business relations with the department of transportation; providing an exception for charitable purposes; providing penalties; providing an effective date. "Be It Enacted by the Legislature of the State of Florida: "Section 1. (1) No state officer or employee shall directly or indirectly solicit funds from any person who has, maintains, or seeks business relations with the department of transportation. "(2) The provisions of this section shall not be construed to include within its terms the solicitation of funds for charitable purposes including but not limited to such organizations as the United Fund, Heart Fund or American Red Cross. "(3) Violation of the terms of this section shall be a misdemeanor, and shall subject the officer or employee violating its provisions to removal from his office or employment. "Section 2. This act shall take effect upon becoming a law."

United States Court of Appeals Fifth Circuit F I L E D IN THE UNITED STATES COURT OF APPEALS October 5, 2006 FOR THE FIFTH CIRCUIT ________________ Charles R. Fulbruge III Clerk No. 04-60765 Summary Calendar ________________ DONALD GARNER Plaintiff - Appellant v. ASHLEY FURNITURE INDUSTRIES INC Defendant - Appellee ________________________________________________ Appeal from the United States District Court for the Northern District of Mississippi, Aberdeen No. 1:03-CV-71-D-D __________________________________________________ ON REMAND FROM THE SUPREME COURT OF THE UNITED STATES Before JONES, Chief Judge, and KING and DENNIS, Circuit Judges. PER CURIAM:* On June 30, 3006, the Supreme Court vacated the judgment of this court in this case and remanded the case to this court for further consideration in light of Burlington N. & S.F.R.Co. v. White, 548 U.S. ___ (2006). Upon reconsideration, we vacate the judgment of the district court and remand for reconsideration in the light of Burlington. VACATED and REMANDED. * 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. - 1 - 

In the United States Court of Federal Claims OFFICE OF SPECIAL MASTERS No. 18-1192V (not to be published) JOSEPH PUTIGNANO, Chief Special Master Corcoran Petitioner, v. Filed: December 31, 2019 SECRETARY OF HEALTH AND Special Processing Unit (SPU); HUMAN SERVICES, Attorney’s Fees and Costs Respondent. Ronald Craig Homer, Conway, Homer, P.C., Boston, MA, for Petitioner. Linda Sara Renzi, U.S. Department of Justice, Washington, DC, for Respondent. DECISION ON ATTORNEY’S FEES AND COSTS 1 On August 10, 2018, Joseph Putignano (“Petitioner”) filed a petition for compensation under the National Vaccine Injury Compensation Program, 42 U.S.C. §300aa-10, et seq., 2 (the “Vaccine Act”). Petitioner alleges that the influenza (“flu”) vaccine he received on September 30, 2016, caused him to develop a shoulder injury related to vaccine administration (“SIRVA”). (Petition at 1). On September 13, 2019, a decision was issued awarding compensation to Petitioner based on the parties’ stipulation. (ECF No. 34). 1 Because this unpublished decision contains a reasoned explanation for the action in this case, I am required to post it on the United States Court of Federal Claims' website in accordance with the E- Government Act of 2002. 44 U.S.C. § 3501 note (2012) (Federal Management and Promotion of Electronic Government Services). This means the decision will be available to anyone with access to the internet. In accordance with Vaccine Rule 18(b), Petitioner has 14 days to identify and move to redact medical or other information, the disclosure of which would constitute an unwarranted invasion of privacy. If, upon review, I agree that the identified material fits within this definition, I will redact such material from public access. 2 National Childhood Vaccine Injury Act of 1986, Pub. L. No. 99-660, 100 Stat. 3755. Hereinafter, for ease of citation, all “§” references to the Vaccine Act will be to the pertinent subparagraph of 42 U.S.C. § 300aa (2012).  Petitioner has now filed a motion for attorney’s fees and costs, dated December 5, 2019 (ECF No. 39), requesting a total award of $25,704.52 (representing $24,873.30 in fees and $831.22 in costs). In accordance with General Order #9 Petitioner filed a signed indicating that Petitioner incurred no out-of-pocket expenses. (ECF No. 40). Respondent did not file a reply. I have reviewed the billing records submitted with Petitioner’s request. In my experience, the request appears reasonable, and I find no cause to reduce the requested hours or rates. The Vaccine Act permits an award of reasonable attorney’s fees and costs. § 15(e). Accordingly, I hereby GRANT Petitioner’s Motion for attorney’s fees and costs. I award a total of $25,704.52 (representing $24,873.30 in fees and $831.22 in costs) as a lump sum in the form of a check jointly payable to Petitioner and Petitioner’s counsel. In the absence of a timely-filed motion for review (see Appendix B to the Rules of the Court), the Clerk shall enter judgment in accordance with this decision. 3 IT IS SO ORDERED. s/Brian H. Corcoran Brian H. Corcoran Chief Special Master 3 Pursuant to Vaccine Rule 11(a), the parties may expedite entry of judgment by filing a joint notice renouncing their right to seek review. 2 

852 P.2d 713 (1993) STATE of Oklahoma ex rel. OKLAHOMA BAR ASSOCIATION, Complainant, v. John Michael O'NEAL, Respondent. SCBD No. 3794. Supreme Court of Oklahoma. May 4, 1993. John E. Douglas, Asst. Gen. Counsel, Oklahoma Bar Ass'n, Oklahoma City, for Complainant. John Michael O'Neal, respondent pro se. *714 HODGES, Chief Justice. Complainant, Oklahoma Bar Association, alleged two counts of misconduct warranting discipline against respondent attorney, John Michael O'Neal. The Professional Responsibility Tribunal (PRT) found that respondent's conduct violated rules 5.5[1] and 8.1[2] of the Oklahoma Rules of Professional Conduct and rule 5.2 of the Rules Governing Disciplinary Proceedings.[3] After a review of the record, we find the PRT's statement of facts to be accurate. The PRT recommended that the respondent be suspended from the practice of law for six months. The respondent argues that six-months suspension is too harsh. He also argues that the costs of these proceedings should be reduced. *715 The uncontested facts are as follows: On July 19, 1990, respondent was suspended from the practice of law for nonpayment of bar dues and non-compliance with the Mandatory Continuing Legal Education (MCLE) requirements. On June 26, 1991, while suspended from the practice of law, respondent filed, in the United States Bankruptcy Court for the Western District of Oklahoma, two voluntary petitions: (1) In Re Holtzshue Hardware, Inc., Case No. 91-04521-TS and (2) In Re Frederick W. Holtzshue, Jr., and Gloria E. Holtzshue, Case No. 91-04518-TS. The respondent at or near the time of filing the petitions, decided to pay $500.00 toward a bankruptcy seminar in San Antonio, Texas, rather than pay the $500.00 toward reinstatement to the Bar. Respondent was reinstated to the practice of law on July 30, 1991. The evidence further shows that on August 7, 1991, the General Counsel for Complainant mailed a letter, which was not certified, to the respondent. The purpose of the letter was to notify the respondent that the Complainant was initiating an investigation into respondent's filing of the two bankruptcy petitions. The respondent testified that he never received the letter. However, the Oklahoma Bar Association's file did not contain a returned letter. General Counsel testified that on September 11, 1991, he mailed a letter by certified mail to the respondent notifying him of the investigation. The respondent did not claim the letter and did not respond. The respondent argues that a reprimand is a sufficient discipline under the facts. He testified that he filed the two petitions only after seeking other attorneys to handle the matters. He could not obtain other legal representation for his clients. Rather than leave his clients without representation, he chose to act as their attorney. He also argues that in light of his financial situation that he should not be ordered to pay the full amount of these proceedings. There are no published opinions in Oklahoma involving a lawyer who has practiced law after being suspended administratively. The American Bar Association's Standards for Imposing Lawyer Sanctions (1991), suggests that a court answer four questions prior to determining an appropriate sanction: (1) What ethical duty did the lawyer violate? (A duty to a client, the public, the legal system, or the profession?) (2) What was the lawyer's mental state? (Did the lawyer act intentionally, knowingly, or negligently?) and (3) What was the extent of the actual or potential injury caused by the lawyer's misconduct? (Was there a serious or potentially serious injury?) and (4) Are there any aggravating or mitigating circumstances? As to the respondent's practicing law while under suspension, the respondent violated an ethical duty not only to the legal system and his profession but also to his client. See Oklahoma Rules of Professional Conduct, rule 5.5. The respondent knew at the time of the filing of the petitions that he was under suspension. Apparently there was no injury to his clients because of his misconduct. In considering the mitigating circumstances, there is no evidence of a prior disciplinary record. Although the respondent expected to be paid for his services, we also find that this was not the respondent's primary concern and that he did not act out of a selfish motive. In reference to the respondent's failure to respond to the letter sent by the Complainant, neither party cites any cases involving this issue. Rule 8.1 of the Rules of Professional Conduct requires the lawyer "to respond to a lawful demand for information from an admissions or disciplinary authority." Under rule 5.2 of Rules Governing Disciplinary Proceedings, after the Complainant serves a copy of the relevant facts or allegations upon the lawyer under investigation, the lawyer is required to respond.[4] *716 The respondent argues facts in his brief which were not presented to the PRT and are not part of the record before this Court. This Court will not consider such facts in reaching a decision. See Chamberlin v. Chamberlin, 720 P.2d 721, 723-24 (Okla. 1986). The Complainant sent notice to the respondent. There is no record that the notice was returned to the Complainant. The Complainant was then sent a certified letter which was not claimed and to which he did not respond. The PRT found that the respondent had violated 8.1 of the Oklahoma Rules of Professional Conduct and rule 5.2 of the Rules Governing Disciplinary Proceedings. We agree. Even though we find that the respondent violated the Oklahoma Rules of Professional Conduct, the better procedure is for the Complainant to initially notify a lawyer of a complaint by certified mail or personal service. The initial letter sent to the respondent was not sent by certified mail. Although not directly applicable to bar complaints, the Oklahoma rules of civil procedure provide for service in a manner that complies with due process requirements. See Okla. Stat. tit. 12, § 2004 (1981). Section 2004 requires service by personal delivery or by mail. If the mail is chosen, then the notice must be by certified mail, return receipt requested and delivery restricted to the addressee. Id. at § 2004(C)(2)(b). Under section 2004(C)(2)(c), default judgment cannot be entered unless the record contains the receipt showing the delivery of the letter to the addressee or the returned envelope showing that the addressee refused delivery. Given the gravity of a complaint against a lawyer, we believe that in the future the same precautions should be taken in a bar disciplinary matter as a Civil matter. There is one other issue raised by the respondent. The respondent voluntarily testified that, during the time that he was under suspension, he represented two clients as a court-appointed lawyer in criminal matters. These two representations were not addressed in complaint, and the respondent was not notified that he would be charged with any violation in conjunction with these representations. Rule 6.2 of the Rules Governing Disciplinary Proceedings requires that the complaint state "the specific facts constituting the alleged misconduct." Rule 6.5 allows the complaint to be amended to include additional allegations and allows the respondent twenty days to answer. Because these rules were not followed, this Court declines to act on this allegation. The Complainant has filed a motion to access costs in the amount of $1,216.01. The respondent argues that he should not be assessed the total cost of these proceedings because of his financial condition. Rule 6.16 of the Rules Governing Disciplinary Proceedings provides that, when the proceedings result in discipline, the disciplined lawyer shall pay the cost of the proceedings unless this Court remits the amount for good cause shown. The respondent has failed to meet his burden of showing that the amount should be remitted. We find that, under rule 6.16, the respondent should pay the total costs of this proceeding. The remaining issue is the appropriate discipline for respondent's violations. After careful consideration, the Court considers public censure and one year probation to be the appropriate discipline. During the period of probation the respondent shall be subject to the following conditions: 1. The respondent shall abide by the Rules of Professional Conduct. 2. The respondent shall cooperate with the Office of the General Counsel in any investigation of allegations of unprofessional conduct which have or may come to the General Counsel's attention. Either *717 Respondent's admission or the PRT's findings of unprofessional conduct shall constitute conclusive evidence of a breach of the Rules of Professional Conduct. 3. Respondent shall pay the costs of these proceedings within sixty days from the date this opinion becomes final. 4. If at any time during the probation the General Counsel concludes that respondent has not complied with the terms and conditions of his probation, then the Office of the General Counsel may file an application to revoke probation with the original trial panel and that notice of the filing of said application shall be given to respondent by certified mail or personal service. The hearing shall then be scheduled with the trial panel and a determination shall be made as to whether respondent has violated the terms and conditions of the probation. If the trial panel determines there is no violation, then the probation shall continue. If the trial panel finds a violation did occur, then a recommendation shall be made to the Supreme Court for proper discipline. After review of the record, this COURT FINDS AND ORDERS: (1) The respondent has violated Rules rules 5.5 and 8.1 of the Oklahoma Rules of Professional Conduct and rule 5.2 of the Rules Governing Disciplinary Proceedings; (2) The respondent is publicly censured and placed on probation for a one-year period beginning the date this opinion becomes final; and (3) The respondent shall pay the costs of these proceedings in the amount of $1,216.01 within sixty days from the date this opinion becomes final. RESPONDENT PUBLICLY CENSURED; PLACED ON PROBATION; AND ORDERED TO PAY COSTS. LAVENDER, V.C.J., and HARGRAVE, ALMA WILSON and KAUGER, JJ., concur. SIMMS, OPALA, SUMMERS and WATT, JJ., concur in part; dissent in part. SIMMS, Justice, with whom OPALA, J. joins, concurring in part, dissenting in part: I would suspend respondent from the practice of law for eighteen (18) months. NOTES [1] Rule 5.5 of the Rules of Professional Conduct provides: A lawyer shall not: (a) practice law in a jurisdiction where doing so violates the regulation of the legal profession in that jurisdiction... . [2] Rule 8.1 of the Rules of Professional Conduct provides: An applicant for admission to the bar, or a lawyer in connection with a bar admission application or in connection with a disciplinary matter, shall not: ..... (b) fail to disclose a fact necessary to correct a misapprehension known by the person to have arisen in the matter, or knowingly fail to respond to a lawful demand for information from an admissions or disciplinary authority, except that this rule does not require disclosure of information otherwise protected by Rule 1.6. [3] Rule 5.2 of the Rules Governing Disciplinary Proceedings provides: After making such preliminary investigation as the General Counsel may deem appropriate, the General Counsel shall either (1) notify the person filing the grievance and the lawyer that the allegations of the grievance are inadequate, incomplete, or insufficient to warrant the further attention of the Commission, provided that such action shall be reported to the Commission at its next meeting, or (2) file and serve a copy of the grievance (or, in the case of an investigation instituted on the part of the General counsel or the Commission without the filing of a signed grievance, a recital of the relevant facts or allegations) upon the lawyer, who shall thereafter make a written response which contains a rule and fair disclosure of all the facts and circumstances pertaining to the respondent lawyer's alleged misconduct unless the respondent's refusal to do is predicated upon expressed constitutional grounds for discipline. [4] The respondent does not contest that he received notice of the formal complaint pursuant to Rules Governing Disciplinary Proceedings, rule 6.3. Rule 6.3 provides: At the direction of the Chief Justice, the Clerk shall immediately notify the Chief Master of the Professional Responsibility Tribunal, the President of the Oklahoma Bar Association and the respondent of the filing of a formal complaint. Such notification shall include a copy of the complaint and shall be sent by certified mail to the respondent's last known address.