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638 So.2d 591 (1994) Colin FOLSOM, Appellant, v. The STATE of Florida, Appellee. No. 93-1196. District Court of Appeal of Florida, Third District. June 21, 1994. Bennett H. Brummer, Public Defender, and Manuel Alvarez, Asst. Public Defender, for appellant. Robert A. Butterworth, Atty. Gen., and Michael J. Neimand, Asst. Atty. Gen., and Parker D. Thomson and Carol A. Licko, Sp. Asst. Attys. Gen., for appellee. Before NESBITT, JORGENSON and LEVY, JJ. PER CURIAM. Defendant seeks reversal of his conviction for violating Florida's anti-stalking statute, sections 784.048(3) and (4), Florida Statutes (1993). We affirm and remand for resentencing. We find this Court's opinion in Pallas v. State, 636 So.2d 1358 (Fla. 3d DCA 1994) and State v. Bossie, 1 Fla. L. Weekly Supp. 465 (Fla. Brevard County Ct. June 22, 1993) dispositive of the issues posed on appeal. See also Bouters v. State, 634 So.2d 246 (Fla. 5th DCA 1994). We do find, however, that aggravated stalking is classified as a third degree felony, and as such the appellant's period of incarceration plus probation cannot exceed the maximum of five years. § 775.082(3)(d), Fla. Stat. (1993). Thus, we remand for imposition of a sentence no greater than the statutory maximum. Affirmed and remanded for resentencing.

231 F.Supp.2d 359 (2002) UNITED STATES of America, v. Michel JALBERT, Defendant No. CR. 02-79-B-S. United States District Court, D. Maine. November 14, 2002. *360 Jon Haddow, Farrell, Rosenblatt & Russell, Bangor, ME, for Michel Jalbert (1), defendant. Michael D. Love, U.S. Attorney's Office, Bangor, ME, for U.S. Attorneys. DETENTION HEARING FINDINGS AND ORDER KRAVCHUK, United States Magistrate Judge. Michel Jalbert was taken into custody by United States Border Patrol personnel on October 11, 2002, in the vicinity of the GazBar gas station in Estcourt, Maine. He appeared before this court for his initial appearance on October 15, 2002, charged with entry into the United States without inspection in violation of 8 U.S.C. § 1325(a)(1) and possession of a firearm by an illegal alien in violation of 18 U.S.C. § 922(g)(5). At this initial appearance, following the assignment of counsel, Jalbert waived preliminary examination, the Government moved for detention, and the court (Singal, J.) ordered Jalbert temporarily detained and set the matter for detention hearing before me on October 17, 2002. At the continued detention hearing before me Jalbert again appeared with counsel and waived his right to a detention hearing and consented to being detained pending trial. On November 5, 2002, the Grand Jury indicted Michel Jalbert. The indictment, in three counts, restated the two earlier charges and added a charge of felon in possession of a firearm in violation of 18 U.S.C. § 922(g)(1). Jalbert appeared before me for arraignment on November 13, 2002. At his arraignment Jalbert's counsel orally moved to reopen the detention hearing pursuant to the provisions of 18 U.S.C. § 3142(f). I agreed with the Government that in order to reopen the detention hearing the burden was on the movant to show "that information exists that was not known to the movant at the time of the hearing and that has a material bearing on the issue whether there are conditions of release that will reasonably assure the appearance of such person as required and the safety of any other person and the community." Jalbert proffered that he met this burden in two respects. He offered a letter (Def.Ex. 1) that had come to his attention after the initial appearance. The letter, in the view of defendant's counsel, related to Jalbert's defense that the entry he made had been authorized by custom, practice, and official policy and considerably strengthened the merits of that defense. Since the nature and circumstance of the offense charged is one of the factors that the court must consider under 18 U.S.C. § 3142(g)(1) I found that the exhibit might have a material bearing on appropriate conditions of release. Jalbert also proffered a second "new" fact, that being that his father was prepared to post $5,000.00 U.S. funds as *361 cash bail to assure Jalbert's appearance for trial. The Government argued that every new piece of discovery in a case should not justify reopening detention hearings and that the defendant could have raised the cash alternative at an earlier hearing. While I agree with the Government that the existence of a new piece of evidence in a criminal case does not itself justify reopening a detention hearing, I am satisfied that neither Jalbert nor his attorney knew at the time of the original detention hearing that his father would be able to provide a financial bond and that the availability of a cash alternative and a family member who would assume responsibility for Jalbert's appearance before this court is information that has a material bearing on the conditions of release. Jalbert's attorney's apparent inability to establish earlier contact with the father is understandable given the language and geographical barriers involved in this case. Over the Government's objection, I granted Jalbert's oral motion and allowed him to reopen the detention hearing. At the reopened detention hearing I was confronted with the following set of circumstances. Jalbert is a lifelong resident of Pohenegamook, Quebec. For the past ten years he has been employed as a woodsman earning approximately $20,000.00 per year. Jalbert lives with the mother of his five year old daughter and she is currently pregnant with their second child. Jalbert's father, who works as a truck driver and earns approximately $40,000.00 Cdn. per year, lives three doors away from Jalbert. Jalbert's parents are divorced, but his five siblings are residents of Quebec. Jalbert's only criminal record is a 1990 conviction for receiving stolen property and breaking and entering. Jalbert never served jail time in connection with that conviction, but was on probation, apparently successfully, for two years. Jalbert was also previously apprehended by the Border Patrol authorities in June, 2001, at which time he was advised that he was not permitted to enter this country because of his prior conviction. At that time Jalbert requested and was granted a voluntary return to Canada, (Gov't.Ex. 8), apparently acknowledging that he was removable because of his prior conviction. Turning to the nature and circumstances of the instant offense, the Government conceded for purposes of the detention hearing that to the best of its knowledge Jalbert would be entitled to the "hunting exception" to the firearm charges. Thus even though he is charged with a felony that has a potential ten year imprisonment, the sentencing guidelines indicate that the sentencing range is 0 to 6 months, given the defendant's minimal criminal history. If Jalbert were a citizen of the United States charged with possession of a firearm by a prohibited person, the issue of conditions of release on these facts would be a nonstarter. The defendant would be released on personal recognizance. The only statutory basis for detention in this case would be pursuant to 18 U.S.C. § 3142(f)(2)(A), which concerns a serious risk of flight. However, the Government believes that Jalbert poses both a danger to the community and is a risk of flight. The pretrial services officer joins in that opinion (Gov't. Ex. 9, pretrial services report). The danger to the community is described as the danger that Jalbert will continue to illegally cross the Canadian/United States border to buy gas because he believes that he has some right to do so. I have made a condition of any release that he is not to enter the United States unless specifically paroled back into this country for the purpose of attending a court hearing in connection with this proceeding. If he *362 crosses the United States border without authorization, his release will be revoked. I believe that the only "danger" identified by the United States can be adequately addressed by a condition of release. The United States' argument that Jalbert is a flight risk has greater currency. If Jalbert did not return to this country to face these charges, this court would have no practical way to secure his arrest and involuntary return for trial. On the other hand, the nature and circumstances of this charge suggest that it is a "matter of principle." As a practical matter, Jalbert has certainly spent more time in jail than he would have received had he pleaded guilty to the misdemeanor charge of entry without inspection in front of me on October 17, 2002. The felony charges, of course, add a greater complexity to the case and if Jalbert were convicted, he could serve some additional time. However, this is not a case where the defendant is facing the certainty of a substantial mandatory minimum sentence upon conviction nor even a substantial likelihood of a guideline sentencing range of any significance. The only certainty is that if Jalbert does not appear for trial his father will lose $5,000.00, a considerable portion of his life savings. Furthermore, if Jalbert fails to appear, he loses the "matter of principle" as well, because his default would result in affirmation of the Government's position that his entry for the purpose of purchasing gas at the GazBar was an unauthorized entry. I believe that under these circumstances the risks of nonappearance associated with Jalbert's status as a Canadian citizen can be addressed by the posting of the cash bond and his father's willingness to accept custody of his son for the purposes of returning him to this court for scheduled appearances. The Government argues that a "common sense" reading of 18 U.S.C. § 3142 requires me to ignore Jalbert's substantial and longstanding ties to a community identified as Pohenegamook, Quebec, Canada, extending into Estcourt, Maine, United States, in the vicinity of the GazBar gas station. The Government contends that the court lacks statutory authority to craft a bail order that allows a person to leave this court's territorial jurisdiction. The AUSA admitted that he had no case law supporting this proposition nor has my research in the brief period since yesterday's detention hearing revealed any case precisely on point. I certainly agree with the Government that the cases where an excludable alien might be released on a cash bond that not only allowed, but required, him or her to leave the United States pending trial would be few and far between. However, I have in other cases, with less notoriety and far greater potential consequences for the defendant and the Government, allowed defendants to leave the territorial jurisdiction of the United States to return to a Canadian residence in close proximity to the border. (See e.g., United States v. Brenda Densmore, Mag. No. 01-14, Order of Release (Docket No. 4), a case alleging the unlawful importation of prescription drugs into the United States, ultimately voluntarily dismissed without prejudice by the Government). The Government's suggestion that I lack the discretionary authority to enter this type of bail order is of concern to me, but in the absence of persuasive authority on the issue, I believe that the decision regarding detention or release upon appropriate conditions, including a return to one's home in Canada, is a discretionary decision that I must make under the unique circumstances of each case. In this case I acknowledge that there is a risk that Jalbert will not return for his trial. However, I am satisfied that on these facts the risks *363 are best balanced by allowing his release under the conditions I have fashioned. The Government's motion for detention is DENIED. So Ordered.

804 F.2d 1537 22 Fed. R. Evid. Serv. 145 UNITED STATES of America, Plaintiff-Appellee,v.Victor MACHADO, Miguel Angel Victorero, Edgardo RafaelManotas, Fernando Gaviria-Aguirre, Defendants-Appellants. No. 84-5741. United States Court of Appeals,Eleventh Circuit. Dec. 3, 1986. Manuel Mari, Romaguera & Mari, P.A., Coral Gables, Fla., for Machado. Theodore J. Sakowitz, Federal Public Defender, Miguel Caridad, Asst. Federal Public Defender, Miami, Fla., for Victorero. Samuel I. Burstyn, Michel Ociacovski Weisz, Miami, Fla., for Manotas. Leon B. Kellner, U.S. Atty., Robert F. Dunlap, David O. Leiwant, Nancy L. Worthington, Asst. U.S. Attys., Miami, Fla., for plaintiff-appellee. Reemberto Diaz, Diaz & Batista, Hialeah, Fla., for Gaviria-Aguirre. Appeals from the United States District Court for the Southern District of Florida. Before RONEY, Chief Judge, KRAVITCH, Circuit Judge, and ATKINS*, Senior District Judge. CORRECTED OPINION KRAVITCH, Circuit Judge: 1 This appeal involves four of five defendants who were tried jointly for drug related offenses. Appellant Edgardo Rafael Manotas was convicted of: conspiring to possess cocaine with intent to distribute, in violation of 21 U.S.C. Sec. 846 (Count 1); possessing cocaine on January 4, 1984, with intent to distribute, in violation of 21 U.S.C. Sec. 841(a)(1) and 18 U.S.C. Sec. 2 (Count 2); and possessing cocaine on January 6, 1984, with intent to distribute, in violation of 21 U.S.C. Sec. 841(a)(1) and 18 U.S.C. Sec. 2 (Count 3). In addition to convictions on the first three counts, appellant Miguel Angel Victorero was convicted of unlawfully carrying a firearm during the commission of a felony, in violation of 18 U.S.C. Sec. 924(c)(2) (Count 4). Appellant Fernando Gaviria-Aguirre was convicted on Counts 1-3 and carrying firearms unlawfully during the commission of a felony, in violation of 18 U.S.C. Sec. 924(c)(2) (Count 5). Finally, appellant Victor Machado was convicted on counts one and three. 2 In addition to challenging the sufficiency of the evidence, appellants' other issues on appeal include: (1) whether coconspirator statements were erroneously admitted as to appellant Manotas; (2) whether admitting coconspirator statements against Manotas constituted a denial of sixth amendment confrontation rights; (3) whether denial of Manotas's severance motion was an abuse of discretion; (4) whether limitations imposed by the trial judge on the scope of cross-examination of the key government witness was an abuse of discretion; (5) whether the trial court erred in denying appellant Gaviria-Aguirre's motions for judgment of acquittal on the charges of carrying a weapon in the commission of a felony and conspiracy to possess cocaine with intent to distribute. We find no reversible error in the trial court's careful and patient handling of this case. We therefore affirm. I. BACKGROUND 3 The chain of events that led to the convictions began on December 8, 1983, when Paolo Longo visited his former co-employee Carlos Munoz to suggest that if Munoz wanted to make a lot of money, Longo could supply him with anywhere from one to a thousand kilograms of cocaine. Longo told Munoz to contact him if he succeeded in locating some buyers. After Longo left, Munoz contacted an agent at the Bureau of Alcohol, Tobacco and Firearms,1 who introduced Munoz to Agent Jacobsen of the Department of Drug Enforcement Administration (DEA). In exchange for cooperating with the DEA in arranging a purchase of cocaine, Agent Jacobsen promised to appear on Munoz's behalf at resentencing hearings on Munoz's outstanding criminal conviction.2 4 The first of the appellants to enter the story was Miguel Angel Victorero. On December 15, 1983, Victorero accompanied Longo to the automobile dealership where Munoz worked. Longo introduced Victorero to Munoz and inquired as to whether Munoz had contacted any buyers. The next day, Longo telephoned Munoz to notify him that Longo was returning to Munoz's place of employment. DEA agents prepared for this meeting by establishing a surveillance of Munoz's workplace and attaching a recording device to Munoz. Victorero was present when Longo told Munoz that if Munoz needed any cocaine he could call "John" who would give the cocaine to Victorero, who in turn would bring it to Munoz. Longo described how Munoz would then give the money to Victorero, Victorero would deliver the money to John, and Victorero would bring more cocaine later if Munoz desired. After this meeting, DEA agents instructed Munoz to delay the deal until after January 1, 1984. 5 The next meeting occurred on December 22, 1983, again at Munoz's place of employment. As before, Longo arrived with Victorero and inquired as to whether Munoz was ready to make the deal. Longo advised Munoz that he would be out of town for the holidays but that he would leave one kilogram of cocaine either with Munoz or with John. Munoz told Longo that he did not want any cocaine in his place of business and that he would call when he was ready to deal. Longo once again told Munoz that if Munoz wanted to contact John, Victorero would serve as a middleman. Longo commented that if Munoz didn't give Victorero the money, Victorero "knows what to do." Victorero laughed and nodded. 6 The first sale of drugs was arranged on January 3, 1984 at the automobile dealership where Munoz worked. Victorero accompanied Longo to the meeting and was present throughout. Longo agreed to deliver one kilogram of cocaine to Munoz on January 4, 1984 for a price of $25,000. The exchange was to occur at 3:00 p.m. in the parking lot of the Midway shopping mall, near a department store. 7 On January 4, Munoz went to the designated location with $25,000 in DEA cash stuffed in his pocket.3 When Longo failed to appear, Munoz telephoned him. Longo promised to meet Munoz later at the same shopping mall location. When Longo arrived, Munoz got in Longo's car and they drove to a bank of telephones where Longo dialed a number and spoke to someone named "Fernando." Munoz heard Longo tell Fernando that the money and the people were ready and that they were very upset about the delay. Fernando then asked to speak with Munoz. Fernando apologized to Munoz for the delay and promised that there would be no delays the next time and that Munoz could be sure that his delivery was going to be no later than 7:00 p.m. that evening. Munoz then passed the receiver back to Longo and heard Longo say "Coral Way and 87th Avenue, Playworld. It was to be in a Camaro." After driving Munoz back to his car, Longo left. 8 It was at this point that appellant Edgardo Rafael Manotas entered the story. DEA agents followed Longo's Mercedes as he left the Midway mall area and proceeded to the Playworld mall. Upon arriving at the Playworld mall area, Longo, carrying nothing in his hands, left his vehicle and walked to an area in the mall where he met Manotas. Longo and Manotas entered a 1983 Chevrolet Camaro.4 Manotas drove the Camaro to the area where Longo's Mercedes was parked and Longo exited carrying a white plastic bag. 9 Longo immediately proceeded back to the Midway mall area where he met with Munoz. Longo placed a brown paper bag containing a plastic bag with one kilogram of cocaine in it into Munoz's car and Munoz gave Longo the $25,000.5 Longo and Munoz agreed to meet the next morning in the parking lot of a department store where Longo would sell Munoz fifty kilograms of cocaine. When Longo left, DEA agents followed him to a restaurant where Longo made some telephone calls and met with appellant Manotas who arrived in the Camaro he had been driving earlier. 10 The next day, Munoz learned that the fifty kilogram deal would be delayed. Early that morning, Longo telephoned Munoz to cancel the 9:00 a.m. meeting. Later that afternoon, Munoz met with Longo at the designated department store parking lot but Longo declared that the deal was off for that day because he was concerned about some suspicious cars driving around the area. 11 Around 7:00 p.m., Longo called to arrange a meeting behind a restaurant in Hialeah. Munoz informed the DEA agents and went to the meeting. When he arrived, Longo approached his car and told Munoz to wait there because "the Colombians, the men who had the cocaine would like to talk to us right there." Approximately ten minutes later, two men drove up in a blue sports car. Appellant Fernando Gaviria-Aguirre got out of the car and met with Longo and Munoz. Gaviria-Aguirre apologized to Munoz for the delay in the first deal and promised that the fifty kilogram deal would occur the next day and it would be sharp, with no more mistakes. Munoz was introduced to Cabrera, the driver of the car and the man "who owned the merchandise." The deal was set for 10:00 a.m. in a shopping center parking lot. 12 On January 6, 1984, both sides prepared for the fifty kilogram deal. Sometime prior to 10:00 a.m., Maritza Rodriguez, appellant Victor Machado, and an unidentified male rented a U-Haul truck from a service station in Hialeah.6 Meanwhile, DEA agents in a surveillance van at the shopping center parking lot observed Victorero conducting counter-surveillance by walking up and down the aisles of parked cars and peering inside of them. Victorero was carrying a handbag that contained a gun. When Munoz arrived at the shopping center at 10:00, Longo invited him to walk to a nearby shop to drink Cuban coffee. Appellant Gaviria-Aguirre drove up in a rental car with his infant son and met Munoz and Longo when they returned to the parking lot. 13 Gaviria-Aguirre told Munoz that the "merchandise" was inside a U-Haul truck parked facing the street at a nearby location and Longo then drove Munoz in Gaviria-Aguirre's rental car to the U-Haul truck. Machado and the unidentified male were waiting at the U-Haul. Machado admitted that they were "Fernando's men." Munoz went inside the back of the truck and inspected the approximately ten kilograms of cocaine. 14 Longo and Munoz then returned to the parking lot where Gaviria-Aguirre was waiting. Munoz signalled the DEA agents and Gaviria-Aguirre, Longo, and Munoz were all placed under arrest. Victorero emerged from a nearby bakery and was arrested after he attempted to flee. The agents seized Victorero's handbag containing the handgun and searched Gaviria-Aguirre's rental car. They discovered two handguns on the floor on the passenger side, partially under the seat.7 Victorero, while riding in the DEA van, unsuccessfully attempted to hide a set of keys to Longo's automobile. 15 DEA agents then arrested appellant Machado and seized the ten kilograms of cocaine in the U-Haul. Agents had Manotas's Camaro towed away from his home later that night. The next morning when Manotas called the police to report the vehicle stolen, DEA agents went to Manotas's home and arrested him. 16 II. ADMISSION OF COCONSPIRATOR STATEMENTS AGAINST APPELLANT MANOTAS 17 Appellant Manotas argues that the trial court erred in admitting coconspirator statements under Fed.R.Evid. 801(d)(2)(E). Appellant concedes that a conspiracy existed and that the coconspirator statement,8 if made, was made in furtherance of and during the course of the conspiracy. Appellant challenges, however, the sufficiency of substantial independent evidence under United States v. James, 590 F.2d 575 (5th Cir.) (en banc), cert. denied, 442 U.S. 917, 99 S.Ct. 2836, 61 L.Ed.2d 283 (1979), to show that he was a member of the conspiracy. 18 In James, our predecessor court9 set out the test for admissibility of coconspirator statements under Fed.R.Evid. 104(b). Under the James standard, in order for the trial judge to allow the jury to consider coconspirator statements offered against a defendant under Fed.R.Evid. 104(b), the court must find by a preponderance of the evidence independent of the statement itself: (1) that a conspiracy existed; (2) that the coconspirator and the defendant against whom the coconspirator's statement is offered were members of the conspiracy; and (3) that the statement was made during the course and in furtherance of the conspiracy. Id. at 582. The trial court's determination on the James issue will not be overturned unless clearly erroneous. United States v. Alvarez, 755 F.2d 830, 855 (11th Cir.1985); United States v. Zielie, 734 F.2d 1447, 1457 (11th Cir.1984), cert. denied, 469 U.S. 1189, 105 S.Ct. 957, 83 L.Ed.2d 964 (1985); United States v. Castro, 723 F.2d 1527, 1533 (11th Cir.1984); United States v. Bulman, 667 F.2d 1374, 1379 (11th Cir.), cert. denied, 456 U.S. 1010, 102 S.Ct. 2305, 73 L.Ed.2d 1307 (1982). Even if the James requirements are not satisfied and the coconspirator hearsay is improperly admitted, the admission may constitute harmless error. United States v. Weinstein, 762 F.2d 1522, 1535 (11th Cir.1985). 19 In reviewing the independent evidence in this record, we are not left with a " 'definite and firm conviction that a mistake has been committed' that makes it necessary to overturn the district court's determination as clearly erroneous." Bulman, 667 F.2d at 1379 (citing United States v. United States Gypsum Co., 333 U.S. 364, 68 S.Ct. 525, 92 L.Ed. 746 (1948)) (citation omitted); Castro, 723 F.2d at 1533. Independent evidence indicated that after arranging a one kilogram sale with Munoz, Longo met with Manotas. Longo entered Manotas's automobile with nothing in his hands. Several minutes later, Longo emerged holding a white plastic bag. Agents then observed Longo drive back to a meeting with Munoz where Longo delivered a brown paper bag to Munoz. Inside the bag was a white and blue plastic bag containing one kilogram of cocaine. After receiving $25,000 from Munoz, Longo drove to a restaurant where he met for about thirty minutes with Manotas. 20 Although appellant correctly points out that no one actually observed him deliver the cocaine to Longo or receive the $25,000, the trial judge did not commit clear error in finding that a preponderance of substantial independent evidence supported the conclusion that appellant Manotas was a member of the conspiracy to possess cocaine with intent to distribute. Appellant's attempt to distinguish our prior cases on the basis of the direct involvement of each defendant in the cocaine transaction is unpersuasive. This is not a case of "mere association with persons involved in a criminal enterprise." United States v. DeSimone, 660 F.2d 532, 537 (5th Cir. Unit B 1981), cert. denied, 455 U.S. 1027, 102 S.Ct. 1732, 72 L.Ed.2d 149 (1982); United States v. Stanley, 765 F.2d 1224, 1243 (5th Cir.1985). Substantial independent evidence in this case supported the conclusion that appellant Manotas personally delivered a kilogram of cocaine to Longo and received $25,000 in payment.10 21 III. DENIAL OF CONFRONTATION RIGHTS BY ADMISSION OF COCONSPIRATOR STATEMENTS 22 Manotas further argues that introduction of out of court coconspirator statements under Fed.R.Evid. 801(d)(2)(E) denied him his sixth amendment right to confront adverse witnesses. Manotas contends that the sixth amendment is violated when hearsay evidence is admitted against a criminal defendant even though the evidence is admissible under an established hearsay exception when: (1) the evidence is "inherently unreliable"; (2) the evidence is devastating to the defendant's case and critical to the government's case; and (3) the declarant has not been shown to be unavailable. 23 Appellant's claim is without merit. Indeed, he concedes that this argument was rejected in United States v. Wolfe, 766 F.2d 1525 (11th Cir.1985), cert. denied, --- U.S. ----, 106 S.Ct. 1379, 89 L.Ed.2d 602 (1986). In Wolfe, this court held that statements that fall within the hearsay "exception" created by Fed.R.Evid. 801(d)(2)(E) bear adequate indicia of reliability to be admitted without depriving a defendant of his constitutional right to confrontation. Id. at 1527. Appellant, however, urges this court to "re-examine" the Wolfe ruling. Assuming arguendo that this panel were inclined to agree with appellant's view of the sixth amendment requirements, we would not be free to overrule a prior decision by this court. Only a decision by this court sitting en banc or by the United States Supreme Court can overrule a prior panel decision.11 As for appellant's claim that the confrontation clause requires a showing of unavailability of the declarant prior to admission of coconspirator statements under Fed.R.Evid. 801(d)(2)(E), the United States Supreme Court recently expressly rejected any such requirement. United States v. Inadi, --- U.S. ----, 106 S.Ct. 1121, 89 L.Ed.2d 390 (1986). IV. DENIAL OF MANOTAS'S SEVERANCE MOTION 24 Manotas's next argument is that the trial court erred in denying his motion for severance because appellant's joint trial denied him the benefit of exculpatory testimony from his codefendant, appellant Gaviria-Aguirre. Manotas contends that the trial court abused its discretion in denying the severance motion because Gaviria-Aguirre's testimony was critical in rebutting the coconspirator statement that was admitted at trial against him.12 25 The trial court's denial of Manotas's motion for severance is reviewable only for an abuse of discretion. United States v. Pruitt, 763 F.2d 1256, 1263 (11th Cir.1985), cert. denied, --- U.S. ----, 106 S.Ct. 856, 88 L.Ed.2d 896 (1986). We have articulated standards to guide trial judges in exercising this discretionary power. A defendant who moves for severance in order to enable him to obtain favorable testimony from a codefendant must show: (1) a bona fide need for the testimony; (2) the substance of the desired testimony; (3) the exculpatory nature and effect of the desired testimony; and (4) that the codefendant would indeed have testified at a separate trial. Id.; United States v. Leichtman, 742 F.2d 598, 605 (11th Cir.1984); United States v. Johnson, 713 F.2d 633, 640 (11th Cir.1983), cert. denied, 465 U.S. 1081, 104 S.Ct. 1447, 79 L.Ed.2d 766 (1984); United States v. Rice, 550 F.2d 1364, 1369 (5th Cir.), cert. denied, 434 U.S. 954, 98 S.Ct. 478, 54 L.Ed.2d 312 (1977). Once the defendant makes that threshold showing, the trial court must then: (1) examine the significance of the testimony in relation to the defendant's theory of the case; (2) assess the extent of prejudice caused by the absence of the testimony; (3) consider judicial administration and economy; and (4) give weight to the timeliness of the motion. Pruitt, 763 F.2d at 1263; Johnson, 713 F.2d at 641; Rice, 550 F.2d at 1369. 26 We find no abuse of discretion in the court's denial of Manotas's severance motion. First, Gaviria-Aguirre's testimony would not have had sufficient exonerative significance. Gaviria-Aguirre's affidavit indicated that he was prepared to testify: (1) that assuming the alleged conspiracy, Gaviria-Aguirre "never knew, heard or spoke to, or had any reason to think" that Manotas was involved; (2) that Gaviria-Aguirre has reason to believe that Manotas was not involved in any respect; and (3) that Gaviria-Aguirre knows of no drugs ever having been supplied by or through Manotas. Assuming that the jury would believe Gaviria-Aguirre's testimony, the most that can be said is that the testimony would tend to rebut any implied direct connection between Gaviria-Aguirre and Manotas raised by Longo's telephone conversation with "Fernando."13 Although we agree with Manotas that such an implied connection may have been raised by admission of the coconspirator statement, this connection was secondary to the conspiracy link between Manotas and Longo. The government did not allege or attempt to prove that Gaviria-Aguirre personally directed Manotas's actions or even that Gaviria-Aguirre knew Manotas. See United States v. Rice, 550 F.2d 1364, 1370 (5th Cir.), cert. denied, 434 U.S. 954, 98 S.Ct. 478, 54 L.Ed.2d 312 (1977). No such connection is necessary for Manotas to be convicted as a coconspirator given the evidence regarding Manotas's direct involvement with Longo. Accordingly, Gaviria-Aguirre's testimony would have had little exculpatory effect even if it were believed.14 27 In addition, even if Manotas's initial showing was adequate, the trial court did not abuse its discretion in denying the severance motion on the basis of the second set of factors. Gaviria-Aguirre's testimony would not have gone very far in advancing Manotas's theory that his sale of cocaine to Longo was an isolated incident and that Manotas had no knowledge of a conspiracy. The minimal prejudice to Manotas was outweighed by considerations of judicial administration and economy in this circumstance.V. LIMITATIONS ON CROSS-EXAMINATION 28 Appellant Gaviria-Aguirre alleges that the trial court unduly restricted the scope of cross-examination of the "pivotal" government witness: Carlos Munoz. Appellant's argument is based upon Fed.R.Evid. 608(b) and 609(a). First, appellant contends that the trial court should have permitted him to conduct a more detailed cross-examination of Munoz's prior criminal conviction.15 Second, appellant argues that he should have been permitted to call several witnesses who allegedly had been victims of Munoz's embezzlement and drug dealing. 29 The trial court's limitations on the scope of cross-examination were entirely consistent with Fed.R.Evid. 608(b) and 609(a).16 Appellant does not contend that this is a case of such serious restrictions on cross-examination as to "eviscerate the defendant's sixth amendment right to confront adverse witnesses and compel the reversal of a conviction." United States v. Haimowitz, 706 F.2d 1549, 1559 (11th Cir.1983), cert. denied, 464 U.S. 1069, 104 S.Ct. 1069, 79 L.Ed.2d 212 (1984). The sixth amendment requires that a defendant be granted an opportunity to explore criminal charges against a prosecution witness on cross-examination in order to bring the witness' possible motive or self-interest to the jury's attention. United States v. Garrett, 727 F.2d 1003, 1011 (11th Cir.1984), aff'd on other grounds, 471 U.S. 773, 105 S.Ct. 2407, 85 L.Ed.2d 764 (1985). Where the defendant is permitted to conduct sufficient cross-examination to satisfy sixth amendment requirements, the scope of any further cross-examination is within the sound discretion of the trial court and the trial court's decision will not be disturbed on review absent an abuse of discretion. Id.; United States v. Tolliver, 665 F.2d 1005, 1008 (11th Cir.), cert. denied, 456 U.S. 935, 102 S.Ct. 1991, 72 L.Ed.2d 455 (1982). 30 The trial court did not abuse its discretion in refusing to allow further cross-examination concerning Munoz's criminal conviction. The court allowed a considerable amount of cross-examination of Munoz. The jury learned of Munoz's conviction for bringing illegal aliens into the United States in connection with the Mariel boatlift for which Munoz was sentenced to thirty-two months imprisonment. The jury was informed of the agreement between the United States and Munoz under which DEA agents agreed to recommend that Munoz's sentence be reduced to probation if Munoz cooperated. The jury heard that Munoz received $10,000 cash as a reward for his work on this case. 31 The trial court also properly refused to allow Gaviria-Aguirre to call witnesses to testify regarding specific incidents of Munoz's past conduct. Fed.R.Evid. 608(a) states that "[s]pecific instances of the conduct of a witness, for the purpose of attacking or supporting his credibility ... may not be proved by extrinsic evidence." See United States v. Cohen, 631 F.2d 1223 (5th Cir.1980). VI. SUFFICIENCY OF EVIDENCE A. Gaviria-Aguirre 32 Appellant Gaviria-Aguirre contends that the trial court erred in denying his motion under Fed.R.Crim.P. 29 for judgment of acquittal on the charge of unlawful possession of a firearm in the commission of a felony and on the charge of conspiracy to possess cocaine with intent to distribute. The test for reviewing a denial of a motion for judgment of acquittal on the basis of insufficiency of evidence is the same as that used for reviewing general challenges to sufficiency of evidence to support a jury verdict. United States v. Rackley, 742 F.2d 1266, 1271 (11th Cir.1984).17 Under that standard, we examine the evidence in a light most favorable to the government and determine whether a reasonable jury could have concluded beyond a reasonable doubt that the defendant was guilty. United States v. Bell, 678 F.2d 547 (5th Cir. Unit B 1982) (en banc), aff'd on other grounds, 462 U.S. 356, 103 S.Ct. 2398, 76 L.Ed.2d 638 (1983). The evidence need not exclude every reasonable hypothesis of innocence or be wholly inconsistent with every conclusion except that of guilt. Id. We address the rule 29 motion on the weapons charge first. 33 In order to have violated 18 U.S.C. Sec. 924(c)(2),18 appellant's act of carrying the firearms must, in and of itself, have violated federal, state, or local law. United States v. Rouco, 765 F.2d 983, 996 (11th Cir.1985), cert. denied, --- U.S. ----, 106 S.Ct. 1646, 90 L.Ed.2d 190 (1986); United States v. Risi, 603 F.2d 1193 (5th Cir.1979). Appellant contends that his possession of the guns was not unlawful under Florida law19 because the weapons were neither concealed nor in easy access. The critical determination on this argument is whether, viewing the evidence in the light most favorable to the government, a reasonable jury could not have found beyond a reasonable doubt that Gaviria-Aguirre violated Florida law. 34 Gaviria-Aguirre's possession of the firearms was illegal under Fla.Stat.Ann. Sec. 790.01(2) (West 1986) only if: (1) the firearms were "concealed firearm[s];"20 and (2) the firearms were "on or about" Gaviria-Aguirre's person. In Ensor v. State, 403 So.2d 349 (Fla.1981), the Florida Supreme Court addressed the requirements of section 790.01. First, with respect to the concealment element, the court held that "absolute invisibility" is not a necessary element to a finding of concealment. The firearm need only be hidden from the ordinary sight of another person: 35 The term "ordinary sight of another person" means the casual and ordinary observation of another in the normal associations of life. Ordinary observation by a person other than a police officer does not generally include the floorboard of a vehicle, whether or not the weapon is wholly or partially visible. 36 Id. at 354. 37 Second, as to the "on or about the person" requirement, the court stated that "[t]his generally includes the interior of an automobile and the vehicle's glove compartment, whether or not locked." Id. The Ensor court noted, however, that in all instances common sense must prevail and the ultimate decision must rest upon the trier of fact under the circumstances of each case. The court held that the question of whether section 790.01 was violated where a handgun was discovered partially under the mat on the floor of the passenger side of the defendant's vehicle was for the jury to decide. 38 The jury might reasonably have found beyond a reasonable doubt that both elements of a section 790.01 violation existed in this case. Gaviria-Aguirre drove the rental car to the meeting with Munoz and Longo. Two handguns were found on the passenger side floor area of Gaviria-Aguirre's car. One of the guns was in a pouch, the other was lying uncased on top of the pouch. The record indicates that "just one part" of the uncased gun was under the seat. On these facts, the jury could reasonably have found beyond a reasonable doubt that Gaviria-Aguirre carried a concealed firearm on or about his person in violation of Florida law.21 39 Gaviria-Aguirre also contends that, even if he violated Florida law by carrying a concealed weapon in his automobile to his meeting with Munoz and Longo, he did not carry a concealed weapon "during the commission of any felony for which he may be prosecuted in a court of the United States." 18 U.S.C. Sec. 924(c)(2). When Gaviria-Aguirre arrived at the meeting, the guns remained in the car while Gaviria-Aguirre met with Munoz and Longo in the parking lot. With Gaviria-Aguirre's permission, Longo drove the car to the U-Haul where Munoz inspected the cocaine. Longo then drove the car back to where Gaviria-Aguirre was waiting in the parking lot. Munoz and Longo exited the vehicle, and the arrests occurred. At no point after arriving at the parking lot did Gaviria-Aguirre re-enter his vehicle, and the guns remained on the floor of the car throughout. 40 The government apparently concedes that once Gaviria-Aguirre exited his vehicle, he did not, from that point until he was arrested, carry the firearms "on or about his person." Instead, the government argues that Gaviria-Aguirre was already committing the felonies of conspiracy to possess cocaine with intent to distribute and possession of cocaine with intent to distribute when he drove to the January 6 meeting. Therefore, Gaviria-Aguirre had carried a firearm during the commission of a felony simply by driving his vehicle to the shopping mall. 41 Although we find no case from this jurisdiction on point, we conclude that a reasonable jury could have found Gaviria-Aguirre guilty of a section 924(c)(2) violation when he drove to the shopping mall. Viewing the evidence in the light most favorable to the government, a reasonable jury could have found beyond a reasonable doubt that Gaviria-Aguirre was guilty of the felonies of conspiracy and possession at the time he drove to the mall. Nothing in the statute, precedent or reason mandates that the "any felony" language in section 924(c) be read as excluding the felonies of possession of narcotics with intent to distribute or conspiracy to possess narcotics with intent to distribute.22 Other circuits that have addressed this question have rejected such a restrictive reading of section 924.23 We conclude, therefore, that the denial of the motion for judgment of acquittal must be affirmed because a reasonable jury could have found beyond a reasonable doubt that: (1) Gaviria-Aguirre possessed cocaine and had formulated the intent to distribute at the time he drove to the mall;24 and (2) a conspiracy existed to sell cocaine and Gaviria-Aguirre's act of driving to the mall was in furtherance of the conspiracy. 42 There is ample evidence to support the denial of the motion for judgment of acquittal on Gaviria-Aguirre's conspiracy count. Evidence at trial indicated that Gaviria-Aguirre met with Munoz and Longo on January 5. At that meeting, Gaviria-Aguirre introduced Munoz to Cabrera, the man who owned the cocaine. Gaviria-Aguirre apologized to Munoz for the delays and promised that the deal the next day would be "sharp" with no more mistakes. The next day Gaviria-Aguirre arrived at the scene of the cocaine deal. He met with Munoz and Longo and told them where the cocaine was located. At the U-Haul truck, Machado admitted that the men there were "Fernando's men." Viewing this evidence in a light most favorable to the government, there is little question that Gaviria-Aguirre knew of the conspiracy and voluntarily joined in it. 43 B. Appellants Victorero, Manotas, and Machado 44 Appellants Victorero, Manotas, and Machado all present challenges to the sufficiency of the evidence to support their convictions. Appellants were all convicted on the conspiracy count, which requires proof that a conspiracy existed and that the defendant knew of the conspiracy and voluntarily joined in it. United States v. Cotton, 770 F.2d 940, 944 (11th Cir.1985). We conclude that the evidence was sufficient for the jury to find beyond a reasonable doubt that a conspiracy existed. 45 Appellant Victorero's insufficiency of evidence claim is without merit. Victorero rode with Longo and was present at meetings between Longo and Munoz on a number of occasions. Victorero assented to Longo's assertion that Victorero would serve as a middleman for cocaine deals and that Victorero would know what to do if Munoz didn't pay when Victorero delivered cocaine. Victorero arrived early at the scene of the January 6 deal and was observed conducting counter-surveillance activities while carrying a handgun. Victorero attempted to flee when he saw DEA agents arresting Gaviria-Aguirre, Longo, and Munoz. 46 Victorero's contention that the crucial testimony against him came from uncorroborated testimony of a confidential informant25 ignores the fact that DEA agents observed Victorero sitting at the meetings between Munoz and Longo and DEA agents observed Victorero's counter-surveillance activities. Victorero also testified at trial and took the risk that the jury would not believe his plea of innocent presence. Cotton, 770 F.2d at 945. 47 Appellant Machado also testified at trial regarding his ignorance of any drug transaction and his innocent presence at the U-Haul containing ten kilograms of cocaine. The jury was entitled to disbelieve his testimony and rely upon the testimony that Machado was guarding the U-Haul, his statement that he was one of Fernando's men, and his relationship to Gaviria-Aguirre.26 48 Our discussion in section II above of appellant Manotas's James issue, although governed by a different standard of review, applies to Manotas's sufficiency of evidence claim. Viewing the evidence in the light most favorable to the government, a reasonable jury could have found beyond a reasonable doubt that Manotas was aware of the conspiracy and knowingly joined in it by selling cocaine to Longo. The jury did not need to find that Manotas knew Gaviria-Aguirre, Machado, or Victorero in order to find that Manotas knowingly joined in the conspiracy. See United States v. Garcia, 721 F.2d 721, 725 (11th Cir.1983). 49 The district court's judgment is AFFIRMED on all issues. * Honorable C. Clyde Atkins, Senior U.S. District Judge for the Southern District of Florida, sitting by designation 1 Munoz had worked as a confidential informant for the Bureau of Alcohol, Tobacco and Firearms since 1983 2 In connection with the Mariel boatlift, Munoz was convicted in 1981 and sentenced to 32 months imprisonment for bringing illegal aliens into the United States. Agent Jacobsen promised to appear on Munoz's behalf at reduction of sentence hearings and to recommend that Munoz be granted probation 3 The DEA had photocopied the $100 bills and recorded their serial numbers. Agent Jacobsen examined the money and found it was all intact prior to the 5:00 meeting 4 The Camaro was registered to appellant Manotas's wife 5 Inside the plastic bag was a blue box which contained a "football" inside of which was approximately one kilogram of cocaine 6 The record indicates that Maritza Rodriguez and Machado lived in the same apartment. Machado was Gaviria-Aguirre's brother-in-law. Gaviria-Aguirre's wife sometimes paid the rent on the apartment 7 One of the handguns was inside a leather suede pouch. The other gun was found on top of the pouch 8 The challenged statement was Longo's remark during the telephone conversation with "Fernando" regarding "Coral Way and 87th Avenue, Playworld. It was to be in a Camaro." Manotas, driving a Camaro, met with Longo at that location 9 The Eleventh Circuit, in the en banc decision Bonner v. City of Prichard, 661 F.2d 1206, 1209 (11th Cir.1981), adopted as precedent decisions of the former Fifth Circuit rendered prior to October 1, 1981 10 Because we find no error in the trial court's admission of the coconspirator statements under James, we do not reach the issue of whether error in admitting the statement might have been harmless 11 See Bonner v. City of Prichard, 661 F.2d 1206, 1209 (11th Cir.1981). Nothing in Bonner or subsequent cases supports appellant's suggestion that this rule does not apply when the challenged panel decision was decided on the non-argument calendar by a per curiam opinion 12 See supra note 8 13 The connection between Gaviria-Aguirre and Manotas was implied when Munoz heard Longo repeat what "Fernando" allegedly told him regarding the location for the pick-up of the one kilogram of cocaine and the fact that it would be a Camaro. See supra note 8 14 Gaviria-Aguirre's affidavit did not in any way contravene his own penal interests. Although testimony in contravention of the witness' penal interests is not required in every case before a severance may be granted, the trial court may consider the fact that such testimony "lack[s] a certain amount of credibility." United States v. Johnson, 713 F.2d 633, 641 (11th Cir.1983), cert. denied, 465 U.S. 1081, 104 S.Ct. 1295, 79 L.Ed.2d 695 (1984) 15 Appellant's brief provides little guidance as to what cross-examination limitations are being challenged. With respect to Munoz's criminal conviction, appellant alleges only that cross-examination was limited to specific prior criminal acts. Appellant asserts that detailed cross-examination "in these areas" would have shown Munoz's "prior history and ability to lie, create stories to suit his own best interests and manipulate people." Neither Fed.R.Evid. 608(b) nor rule 609(a) requires that such a "witch-hunt" type cross-examination be allowed 16 Fed.R.Evid. 608(b) provides: Specific instances of the conduct of a witness, for the purpose of attacking or supporting his credibility, other than conviction of crime as provided in rule 609, may not be proved by extrinsic evidence. They may, however, in the discretion of the court, if probative of truthfulness or untruthfulness, be inquired into on cross-examination of the witness (1) concerning his character for truthfulness or untruthfulness, or (2) concerning the character for truthfulness or untruthfulness of another witness as to which character the witness being cross-examined has testified. Fed.R.Evid. 609(a) states the general rule for impeachment by evidence of conviction of crime: For the purpose of attacking the credibility of a witness, evidence that he has been convicted of a crime shall be admitted if elicited from him or established by public record during cross-examination but only if the crime (1) was punishable by death or imprisonment in excess of one year under the law under which he was convicted, and the court determines that the probative value of admitting this evidence outweighs its prejudicial effect to the defendant, or (2) involved dishonesty or false statement, regardless of the punishment. 17 The original panel opinion in United States v. Rackley, 724 F.2d 1463 (11th Cir.1984), is superseded by the opinion on rehearing, United States v. Rackley, 742 F.2d 1266 (11th Cir.1984) 18 18 U.S.C. Sec. 924(c) provides: (c) Whoever-- * * * (2) carries a firearm unlawfully during the commission of any felony for which he may be prosecuted in a court of the United States, shall, in addition to the punishment provided for the commission of such felony, be sentenced to a term of imprisonment for not less than one year nor more than ten years. 19 The government apparently concedes that Gaviria-Aguirre's carrying of firearms was not unlawful under federal or local law. The government argues that Gaviria-Aguirre violated Fla.Stat.Ann. Sec. 790.01(2) (West 1986) 20 Fla.Stat.Ann. Sec. 790.01(2) (West 1986) defines "concealed firearm" as "any firearm ... which is carried on or about a person in such a manner as to conceal the firearm from the ordinary sight of another person." 21 We note that, although the issue was not raised on appeal, the trial court should have instructed the jury on the concealment requirement in addition to the "on or about the person" requirement of Florida law 22 Neither of these predicate felonies contain their own enhancement provisions so as to bar conviction under both Sec. 924 and the predicate felony. See Busic v. United States, 446 U.S. 398, 100 S.Ct. 1747, 64 L.Ed.2d 381 (1980) 23 The Seventh Circuit faced similar issues in United States v. Johnson, 658 F.2d 1176 (7th Cir.1981). In Johnson, undercover DEA agents removed defendant Johnson's gun from his holster on two occasions when Johnson arrived to sell cocaine. The deals were consummated and the agents returned the gun to Johnson as they left. On appeal from his Sec. 924 conviction, Johnson argued that he did not carry a firearm "during the commission of [the] felony" because the agents removed the pistol on each occasion prior to the consummation of the sale of cocaine. The court disagreed. Citing the legislative purpose to stem the growing use of firearms, the court concluded: [I]t is undisputed that at some time on each of the two occasions when the cocaine was sold, Johnson was armed. Also it is undisputed that prior to being disarmed Johnson had formulated the intent to distribute the cocaine and had engaged in acts in furtherance of the distribution. ... Exclusion of Johnson from the statute would contravene the purpose of the statute--that is, decreasing the use and carrying of firearms in felony cases. Up to the time the gun had been removed Johnson was engaged in felonious activity and his possession of the gun posed a danger to those individuals involved in the drug transaction. Id. at 1181. The Fifth Circuit also upheld a Sec. 924 conviction on conspiracy grounds alone where the defendants attempted to sell imitation narcotics. United States v. Pietri, 683 F.2d 877 (5th Cir.1982). 24 Constructive possession will sustain a conviction for possession with intent to distribute under Sec. 841(a)(1). United States v. Rackley, 742 F.2d 1266 (11th Cir.1984). In this case, the jury could reasonably have found Gaviria-Aguirre to have been in constructive possession of the cocaine in the U-Haul at the time he drove to the shopping mall 25 Appellant identifies two portions of Munoz's testimony as "crucial" to Victorero's conviction. First, Munoz testified that Victorero "nodded and laughed" when Longo said that Victorero would know what to do if Munoz didn't pay. Second, Munoz testified that after the arrest when he got in the DEA van, Victorero told him not to talk. This testimony was of very questionable significance in light of the substantial amount of other evidence available 26 Machado was Gaviria-Aguirre's brother-in-law

Nebraska Supreme Court Online Library www.nebraska.gov/apps-courts-epub/ 08/02/2019 09:07 AM CDT - 268 - Nebraska Supreme Court A dvance Sheets 303 Nebraska R eports ROBERT M. ON BEHALF OF BELLA O. v. DANIELLE O. Cite as 303 Neb. 268 Robert M. on behalf of Bella O., a minor child, appellee, v. Danielle O., appellant. ___ N.W.2d ___ Filed May 31, 2019. No. S-18-818. 1. Protection Orders: Injunction: Appeal and Error. A protection order pursuant to Neb. Rev. Stat. § 42-924 (Cum. Supp. 2018) is analogous to an injunction. Thus, the grant or denial of a protection order is reviewed de novo on the record. In such de novo review, an appellate court reaches conclusions independent of the factual findings of the trial court. However, where the credible evidence is in conflict on a material issue of fact, the appellate court considers and may give weight to the circumstances that the trial judge heard and observed the witnesses and accepted one version of the facts rather than another. 2. Protection Orders. Whether domestic abuse occurred is a threshold issue in determining whether an ex parte protection order should be affirmed; absent abuse as defined by Neb. Rev. Stat. § 42-903 (Cum. Supp. 2018), a protection order may not remain in effect. 3. Protection Orders: Words and Phrases. Not only is the recipient or target of a credible threat a “victim” of abuse eligible for a domestic abuse protection order under Neb. Rev. Stat. § 42-924 (Cum. Supp. 2018), so too are those family members for whose safety the target rea- sonably fears because of the threat. Appeal from the District Court for Sarpy County: PaTricia A. Freeman, County Judge. Affirmed. Darren J. Pekny and Annie E. Mathews, of Johnson & Pekny, L.L.C., for appellant. No appearance for appellee.  - 269 - Nebraska Supreme Court A dvance Sheets 303 Nebraska R eports ROBERT M. ON BEHALF OF BELLA O. v. DANIELLE O. Cite as 303 Neb. 268 Heavican, C.J., Miller-Lerman, Cassel, Stacy, Funke, Papik, and Freudenberg, JJ. Papik, J. Danielle O. appeals a domestic abuse protection order obtained by Robert M. on behalf of their daughter, Bella O. Danielle physically attacked two other family members while Bella was present, but did not attack Bella. The trial court determined Danielle’s conduct put Bella in fear of bodily injury by means of a credible threat and thus constituted domestic abuse as defined by Neb. Rev. Stat. § 42-903(1)(b) (Cum. Supp. 2018). Although our reasoning differs somewhat from that of the trial court, we nonetheless affirm. BACKGROUND Robert and Danielle are the parents of Bella, born in 2007. Robert and Danielle never married. In 2013, a North Dakota court issued an order setting forth Robert’s and Danielle’s rights and responsibilities concerning Bella. The court granted the parties joint “decision-making responsibilit[ies]” but gave Robert “primary residential responsibility,” subject to Danielle’s unsupervised parenting time, with the caveat that such parent- ing time would be supervised if Danielle “has a relapse with regard to alcohol abuse.” At the time of these proceedings, Robert lived in Nebraska and Danielle lived in Minnesota. This case arises from an incident that occurred in Minnesota on July 9, 2018, at a duplex Danielle’s mother, Nancy O., shared with Danielle’s brother, Neill O. Petition and Ex Parte Domestic Abuse Protection Order. On July 10, 2018, Robert filed a petition and affidavit to obtain a domestic abuse protection order for Bella against Danielle under Neb. Rev. Stat. § 42-924 (Cum. Supp. 2018). The affidavit alleged that on July 9, Danielle and Bella left the duplex to go to a store but were absent from approximately 6  - 270 - Nebraska Supreme Court A dvance Sheets 303 Nebraska R eports ROBERT M. ON BEHALF OF BELLA O. v. DANIELLE O. Cite as 303 Neb. 268 p.m. to 12 a.m. Nancy was unable to reach Danielle or Bella during that time, even though Bella had a cell phone when she left. Nancy told Robert that Danielle took Bella’s cell phone away after Nancy attempted to call and text several times and that Danielle refused to tell Nancy where they were. According to Robert’s affidavit, Danielle had only supervised visitation rights and was not permitted to take Bella anywhere without supervision due to Danielle’s extensive drug and alco- hol abuse and criminal history. Robert’s affidavit stated that Danielle returned to the duplex with Bella when Nancy threatened to call the police. Once there, Danielle assaulted Neill and Nancy in Bella’s presence, inflicting multiple injuries on Neill’s face and body. Danielle also kicked in a door, breaking it off the frame. Bella called Robert and told him she was scared for her safety and for Nancy’s safety and that police were on their way. Danielle was arrested for domestic abuse. According to the affidavit, Bella reported to Robert that Danielle “was believed to be” under the influence of drugs and/or alcohol. Robert expressed fear that Danielle would take Bella and not return her. The matter was assigned to a county court judge, pursuant to § 42-924(2) and Neb. Rev. Stat. § 25-2740(2) (Cum. Supp. 2018). The trial court issued an ex parte domestic abuse protec- tion order on July 10, 2018, generally enjoining Danielle from in-person contact with Bella and from threatening, restraining, or assaulting her. Show Cause Hearing. Danielle requested a hearing to show cause why the pro- tection order should not remain in effect. See Neb. Rev. Stat. § 42-925 (Cum. Supp. 2018). At the show cause hearing, Robert appeared without counsel and the trial court received his petition and affidavit, summarized above. Danielle also appeared at the show cause hearing and was represented by counsel. She offered a police report concern- ing the incident. According to the report, when police arrived,  - 271 - Nebraska Supreme Court A dvance Sheets 303 Nebraska R eports ROBERT M. ON BEHALF OF BELLA O. v. DANIELLE O. Cite as 303 Neb. 268 Bella was running out of the house with Nancy behind. They observed Bella holding onto Nancy, crying, and screaming, “‘[S]he is hurting my uncle,’” multiple times. Nancy told police that Danielle was inside, damaging things and fighting Neill. In the duplex, police observed an overturned coffee table and Danielle and Neill engaged in a struggle. Neill reported to police that Danielle had picked Bella up to go shopping at about 6 p.m. Nancy called multiple times, and Danielle repeatedly said they were 45 minutes away. When Danielle and Bella finally returned several hours later, Bella ran inside the duplex to Nancy. Neill confronted Danielle and attempted to block her access to the duplex. A physical struggle ensued, during which Danielle punched and scratched Neill while he tried to get her out of the residence. Neill estimated that the struggle lasted 20 minutes. Neill said that at some point, Danielle broke open a door and moved upstairs to where Nancy and Bella were. Neill said that Danielle then “swung on” Nancy and was trying to talk to Bella, but Bella was telling her to leave. Neill told police that Danielle was never abusive toward Bella, but also that Bella was “scared” and that Neill instructed Bella to go downstairs. Neill said that after Bella went downstairs, Danielle followed her and began to throw and damage things. Neill again attempted to restrain Danielle, and police arrived shortly thereafter. They observed scratch marks on Neill’s left elbow, red marks below his left eye, a small swollen lump above his right eyebrow, and redness around his neck and ear. Nancy told the police that Neill tried to get Danielle to leave because Bella was crying. Nancy stated that when she observed Neill struggling with Danielle, who was “swinging, and scratching at Neill’s face,” she locked a door leading to the upstairs. Danielle then kicked in that door, breaking the doorframe, and went to Bella’s room. Nancy reported that Bella told Danielle to leave and that Danielle went downstairs,  - 272 - Nebraska Supreme Court A dvance Sheets 303 Nebraska R eports ROBERT M. ON BEHALF OF BELLA O. v. DANIELLE O. Cite as 303 Neb. 268 started a fight with Neill again, and threw some things. Nancy then called the police, and she and Bella ran outside. Bella told police that prior to the incident at the duplex, she and Danielle went to a store, but then went to other places that Bella did not expect to go. Bella said that when they returned to the duplex, Danielle “got ‘really weird’” and began hit- ting Neill and hitting and kicking Nancy. Bella said she asked Danielle to leave, because Danielle was “scaring her.” According to the police report, Danielle refused to give a statement to police and was arrested for misdemeanor domes- tic assault. Police noted that Danielle stated her fingers or knuckles were hurt. Danielle also testified regarding the incident. She stated that on July 9, 2018, she was exercising her court-ordered parent- ing time with Bella. Danielle testified that when Bella asked to return to the duplex, Danielle took her there. According to Danielle, Bella had access to Danielle’s cell phone when she was with Danielle and Danielle gave Bella the cell phone whenever she asked for it. Danielle provided relatively little testimony about the physi- cal confrontation at the duplex. She did not take issue with the description of the incident in the police report she offered into evidence, and she specifically agreed with the statement in the report attributed to Neill that Danielle was never abu- sive toward Bella. She also testified that she did not make any threats toward Bella and presented evidence that she was not under the influence of drugs or alcohol at the time of the incident. Trial Court’s Ruling. At the conclusion of the evidence, the trial court ruled that the protection order would remain in place. In explaining its ruling on the record, the trial court referenced the evidence that Danielle attacked Neill and Nancy and threw objects in Bella’s presence and that Bella was scared. It concluded that because Danielle’s behavior showed a “pattern of conduct to  - 273 - Nebraska Supreme Court A dvance Sheets 303 Nebraska R eports ROBERT M. ON BEHALF OF BELLA O. v. DANIELLE O. Cite as 303 Neb. 268 suggest a credible threat,” the protection order should remain in place. The trial court subsequently entered a written order affirming the ex parte domestic abuse protection order. Danielle appeals. ASSIGNMENT OF ERROR Danielle assigns that the trial court erred in finding that her actions constituted abuse within the meaning of § 42-903. STANDARD OF REVIEW [1] A protection order pursuant to § 42-924 is analogous to an injunction. Thus, the grant or denial of a protection order is reviewed de novo on the record. In such de novo review, an appellate court reaches conclusions independent of the factual findings of the trial court. However, where the credible evi- dence is in conflict on a material issue of fact, the appellate court considers and may give weight to the circumstances that the trial judge heard and observed the witnesses and accepted one version of the facts rather than another. Maria A. on behalf of Leslie G. v. Oscar G., 301 Neb. 673, 919 N.W.2d 841 (2018). ANALYSIS Statutory Background. [2] Before proceeding to Danielle’s arguments, we briefly review the law governing domestic abuse protection orders. Under the Protection from Domestic Abuse Act (the Act), Neb. Rev. Stat. § 42-901 et seq. (Reissue 2016 & Cum. Supp. 2018), “[a]ny victim of domestic abuse” may seek a domestic abuse protection order. § 42-924. Whether domestic abuse occurred is a threshold issue in determining whether an ex parte protection order should be affirmed; absent abuse as defined by § 42-903, a protection order may not remain in effect. § 42-924. See Maria A. on behalf of Leslie G., supra. See, also, Linda N. on behalf of Rebecca N. v. William N., 289 Neb. 607, 856 N.W.2d 436 (2014).  - 274 - Nebraska Supreme Court A dvance Sheets 303 Nebraska R eports ROBERT M. ON BEHALF OF BELLA O. v. DANIELLE O. Cite as 303 Neb. 268 For purposes of the Act, “[a]buse” is defined by § 42-903(1) as the occurrence of one or more of the following acts “between family or household members”: (a) Attempting to cause or intentionally and know- ingly causing bodily injury with or without a dangerous instrument; (b) Placing, by means of credible threat, another person in fear of bodily injury. . . . or (c) Engaging in sexual contact or sexual penetration without consent as defined in section 28-318. Family or household members include persons related by con- sanguinity, that is, by blood. See, § 42-903(3); Zimmerer v. Prudential Ins. Co., 150 Neb. 351, 34 N.W.2d 750 (1948). As noted above, the trial court found that Bella was a vic- tim of abuse by determining that Danielle placed Bella in fear of bodily injury by means of a credible threat. The Act defines “credible threat” as follows: [C]redible threat means a verbal or written threat, includ- ing a threat performed through the use of an electronic communication device, or a threat implied by a pattern of conduct or a combination of verbal, written, or electroni- cally communicated statements and conduct that is made by a person with the apparent ability to carry out the threat so as to cause the person who is the target of the threat to reasonably fear for his or her safety or the safety of his or her family. § 42-903(1)(b). Danielle contends that Robert did not demonstrate that Bella was a victim of a credible threat under § 42-903(1)(b). She contends that the evidence did not show that her conduct was “aimed” at Bella, that Danielle’s actions constituted a threat, or that Danielle made “an implied threat through a ‘pattern of conduct.’” Brief for appellant at 9. “Target” of Threat. We begin with Danielle’s position that Bella was not entitled to a protection order because Danielle’s conduct was not aimed  - 275 - Nebraska Supreme Court A dvance Sheets 303 Nebraska R eports ROBERT M. ON BEHALF OF BELLA O. v. DANIELLE O. Cite as 303 Neb. 268 at her. On this point, Danielle concedes that she engaged in violent and aggressive behavior toward Neill and Nancy, but contends that none of those actions were directed toward Bella. Danielle asserts that Robert cannot obtain a protection order on Bella’s behalf under § 42-903(1)(b) for conduct directed at others. We agree with Danielle that § 42-903(1)(b) requires a court to determine to whom a threat is directed. In defining “credible threat,” the statute provides that the threat must be “made by a person with the apparent ability to carry out the threat so as to cause the person who is the target of the threat to reasonably fear for his or her safety or the safety of his or her family.” § 42-903(1)(b) (emphasis supplied). As the emphasized lan- guage makes clear, credible threats must have a target. The trial court appeared to conclude that a protection order was justified because Bella was the target of a threat. Danielle disputes that determination, and we acknowledge that evidence that Danielle’s actions were directed at Bella is minimal. Neill told police that Danielle was never abu- sive toward Bella. And while Bella was in the vicinity when Danielle committed acts of violence upon Neill, Nancy, and their property, this record does not show words or actions of Danielle directed at Bella. [3] That said, we do not believe that § 42-903(1)(b) allows only the target of a credible threat to obtain a protection order. Section 42-903(1)(b) provides that a credible threat includes threats that cause the target to “reasonably fear for his or her safety or the safety of his or her family.” (Emphasis sup- plied.) This language contemplates the possibility that a threat will cause the target to fear for the safety of family members. Given this language, we conclude that not only is the recipient or target of a credible threat a “victim” of abuse eligible for a domestic abuse protection order under § 42-924, so too are those family members for whose safety the target reasonably fears because of the threat. Indeed, it would make little sense if a credible threat caused the target to fear for the safety of his or  - 276 - Nebraska Supreme Court A dvance Sheets 303 Nebraska R eports ROBERT M. ON BEHALF OF BELLA O. v. DANIELLE O. Cite as 303 Neb. 268 her family members, but only the target was a victim of abuse eligible to file for a protection order. Under this view of the statute, Bella did not have to be the target or recipient of a threat in order to be a victim thereof. Bella would also be a victim of a credible threat if Neill or Nancy were the targets of a credible threat that caused them to reasonably fear for Bella’s safety and the other elements of a credible threat were present. As we will explain in the sections below, we find that to be the case. Threat Implied by Pattern of Conduct. Before explaining our reasoning for finding that Neill and Nancy were the targets of a credible threat that caused them to reasonably fear for Bella’s safety, we will address Danielle’s argument that she did not make an implied threat via a pattern of conduct. Section 42-903(1)(b) allows for credible threats to take various forms—verbal, written, electronic, implied, or some combination thereof. Here, there is no evidence that Danielle made an explicit threat in this case, be it verbal, writ- ten, or electronic, so any threat for purposes of the Act had to have been one that was “implied by a pattern of conduct.” See § 42-903(1)(b). We disagree with Danielle that her conduct did not amount to an implied threat. While “credible threat” is defined in the Act, that definition uses the word “threat.” See § 42-903(1)(b). “Threat” is not further defined, so our basic principles of statutory interpretation require us to give the word its plain and ordinary meaning. See State ex rel. Peterson v. Creative Comm. Promotions, 302 Neb. 606, 924 N.W.2d 664 (2019). The plain and ordinary meaning of “threat” is a “communication, decla- ration, or expression of an intention to inflict harm or damage.” Clement v. State, 309 Ga. App. 376, 379, 710 S.E.2d 590, 592 (2011) (collecting dictionary definitions). We believe that Danielle’s conduct communicated an implied threat under this definition. The evidence in the record,  - 277 - Nebraska Supreme Court A dvance Sheets 303 Nebraska R eports ROBERT M. ON BEHALF OF BELLA O. v. DANIELLE O. Cite as 303 Neb. 268 particularly the police report, shows that after Danielle arrived at the duplex, she struck or attempted to strike both Neill and Nancy, broke open a door, and damaged other property. Notably, Danielle introduced the police report into evidence and did not take issue with accounts of the incident contained therein. This evidence showed that Danielle actually inflicted harm and damage and acted in a manner that suggested she would continue to do so. We believe these actions communi- cated an intention to inflict harm or damage and thus amounted to a threat. We also reject Danielle’s argument that the threat was not implied by a “pattern of conduct.” Brief for appellant at 12. It is Danielle’s position that the term “pattern” requires that an implied threat be communicated by multiple acts, but, she argues, the evidence here is of a single incident. Id. The term “pattern” is not defined in the statute, so, again, we must give the word its plain and ordinary meaning. See State ex rel. Peterson, supra. We agree with Danielle that the plain language meaning of pattern requires multiple acts. See, Colorado Ethics Watch v. Gessler, 363 P.3d 727, 731 (Colo. App. 2013) (quoting Webster’s College Dictionary 991 (1991), defining “‘[p]attern’” as “‘a combination of . . . acts . . . forming a consistent or characteristic arrangement’”); La Crosse County v. Mark P., Nos. 95-3582, 95-3583, 1996 WL 74401 at *3 (Wis. Feb. 22, 1996) (unpublished opinion listed in table at 200 Wis. 2d 245, 546 N.W.2d 888 (1996)) (“[t]he plain meaning of the word ‘pattern’ refers to an action which occurs more than once”). See, also, Black’s Law Dictionary 1308 (10th ed. 2014) (defining “pattern” as “[a] mode of behavior or series of acts that are recognizably consistent”). But while a pattern of conduct cannot be demonstrated by a single act, we do not view Danielle’s actions at the duplex as a single act. As we have noted, Danielle directed violent and aggressive behavior at multiple victims in multiple locations in the duplex and she also broke a doorframe and damaged  - 278 - Nebraska Supreme Court A dvance Sheets 303 Nebraska R eports ROBERT M. ON BEHALF OF BELLA O. v. DANIELLE O. Cite as 303 Neb. 268 other property. We believe Danielle’s series of actions at the duplex are sufficient to amount to a pattern of conduct. In reaching this conclusion, we find distinguishable Knopik v. Hahn, 25 Neb. App. 157, 902 N.W.2d 716 (2017), a Nebraska Court of Appeals opinion upon which Danielle relies. At issue in Knopik was whether the plaintiffs were entitled to a harass- ment protection order based on a confrontation in which their neighbor used profane and aggressive language and punched one of the plaintiffs over a 10- to 20-minute time period. The Court of Appeals reversed the entry of a harassment protection order. Danielle contends that her actions did not amount to a pattern of conduct under Knopik. Danielle’s argument regarding Knopik overlooks, however, that the harassment statutes and the credible threat prong of the domestic abuse statute are not identical. In the harassment statutes, “[h]arass” is defined to be a “knowing and will- ful course of conduct,” and “[c]ourse of conduct” is further defined to be a “pattern of conduct composed of a series of acts over a period of time, however short, evidencing a con- tinuity of purpose.” Neb. Rev. Stat. § 28-311.02(2)(a) and (b) (Reissue 2016). Furthermore, the harassment statutes explicitly state that they were enacted to deal with “stalking offenses.” § 28-311.02(1). In Knopik, the Court of Appeals found that the neighbor had not engaged in the “type of stalking offense nec- essary to support issuance of a harassment protection order.” 25 Neb. App. at 164, 902 N.W.2d at 721-22. We do not read Knopik to have turned on whether the neighbor engaged in a single or multiple acts and thus do not believe it supports Danielle’s argument that she did not engage in a pattern of conduct here. Reasonable Fear for Safety of Bella. In addition to finding that Danielle made an implied threat via a pattern of conduct, we find that this threat caused the targets or recipients of the threat—Neill and Nancy—to  - 279 - Nebraska Supreme Court A dvance Sheets 303 Nebraska R eports ROBERT M. ON BEHALF OF BELLA O. v. DANIELLE O. Cite as 303 Neb. 268 reasonably fear for the safety of Bella. Of course, neither Neill nor Nancy testified at the show cause hearing, so we do not have direct evidence on this question. Having reviewed the record, however, we find circumstantial evidence that leads us to find that it is more likely than not that they reasonably feared for Bella’s safety. See Maria A. on behalf of Leslie G. v. Oscar G., 301 Neb. 673, 919 N.W.2d 841 (2018) (domestic abuse protection order petitioner must establish abuse by pre- ponderance of evidence). The police report suggests that after Danielle returned to the duplex with Bella, Neill and Nancy were doing their best to keep Bella away from Danielle. This included Nancy’s locking the door to the upstairs area of the duplex only to have Danielle kick the door in and go to speak to Bella. The police report indicates that Bella was scared at this point and that Neill told her to go downstairs. Again, Danielle followed her and began to throw and damage items downstairs. Nancy then ran outside with Bella. In addition to their own apparent attempts to shield Bella from Danielle, Danielle’s multiple attempts to approach Bella while engaging in reckless and destructive behavior lead us to find it more likely than not that Neill and Nancy feared for Bella’s safety. For the same reasons, we find that it was reasonable for Neill and Nancy to do so. CONCLUSION Although we base our analysis on different reasoning, we conclude that the trial court did not err in determining that Bella was a victim of abuse within the meaning of § 42-903. Accordingly, we affirm. A ffirmed. 

967 F.2d 594 NOTICE: Ninth Circuit Rule 36-3 provides that dispositions other than opinions or orders designated for publication are not precedential and should not be cited except when relevant under the doctrines of law of the case, res judicata, or collateral estoppel.UNITED STATES of America, Plaintiff-Appellee,v.Jose Luis NAVARRO-RAMIREZ, Defendant-Appellant. No. 91-30311. United States Court of Appeals, Ninth Circuit. Argued and Submitted May 6, 1992.Decided June 25, 1992. Before PREGERSON, TROTT and KLEINFELD, Circuit Judges. 1 MEMORANDUM* 2 Defendant Jose Luis Navarro-Ramirez appeals his conviction of illegal reentry into the United States after a felony conviction. 8 U.S.C. § 1326(b) (1988). On the evening of February 26, 1991, the INS and the Seattle Police Department conducted a joint narcotics operation at Second and Pike. An undercover officer made a purchase from Arturo Solis-Cervante. The police observed Solis-Cervante approach Navarro-Ramirez, and the two men "apparently exchange[d] some money." Instead of leaving and going about some legitimate business, Navarro-Ramirez stayed within 15 feet of Solis-Cervante. The narcotics officers were familiar with a modus operandi by narcotics dealers in that area, of using two people, one to sell the drugs, and the other to hold the money, so that if the narcotics dispenser is arrested, the money may avoid seizure, and the marked money will not be found in possession of the narcotics dispenser. 3 The police approached both men. Solis-Cervante resisted arrest, and Navarro-Ramirez stayed close to him while he struggled with the police. INS Agent Smalley approached Navarro-Ramirez, and questioned him in Spanish about his citizenship. Navarro-Ramirez admitted he had no immigration papers. Navarro-Ramirez was taken to a Seattle police station where another officer happened to notice him, and told Smalley that the defendant had an outstanding alien file under the alias Sol Barrasa. Smalley obtained this Barassa file and presented Navarro-Ramirez with a written waiver in Spanish of his Miranda rights, and a written waiver of his rights in a deportation hearing. Navarro-Ramirez signed both waivers, and confessed to having entered this country illegally. 4 Navarro-Ramirez now challenges his conviction on the basis that the government lacked probable cause to arrest him because the only evidence of the illegality of his presence at the time of his arrest were the statements he made to Smalley before he had been provided with his Miranda rights. However, at the time of the initial questioning, the government had probable cause to arrest Navarro-Ramirez for sale of narcotics with Solis-Cervante. He was in custody and not free to go, prior to his admission, as his Miranda argument necessarily concedes, but the custody was based on probable cause to believe that he had participated in the narcotics sale with Solis-Cervante, not the immigration violation. The admission evidently led the arresting officer to say to Navarro-Ramirez that he was being arrested for an immigration violation instead of a drug violation, but he had already been arrested for a drug violation prior to the admission or statement of the reason for the arrest. 5 The statements made by Navarro-Ramirez at the time of his arrest and before his Miranda rights were not relevant to establish probable cause for arrest. He had already been arrested. Nor were Navarro-Ramirez's post-arrest, pre-Miranda warning admissions used at trial. Since the admissions were not used against him, they present no Miranda concerns. 6 Because the government had probable cause to arrest Navarro-Ramirez for drug trafficking, the defendant's "fruits of an illegal arrest" argument also fails. The fact that these "fruits" related to a different crime than the offense for which government had probable cause to arrest him is irrelevant. The identification of Navarro-Ramirez at the station house and the subsequent discovery of his alien file were independent events that had at most a "but for" connection with his arrest. See United States v. Johns, 891 F.2d 243, 245 (9th Cir.1989). It was a matter of chance that after his arrest, Navarro-Ramirez was spotted by an officer who happened to recollect him and the Sol Barrasa file. 7 Navarro-Ramirez's station house confession was also admissible. His claim that the two waiver forms, with different information regarding whether the legal assistance to which he was entitled would be provided for free if he could not afford to pay, so confused him to make it impossible for him to waive his Miranda rights knowingly or intelligently, is too speculative. Even if the combination of forms were confusing, we could not speculate that although he he waived all his rights without regard to whether the government would pay for an attorney, he might not have done so had the advice been in some different form. 8 Finally, Navarro-Ramirez argues that the government failed to prove an essential element of 8 U.S.C. § 1326(b) as required by In re Winship, 397 U.S. 358, 364 (1970). It was, however, Navarro-Ramirez who asked the district court to strike the evidence of his previous convictions in a pretrial motion because he argued that it was not an element of the crime. Therefore, the lack of proof at trial was at most invited error, and this court reverses invited error only in exceptional circumstances. United States v. Schaff, 948 F.2d 501, 506 (9th Cir.1991). Such circumstances do not exist here. 9 AFFIRMED. * This disposition is not appropriate for publication and may not be cited to or by the courts of this circuit except as provided by 9th Cir.R. 36-3

325 U.S. 419 (1945) WALLING, ADMINISTRATOR OF THE WAGE AND HOUR DIVISION, U.S. DEPARTMENT OF LABOR, v. YOUNGERMAN-REYNOLDS HARDWOOD CO., INC. No. 955. Supreme Court of United States. Argued May 1, 1945. Decided June 4, 1945. CERTIORARI TO THE CIRCUIT COURT OF APPEALS FOR THE FIFTH CIRCUIT. *420 Mr. Douglas B. Maggs, with whom Assistant Solicitor General Hugh B. Cox, Messrs. Irving J. Levy, Ralph F. Fuchs and Archibald Cox were on the brief, for petitioner. Mr. Fred S. Ball, Jr. for respondent. MR. JUSTICE MURPHY delivered the opinion of the Court. The respondent corporation manufactures lumber for shipment in interstate commerce, employing various men *421 to pick up and stack boards. Prior to the trial in this case these stackers were compensated at agreed piece rates per thousand board feet ricked or stacked. The Administrator of the Wage and Hour Division of the Department of Labor brought suit to enjoin alleged violations of the overtime and record-keeping provisions of the Fair Labor Standards Act of 1938[1] in connection with these stackers. On the day before the commencement of the trial in the District Court the respondent ceased to use the allegedly illegal mode of piece rate compensation and entered into new and more elaborate wage agreements with the stackers. Following the trial the District Court dismissed the complaint and the Fifth Circuit Court of Appeals affirmed the judgment. 145 F.2d 349. We granted certiorari because of important questions as to whether the new wage agreements comply with the requirements of § 7 (a) of the Act. First. The District Court found that even though the former piece rate agreements be considered unlawful the respondent had no apparent intention of resuming their use. It also found no willful intention on the part of the respondent to violate the Act and no evidence of any intention of future violations. It therefore felt that there was no necessity for an injunction. While "voluntary discontinuance of an alleged illegal activity does not operate to remove a case from the ambit of judicial power," Walling v. Helmerich & Payne, 323 U.S. 37, 43, it may justify a court's refusal to enjoin future activity of this nature when it is combined with a bona fide intention to comply with the law and not to resume the wrongful acts. Cf. United States v. United States Steel Corp., 251 U.S. 417, 445. We cannot say, therefore, that the District Court abused its discretion in refusing to enjoin the abandoned method of wage payments. *422 At the same time, however, the validity of the new wage agreements was also at stake. These agreements on their face contemplated future hourly payments at regular and overtime rates as well as additional piece rate payments. Since the Administrator's complaint alleged generally that the respondent was violating §§ 7 and 15 (a) (2) by employing its stackers on a piece work basis for more than 40 hours a week without compensating them for overtime at one and one-half times the regular rate, the question as to whether the new contracts satisfied § 7 (a) was properly in issue. Upon proof that these new provisions did not comply with § 7 (a) the Administrator was therefore entitled to an injunction absent any recognized mitigating factor. Evidence on this matter was introduced at the trial and the two courts below considered the contracts thoroughly, predicating their judgments in part upon the belief that the agreements did comply with § 7 (a). We accordingly turn to a consideration of that question. Second. For approximately six months immediately preceding the trial the stackers were paid piece rates of 60 cents per thousand board feet ricked and 70 cents per thousand board feet stacked. During this period they earned at these rates an average of 51 cents an hour. Under the new contracts made on the day before the trial, however, they were compensated according to the following provisions: "The basic or regular rate of pay is 35 cents per hour for the first forty hours each week and for time over forty hours each week the pay shall not be less than one and one-half times such basic or regular rate above mentioned with a guaranty that the employee shall receive weekly for regular time and for such overtime as the employee may work a sum arrived at as follows: "The amount of stacking done by said employee shall be figured on the basis of 80 cents per thousand board *423 feet of lumber for flat stacking and 70 cents per thousand board feet of lumber ricked." Using by way of illustration the labor performed and the hours worked during the six-month period preceding the trial, the Administrator points out that under the new guaranteed piece rates of 70 and 80 cents per thousand the stackers would earn an average of about 59 cents an hour for all hours actually worked, including those in excess of the statutory maximum. On the basis of the contract "regular rate" of 35 cents an hour,[2] on the other hand, the excess hours would yield the stackers only 52 1/2 cents hourly. It is thus apparent that the guaranteed piece rates would yield greater returns on an hourly basis for both regular and overtime work and that they would actually be the rates paid. The respondent argues that these contract provisions satisfy § 7 (a) since they provide for a "regular rate" of 35 cents an hour and for payment of one and one-half times that rate, or 52 1/2 cents, for all overtime hours. Inasmuch as the Act does not forbid incentive pay or compensation above and beyond the statutory requirements it is urged that the additional payments resulting from the operation of the guaranteed piece rates are unaffected in any way by § 7 (a). We cannot agree, however, that this scheme of compensation is obedient to this statutory mandate. Under § 7 (a) an employer is required to compensate his employees for all hours in excess of 40 at not less than one and one-half times the regular rate at which they are employed. Thus by increasing the employer's labor costs by 50% at the end of the 40-hour week and by giving the employees a 50% premium for all excess hours, § 7 (a) achieves its dual purpose of inducing the employer *424 to reduce the hours of work and to employ more men and of compensating the employees for the burden of a long workweek. Overnight Motor Co. v. Missel, 316 U.S. 572, 577-578; Walling v. Helmerich & Payne, supra, 40; Jewell Ridge Coal Corp. v. Local No. 6167, ante, pp. 161, 167. The keystone of § 7 (a) is the regular rate of compensation. On that depends the amount of overtime payments which are necessary to effectuate the statutory purposes. The proper determination of that rate is therefore of prime importance. As we have previously noted, the regular rate refers to the hourly rate actually paid the employee for the normal, non-overtime workweek for which he is employed. Walling v. Helmerich & Payne, supra, 40; United States v. Rosenwasser, 323 U.S. 360, 363. In the case of piece work wages, this regular rate coincides with the hourly rate actually received for all hours worked during the particular workweek, such rate being the quotient of the amount received during the week divided by the number of hours worked. See Overnight Motor Co. v. Missel, supra, 580. As long as the minimum hourly rates established by § 6 are respected, the employer and employee are free to establish this regular rate at any point and in any manner they see fit. They may agree to pay compensation according to any time or work measurement they desire. United States v. Rosenwasser, supra. "But this freedom of contract does not include the right to compute the regular rate in a wholly unrealistic and artificial manner so as to negate the statutory purposes." Walling v. Helmerich & Payne, supra, 42. The regular rate by its very nature must reflect all payments which the parties have agreed shall be received regularly during the workweek, exclusive of overtime payments. It is not an arbitrary label chosen by the parties; it is an actual fact. Once the parties have decided upon the amount of *425 wages and the mode of payment the determination of the regular rate becomes a matter of mathematical computation, the result of which is unaffected by any designation of a contrary "regular rate" in the wage contracts. Here it is established that under the new wage agreements the stackers will receive 70 or 80 cents per thousand board feet ricked or stacked. Translated to an hourly basis this means that they will receive approximately 59 cents per hour for both regular and overtime hours.[3] That amount is guaranteed them under the terms of the contracts and accurately mirrors all payments that they normally will receive from the respondent during the workweek. This 59-cent figure is therefore the average regular rate at which the stackers are employed. The individual regular rate which must be used depends, of course, upon the number of hours worked and the wages received by each stacker during the particular workweek in question. But such a rate is the one that must enter into any calculations of overtime payments due under § 7 (a). Insofar as the wage agreements failed to provide for the payment of one and one-half times this regular rate for all overtime hours, they plainly violated the requirements of § 7 (a). The 35-cent per hour "regular rate" fixed by the contracts is obviously an artificial one, however bona fide it may have been in origin. Except in the extremely unlikely situation of the piece work wages falling below a 35-cent per hour figure, this "regular rate" is never actually paid. In the normal case where the stackers earn more than 35 cents per hour on the piece rate basis during non-overtime hours, they are guaranteed this higher figure and are actually so compensated. And even when the *426 stackers work overtime they actually receive at the present time an average of 59 cents an hour under the guaranteed piece rate system rather than one and one-half times the 35-cent "regular rate." The 35-cent figure thus does not constitute the hourly rate actually paid for the normal, non-overtime workweek. Nor is it used as the basis for calculating the compensation received for overtime labor. It is not in fact the regular rate under any normal circumstances. And reliance upon it to prove compliance with § 7 (a) only allows respondent to escape completely the burden of a 50% premium for the hours so worked and prevents the stackers from receiving the benefits of such a premium as Congress intended. Thus by a mere label respondent would be enabled to nullify all the purposes for which § 7 (a) was created. We are unable to perceive any reason for sanctioning that result. This Court's decision in Walling v. Belo Corp., 316 U.S. 624, lends no support to respondent's position. The particular wage agreements there involved were upheld because it was felt that in fixing a rate of 67 cents an hour the contracts did in fact set the actual regular rate at which the workers were employed. The case is no authority, however, for the proposition that the regular rate may be fixed by contract at a point completely unrelated to the payments actually and normally received each week by the employees. The judgment of the court below is reversed with directions to remand the case to the District Court for further proceedings consistent with this opinion. Reversed. For opinions of MR. JUSTICE FRANKFURTER, concurring, see post, p. 433; and MR. CHIEF JUSTICE STONE, dissenting, see post, p. 434. NOTES [1] 52 Stat. 1060, 29 U.S.C. § 201 et seq. [2] At the time these contracts were made the minimum wage for the timber products industry had been fixed at 35 cents an hour in an order issued by the Administrator. [3] This 59 cents an hour average is based upon a six-month study of work actually done by the stackers and there is no substantial basis for assuming that it is incorrect or that the average is likely to vary appreciably in the future.

325 S.E.2d 275 (1985) Darlene PEED (now Bennett) v. William Linton PEED. No. 849SC140. Court of Appeals of North Carolina. February 5, 1985. *278 Watkins, Finch & Hopper by William L. Hopper, Oxford, for plaintiff-appellant. Edmundson & Catherwood by R. Gene Edmundson, Robert K. Catherwood, and John W. Watson, Jr., Oxford, for defendant-appellee. ARNOLD, Judge. The plaintiff contends that the trial court erred by granting the defendant's motion for a directed verdict on the issue of whether or not the plaintiff and defendant were partners. A directed verdict motion concerns whether evidence is sufficient to go to the jury. Rappaport v. Days Inn of America, Inc., 296 N.C. 382, 384, 250 S.E.2d 245, 247 (1979). In passing on such a motion, the trial judge must consider the evidence in the light most favorable to the non-movant (in this case, the plaintiff), resolving all conflicts and giving to her the benefit of every inference reasonably drawn in her favor. Summey v. Cauthen, 283 N.C. 640, 647, 197 S.E.2d 549, 554 (1973). The trial judge should grant a motion for directed verdict only if the evidence is insufficient, as a matter of law, to support a verdict for the plaintiff. Husketh v. Convenient Systems, Inc., 295 N.C. 459, 461, 245 S.E.2d 507, 509 (1978). Under the North Carolina Uniform Partnership Act, a "partnership" is defined as "an association of two or more persons to carry on as co-owners a business for profit." G.S. 59-36(a). The statute, G.S. 59-37, sets out factors to be considered in determining whether a partnership exists: (2) Joint tenancy, tenancy in common, tenancy by the entireties, joint property, common property, or part ownership does not of itself establish a partnership, whether such co-owners do or do not share any profits made by the use of the property. (3) The sharing of gross returns does not of itself establish a partnership, whether or not the persons sharing them have a joint or common right or interest in any property from which the returns are derived. (4) The receipt by a person of a share of the profits of a business is prima facie evidence that he is a partner in the business, but no such inference shall be drawn if such profits were received in payment: a. As a debt by installments or otherwise, b. As wages of an employee or rent to a landlord, c. As an annuity to a widow or representative of a deceased partner, d. As interest on a loan, though the amount of payment vary with the profits of the business, e. As the consideration for the sale of a goodwill of a business or other property by installments or otherwise. *279 Thus, for example, if a person merely makes repayable advances and loans of money to another, it cannot be inferred from that fact that they are partners. McGurk v. Moore, 234 N.C. 248, 253, 67 S.E.2d 53, 56 (1951). Further, if one person is an employee of another, and receives wages, then the two are not partners. Williams v. Biscuitville, Inc., 40 N.C.App. 405, 253 S.E.2d 18 (1979), disc. rev. denied, 297 N.C. 457, 256 S.E.2d 810 (1979). We stress that the determination of whether a partnership exists, and whether the parties are co-owners, involves examining all the circumstances. As the court in Eggleston v. Eggleston, 228 N.C. 668, 47 S.E.2d 243 (1948), wrote: "Partnership is a legal concept but the determination of the existence or not of a partnership, as in the case of a trust, involves inferences drawn from an analysis of `all the circumstances attendant on its creation and operation,'" [citations omitted]. Not only may a partnership be formed orally, but "it may be created by the agreement or conduct of the parties, either express or implied," [citations omitted]____ "A voluntary association of partners may be shown without proving an express agreement to form a partnership; and a finding of its existence may be based upon a rational consideration of the acts and declarations of the parties, warranting the inference that the parties understood that they were partners and acted as such." [Citation omitted]. 228 N.C. at 674, 47 S.E.2d at 247, quoted in Reddington v. Thomas, 45 N.C.App. 236, 240, 262 S.E.2d 841, 843 (1980). Considering all the evidence in the light most favorable to the plaintiff, we find that the plaintiff did present evidence sufficient to carry the matter of partnership to the jury. The plaintiff testified that she and the defendant conducted the farming operation together. At the time of their marriage, both were employed off the farm, and used their earnings to pay farm expenses. Plaintiff brought her savings of around $3,000 into the marriage, and invested that into the farming operation. The farm was in considerable debt at the time the Peeds were married. Plaintiff testified that she discussed the finances of the farm with her husband, saying that she was not going to continue putting her earnings into the farm and signing notes, when she had no part of it, and received no share of the profits. Plaintiff testified further that she and defendant reached an agreement that they would become partners in the dairy, that the dairy cows would be registered in both their names, and that the title of the farm would be changed to contain both their names. Defendant quit his public job in 1958 to devote more time to the farm. Plaintiff testified that they discussed from time to time the progress of the farm, and farm purchases, that plaintiff went to the farm almost daily, and that she wrote checks on a joint account kept for the dairy farm. She testified that she and her husband, although separated, discussed the need to sell the dairy cattle, and the price of sale. Plaintiff testified that she did not know whether she and defendant filed a partnership income tax return, and that income tax matters were handled by defendant and accountants. Defendant testified that he changed the registration of the cows to contain both his and plaintiff's names because the plaintiff had said that if she were the owner, the defendant's family could not take them if something happened to defendant. Defendant also testified that he changed the registration not so much to protect plaintiff, as to stop her from talking to him about it each day. Yet, defendant also testified that the joint registration showed that both he and plaintiff were owners of the cows. He testified that he changed the deeds of the land on which the dairy was operated to add plaintiff's name. Defendant testified that plaintiff did not have much time to work on the farm, with her job at Liggett that her earnings from Liggett & Myers were spent on groceries and clothes; and that his wife could *280 have signed notes in the dairy operation back through the years, although he had difficulty remembering. Finally, defendant testified that the money from sale of the cows was his, although he admitted that the cows were bought partly through the sale of milk produced by cows owned by him and plaintiff. Considering this evidence in the light most favorable to the plaintiff, and therefore believing plaintiff's testimony as true, we find that a jury could infer from the registration of the cattle, the financing of the dairy operation, plaintiff's description of her conversations with defendant, concerning a partnership arrangement, and of her contribution of time and money to the dairy operation that a partnership, an association of two or more persons to carry on as co-owners a business for profit, existed. The evidence was sufficient to produce a question for the jury, and we therefore hold that the trial judge's grant of a directed verdict against plaintiff on the partnership issue was reversible error. We note that while the registration certificates do not give title, nonetheless, they are evidence of ownership. Indeed, the defendant conceded that by changing the certificates he made himself and his wife co-owners. Further, we reject defendant's argument that the jury's finding that the parties were not co-owners of the dairy herd made the judge's error on the directed verdict harmless. The partnership statute provides that a partnership is an association of persons as co-owners of a business. The fact that one partner owns certain property in the business, or provides the capital, while the other performs certain services, does not mean that they are not co-owners of the business. Southern Fertilizer Co. v. Reames, 105 N.C. 283, 11 S.E. 467 (1890). The plaintiff testified that she told her husband that since she contributed her money to the dairy expenses and debts, she wished to have a part in the operation and a share of the profits. He agreed that they would become partners, that the dairy cows would be re-registered in both their names, and that title to the farm would be changed to both their names. The plaintiff contributed considerable money to the operation as well as her time in managing and doing bookkeeping. Even if the defendant were sole owner of the herd, the plaintiff's testimony provides evidence of an agreement which gave her an interest in the operation and a share of the profits, as well as evidence of her contribution in money and effort to the business. This was sufficient as a matter of law to take the issue to the jury. The plaintiff claims that the trial court abused its discretion and committed reversible error in refusing to grant plaintiff's motion to amend her complaint under Rule 15(b) to conform the complaint to the evidence by stating an additional cause of action, that the plaintiff owned a one-half undivided interest in the cattle, farm equipment, and milk base. The defendant claims that the trial court did not abuse its discretion, because the defendant would have been prejudiced by the amendment. Prejudice, the defendant asserts, would have arisen because the pleadings did not alert the defendant that the issue of joint ownership was crucial to plaintiff's case, and that evidence such as the registration certificates were directed to that issue. The defendant also notes the time elapsed between commencement of the plaintiff's suit and the filing of the motion to amend as reason for the denial of the plaintiff's motion to amend. Rule 15(b) provides in pertinent part: that the trial judge "may allow the pleadings to be amended and shall do so freely when the presentation of the merits of the action will be served thereby and the objecting party fails to satisfy the court that the admission of such evidence would prejudice him...." Rule 15(b) represents a departure from the former strict code doctrine of variance by allowing issues to be raised by liberal amendments to pleadings, and in some cases, by the evidence. Roberts v. Memorial Park, 281 N.C. 48, 187 S.E.2d *281 721 (1972). for amendment to be proper under this rule, "there must be evidence of an unpleaded issue introduced without objection, and it must appear that the parties understood, or at least reasonably should have understood, that the evidence was aimed at an issue not expressly pleaded." Evans v. Craddock, 61 N.C.App. 438, 444, 300 S.E.2d 908, 913 (1983). Yet, even when the evidence is objected to on the grounds that it is not within the issues raised by the pleadings, "the court will freely allow amendments to present the merits of the case when the objecting party fails to satisfy the court that he would be prejudiced in the trial on its merits." Roberts v. Memo-rial Park, 281 N.C. 48, 58, 187 S.E.2d 721, 727 (1972). The party who objects to the amendment has the burden of proving prejudice. Evans v. Craddock, 61 N.C.App. 438, 444, 300 S.E.2d 908, 913 (1983); Vernon v. Crist, 291 N.C. 646, 231 S.E.2d 591 (1977). We note that it is not error to allow an amendment to conform made late in the trial, even after the jury arguments. Reid v. Consolidated Bus Lines, 16 N.C.App. 186, 191 S.E.2d 247 (1972). Finally, our standard of review of this matter is whether the trial judge committed an abuse of discretion in refusing to grant the motion. Evans v. Craddock, 61 N.C.App. 438, 445, 300 S.E.2d 908, 913 (1983). Although the trial judge had broad discretion in considering whether to allow amendments, we believe that in this case justice would better have been served by allowing amendment of the complaint. The plaintiff presented four causes of action in her complaint: (1) that she and defendant were business partners and should share equally in the remainder of the partnership assets; (2) that, in the alternative, she had loaned the defendant money for use in the farming operations, which should be repaid; (3) that, in the alternative, she and defendant had a joint venture in the farming operation, and that she should recover a portion of the accumulated assets of the joint venture; and (4) that plaintiff was entitled to a constructive trust upon one-half of the proceeds of the sale of the dairy cows. The complaint frequently alleges that plaintiff and defendant were joint owners of the property in the tobacco and dairy businesses and shared equally in the profits from those businesses, which were not reinvested. In particular, the plaintiff claimed that she owned a one-half interest in the dairy cattle. The plaintiff demanded in the complaint one-half of the proceeds of farm equipment sold and farm products raised and sold from and after 1 January 1977. In light of these allegations in the complaint, as well as plaintiff's and defendant's testimony that they were co-owners of the cattle, and the introduction into evidence of over two hundred registration certificates reflecting their co-ownership, we do not see how defendant could have been surprised or prejudiced when plaintiff sought to add to the complaint a cause of action alleging that plaintiff owned a one-half undivided interest in the cattle, farm equipment and milk base. Thus, although defendant may have objected to the introduction of the registration certificates as outside the pleadings, defendant's complete failure to meet its burden of showing prejudice —indeed his own admission that the certificates did reflect joint ownership— convinces us that the trial judge should have allowed amendment of the complaint in order that the merits of the case could have been presented to the jury in a more intelligible fashion. Indeed, the fact that the trial judge made the issue of joint ownership of the dairy herd alone the fulcrum of this case, when he would not permit the plaintiff to better define the issue of joint ownership of the rest of the farming operation, suggests that the way in which the case was framed, and the outcome of the trial, were affected by the refusal to allow plaintiff to clarify her allegations on the ownership issue. In the interim, between filing of this opinion and retrial, the pleadings should be amended to add the issue of joint ownership of the dairy herd, milk base and farming equipment. See Mangum v. Surles, 281 N.C. 91, 187 S.E.2d 697 (1972). The plaintiff alleges that the trial court abused its discretion and committed *282 reversible error by failing to give the jury an instruction concerning the confidential relationship which exists between husband and wife, and which must be upheld in dealings between husbands and wives. We agree that the failure to instruct on this confidential relationship was serious error. As a matter of law, the relationship between the Peeds was one of husband and wife, the most confidential of all, see Cline v. Cline, 297 N.C. 336, 344, 255 S.E.2d 399, 404 (1979); Fulp v. Fulp, 264 N.C. 20, 23, 140 S.E.2d 708, 711 (1965). Moreover, the fact that the Peeds had separated did not in any way diminish the confidentiality of the relationship, unless the wife employed an attorney during the period of separation and dealt through him with her husband as an adversary, see Joyner v. Joyner, 264 N.C. 27, 32, 140 S.E.2d 714, 719 (1965). The evidence suggests that she had not employed an attorney at that stage. Further, the trial judge dispensed with all issues except for that of constructive trust, which often, if not usually, involves a violation or abuse of a confidential relationship, see Bowen v. Darden, 241 N.C. 11, 84 S.E.2d 289 (1954); Newton v. Newton, 67 N.C.App. 172, 312 S.E.2d 228 (1984). Yet, he gave only general instructions as to what a confidential relationship is. Given that the Peeds were husband and wife at the time of the sale of the dairy herd, that as a matter of law their relationship was therefore confidential, and that plaintiff asserted this relationship as a material aspect of her case for constructive trust, the trial judge erred in refusing to instruct the jury as to the confidentiality of the Peeds' relationship as husband and wife. See Overman v. Saunders, 4 N.C. App. 678, 680, 167 S.E.2d 536, 537-38 (1969). On retrial, the trial judge should instruct as to the confidentiality of their relationship. The plaintiff contends that the trial court committed reversible error by granting the defendant's motion in limine to exclude all testimony concerning the defendant's abuse of alcohol and by failing to permit the plaintiff to include in the record what the plaintiff would have testified to concerning defendant's abuse of alcohol. The power to grant a motion in limine is within the discretion of the trial court. Duke Power v. Mom and Pop's Ham House, Inc., 43 N.C.App. 308, 258 S.E.2d 815 (1979). The trial judge found that evidence of alcoholism was not relevant to the issues in the case, but also found that if later the evidence should appear relevant, then the court would make other orders. The plaintiff's counsel did not ask to submit the alcoholism testimony into the record at that time, nor did they request the court to alter its order later to admit the testimony at trial. Rather, they waited until the conclusion of the instruction conference, and requested to submit the evidence into the record at that time. Plaintiff's request to enter the testimony at that time was not a reasonable one, and we find that the trial judge, in light of his duty to maintain the progress of the trial, properly denied their request. Plaintiff contends also that the trial court abused its discretion and committed reversible error by failing to give the jury a peremptory instruction to the effect that the registration certificates for the cattle, titled in the name of both plaintiff and defendant, made the plaintiff an owner of a one-half undivided interest as tenant in common of the cattle with the defendant. As to this issue, the plaintiff had the burden of proof. "It is settled law that a peremptory instruction in favor of the party upon whom rests the burden of proof is proper when there is no conflict in the evidence and all the evidence tends to support the party's right to relief." Braswell v. Purser and Purser v. Braswell, 16 N.C.App. 14, 25, 190 S.E.2d 857, 864, affirmed 282 N.C. 388, 193 S.E.2d 90 (1972). In the present case, although the registration certificates listed the husband and wife as co-owners, the husband testified to the contrary. In view of this conflict in the evidence, the trial judge properly refused to give a peremptory instruction. *283 Since we have granted a new trial, we have no need to reach the plaintiff's contention regarding the trial court's denial of her motion for judgment notwithstanding the verdict. We remand for retrial upon amended pleadings. New trial. WELLS and BECTON, JJ., concur.

446 F.Supp. 704 (1978) Lois STRINGER, Plaintiff, v. COMMONWEALTH OF PENNSYLVANIA, DEPARTMENT OF COMMUNITY AFFAIRS, BUREAU OF HUMAN RESOURCES, Commonwealth of Pennsylvania, Department of Community Affairs, Personnel Office, James R. Colston, Supervisor, Department of Community Affairs, Bureau of Human Resources, David Messner, Chief Evaluation and Fiscal Management, Department of Community Affairs, Michael Epoca, Director, Department of Community Affairs, Personnel Office, Defendants. Civ. A. No. 77-478. United States District Court, M. D. Pennsylvania. March 14, 1978. *705 Cooper & Butler, Bruce E. Cooper, Harrisburg, Pa., for plaintiffs. Howard M. Levinson, Deputy Atty. Gen., Dept. of Justice, Harrisburg, Pa., for defendants. MEMORANDUM HERMAN, District Judge. In this sex discrimination case under Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq., Plaintiff alleges that her refusal of sexual advances made to her by her supervisor resulted in unjustified criticism, harassment and eventual discharge from her employment with the Pennsylvania Department of Community Affairs. Defendants have moved for summary judgment on a variety of grounds. Initially, we need look no further than the recent case of Tomkins v. Public Service Electric & Gas Co., 568 F.2d 1044 (3d Cir. 1977) to conclude that the facts alleged in the complaint state a cause of action. In Tomkins the Court specifically stated that: ". . . Title VII is violated when a supervisor, with the actual or constructive knowledge of the employer, makes sexual advances or demands toward a subordinate employee and conditions that employee's job status — evaluation, continued employment, promotion, or other aspects of career development — on a favorable response to those advances or demands, and the employer does not take prompt and appropriate remedial action after acquiring such knowledge." At 1048. Secondly, Defendants contend that this Court lacks jurisdiction of this controversy due to Plaintiff's failure to seek an administrative remedy through the Pennsylvania Human Relations Commission (PHRC). Plaintiff filed her charge with the Equal Employment Opportunity Commission (EEOC) well within the one hundred eighty-day period prescribed by 42 U.S.C. § 2000e-5(e).[1] Defendants suggest, however, that the EEOC never acquired jurisdiction because the PHRC was not first given an opportunity to act on the charges, as required by 42 U.S.C. § 2000e-5(c): "In the case of an alleged unlawful employment practice occurring in a State, or political subdivision of a State, which has a State or local law prohibiting the unlawful employment practice alleged and establishing or authorizing a State or local authority to grant or seek relief from such practice or to institute criminal proceedings with respect thereto upon receiving notice thereof, no charge may be filed under subsection (b) of this section by the person aggrieved before the expiration *706 of sixty days after proceedings have been commenced under the State or local law, unless such proceedings have been earlier terminated." It is true that where a state administrative remedy is available, it must be pursued before a valid charge can be filed with the EEOC. Equal Employment Opportunity Commission v. Union Bank, 408 F.2d 867 (9th Cir. 1968). However, at the time Plaintiff filed her charge with the EEOC there was no longer any state remedy available, as the ninety-day filing period prescribed in the Pennsylvania Human Relations Act, 43 P.S. § 959, had expired. Plaintiff should not be compelled to go through the futile gesture of filing a complaint with the PHRC that would inevitably be rejected as untimely before seeking relief under the federal act. Nor should Plaintiff's federal statutory rights be foreclosed by her failure to file within the significantly shorter state limitation period. Davis v. Valley Distributing Co., 522 F.2d 827 (9th Cir. 1975); cf. Occidental Life Ins. Co. v. Equal Employment Opportunity Commission, 433 U.S. 355, 97 S.Ct. 2447, 53 L.Ed.2d 402 (1977). Accordingly, we conclude that the administrative prerequisites to this Court's jurisdiction have been met. Defendants Colston, Messner and Epoca have moved to dismiss on the grounds that they were not named in Plaintiff's charge before the EEOC, and thus are not within the Court's jurisdiction in a suit arising from that charge. The Court of Appeals for this circuit has recently suggested, in Canavan v. Beneficial Finance Corp., 553 F.2d 860 (3d Cir. 1977), that a party not specifically named in a charge to the EEOC might nonetheless be amenable to suit if it can be shown that he had notice that his acts were under investigation by the EEOC and his interests were adequately represented during such investigation. Whether Defendants Colston, Messner and Epoca had such notice and representation during the EEOC investigation of these charges is not apparent at this state of the litigation. Pursuant to Canavan, supra, the motion to dismiss the claims against these Defendants will be denied at this time so that Plaintiff will have the opportunity to develop jurisdictional facts through discovery. The Court will again consider the question of its jurisdiction over the individual Defendants on renewed motions prior to trial. Finally, Defendants move to dismiss Plaintiff's pendent state claims for tortious infliction of mental distress and tortious interference with contract on the grounds that they are barred by the applicable statute of limitations. We agree with Defendants that both of these claims are subject to the two-year limitation period applicable to suits for "injury wrongfully done to the person," 12 P.S. § 34. Thus, since the complaint was filed more than two years after the last alleged discriminatory act, these claims are time barred and will be dismissed. NOTES [1] The last discriminatory act alleged to have occurred was the firing of Plaintiff on May 28, 1975. The charge was filed with the EEOC on October 29, 1975.

628 F.2d 1344 Brashichv.Port Authority of New York and New Jersey 80-7017 UNITED STATES COURT OF APPEALS Second Circuit 4/28/80 S.D.N.Y., 484 F.Supp. 697 AFFIRMED

Order Michigan Supreme Court Lansing, Michigan March 4, 2013 Robert P. Young, Jr., Chief Justice Michael F. Cavanagh Stephen J. Markman 145656(29) Mary Beth Kelly Brian K. Zahra Bridget M. McCormack PEOPLE OF THE STATE OF MICHIGAN, David F. Viviano, Plaintiff-Appellee, Justices v SC: 145656 COA: 309193 Ingham CC: 92-063865-FH BJ THOMAS, Defendant-Appellant. _________________________________________/ On order of the Court, the motion for reconsideration of this Court’s November 20, 2012 order is considered, and it is DENIED, because it does not appear that the order was entered erroneously. VIVIANO, J., not participating. I, Corbin R. Davis, Clerk of the Michigan Supreme Court, certify that the foregoing is a true and complete copy of the order entered at the direction of the Court. March 4, 2013 _________________________________________ d0225 Clerk 

Case: 17-40362 Document: 00514315420 Page: 1 Date Filed: 01/22/2018 IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT No. 17-40362 United States Court of Appeals Fifth Circuit FILED January 22, 2018 Lyle W. Cayce ROGELIO ALEMAN GARCIA, Clerk Plaintiff–Appellant, versus NANCY A. BERRYHILL, Acting Commissioner of Social Security, Defendant–Appellee. Appeal from the United States District Court for the Southern District of Texas ON PETITION FOR REHEARING Before HIGGINBOTHAM, JONES, and SMITH, Circuit Judges. PER CURIAM: IT IS ORDERED that the petition for rehearing is DENIED. The petition for panel rehearing helpfully calls attention to factual errors in the opinion. We correct them by substituting the following opinion:  Case: 17-40362 Document: 00514315420 Page: 2 Date Filed: 01/22/2018 No. 17-40362 * * * Before HIGGINBOTHAM, JONES, and SMITH, Circuit Judges. JERRY E. SMITH, Circuit Judge: Rogelio Garcia appeals the district court’s decision to deny disability ben- efits he sought from the Social Security Administration (“SSA”). Because the decision is supported by substantial evidence, we affirm. I. In January 2012, Garcia applied for disability insurance benefits under 42 U.S.C. § 423 as of January 1, 2007, based on hearing loss and post-traumatic stress disorder (“PTSD”) allegedly induced by his service in Vietnam. The SSA denied his application initially and on reconsideration, so he sought a de novo hearing before an ALJ. After considering Garcia’s work and medical history, the ALJ likewise denied the application. The record before the ALJ revealed that since leaving the service, Garcia had earned consistent, and at times substantial, income through 2005. Be- tween 1997 and 1999, he was a dispatcher at a produce company, where he was responsible for traffic control and oversaw the work of four other employ- ees. In 2000, he started his own produce brokerage business and managed several employees. He has not worked since December 2005. At some point between 2005 and 2007, Garcia sought treatment from a doctor for “dizzy spells” and was advised that he should file for disability with the Veteran’s Administration (“VA”). He applied in August 2009 and was sub- ject to a psychological evaluation by Dr. Paul Hamilton one year later as part 2  Case: 17-40362 Document: 00514315420 Page: 3 Date Filed: 01/22/2018 No. 17-40362 of the VA’s evaluation. 1 Hamilton found that Garcia possessed powers of comprehension, judgment, communication, and abstract thinking, all within a normal range, but that his “impaired attention” and abnormal speech patterns left “little opportunity for normal” conversation. Hamilton also concluded that Garcia would make a poor employee given the difficulty in containing anger and his “graphic visualization of killing others.” In June 2011, largely on the basis of that assessment, the Department of Veterans Affairs determined that Garcia suffered from war-induced PTSD, which resulted in his “100% disability,” effective August 28, 2009, the date on which his claim was filed. Garcia’s medical records indicate that in the thirty years before that determination, he had not been not diagnosed with or treated for PTSD. In March 2012, Dr. Noel Nick examined Garcia at the VA’s request in connection with a separate claim for compensation for Traumatic Brain Injury (“TBI”). Nick determined that Garcia’s visual/spatial test score was below nor- mal; his memory, attention, concentration and executive functions were mildly impaired; and his judgment, motor activity, and communication skills were within a normal range. Nick also reviewed Garcia’s medical history, which included Hamilton’s report, a negative PTSD screen from 2004, and a positive one from March 2010. Nick concluded that Garcia’s symptoms likely were not caused by his combat service. Two months before that, in January 2012, Garcia filed for social security disability benefits, claiming eligibility as of January 2007. The agency solicited the opinions of Dr. Charles Lawrence, a state-agency psychologist, and 1 Although the ALJ could not procure a copy of Hamilton’s report, it reviewed the VA’s disability decision, which provided a detailed discussion of the doctor’s findings. 3  Case: 17-40362 Document: 00514315420 Page: 4 Date Filed: 01/22/2018 No. 17-40362 Dr. Anthony Hammond to assess Garcia’s application. The former concluded there was insufficient evidence to determine whether the hearing loss and PTSD had rendered Garcia disabled, and the latter concurred. In November 2013, the ALJ held an evidentiary hearing to consider tes- timony from Garcia and a vocational expert, Malloy Kelley, on Garcia’s alleged disability. Garcia claimed that from 2005 to 2007, he had become increasingly “forgetful” and had let his produce brokerage business “drift away.” On ques- tioning by his representative, Garcia also recalled having panic attacks, nightmares, and hallucinations. Kelley testified next that a person with Gar- cia’s alleged symptoms would be unable to perform any of his prior work. The ALJ denied benefits and made the following findings: (a) Garcia had not performed substantial gainful activity since the alleged onset of the dis- ability in January 2008; (b) he suffered from severe tinnitus, degenerative arthritis in his right knee, and right shoulder arthralgia; (c) his PTSD was not severe, because it placed no more than a “minimal limitation” on his ability to perform “basic mental work activities”; (d) none of his impairments, either individually or in combination, matched the severity of the impairments listed in 20 C.F.R. Part 404, Subpart B, Appendix 1; (e) he had the residual func- tional capacity to perform light work as defined in 20 C.F.R. § 404.1567(b); 2 (f) he was capable of performing past relevant work as an agriculture broker; and (g) he was not under a disability, as defined in the Social Security Act (the “Act”), at any time from the alleged onset date of January 1, 2007, through December 31, 2007, the date last insured. Garcia appealed internally, and the Appeals Council declined his request 2 In support of that finding, the ALJ concluded that Garcia’s impairments could cause his alleged symptoms but that his claims about the “intensity, persistence and limiting effects” of said systems were “not entirely credible.” 4  Case: 17-40362 Document: 00514315420 Page: 5 Date Filed: 01/22/2018 No. 17-40362 to review, rendering the ALJ’s adverse decision final. Garcia sought review in the district court per 42 U.S.C § 405(g). The magistrate judge (“MJ”) recom- mended that the ALJ’s determination be affirmed. The district court adopted the MJ’s report and recommendation in full, and Garcia appealed. II. A. A claimant has the burden of proving he suffers from a disability, which the Act defines as a mental or physical impairment, lasting at least a year, that precludes him from substantial gainful activity. 3 The relevant analysis pro- ceeds in five steps: the Commissioner considers whether (1) the claimant is currently engaged in substantial gainful activity, (2) he has a severe impair- ment, (3) the impairment meets the severity of an impairment enumerated in the relevant regulations, (4) it prevents the claimant from performing past rel- evant work, and (5) it prevents him from doing any relevant work. 20 C.F.R. § 404.1520; Masterson v. Barnhart, 309 F.3d 267, 271 (5th Cir. 2002). If the claimant survives the first four stages, the burden shifts to the Commissioner on the fifth step to prove the claimant’s employability. Perez v. Barnhart, 415 F.3d 457, 461 (5th Cir. 2005); Newton v. Apfel, 209 F.3d 448, 453 (5th Cir. 2000). A finding at any step that the claimant is not disabled ends the inquiry. Chaparro v. Bowen, 815 F.2d 1008, 1010 (5th Cir. 1987). Our review of the ALJ’s determination is “highly deferential,” Perez, 415 F.3d at 464: We ask only whether substantial evidence supports the decision and whether the correct legal standards were employed. 42 U.S.C § 405(g); Masterson, 309 F.3d at 272. Substantial evidence is “more than a 3“Substantial gainful activity” is work for pay or profit requiring significant mental or physical ability. 20 C.F.R. § 404.1572(a)-(b). 5  Case: 17-40362 Document: 00514315420 Page: 6 Date Filed: 01/22/2018 No. 17-40362 mere scintilla and less than a preponderance.” Id. (citations omitted). We will not “re-weigh the evidence” nor, in the event of evidentiary conflict or un- certainty, will we “substitute our judgment for the Commissioner’s, even if we believe the evidence weighs against the Commissioner’s decision.” Id. B. Garcia asserts three instances of error: First, the ALJ impermissibly relied on the VA’s summary of Hamilton’s psychological evaluation, when it was required to obtain and directly review a copy of the evaluation itself; second, the ALJ improperly determined that Garcia’s PTSD was non-severe; and third, the ALJ failed properly to consider the VA’s 100% disability rating. Garcia requests that we reverse and direct the district court to remand for the Commissioner to consider Hamilton’s report directly. The first alleged error—that the ALJ was required to obtain a copy of Hamilton’s report—was at most harmless. An ALJ’s failure to include certain documentation in the record is ground for reversal only if the applicant can show prejudice. Brock v. Charter, 84 F.3d 726, 728 (5th Cir. 1996) (requiring applicant to show that omitted material “might have altered the result”). The record describes Hamilton’s findings in detail and in a light favorable to Gar- cia; the ALJ rejected Garcia’s claim nonetheless. Because Garcia gives us no reason to believe the original report would somehow swing the evidentiary pen- dulum in his favor, any alleged error was harmless such that remand would be inappropriate. See Morris v. Bowen, 864 F.2d 333, 335 (1988). 4 Garcia’s second claim—that the ALJ improperly deemed Garcia’s PTSD 4 It is unlikely that the ALJ erred in failing to procure the original report. The record reveals that the ALJ and other interested parties devoted considerable attention to locating the report. Though Garcia suggests they were looking in the wrong place, he provides no explanation for why he and his representative could not acquire the report themselves if they knew its location. 6  Case: 17-40362 Document: 00514315420 Page: 7 Date Filed: 01/22/2018 No. 17-40362 non-severe at step two—is equally unavailing. At bottom, Garcia argues the ALJ applied too high a threshold in its determination of severity. We disagree. The regulations define a severe impairment as “any impairment or combina- tion of impairments which significantly limits [one’s] physical or mental ability to do basic work activities.” 20 C.F.R. § 404.1520(c). This court considers a “slight abnormality” to be non-severe wherever it has “such minimal effect on that individual that it would not be expected to interfere with the individual’s ability to work.” Stone v. Heckler, 752 F.2d 1099, 1101 (5th Cir. 1985) (citations omitted). The ALJ cited Stone and rigorously considered the four broad func- tional areas set out in the disability regulation for evaluating the severity of mental disorders, 20 C.F.R. § 404.1520a(d)(1), before concluding that Garcia’s impairments were merely mild. 5 Garcia presents no evidence to suggest the wrong standard was applied. 6 Garcia’s final claim—that the VA’s 100% disability rating was substan- tial evidence of a severe impairment—is similarly unpersuasive. First, the VA’s determination does not bind the Commissioner; it is merely “evidence . . . that must be considered.” Chambliss v. Massanari, 269 F.3d 520, 522 (5th Cir. 2001). The weight assigned to such a determination will “vary depending upon the factual circumstances of each case.” Id. The ALJ considered, but 5 The four functional areas are (1) activities of daily living; (2) social functioning; (3) concentration, persistence, or pace; and (4) episodes of decompensation. 20 C.F.R. § 404.1520a(c)(3). The ALJ addressed each of those in detail in concluding that Garcia’s impairment was nonsevere. 6 Any error at step two would likewise be harmless, given that the ALJ concluded at step four, on the basis of substantial evidence, that Garcia retained the ability to perform his past relevant work as a produce broker. As the ALJ observed, Garcia “worked in the produce brokerage business for close to 30 years without any known impediment” and even continued to work in that field while suffering from the alleged symptoms. Additionally, the record contained no medical evidence that Garcia had seen any doctor of any kind before 2008, when his insured status expired. See Villa v. Sullivan, 895 F.2d 1019, 1024 (5th Cir. 1990) (allow- ing ALJs to rely “upon the lack of treatment as an indication of nondisability”). 7  Case: 17-40362 Document: 00514315420 Page: 8 Date Filed: 01/22/2018 No. 17-40362 ultimately rejected, the VA’s findings, in part because the VA relied heavily on a “one-time evaluation” by a doctor who “had not formed a treating rela- tionship” with Garcia. Meanwhile, two state-agency consultants found that they had insufficient data to confirm the VA’s position, the ALJ had before it no direct medical evidence that Garcia suffered from PTSD as of 2007, and the earliest treating source notes came from a nursing telephone encounter in 2011. 7 The ALJ’s decision not to follow the VA’s determination was thus sup- ported by substantial evidence. 8 The judgment of dismissal is AFFIRMED. See Newton, 209 F.3d at 455 (“The ALJ is free to reject the opinion of any physician 7 when the evidence supports a contrary conclusion.”). 8 The timing of the VA’s decision also discounts its evidentiary value. To prove entitle- ment to disability benefits under the Act, claimants must prove that they became disabled before the expiration of their insured status. Anthony v. Sullivan, 954 F.2d 289, 295 (5th Cir. 1992) (citing 42 U.S.C. § 423(a), (c)). Garcia’s insured status expired in December 2007, while the VA’s 2011 decision was made retroactively effective as of August 2009. Thus, it provides no more than indirect evidence of disability during the relevant period. 8 

243 Or. 254 (1966) 413 P.2d 407 CRIST ET AL v. THE POTOMAC INSURANCE COMPANY Supreme Court of Oregon. Argued January 3, 1966. Affirmed April 13, 1966. *255 C. Robert Altman, Albany, argued the cause for appellants. On the brief were Goode, Goode & Altman. Kenneth E. Roberts, Portland, argued the cause for respondent. With him on the brief were Mautz, Souther, Spaulding, Kinsey & Williamson, and Ridgway K. Foley, Jr. Before McALLISTER, Chief Justice, and SLOAN, GOODWIN, HOLMAN and LUSK, Justices. AFFIRMED. *256 LUSK, J. Plaintiffs, John A. Crist and Gregory M. Cutsforth, a partnership engaged in the logging business, were the named insured in a policy of liability insurance issued by defendant, The Potomac Insurance Company of the District of Columbia, in which Potomac agreed to "pay on behalf of the insured all sums which the insured shall become legally obligated to pay * * * because of injury to or destruction of property, including the loss of use thereof, caused by accident." This case had its inception in a claim against the plaintiffs, asserted by Edgar N. Roberts, the owner of a Lorane mobile shovel loader, for damages for injury to such loader alleged to have been caused by the negligence of the plaintiffs. When plaintiffs called upon Potomac to pay the loss the latter disclaimed liability. Roberts and his insurer, Aetna Casualty and Surety Company, brought an action against plaintiffs to recover their damages. Plaintiffs tendered the defense to Potomac and Potomac refused to defend. Without going to trial plaintiffs settled with Roberts and Aetna by the payment of $2,500. Plaintiffs then brought this action against Potomac to recover the amount of the settlement and the sum of $2,000 expended by them in defending against the claim. In a trial to the court without a jury the court entered findings of fact and conclusions of law and a judgment in favor of the defendant. Plaintiffs appeal. The questions are whether Potomac was justified in refusing to defend, and, if so, whether Potomac is, nevertheless, liable to reimburse plaintiffs in the amount of the settlement. Potomac's disclaimer of liability rests upon a clause of the policy which excludes from the coverage injury *257 to or destruction of property "controlled by the named insured, property in the care, custody or control of the insured or property as to which the insured for any purpose is exercising physical control." 1. This court adheres to the rule that the obligation of the insurer to defend is to be determined by the allegations of the complaint filed against the insured: Isenhart v. General Casualty Co., 233 Or 49, 54, 377 P2d 26, and cases there cited. See, also, Jarvis et ux v. Indemnity Ins. Co., 227 Or 508, 517, 363 P2d 740. We, therefore, set out the pertinent parts of the complaint filed by Roberts and Aetna against the plaintiffs. "I "That at all times set forth herein, plaintiff Edgar N. Roberts was doing business under the name and style of Robert Logging Co., with his principal office in Oakridge, Lane County, Oregon. That at all times herein set forth the defendants, Al Crist and Gregg Cutsforth were doing business under the name and style of C & C Logging Co., with their principal office in Jasper, Lane County, Oregon. That at all times mentioned herein, defendant Jack M. Case, was an employee and agent of the defendants, and acting within the scope of his employment. That at all times set forth herein, plaintiff Aetna Surety and Casualty Co. was and is the duly organized corporation authorized and entered to do a general casualty and surety insurance business in the State of Oregon. "II "That at all times mentioned herein, plaintiff Edgar N. Roberts, was the owner and in possession of a model MC6X6 double cab mobile Lorane shovel loader. "III "That a short time prior to February 6, 1958, the defendants, Al Crist and Gregg Cutsforth, doing *258 business as C & C Logging Co., entered into an agreement with Edgar N. Roberts whereby the plaintiff was to load and deck logs yarded by defendants on their logging operation in Lane County, Oregon, in the vicinity of Oakridge, on a per thousand basis by means of a Lorane mobile shovel loader, with an operator employed and paid by plaintiff. That the said operator provided by plaintiff was his employee and was to have the sole control, use, possession and operation of the said Lorane mobile loader, hereinafter referred to as the loader. That the said mobile loader was a double cab mobile loader with a cab for operating the loading apparatus and a cab for moving the said loader known and referred to hereinafter as the truck cab. "IV "On or about the 6th day of February, 1958, at the daylight hour of about 2:30 p.m., in the absence of the operator provided by the plaintiff, Edgar N. Roberts, defendant Jack M. Case without any authorization, consent, or authority from plaintiff Edgar N. Roberts, or his operator, and in the absence of said operator, and without any notice through the said operator, did get into the loader cab of said mobile loader and commenced to operate the said loader in an attempt to deck logs on the defendants' logging operation. "That said Jack M. Case did then and there carelessly, negligently and recklessly operate said loader in such a manner as to cause the said loader to topple over on its side on the ground damaging and wrecking said equipment in the particulars hereinafter set forth." The theory of this complaint is that Crist and Cutsforth, acting by their agent Case, negligently operated the loader, causing the injury and damage alleged. The complaint alleges that Case "did get into the loader cab of said mobile loader and commenced to *259 operate the said loader," etc., and it is the contention of the defendant that on its face the complaint discloses that the loader was at the time the accident occurred "controlled by the name insured," was in their "care, custody * * * [and] control," and was property as to which the insured were "exercising physical control" for a purpose connected with the work in which the insured were engaged. Plaintiffs argue that the allegation that Case was "acting within the scope of his employment" is a mere conclusion of law and, therefore, we have, "potentially, a case under the complaint within the coverage of the policy": Blohm et al v. Glens Falls Ins. Co., 231 Or 410 at 415-416, 373 P2d 412. The only authority cited by the plaintiffs for the contention that such an averment is a mere conclusion of law is 71 CJS 70, Pleading § 27b, where it is stated: "While it has been held that a general averment that an employee or agent was acting within the scope or apparent scope of his employment or agency is a conclusion of law, * * * it has also been held that the terms `scope of employment' and `course of employment' are allegations of facts or conclusions of facts." Cases holding both ways are cited in the notes to the text. We agree with those courts which hold that the averment is a statement of ultimate fact: Kornec v. Mike Horse Mining Co., 120 Mont 1, 180 P2d 252; Kuhl v. United States H. & A. Ins. Co., 112 Minn 197, 127 NW 628; Gilbert v. Progressive Life Ins. Co., 79 Ga App 219, 53 SE2d 494; Southern Grocery Stores, Inc. v. Herring, 63 Ga App 267, 11 SE2d 57. As stated in Kuhl v. United States H. & A. Ins. Co., supra, 112 Minn at 198: "The terms `scope of employment' and `course *260 of employment' are now generally regarded as conclusions of fact, like `negligence.' Under current liberal rules of pleading, the complaint contained an allegation sufficient on this point to justify the admission of evidence." That case was decided in 1910. The rules of pleading today are, to say the least, quite as liberal as they were 56 years ago. In Jarvis et ux v. Indemnity Ins. Co., supra, 227 Or at 513, this court was concerned with an allegation in a complaint, in a case similar to this, that "the plaintiffs, for a valuable consideration, hired the defendants as a commercial carrier to tow" a trailer, etc. Contrary to the position, taken in a dissent, that this allegation was to be regarded "as the statement of a legal proposition rather than a statement of fact" (227 Or at 551) we gave effect to the allegation as a statement of ultimate fact. The allegation that plaintiffs' employee, Case, was "acting within the scope of his employment" is no less a statement of ultimate fact. 2. The provision of the policy excluding from its coverage injury to property in the care, custody or control of the insured is a common one and has been frequently construed by the courts. As stated in 12 Couch on Insurance (2d ed) § 44:426: "The great majority of the cases support the view that the exception clause relating to property in the care, custody, or control of the insured refers to possessory handling of the property as distinguished from proprietary control. Stated differently, the concept of `control' in an exclusion of liability as to property in the `care, custody, or control' of the insured refers only to the physical fact of possession and does not contemplate proprietary control or ownership." *261 See, also, Annotation, 62 ALR2d 1242 at 1245. Illustrative cases, in point on their facts, with one possible exception to be presently noticed, and holding that the provision regarding care, custody and control of the insured, was applicable and barred recovery by the insured are: International Derrick & Equipment Co. v. Buxbaum, 240 F2d 536 (3d Cir), 62 ALR2d 1237; Hardware Mutual Casualty Co. v. Mason-Moore-Tracy, Inc., 194 F2d 173 (2d Cir); S. Birch etc. Co. v. United Pacific Ins. Co., 52 Wash 2d 350, 324 P2d 1073; Madden v. Vitamilk Dairy, Inc., 59 Wash 2d 237, 367 P2d 127. See, also, Clark Motor Co. v. United Pac. Ins. Co., 172 Or 145, 139 P2d 570, in which, however, the exclusionary provision was against liability for injury to property "in charge of" the insured. Although the point has not been made in argument, we call attention to the allegations of the complaint in the action brought by Roberts showing that plaintiffs were trespassers upon the loader when the accident occurred. In Great American Indemnity Company of New York v. Saltzman, 213 F2d 743 (8th Cir), cert den 348 US 862, 75 S Ct 85, 99 L Ed 679, it appeared that the insured was a trespasser upon an airplane which he negligently caused to be damaged. The court held that, because he was a trespasser, the airplane was not in his care, custody or control, since, as the court reasoned, these words, "as they are used in the exclusionary provisions of the policy connote a lawful, normal and customary situation." 213 F2d at 747. Similarly, it has been held that the words "in charge of" require something more than mere physical possession and connote a placing of responsibility in one person by the act of another, and, therefore, that the exclusionary clause does not apply where the insured was in possession of the property damaged without the *262 knowledge or consent of its owner: Klock v. Allstate Insurance Company, 230 NYS2d 555, 34 Miscl 2d 990. In Edwards v. Travelers Indemnity Company, 201 Tenn 435, 300 SW2d 615, however, it was held that, while the phrase "in charge of" implies that the possession or use is with the consent of the owner, the phrase "used by" does not. The exclusionary clause here contains a provision not found in any of the cited cases, namely, "property as to which the insured for any purpose is exercising physical control." Identical language was construed by the court in P & M Stone Co. v. Hartford Acc. & Indem. Co., 251 Iowa 243, 100 NW2d 28. The insured in that case damaged a bulldozer which he was attempting to operate without the consent of the owner, just as, according to the allegations of the complaint in the Roberts action, plaintiffs' employee, Case, was attempting to operate the loader without the consent of Roberts. The Saltzman case was considered by the Iowa Court and it was held that, whether or not the construction of the phrase "care, custody, or control" as not applicable to a trespasser, was correct, the provision respecting property "as to which the insured for any purpose is exercising physical control" was applicable and the loss, therefore, was not covered. The court said: "The operation or attempted operation of a bulldozer is a physical act or acts and one who takes bodily possession of such machine and operates or attempts to operate it is exercising physical control over it. "The provision of the exclusion clause that such physical control may be exercised `for any purpose' expressly negatives any limitation in such exercise, and neither this nor any other language in this part of the exclusion clause connotes that the exercise *263 of such physical control must be based upon the legal right to so act or that it is otherwise limited." 251 Iowa at 249. Cf. Michael Pompeii v. Phoenix Assurance Co. of New York, 7 App Div 2d 806; Sanco Co. v. Employers &c. Ins. Co., 102 NH 253, 154 A2d 454. 3, 4. We agree with the Iowa Court that under the provision excluding from coverage injury to property "as to which the insured for any purpose is exercising physical control," it is of no consequence that the insured acted without the consent of the owner of the property. Hence, we hold that the complaint in the Roberts case failed to state a claim against the present plaintiffs covered by the policy, and the defendant insurance company was, therefore, under no obligation to defend the action. We express no opinion whether the "care, custody, or control" provision applies where the insured takes possession of property without the consent of its owner. 5. Plaintiffs alleged in their reply and insist in their brief that Potomac waived its right to rely upon the allegations of the complaint in the Roberts action as a defense because Potomac failed to set up those allegations in its answer. Plaintiffs cite in support of this contention Ward v. Queen City Ins. Co., 69 Or 347, 138 P 1067, which holds that, if an insurance company, having knowledge of all the relevant facts, disclaims liability upon a specified ground, it will not be permitted afterwards, when sued, to depend upon other grounds if the insured has acted in reliance upon the position theretofore taken by the company. It is not claimed, and it could not be under the evidence, that Potomac failed in disclaiming liability to specify all the exclusionary grounds heretofore discussed (as well *264 as others we have considered it unnecessary to mention); and it appears, moreover, that, in a letter to the attorneys for plaintiffs declining the tender of defense of the Roberts action, Potomac stated that the allegations of the complaint "are clearly predicated on the theory that the insured had, through its agent, physical control of the damaged property and that the insured was using it at the time of the accident, therefore, we can rely on the `physical control' and `use' portions of the exclusion." It is thus clear that the doctrine of Ward v. Queen City Ins. Co. has no bearing on this case. 6. If, as appears to be the case, plaintiffs are also contending, merely as a question of conformity of the proof to the pleadings, that Potomac could not make the Roberts complaint the basis of its refusal to defend, because the complaint was not pleaded in its answer, that question is not before us, since it was not raised on the trial. The record shows that plaintiffs themselves set up the Roberts complaint as a part of their reply and introduced a copy of the complaint into evidence. It would seem to us that where, as here, the defendant in its amended answer alleged fully and specifically the exclusionary provisions of the policy on which it relied and their applicability to the facts of the case, nothing more would be needed to permit reliance by the defendant on the allegations of the complaint in the previous action in support of its right to refuse to defend. Whether this be correct or not, it would certainly have been the duty of the plaintiffs to raise the question by proper objection on the trial rather than wait until the case reached this court. 7. The final contention of the plaintiffs on this branch of the controversy is that plaintiffs' employee, Case, was not an insured under the policy and, therefore, *265 the exclusionary provisions were not applicable to anything that he may have done. We agree that Case was not an insured, but we think this is an irrelevant consideration in view of the allegations in the Roberts complaint that, in operating the loader, Case was plaintiffs' agent and acting in the scope of his employment. Thus, the act of Case was that of the plaintiffs and brought them within the "physical control" exclusionary provision of the policy. On the second question, whether Potomac was under a duty to indemnify plaintiffs in the amount paid by them in settlement of the Roberts action, the court found: "* * * * * "That Case, the employee of Crist and Cutsforth at the time he was operating the shovel loader was attempting to perform a duty outside the scope of his employment and such conduct on his part would not bind his employer, Crist and Cutsforth." The court further made a conclusion of law that plaintiffs "had no legal obligation or liability" to pay Roberts and Aetna. 8. Both Crist and Case testified that Case had no authority to operate the loader and there is no evidence, direct or circumstantial, to the contrary. Under the terms of the policy Potomac agreed to pay "on behalf of the insured, all the sums which the insured shall become legally obligated to pay" because of injury to property caused by accident. The plaintiffs were not legally obligated to pay anything to Roberts and Aetna because of Case's unauthorized conduct. The payment, therefore, made by the plaintiffs in settlement of the Roberts action was purely voluntary and the amount thereof was not recoverable from *266 Potomac: Macdonald v. United Pacific Ins. Co., 210 Or 395, 399, 311 P2d 425; 29A Am Jur 569, Insurance § 1458. As observed in the Macdonald case, it might be that a case would arise in which there was no duty to defend, but the ultimate proof showed a duty to pay. This is a case in which the insurance company was justified in refusing to defend because the complaint in the action against the plaintiffs showed there was no coverage, and in which there was no duty to pay because, as the ultimate proof disclosed, the plaintiffs had incurred no legal liability to the owner of the damaged property. The judgment is affirmed.

United States Court of Appeals Fifth Circuit F I L E D IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT October 13, 2006 Charles R. Fulbruge III No. 05-51143 Clerk Summary Calendar UNITED STATES OF AMERICA, Plaintiff-Appellee, versus JUAN LONGORIA, Defendant-Appellant. -------------------- Appeal from the United States District Court for the Western District of Texas No. 3:04-CR-1788-ALL -------------------- Before SMITH, WIENER, and OWEN, Circuit Judges. PER CURIAM:* Juan Longoria was convicted by a jury of conspiracy to possess with intent to distribute 50 kilograms or more of marihuana and possession with intent to distribute 50 kilograms or more of mari- huana, in violation of 21 U.S.C. §§ 841 and 846. He was sentenced to 55 months of imprisonment on both counts to run concurrently, three years of supervised release, and a fine of $1,500. * 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.  Longoria, proceeding pro se, argues that the district court erred when it sentenced him under U.S.S.G. § 2D1.1. He contends that he was found guilty of possessing 50 kilograms or more of marihuana and that the court erroneously set his base offense level at 24 and that his base offense level should have been 20. He seeks resentencing under United States v. Booker, 543 U.S. 220 (2005), because the jury found him guilty of having only 50 kilo- grams or more. Longoria’s challenge to the finding that his base offense level was 24, and his challenge based on Booker, are raised for the first time on appeal and so must be reviewed for plain error. See United States v. Vargas-Garcia, 434 F.3d 345, 347 (5th Cir. 2005), cert. denied, 126 S. Ct. 1894 (2006). Longoria stipulated that the marijuana seized was 91.59 kilograms. The district court did not plainly err in determining that the base offense level is 24, based on 91.59 kilograms. See § 2D1.1(c)(8) (level 24 for 80 to 100 kilograms of marihuana). Longoria was sentenced after Booker was decided and under the advisory sentencing regime. In the wake of Booker, in determining the guideline range, a court determines all facts relevant to sen- tencing in the same manner as before Booker. United States v. Johnson, 445 F.3d 793, 798 (5th Cir.), cert. denied, 126 S. Ct. 2884 (2006). The district court was not limited to a drug quantity determined by the jury, as Longoria suggests. Based on Longoria’s stipulation of 91.59 kilograms, the court did not plainly err in basing his sentence on that amount. Longoria argues that the court erred in sentencing him to a greater and a lesser included offense. He reasons that his con- victions under §§ 846 and 841 violate double jeopardy. Because he did not raise this issue in the district court, we review for plain error. See United States v. Odutayo, 406 F.3d 386, 392 (5th Cir.), cert. denied, 126 S. Ct. 238 (2005). A substantive crime and a conspiracy to commit that crime are not the same offense for double jeopardy purposes. United States v. Pena-Rodriguez, 110 F.3d 1120, 1131 n.11 (5th Cir. 1997) (citing United States v. Felix, 503 U.S. 378, 389 (1992)). Longoria’s ar- gument that being charged with, convicted of, and punished for the conspiracy and substantive counts subjected him to double jeopardy does not establish plain error. Longoria contends that the district court erred in denying him a minimal or minor role adjustment pursuant to § 3B1.2(a) or (b). He urges that he was only a “mule” or courier of a small amount of marihuana. The record indicates, however, that he played an inte- gral role in driving a tractor-trailer transporting 91.59 kilograms of marihuana hidden in the sleeper compartment of his tractor. Longoria had transported three previous loads. The district court did not clearly err in finding that he is not entitled to a down- ward adjustment for a mitigating role in the offense. See United States v. Buenrostro, 868 F.2d 135, 138 (5th Cir. 1989). AFFIRMED. 

439 F.2d 885 UNITED STATES of America, Plaintiff-Appellee,v.Byron Hugh JOHNSON and Allan Golub, Defendants-Appellants. No. 29471. United States Court of Appeals, Fifth Circuit. March 16, 1971.Rehearing Denied April 7, 1971. Sam F. Adam, Santo J. Volpe, Edward M. Genson, Charles O. Brizius, Chicago, Ill., for appellants. Anthony J. P. Farris, U. S. Atty., James R. Gough, Edward B. McDonough, Jr., Theo W. Pinson, III, Asst. U. S. Attys., Houston, for appellee. Before RIVES, AINSWORTH and MORGAN, Circuit Judges. RIVES, Circuit Judge: 1 Byron Hugh Johnson and Allan Golub, appellants, and one Darrell McDonald were indicted under 21 U.S.C. Sec. 176a1 on three counts. Count One charged conspiracy, from about October 11, 1968 to about November 6, 1968, to smuggle marihuana into the United States; Count Two charged the substantive act of smuggling; and Count Three charged that the defendants knowingly transported and facilitated the transportation of marihuana knowing it to have been imported into the United States contrary to law. McDonald was acquitted on all counts. Golub and Johnson were convicted on all counts, and sentenced to five years' imprisonment on each, the sentences to run concurrently. 2 Customs Agent Christopher testified that in early October 1968 an unnamed man informed him of overhearing a conversation in Provincetown, Massachusetts, between Johnson and another man, in which Johnson told this man that he was planning a trip to Mexico in his 1957 Chrysler station wagon in which he had built special compartments to transport marihuana. The informer also stated that the vehicle had Florida registration plates numbered 10 W 1813. Christopher's testimony was admitted over Johnson's objection, but the court instructed the jury that the testimony was admitted not for the truth of the informer's statements but only to show why the agents were on the lookout for Johnson. The Chrysler was later transported to Chicago and left in a garage for repair work.2 Agent Christopher relayed the information from the informer to the border guards in Texas and a lookout for Johnson was maintained.3 3 The three defendants entered Mexico on October 28, 1968 and their tourist permits bore consecutive numbers. A hotel manager, Juan Jose Gonzalez Guajardo, identified McDonald and Johnson and testified that they arrived at his hotel in Matamoros, Mexico, at 9:55 P.M., November 5, 1968. He saw Johnson in a 1964 station wagon which he described as a Dodge. McDonald paid for a room for the two. Guajardo did not see who was driving the vehicle when the two men arrived and he never saw Golub. Guajardo wrote down the license number of the vehicle on the hotel registration. He saw Johnson the next morning but did not see McDonald or the vehicle. 4 Another manager at this hotel, Elroy Gonzalez Acebo, identified Johnson as a man he saw on the morning of November 6, 1968, coming out of the room which McDonald had rented. He identified a hotel record on which he had written the license number of the station wagon from a report made previously by the other manager.4 5 Johnson returned to the United States from Mexico by foot on November 7, 1968, approximately at 1:10 P.M. He was searched at the Brownsville customs office but no marihuana was found on him. Johnson was kept under observation by customs officials as he took a bus to San Antonio, Texas, and from there flew to New York and on to Boston. This flight was made on November 8, 1968. Johnson was arrested on November 15, 1968 in Chicago, when he went to the garage to pick up the 1957 Chrysler. He did not claim the vehicle or enter it prior to his arrest. The vehicle was seized; a search of the vehicle turned up butts of marihuana cigarettes and marihuana seeds and the existence of the secret compartments. The fruits of this search were admitted in evidence over objection. 6 Around midnight of November 5, 1968, about two hours after registering at the hotel, McDonald arrived at the Gateway Bridge inspection point in a Mexican taxi. Customs Inspector Charles Easley searched him and detected the odor of marihuana in a laundry bag, though no marihuana was found. McDonald had a Mexican car permit made out to Golub for a 1964 Plymouth. Easley testified that McDonald gave him conflicting stories about his visit to Mexico and about the vehicle. Easley contacted a Treasury Agent from the Bureau of Customs, E. T. Laurel, and Laurel placed McDonald under surveillance when he entered the United States in the taxi. Two other agents assisted in the surveillance. 7 While following the taxi, Agent Laurel noticed parked at a curb a cream-colored station wagon with an Illinois license plate which he recalled as bearing the same number which Easley had read to him from the Mexican car permit in McDonald's possession. Agent Laurel maintained surveillance on this vehicle while the other agents followed the taxi. The station wagon began following the taxi. Eventually, both vehicles stopped and McDonald got out of the taxi and into the station wagon. The agents continued to follow the station wagon for five miles. When it headed out of the city, they stopped it some seven to ten miles from the border. The vehicle and its occupants, McDonald and Golub, were returned to the checkpoint for a search. One hundred seven pounds of marihuana were found concealed in hidden compartments in the vehicle, and McDonald and Golub were placed under arrest. I. 8 Johnson insists that the district court erred in allowing Agent Christopher to testify as to what an informer told him without requiring the government to reveal the name of the informer. The government argues that it is entitled to withhold the name of the informer based on the public policy of encouraging people to give information to the police. Scher v. United States, 1938, 305 U.S. 251, 59 S.Ct. 174, 83 L.Ed. 151. The government's privilege to withhold the identity of an informer is subject to limitations. See Roviaro v. United States, 1957, 353 U.S. 53, 60-63, 77 S.Ct. 623, 1 L.Ed.2d 639; Firo v. United States, 5 Cir. 1965, 340 F.2d 597. However, we need not decide whether the privilege applied under the facts of this case, because we hold that, in any event, the statements of the informer were inadmissible and prejudicial hearsay. 9 The government argues that the testimony was not hearsay because it was introduced solely to show that the customs agents were on the lookout for Johnson, not to show the truth of what the informer said. That is the reasoning which the district court accepted, and instructed the jury accordingly. Realistically considered, that reasoning must fail. 10 The statements of the informer are the most substantial evidence the government has to establish Johnson's intent to enter into a conspiracy. Proof of an agreement to enter into a conspiracy is not to be lightly inferred. United States v. Aviles, 2 Cir. 1960, 274 F.2d 179; Evans v. United States, 9 Cir. 1958, 257 F.2d 121, cert. denied, 358 U.S. 866, 79 S.Ct. 98, 3 L.Ed.2d 99; United States v. Varelli, 7 Cir. 1969, 407 F.2d 735. If a conspiracy had been shown, there may have been sufficient proof to establish that it was put into execution. But our examination of the record leads us to the conclusion that the overt acts the government speaks of in its brief did not prove the existence of a conspiracy insofar as Johnson is concerned. 11 The distinction between using anonymous information corroborated by police investigation and the impermissible use of hearsay to establish the proof of an offense is illustrated by United States v. Catanzaro, 3 Cir. 1969, 407 F.2d 998. There, an entrapment defense was argued in a case charging that the accused had sold amphetamine tablets to a Food and Drug Inspector. An informer, by the name of Maskell, introduced the inspector to the accused. Hearsay testimony was introduced showing that Maskell had told the inspector that the accused was a seller of drugs. The Third Circuit reversed the conviction because the hearsay went to prove the predisposition on the part of the accused to make an illegal sale. The Court said, 'Accordingly, when such evidence is inadmissible hearsay on the critical issue of predisposition, it may not be admitted into evidence because of its relevance on the inconsequential issue of probable cause.' 407 F.2d 998, 1001. We agree with the reasoning of the court in Catanzaro and hold that the hearsay testimony was improperly admitted because it went to prove the intention of Johnson to participate in a conspiracy. The desire of the government to show the jury why its agents were on the lookout for Johnson can in no way justify the use of prejudicial hearsay. 12 The government next argues that the statements of the informer at most constituted harmless error under Fed.R.Crim.P. 52(a). Erroneous admission of evidence can often be corrected by appropriate jury instructions. Conner v. United States, 5 Cir. 1963, 322 F.2d 647. But before a constitutional error can be held harmless, the court must believe it harmless beyond a reasonable doubt. Chapman v. California, 1967, 386 U.S. 18, 22-24, 87 S.Ct. 824, 17 L.Ed.2d 705. 13 The statements of the informer related statements allegedly made by Johnson concerning his intention in connection with another person to bring marihuana into this Country. Under any standard the informer's statements were highly prejudicial to Johnson. They tended to establish the conspiracy and to prove Johnson's knowledge of and intention to be involved in a smuggling operation. Under the circumstances of this case, there is more than a substantial risk that the jury, despite instructions to the contrary, looked to the informer's statements in determining Johnson's guilt. See Bruton v. United States, 1968, 391 U.S. 123, 129, 130, 88 S.Ct. 1620, 20 L.Ed.2d 476. 14 There was no other substantial evidence to prove Johnson guilty. The record shows that he entered Mexico at approximately the same time as McDonald and Golub. He checked into a hotel with McDonald and was seen in the vehicle in which the other two defendants were later arrested. The next morning, November 6, 1968, approximately at 10:00 A.M., Johnson was seen loading two green, canvas, GI-type duffel bags into a taxi.5 He left in the taxi and returned some time later. He got two suitcases from his hotel room and again left in a taxi. At 1:10 P.M. the next day he arrived at the border carrying one small suitcase. Johnson's movements from that time until his arrest and the circumstances of his arrest have been detailed. We cannot hold the admission of the informer's statements through hearsay to be harmless. For the error in admitting those statements, Johnson's judgment of conviction must be reversed. II. 15 The details of Golub's apprehension and the search of his car have been stated. It is familiar law that border officials need less cause to initiate a search than is required of law enforcement officials in other circumstances. Marsh v. United States, 5 Cir. 1965, 344 F.2d 317, 324; Ramirez v. United States, 5 Cir. 1959, 263 F.2d 385; King v. United States, 5 Cir. 1958, 258 F.2d 754. The facts here--the suspicion aroused when McDonald crossed the border, McDonald's connection with the vehicle Golub was driving, the clandestine meeting of the two men--clearly justified the search of the station wagon in which they were riding. 16 Since that search was legal, there was sufficient evidence to support the conviction of Golub under Counts One and Three of the indictment which charged the illegal importation of marihuana and its transportation and concealment within this Country. Golub's possession of the vehicle and the proof that it was in Mexico only hours before his apprehension furnish overwhelming evidence of his guilt. 17 Golub also argues that his conviction must be reversed under the decision in Leary v. United States, 1969, 395 U.S. 6, 89 S.Ct. 1532, 23 L.Ed.2d 57. Since this case comes to us on direct appeal, the ruling in Leary is applicable if the facts bring it under that decision. United States v. Scardino, 5 Cir. 1969, 414 F.2d 925; Medina v. United States, 5 Cir. 1970, 427 F.2d 525. 18 Leary invalidated the presumptions of 21 U.S.C. Sec. 176a that possession of marihuana is sufficient to show that (a) the marihuana was illegally imported and (b) that the possessor had knowledge of the illegal importation. But Leary does not invalidate convictions obtained under this statute when the defective presumption was not used. United States v. Pruneda, 5 Cir. 1970, 425 F.2d 1289; United States v. Rodriguez Reinosa, 5 Cir. 1970, 427 F.2d 150. A careful examination of the record in this case reveals no reliance on the invalid presumption. That paragraph of the statute containing the presumption was not read to the jury nor was there any instruction as to presumption to be drawn from possession. III. 19 The appellants attack the seizure and search of the 1957 Chrysler station wagon from which there followed the admission into evidence of the marihuana debris it contained and the references to its secret compartments. The resolution of this issue is not necessary for the disposition of this appeal since we hold that Johnson's conviction must be reversed on other grounds and that the use of this evidence against Golub was harmless error.6 IV. 20 Appellants' contention that the requirements of declaration and invoicing by 21 U.S.C. Sec. 176a are unconstitutional as violative of the privilege against self-incrimination is without merit. This contention was decided against appellants in Rule v. United States, 5 Cir. 1966, 362 F.2d 215. The language of Walden v. United States, 5 Cir. 1969, 417 F.2d 698, which followed Rule, is controlling in this case: 21 'Had Walden declared and invoiced the marihuana at the border, it would have been immediately seized by Customs. At that point Walden would not have been vulnerable to prosecution, either Federal or State, because he would have complied with the Federal law and he would have never reached the State of Texas with marihuana in his possession.' 22 Walden v. United States, 417 F.2d 698, 700. 23 Appellants, relying on Dennis v. United States, 1966, 384 U.S. 855, 86 S.Ct. 1840, 16 L.Ed.2d 973, also contend that their motion for the production of the grand jury testimony should have been granted. Appellants have failed to meet the requirements of Dennis that a 'particular need' for the disclosure of the grand jury proceedings be demonstrated.7 24 The judgment of conviction of Johnson is reversed and that of Golub is affirmed. 25 Reversed and remanded as to Johnson, affirmed as to Golub. 1 In pertinent part the section reads: 'Notwithstanding any other provision of law, whoever, knowingly, with intent to defraud the United States, imports or brings into the United States marihuana contrary to law, or smuggles or clandestinely introduces into the United States marihuana which should have been invoiced, or receives, conceals, buys, sells, or in any manner facilitates the transportation, concealment, or sale of such marihuana after being imported or brought in, knowing the same to have been imported or brought into the United States contrary to law, or whoever conspires to do any of the foregoing acts, shall be imprisoned not less than five or more than twenty years and, in addition, may be fined not more than $20,000. For a second or subsequent offense (as determined under section 7237(c) of the Internal Revenue Code of 1954), the offender shall be imprisoned for not less than ten or more than forty years and, in addition, may be fined not more than $20,000. 'Whenever on trial for a violation of this subsection, the defendant is shown to have or to have had the marihuana in his possession, such possession shall be deemed sufficient evidence to authorize conviction unless the defendant explains his possession to the satisfaction of the jury.' 2 It was the government's theory that the vehicle got to Chicago as part of the defendants' trip to Mexico. However, the only evidence showing how or by whom the vehicle was transported to Chicago was contained in a confession by Golub which was never introduced in evidence 3 The agent later verified that Johnson possessed the vehicle so described 4 The license number is referred to in the transcript as SR 76785 and as SR 6785 [T. 156, 160] The customs agent who searched the vehicle in which McDonald and Golub were apprehended testified that the license number on the vehicle was SR 6785. Appellants do not challenge the identification of the vehicle. Any doubt to which the discrepancy in license numbers might give rise is laid to rest by the testimony of Guajardo identifying pictures of the searched vehicle as depicting the vehicle he saw at the hotel. [T. 238, 146.] 5 The two duffel bags seen in Johnson's possession were similar to the one which McDonald carried into the United States that smelled of marihuana. Neither of the bags Johnson had could have been the one McDonald carried nor could the bags have contained the marihuana seized when McDonald and Golub were arrested, since McDonald entered the Country and he and Golub were arrested nine or ten hours prior to the time Johnson was seen carrying the bags 6 As has been seen, the evidence against Golub on the substantive counts of the indictment was overwhelming. While the evidence of the Chicago vehicle, as well as the introduction of the hearsay testimony, might be prejudicial to Golub under the conspiracy count, we need not decide this issue because Golub received concurrent sentences of five years on each of the three counts and this does not exceed the maximum permitted on the other two counts. See Benton v. Maryland, 1969, 395 U.S. 784, 89 S.Ct. 2056, 23 L.Ed.2d 707; Hirabayshi v. United States, 1943, 320 U.S. 81, 63 S.Ct. 1375, 87 L.Ed. 1774 7 Dennis v. United States, 384 U.S. at 868-875, 86 S.Ct. 1840

280 S.W.3d 790 (2009) Noah I. LOCKWOOD, Appellant, v. DIRECTOR OF REVENUE, Respondent. No. WD 69127. Missouri Court of Appeals, Western District. April 21, 2009. Jeffrey S. Eastman, Gladstone, MO, for appellant. Shaun Mackelprang, Jeremiah Morgan, Nicole L. Loethen, and Ryan M. Murphy, Jefferson City, MO, for respondent. Before JAMES M. SMART, JR., P.J., JOSEPH M. ELLIS, and JAMES E. WELSH, JJ. Order PER CURIAM: Noah Lockwood appeals the judgment affirming the administrative revocation of his driving privileges pursuant to section 302.505. He argues on appeal that the judgment was not supported by substantial evidence and was against the weight of the evidence, because the arresting officer did *791 not believe he had probable cause to arrest at the time of Lockwood's arrest. Having carefully considered the contentions on appeal, we find no grounds for reversing the decision. Publication of a formal opinion would not serve jurisprudential purposes or add to understanding of existing law. The judgment is affirmed. Rule 84.16(b).

297 B.R. 662 (2003) In re Leroy WASHINGTON, Debtor. No. 03-15345-BKC-RAM. United States Bankruptcy Court, S.D. Florida. August 4, 2003. *663 Diane Boyer, Mulberry, FL, Susan G. Harrison, Tampa, FL, for creditor. Steven M. Busch, Esq., Hollywood, FL, for debtor. ORDER (1) DISMISSING BANKRUPTCY CASE; (2) EXPUNGING CASE; AND (3) SANCTIONING ATTORNEY STEVEN M. BUSCH AND REAL ESTATE BROKER, JOSEPH KURUVILA ROBERT A. MARK, Chief Judge. This Chapter 13 case presents the disturbing situation in which a debtor's signature is forged on the bankruptcy petition. The facts were presented in a Motion to Dismiss for Fraudulent Filing (the "Motion to Dismiss") filed by the above-named debtor, Leroy Washington ("Washington" or the "Debtor"). For the reasons that follow, the Court finds that the case should be dismissed, the Court record of the filing expunged, and the participants in the fraud sanctioned. Factual and Procedural Background This case was commenced by the filing of a Chapter 13 petition (the "Petition") on May 22, 2003. The petition was signed by Steven M. Busch, Esquire ("Busch"), as counsel for the Debtor, and also bears the signature "Leroy Washington." The case was filed on the day scheduled for a foreclosure sale of the Debtor's property in Case Number 03-637-CA-05, Circuit Court, Miami-Dade County, Florida (the "Foreclosure Case"). Attorney Busch also signed and filed on May 22, 2003, a Suggestion of Bankruptcy in the Foreclosure Case. The timing of the bankruptcy filing is not uncommon. Many Chapter 13 cases are filed to stop foreclosure sales with the intention of curing or paying off the mortgage in a Chapter 13 plan. The important and troublesome distinction here is that this Debtor did not sign the Petition. As discussed in greater detail below, the Debtor's signature was forged by a real estate broker, Joe Kuruvila ("Kuruvila") On June 17, 2003, Attorney Sabrina Chassagne ("Chassagne") filed the Motion to Dismiss. On June 23, 2003, the Court entered its Order Setting Hearing to Investigate Claim of Fraudulent Filing, scheduling a hearing on July 8, 2003, to consider the Motion to Dismiss. Since Attorney Busch filed the case, the Order Setting Hearing required Busch to appear at the July 8th hearing to address the allegation in the Motion to Dismiss that Washington did not sign the Petition. The Debtor, who resides in Georgia, drove to Miami to attend the hearing at which he was represented by Chassagne. Busch also appeared at the July 8th hearing, together with Kuruvila. Busch introduced into evidence a Power of Attorney allegedly executed by Leroy and Gloria Washington, appointing Kuruvila attorney-in-fact *664 for purposes of a possible sale of their home, and "to file bankruptcy to stop foreclosure sale." Respondent Busch's Exhibit 2. Kuruvila testified that he signed Washington's name on the Petition. Busch argued that based upon the authority granted in the Power of Attorney, Kuruvila was authorized to sign the Petition and the filing of the case was proper. The Debtor testified and denied executing the Power of Attorney. His testimony seemed confused on this point and, more likely than not, the Debtor did execute the Power of Attorney. Washington did admit that he had retained Kuruvila at some point to pursue a sale of his house which was the subject of the Foreclosure Case. Kuruvila claimed that he filed the bankruptcy case with Washington's knowledge and consent to stop the foreclosure sale. The Court did not find this testimony credible. Instead, the Court believed Washington's testimony that he did not authorize Kuruvila to file the bankruptcy case on his behalf, since it appeared that a sale of the home would not realize any proceeds over and above the existing mortgage. Therefore, the Debtor was prepared to allow the foreclosure sale to be completed. Discussion Even if the Power of Attorney was executed by the Debtor, Busch and Kuruvila acted improperly. Although an attorney-in-fact can execute a bankruptcy petition on behalf of a debtor, under Fed.R.Bank.P. 9010, the attorney-in-fact must execute it as attorney-in-fact. In this case, Kuruvila simply forged the Debtor's signature on the Petition. Busch then filed the Petition with the forged signature, knowing that it was signed by Kuruvila and not by Washington. Busch also violated Rule 2016, Fed.R.Bankr.P., by his failure to file a Rule 2016 Statement, indicating the amount of fees he received and who paid them. Had Busch filed an accurate 2016 Statement, it would have reflected that Kuruvila, not the Debtor, paid his attorney fee. When a case is commenced by the filing of a petition executed by an individual acting for the debtor under a Power of Attorney, certain minimum requirements must be satisfied to ensure that the petition is properly filed. In particular, the petition must be properly executed by the attorney-in-fact in a manner which reflects the representative capacity of the attorney-in-fact. In re Hurt, 234 B.R. 1 (Bankr.D.N.H.1999). A petition is a legal nullity if the signature on the petition is forged, even if the party forging the signature had a Power of Attorney, if there was no indication that the document was signed in a representative capacity. See, In re Brown, 163 B.R. 596, 598 (Bankr.N.D.Fla.1993); In re Harrison, 158 B.R. 246, 248 (Bankr.M.D.Fla.1993). In this case, Kuruvila did not sign his name as attorney-in-fact. Instead, he simply forged the Debtor's name. Busch then filed the Petition with no indication in any document that Kuruvila, not the Debtor, signed the Petition and paid the attorneys fees. Therefore, based upon the law discussed above, the filing was a legal nullity. The Motion to Dismiss will be granted and the filing expunged. The Court also finds it appropriate to sanction both Attorney Busch for, among other things, knowingly filing a petition with a forged signature, and Kuruvila, for forging the Debtor's signature rather than signing his name as attorney-in-fact for the Debtor. At the conclusion of the hearing, the Court announced that it was imposing sanctions and directed Chassagne to file a statement setting forth her attorneys fees *665 for preparing, filing and prosecuting the Motion to Dismiss and listing any costs incurred by the Debtor in traveling from Georgia to attend the hearing. On July 17, 2003, Chassagne filed a Notice of Filing Invoice Containing Client Fees and Expenses. The "invoice" lists Attorney's fees of $750, a $55.00 charge for service of a witness subpoena, and $199.80 in travel expenses incurred by Washington consisting of $36.00 in tolls, $50.00 for food, and $113.80 for gas. The fees and travel expenses total $1,004.80. The Court finds all of these fees and expenses to be reasonable. Based upon the foregoing, it is— ORDERED as follows: 1. This case is dismissed. 2. Absent further order, the Court file for this case is SEALED. 3. The Clerk of the Court is directed to expunge this case from the Court's automated systems. 4. Attorney Chassagne is directed to furnish a copy of this Order, on behalf of Leroy Washington, to all credit reporting agencies listed below and to any other party who may otherwise have relied on the filing of this bankruptcy case in connection with credit decisions or credit information concerning Leroy Washington. Any such party receiving a copy of this Order shall specifically correct its records to delete any reference in Leroy Washington's credit history to this improperly filed bankruptcy case: A. Experien Profile Maintenance P.O. Box 9558 Allen, Texas 75013 B. Trans Union Corporation Attn: Public Records Dept. 555 West Adams Street Chicago, IL 60661 C. Equifax P.O. Box 144717 Orlando, Florida 32814 5. Attorney Steven M. Busch, Esquire, and Joseph Kuruvila are sanctioned $1,004.80. Judgment is hereby entered against them jointly and severally for this amount in favor of Leroy Washington, for which let execution issue. 6. In addition to the monetary sanction, the Court will be transmitting a copy of this Order with the appropriate forms to the Department of Business and Professional Regulation, Division of Real Estate, Bureau of Enforcement, to consider whether the conduct of Broker, Joseph Kuruvila, should be investigated. A copy of this Order will also be forwarded to the Florida Bar to conduct whatever inquiry it deems appropriate with respect to the conduct of Attorney Steven Busch.

71 Wn. App. 407 (1993) 869 P.2d 65 3A INDUSTRIES, INC., Respondent, v. TURNER CONSTRUCTION COMPANY, ET AL, Appellants. No. 31687-7-I. The Court of Appeals of Washington, Division One. October 11, 1993. Joseph Calmes, Betsy A. Gillaspy, and Windus, Thomas, Calmes & Wiley, for appellants. John P. Ahlers, Charles Holley, and Barokas & Martin, for respondent. PER CURIAM: A commissioner of this court ruled that the superior court's denial of appellants Turner Construction's (Turner) and Federal Insurance Company's (Federal) motion for stay pending arbitration was appealable as a matter of right. This court denied respondent 3A's motion to modify the commissioner's ruling and further ordered that the merits of the appeal should be briefed in an expedited fashion and the case heard on the next available judges' motion calendar. Having received the parties' briefs and considered the merits of the appeal, we reverse the decision of the trial court. FACTS Turner contracted with the State of Washington to act as the prime contractor on an inmate housing project at McNeil Island Corrections Center. On May 17, 1991, Turner executed a subcontract with 3A in which 3A agreed to provide the labor necessary to install precast wall panels in certain buildings *409 described in the prime contract. A dispute subsequently arose between Turner and 3A with regard to payment for 3A's work. On May 15, 1992, 3A filed suit against Turner, Federal Insurance (Turner's surety), and the State of Washington, Department of Corrections. Turner and Federal moved for a stay of the matter pending arbitration pursuant to RCW 7.04.030. They argued that the contract executed between 3A and Turner incorporated by reference the arbitration clause in the prime contract that had been executed between Turner and the State of Washington. 3A opposed the stay arguing that the contract between 3A and Turner did not incorporate any arbitration clause, that Federal was not a party to the subcontract and 3A had a statutory right under the "Little Miller Act" (RCW 39.08) to pursue its claim against Federal even if the prime contract arbitration clause was determined to be binding on 3A. Judge Steven Scott denied the motion for stay as well as Turner's motion for reconsideration. No findings of fact were entered. The issue presented on appeal is whether the trial court erred in concluding that the arbitration provision of the prime contract was not incorporated by reference into the subcontract and, therefore, Turner and Federal were not entitled to a stay pending arbitration? DECISION Article 1 of the subcontract between Turner and 3A states: The Subcontractor shall perform and furnish all the work, labor services, materials, plant, equipment, tools, scaffolds, appliances and other things necessary for Receive, Distribute and Erect Precast Wall Panels, Buildings A, B, C, D, E and F (hereinafter called the Work) for and at the McNeil Island Corrections Center, Inmate Housing Package (hereinafter called the Project), located on premises at McNeil Island, Washington (hereinafter called the Premises), as shown and described in and in strict accordance with the Plans, Specifications, General Conditions, Special Conditions and Addenda thereto prepared by *410 Sverdrup Corporation (hereinafter called the Architect) and with the terms and provisions of the General Contract (hereinafter called the General Contract) between Turner and the State of Washington Department of Corrections (hereinafter called the Owner) dated April 23, 1991, and in strict accordance with the Additional Provisions, page(s) 7A, 7B, 7C, 7D, 7E and 7F annexed hereto and made a part hereof. Article 2 of the subcontract states: With respect to the Work to be performed and furnished by the Subcontractor hereunder, the Subcontractor agrees to be bound to Turner by each and all of the terms and provisions of the General Contract and the other Contract Documents, and to assume toward Turner all of the duties, obligations and responsibilities that Turner by those Contract Documents assumes toward the Owner, and the Subcontractor agrees further that Turner shall have the same rights and remedies as against the Subcontractor as the Owner under the terms and provisions of the General Contract and the other Contract Documents has against Turner with the same force and effect as though every such duty, obligation, responsibility, right or remedy were set forth herein in full. The terms and provisions of this Agreement with respect to the Work to be performed and furnished by the Subcontractor hereunder are intended to be and shall be in addition to and not in substitution for any of the terms and provisions of the General Contract and the other Contract Documents. This Subcontract Agreement, the provisions of the General Contract and the other Contract Documents are intended to supplement and complement each other and shall, where possible, be thus interpreted. The General Conditions of the prime contract contains a section entitled "Dispute Resolution". It states in part: any controversy or claim arising out of or relating to this Contract or breach thereof and the Owner[s] decision [on the claim or controversy], shall be settled by arbitration in accordance with the Construction Industry Arbitration Rules of the American Arbitration Association, and judgment upon the award rendered by the arbitrator(s) may be entered in any court having jurisdiction thereof. Based upon these contractual provisions, Turner and Federal argue that the arbitration clause of the prime contract was incorporated by reference into the subcontract and, therefore, 3A agreed to arbitrate all disputes regarding the *411 subcontract. 3A responds that absent an express provision in the subcontract making the arbitration clause of the prime contract applicable, this court should not hold that 3A has contractually abandoned its right of action on the bond as provided by the "Little Miller Act", RCW 39.08. 3A cites several federal cases decided under the Federal Miller Act, 40 U.S.C. § 270(a), in support of this contention. Like the Federal Miller Act, Washington's "Little Miller Act" requires contractors to obtain bonds on public works projects for the protection of laborers and materialmen because mechanics' liens are unavailable on such projects. Hall & Olswang v. Aetna Cas. & Sur. Co., 161 Wash. 38, 296 P. 162 (1931). RCW 39.08.030 provides laborers and mechanics a right of action in their own name against the bond for work done or materials or goods furnished in the project. In a series of cases, the federal courts have considered whether a subcontractor's Miller Act right to sue on a bond was relinquished when the subcontract incorporated the prime contract by reference and the prime contract contained a "disputes clause". 3A contends that these cases support its assertion that the prime contract arbitration clause in the case at bar was not incorporated by reference into the subcontract. 3A's reliance on these cases is somewhat misleading because 3A gives an overly expansive reading to the term "disputes clause" as utilized in the federal cases. In the seminal case of Fanderlik-Locke Co. v. United States ex rel. Morgan, 285 F.2d 939 (10th Cir.1960), cert. denied, 365 U.S. 860, 5 L.Ed.2d 823, 81 S.Ct. 826 (1961), a subcontractor sought to recover from the prime contractor and the bondsman under the Federal Miller Act the value of labor performed and materials installed beyond that provided for in the subcontract. On appeal, the circuit court reversed the trial court judgment in favor of the subcontractor on the ground that the subcontractor had failed to exhaust his administrative remedies as required by the "disputes clause" of the prime *412 contract. Upon reconsideration following rehearing, the circuit court withdrew its former opinion and affirmed the judgment in favor of the subcontractor. Fanderlik-Locke, 285 F.2d at 941. According to the court, the subcontract provided that the subcontractor should furnish material and perform labor in accordance with the general conditions of the contract between the owner and the contractor and "in accordance with the Drawings and the Specifications attached hereto which form a part of a Contract between the Contractor and the Owner * * * and hereby become a part of this Contract." The parties to the subcontract agreed "to be bound by the terms of this Agreement, the A.I.A. General Conditions attached, the drawings and specifications attached as far apprehensible to this subcontract * * *." It was further provided that the subcontractor should be bound to the contractor "by the terms of the Agreement, General Conditions, Drawings and Specifications, and to assume toward him all the obligations and responsibilities that he, by those documents, assumes toward the Owner." Fanderlik-Locke, 285 F.2d at 942. The prime contract was "the standard form of government construction contract in general use at the time of its execution" and it contained the following "disputes clause": "Except as otherwise provided in this contract, any dispute concerning a question of fact arising under this contract which is not disposed of by agreement shall be decided by the Contracting Officer, who shall reduce his decision to writing and mail or otherwise furnish a copy thereof to the Contractor. Within 30 days from the date of receipt of such copy, the Contractor may appeal by mailing or otherwise furnishing to the Contracting Officer a written appeal addressed to the head of the department, and the decision of the head of the department or his duly authorized representatives for the hearings of such appeals shall, unless determined by a court of competent jurisdiction to have been fraudulent, arbitrary, capricious, or so grossly erroneous as necessarily to imply bad faith, be final and conclusive: Provided, That, if no such appeal to the head of the department is taken, the decision of the Contracting Officer shall be final and conclusive * * *. Fanderlik-Locke, 285 F.2d at 941 (quoting dispute clause of the prime contract). The court rejected the prime contractor's contention that the disputes clause of the prime contract was incorporated *413 into the subcontract by reference and, therefore, the subcontractor could not maintain a suit under the Miller Act until a final determination was rendered by the contracting officer as required under the disputes clause. The court noted that the Miller Act was intended to provide security for those who furnish labor and materials in the performance of a government contract and should be liberally construed to effectuate that purpose. The liability of the United States is to the prime contractor and the disputes clause provides only for administrative consideration of claims made by the prime contractor who may seek a remedy in the court of claims if dissatisfied with the administrative disposition. Fanderlik-Locke, 285 F.2d at 942. The subcontractor, on the other hand, has no contract, express or implied, with the government and is afforded no procedure by which to present a claim against the government except as it may become a claim of the prime contractor. The subcontractor has no standing before the Contracting Officer or the Board of Contract Appeals, and no provision is made for the hearing of disputes between a prime contractor and a subcontractor. The remedy for one seeking to recover for labor and materials furnished on a government contract is under the Miller Act, and ordinarily the fact that a prime contractor has a claim for the same amounts pending under the "disputes clause" of the prime contract, does not affect Miller Act cases. (Footnote omitted.) Fanderlik-Locke, 285 F.2d at 942. The court concluded that if the subcontractor is limited to the presentation of his claims as provided for in the "disputes clause" of the prime contract, he has surrendered his right to the benefits of the Miller Act provisions. The findings of the administrative authorities as to the amount he is entitled to recover would be conclusive, unless the court determined them to be "fraudulent, arbitrary, capricious, or so grossly erroneous as necessarily to imply bad faith." An agreement should not be construed to bring about such a result unless it be "manifest by plain language" of the contract. The language of the subcontract manifests no such intention. The subcontract references are to the "general conditions" of the prime contract not the "general provisions," and they relate generally to performance of the subcontract according to specifications, *414 not to the settlement of disputes, or the subcontractor's right to sue under the Miller Act. (Footnote and citations omitted.) Fanderlik-Locke, 285 F.2d at 943. The court stated that it expressed no opinion as to the right of the parties to enter into an agreement that would circumvent the Miller Act. The court simply held that it was not the intention of the parties at bar. Fanderlik-Locke, 285 F.2d at 942. Subsequent cases have employed the Fanderlik-Locke court's analysis in concluding that a subcontractor is not bound to exhaust his administrative remedies as provided in the "disputes clause" of the prime contract before maintaining an action under the Miller Act. Central Steel Erection Co. v. Will, 304 F.2d 548, 551 (9th Cir.1962); H.W. Caldwell & Son, Inc. v. U.S. ex rel. John H. Moon & Sons, Inc., 407 F.2d 21 (5th Cir.1969); Warrior Constructors, Inc. v. Harders, Inc., 387 F.2d 727, 729 (5th Cir.1967); United States ex rel. B's Co. v. Cleveland Elec. Co., 373 F.2d 585, 588 (4th Cir.1967); Washington Metro Area Transit Auth. ex rel. Noralco Corp. v. Norair Eng'g Corp., 553 F.2d 233, 235 (D.C. Cir.1977) (applying reasoning to a non-Miller Act case where statute imposing bond requirement for public works contract was similar to Miller Act); United States ex rel. N.U., Inc. v. Gulf Ins. Co., 650 F. Supp. 557, 558 (S.D. Fla. 1986) (subcontract provision that gives prime contractor the same rights against a subcontractor as the owner has against the subcontractor does not make the disputes clause of the general contract applicable); John W. Johnson, Inc. v. Basic Constr. Co., 429 F.2d 764, 774-76 (D.C. Cir.1970). As noted in United States ex rel. N.U., Inc. v. Gulf Ins. Co., supra, "[c]ompelling the subcontractor to comply with the disputes provision puts it in a vulnerable position, because it must rely on the prime contractor to present its claim." United States ex rel. N.U., Inc., 650 F. Supp. at 558. While the courts have been disinclined to incorporate by reference these prime contract "disputes provisions" which provide for an administrative determination of rights in the *415 absence of the subcontractor, the courts have recognized a distinction when the assertion is that the subcontractor agreed to arbitrate any disputes arising under the subcontract. J.S.&H. Constr. Co. v. Richmond Cy. Hosp. Auth., 473 F.2d 212 (5th Cir.1973) was a diversity case involving a contract to build a university hospital in Georgia. The prime contractor, George A. Fuller Co., was incorporated in Maryland with a principal place of business in New York. The subcontractor, J.S.&H. Construction Co., was a New Mexico company. J.S.&H., 473 F.2d at 213. Fuller, and its surety, Aetna, executed a payment bond which guaranteed prompt payment for labor and materials used in the project. J.S. &H. sued Fuller, Aetna and the Hospital Authority for work and materials supplied on the project. The Hospital cross-claimed against Fuller and Aetna. Fuller and Aetna then moved for a stay of proceedings pending arbitration between J.S.&H. and Fuller. Fuller argued that J.S.&H. had agreed to arbitration by virtue of a clause in the subcontract which incorporated by reference the "General Conditions" of the prime contract — one of the conditions being an agreement to arbitrate. The District Court granted the motion for stay pending arbitration and J.S.&H. appealed requesting a vacation of the stay. J.S.&.H., 473 F.2d at 214. On appeal, J.S.&H. argued that the incorporation of the prime contract's "General Conditions" by reference was ineffective to make the prime contract's arbitration provision a part of the subcontract. Although the case did not arise under the Miller Act, J.S.&H. cited the Federal Miller Act cases for support of its contention. The court framed the issue as "whether the Miller Act cases create a special rule or exception which prevents incorporation of an arbitration provision by general reference" in a subcontract. J.S.&H., 473 F.2d at 215. The court cited extensively from Fanderlik-Locke and noted that the disputes clause provision in that case and the others cited by J.S.&H. amounted "to a virtual forfeiture of the subcontractor's Miller *416 Act rights." J.S.&H., 473 F.2d at 216. The arbitration clause at issue in J.S.&H. was distinguishable. J.S. & H.'s position under the arbitration provision at issue in this case is significantly different from the position the subcontractors would have occupied under the disputes clause in the Miller Act cases. Under the arbitration provision J.S. & H. does not lose its right to press its claim against Fuller and need not passively rely on Fuller's presentation of a corresponding claim to the Hospital Authority. The arbitration procedure provided contemplates participation by both prime and subcontractor, and J.S. & H. may pursue and protect its own interests in the proceedings. The arbitrator's award may later be subjected to judicial scrutiny. A contract provision of this type requiring arbitration before litigation is not a harsh one or, we think, one which a subcontractor would probably not intend to accept by way of a general incorporation by reference. On the contrary, such a contract provision provides a common and rational means for settling contract disputes and accords fully with the policy of the Federal Arbitration Act. We find the rationale of the Miller Act cases inapplicable to the instant case, and hold that the prime contract arbitration provision was incorporated by reference into the subcontract and is binding on appellant J.S. & H. J.S.&H., 473 F.2d at 216. Admittedly, J.S.&H. was not a case arising under the Federal Miller Act. However, the court noted that J.S.&H. stated that the payment bond was required by Georgia state law, but failed to cite any authority for that proposition. Nonetheless, the court stated that even if the applicable Georgia statute had a purpose similar to the Miller Act, the court did not believe that the existence of the statute alone would require following the rationale of the Miller Act cases. J.S.&H., 473 F.2d at 215 n. 8. The reasoning employed in J.S.&H. has been utilized in at least three other non-Miller Act cases. Uniroyal, Inc. v. A. Epstein & Sons, Inc., 428 F.2d 523 (7th Cir.1970) (a precursor to J.S.&H. in which the George A. Fuller Company was the subcontractor who was held to have agreed to the arbitration provision of the prime contract by reference); Maxum Founds., Inc. v. Salus Corp., 779 F.2d 974 (4th Cir.1985); Gibbons-Grable Co. v. Gilbane Bldg. Co., 34 Ohio App.3d 170, 517 *417 N.E.2d 559 (1986). The court in Maxum Founds., Inc. v. Salus Corp., supra, noted that: forcing the [subcontractor] to submit to arbitration does not work a forfeiture of any special rights vested in subcontractors, but merely relegates [the subcontractor] to the dispute forum provided for by an incorporated term of its subcontract.... Maxum Founds., Inc., 779 F.2d at 981. [1] The J.S.&H. court accurately characterized the federal courts' rationale for refusing to permit disputes clauses from being incorporated by reference in subcontracts under the Miller Act. We find the distinction drawn in J.S.&H. between disputes clauses and arbitration clauses persuasive. Accordingly, the cases relied upon by 3A are not controlling. Furthermore, the language of the subcontract between Turner and 3A distinguishes this case from the disputes clause cases cited by 3A. 3A asserts in its brief that "the Federal Miller Act cases long ago established that language identical to that relied upon here by Turner would not operate to incorporate the dispute provisions of the general contract, and thus would not operate to deprive a claimant of its right to sue directly on the bond." Brief of Respondent, at 7. However, in the cases relied upon by 3A, the terms of the subcontract required the subcontractor "to assume toward [the contractor] all the obligations and responsibilities that [the contractor], by [the prime contract], assumes toward the Owner." Fanderlik-Locke Co. v. United States ex rel. Morgan, 285 F.2d at 942. See also United States ex rel. B's Co. v. Cleveland Elec. Co., 373 F.2d at 588; United States ex rel. N.U., Inc. v. Gulf Ins. Co., 650 F. Supp. at 558 (subcontract stated that the contractor shall have "the same rights and privileges" against the subcontractor as the owner in the general contract had against the contractor). As stated in H.W. Caldwell & Son, Inc., before a subcontractor will be held contractually bound to the procedure set out in the principal contract's "disputes" clause, there must be a provision in the contract between the sub and the prime making the "disputes" clause expressly applicable. *418 In the instant case there is no such clause but only a general incorporation by reference of the terms of the principal contract. We hold that this refers only to the quality and manner of the subcontractor's work, not the rights and remedies he may have against the prime contractor. H.W. Caldwell & Son, Inc. v. U.S. ex rel. John H. Moon & Sons, Inc., 407 F.2d at 23. Subcontract references to the "general conditions" of the prime contract and not the "general provisions" generally relate to the "performance of the subcontract according to specifications, not to the settlement of disputes, or the subcontractor's right to sue under the Miller Act." Fanderlike-Locke Co. v. United States ex rel. Morgan, 285 F.2d at 943. Article 2 of the subcontract in the case at bar states in pertinent part: and the Subcontractor agrees further that Turner shall have the same rights and remedies as against the Subcontractor as the Owner under the terms and provisions of the General Contract and the other Contract Documents has against Turner with the same force and effect as though every such duty, responsibility, right or remedy were set forth herein in full. (Italics ours.) In the text of 3A's brief, this portion of article 2 is deleted and replaced with ellipses. Brief of Respondent, at 2. Unlike the vague reference to "rights", "responsibilities" and "obligations" found in the aforementioned disputes clause cases, the subcontract in the case at bar specifically states that Turner will have the same "remedies" against 3A as the State has against Turner.[1] The term "remedy" means "the legal means to recover a right or to prevent or obtain redress for a wrong." Webster's Third New International Dictionary 994 (1971). We hold that 3A's explicit agreement to afford *419 Turner the same remedies that the State would have against Turner effectively bound 3A to submit to arbitration should Turner demand that forum for dispute resolution.[2] For the reasons set forth above, the decision of the trial court denying appellants' motion for a stay pending arbitration is reversed and the case remanded for further proceedings.[3] Review denied at 124 Wn.2d 1006 (1994). NOTES [1] United States Steel Corp. v. Turner Constr. Co., 560 F. Supp. 871 (S.D.N.Y. 1983) appears to be the only case that contains the same "rights and remedies" language as the subcontract in the case at bar. Although United States Steel Corp. was a non-Miller Act case, the court employed the reasoning of the disputes clause cases to preclude incorporation by reference of a forum selection clause. The case is of no utility in our analysis because the implications of the "rights and remedies" language in the subcontract were not considered by the court. [2] We note that under the language of the subcontract, no reciprocal right to arbitration is granted to 3A. Accordingly, we conclude that 3A did not waive its right to file a claim under the Miller Act only that 3A agreed to submit the claim to arbitration should Turner demand that forum. [3] 3A has requested an award of attorney fees on appeal pursuant to RCW 39.08.030 which states in pertinent part: "... in any suit or action brought against such surety or sureties by any such person or corporation to recover for any of the items hereinbefore specified, the claimant shall be entitled to recover in addition to all other costs, attorney's fees in such sum as the court shall adjudge reasonable ...". The request for attorney fees is premature because 3A has yet to prevail in its action on the bond. Accordingly, the request for attorney fees is denied.

567 F.Supp. 440 (1983) Charles D. SIMONS v. Margaret M. HECKLER, Secretary of Health and Human Services. Civ. A. No. 83-1458. United States District Court, E.D. Pennsylvania. July 22, 1983. *441 Richard L. Colden, Jr., Drexel Hill, Pa., for plaintiff. Edward T. Ellis, Asst. U.S. Atty., Edward S.G. Dennis, Jr., U.S. Atty., Philadelphia, Pa., for defendant. MEMORANDUM OPINION AND ORDER WEINER, District Judge. This action was brought under 42 U.S.C. § 405(g) to review a final decision of the Secretary of Health and Human Services ("Secretary") to terminate plaintiff's disability benefits under Title II of the Social Security Act, as amended. The plaintiff, Charles D. Simons ("Simons"), was originally found to have been disabled as of April 17, 1970 due to a psychotic depressive reaction which matched a disability listed in Appendix 1 to 20 C.F.R. § 404.1520(d). On March 16, 1982 the Disability Determination Division of the Social Security Administration notified Simons, after a review of his file, that his disability no longer precluded him from engaging in substantial gainful activity and that his disability benefits were being terminated. This determination was affirmed on reconsideration by the Social Security Administration. Simons, represented by counsel, presented his claim de novo before an Administrative Law Judge ("ALJ") who found that Simons' impairments no longer matched an impairment listed in Appendix 1 and that his impairments did not prevent him from engaging in substantial gainful activity of a sedentary nature as of March 1982. This determination became the final determination of the Secretary when the Appeals Council denied review of the ALJ's decision on March 8, 1983. This matter is before us on cross-motions of the parties for summary judgment. For the reasons which follow we grant plaintiff's motion for summary judgment and reverse the decision of the Secretary. FACTS AND MEDICAL EVIDENCE Simons began experiencing difficulties in November 1967 when he suffered an apparent heart attack which was later diagnosed as an anxiety attack. (Tr. 139) Simons returned to his work as a certified public accountant in March 1968 and began receiving outpatient psychotherapy from Dr. Wren. In January 1970 Simons had a severe intensification of his symptoms: weakness in the legs, chest pains, muscle spasming. *442 (Tr. 168) In April 1970 he stopped working as a result of his condition. He has not returned to work since then and he was awarded disability benefits, based on a diagnosis of psychotic depressive reaction, as of April 1970. Simons was a patient for three weeks at the Philadelphia Psychiatric Center in June 1970 for treatment of what was diagnosed as depressive neurosis. (Tr. 137) Currently Simons lives at home. At home he performs most of the housework. He and his wife socialized exclusively with another couple until recently when the couple moved away. (Tr. 53) Simons still complains of a physical reaction to anxiety caused by being away from his home. (Tr. 39) He also has taken to drinking heavily and has trouble dealing with his family. Dr. Secunda, Simons' treating psychiatrist since 1973, has diagnosed him as having a borderline personality disorder with a poor prognosis. (Tr. 181) Dr. Secunda's therapy at this time is "primarily supportive" with only periodic visits (4 to 6 per year) and minimal medication. It was his medical opinion that there is little chance of Simons ever returning to the job market in any capacity. (Tr. 181) Simons was also examined, on May 2, 1982, by Leonard M. Paul, Ed.D., a psychologist and vocational expert, who reported that it was unlikely that Simons could engage in substantial gainful employment. (Tr. 170) Dr. Paul diagnosed Simons as having agoraphobia with panic attacks, psychological factors affecting his physical condition, and alcohol dependence. Dr. Secunda attributed such factors to Simons' borderline personality disorder. Both doctors reported that Simons' physical symptoms of weakness in the legs, chest pains and muscle spasming were a product of his psychological disorders. Dr. Goppelt, a psychiatrist, interviewed Simons at the request of the Social Security Agency on March 8, 1982 and found him to be "alert, polite, oriented and superficially cooperative" but also "insincere." (Tr. 153) Dr. Goppelt disagreed with the diagnosis of borderline personality disorder and instead reported that Simons' problems stemmed from chronic alcoholism. Dr. Goppelt did not report whether he felt that Simons' condition had originally been alcoholism or whether alcoholism had replaced a previous psychological disorder. Even with the diagnosis of chronic alcoholism, Dr. Goppelt stated that Simons' prognosis was poor. (Tr. 154) Dr. Goppelt made no evaluation of Simons' ability to work although he did report that Alcoholics Anonymous might be a better treatment than Simons' current psychotherapy. (Tr. 154) A vocational expert, Mr. Robert Wolf, testified at the administrative hearing as to the availability and suitability of employment after being advised of Simons' previous skills and certain hypothetical medical conditions. Mr. Wolf did not base his opinions on his own observations of Simons, but rather on the hypothetical situations posed by the ALJ. Mr. Wolf testified that if Simons suffered from the disabilities he alleged, then he would be unable to perform his previous work or transfer his prior skills to any other work. However, Mr. Wolf was able to list a number of occupations which Simons could engage in assuming, as he was asked to, that Simons "can get along with other people, relates with other people, that he is alert, he has a good memory, exercises good judgment." (Tr. 79-80) These occupations included credit analyst, small business loan analyst, general bookkeeping work, property manager, personel [sic] interviewer and office manager. ALJ FINDINGS The ALJ found that Simons' previous work as a certified public accountant required "substantial contact with co-workers and exceptional mental capabilities, particularly the ability to deal effectively with stress, mental pressure and frustration." (Tr. 15) He further found that Simons has a borderline personality disorder which, because of the nature of the disorder, prevents him from engaging in his previous work. However, Simons was found to be able to transfer his skills to the other sedentary jobs to which Mr. Wolf had testified. By accepting Mr. Wolf's testimony that Simons *443 was able to engage in other specific jobs in the national economy, it appears that the ALJ relied upon the hypothetical situation which he posited in his presentation of Simons' case to Mr. Wolf. As noted earlier, that hypothetical situation required Mr. Wolf to assume that Simons could get along with other people and relate to them. This is contrary to the ALJ's basis for finding that Simons could not return to his previous work. SCOPE OF JUDICIAL REVIEW The process to be used by the ALJ in evaluating disability claims has been set out by the United States Court of Appeals for the Third Circuit as follows: There is a two-pronged test for social security act disability: (1) determination of the extent of disability; and (2) determination whether that impairment results in inability to engage in substantial gainful activity. A claimant satisfies her initial burden of proof by showing that she is unable to return to her customary occupation. E.g., Stark v. Weinberger, 497 F.2d 1092 (7th Cir.1974); Baker v. Gardner, 362 F.2d 864 (3d Cir.1966). Once she has made such a demonstration, the burden of proof shifts to the Secretary to show that the claimant, given her age, education, and work experience, has the capacity to perform specific jobs that exist in the national economy. E.g., Lewis v. Weinberger, 541 F.2d 417 (4th Cir. 1976); Hernandez v. Weinberger, 493 F.2d 1120 (1st Cir.1974). Rossi v. Califano, 602 F.2d 55, 57 (3d Cir. 1979). Simons satisfied his initial burden of proof by presenting the reports of Drs. Secunda and Paul stating that he was unable to return to work as a certified public accountant. The ALJ, in his findings, stated that Simons could not return to his previous employment and there was no evidence to the contrary. The burden was thus on the Secretary to show that Simons had the capability to do specific jobs which exist in the national economy. The ALJ found that the Secretary had satisfied this burden and therefore found Simons not to be disabled. Under 42 U.S.C. § 405(g) we are bound by any factual finding which is supported by "substantial evidence." "Substantial evidence" has been defined as "such relevant evidence as a reasonable mind might accept as adequate to support a conclusion." Dobrowolsky v. Califano, 606 F.2d 403, 407 (3d Cir.1979). In evaluating whether the ALJ's findings are supported by substantial evidence, we must determine whether or not the ALJ has taken all the evidence into account. This requires more than setting out the evidence upon which he relies; the ALJ must also explain his rejection of evidence that conflicts with his findings of fact. Cotter v. Harris, 642 F.2d 700 (3d Cir.1981). In the case sub judice the ALJ failed to adequately consider the probative evidence of both Simons' treating psychiatrist, Dr. Secunda, and Dr. Paul. While the ALJ set out all the evidence regarding Simons' condition in his "Evaluation of the Evidence," he did not explain why he rejected the medical opinion of Drs. Secunda and Paul that Simons was unable to do any substantial gainful work. The ALJ found that Simons had a borderline personality disorder which prevented him from engaging in his previous work but which failed to prevent him from engaging in some other form of work. The ALJ points to no medical evidence in the record to support this conclusion. The other relevant evidence, while not always in agreement with that of Drs. Secunda and Paul, fails to support the ALJ's findings of fact. Dr. Goppelt disagreed with the diagnosis of Dr. Secunda but still felt that Simons was a chronic alcoholic with a poor prognosis. The ALJ did not rely on Dr. Goppelt's diagnosis of chronic alcoholism in his finding that Simons could not return to his previous work. Further, Dr. Goppelt expressed no opinion as to Simons' ability to do work. Mr. Wolf's testimony as to available work was based on a hypothetical situation rather than Simons' condition. Thus it would seem that the *444 ALJ relied primarily on his own observations of Simons at the hearing to support his finding of an ability to do work. In so doing the ALJ noted that "[h]e (Simons) interacted well, and his questions displayed adequate memory, the ability to concentrate, relevance and coherence, and the absence of significant limitations in overall intellectual fuctioning (sic)." (Tr. 14) The ALJ's lay observations, however, do not constitute substantial evidence in the face of contrary medical evidence. Lewis v. Califano, 616 F.2d 73 (3d Cir.1980). This applies to lay observations about mental as well as physical conditions. Kelly v. Railroad Retirement Bd., 625 F.2d 486 (3d Cir. 1980); Lewis v. Weinberger, 541 F.2d 417 (4th Cir.1976). The ALJ also appears to have based his conclusions as to Simons' ability to work on Simons' apparent unwillingness to engage in more active treatment for his illness. He stated that "[t]he record shows that claimant's problems are responsive to treatment, but that he has not actively sought it, and could not satisfactorily explain such refusal." (Tr. 14) A refusal of prescribed treatment can form the basis of a denial of disability benefits. 20 C.F.R. § 404.1530 (1982); Cooper v. Richardson, 333 F.Supp. 249 (S.D.W.Va.1971). In the case sub judice, there is no evidence that Simons has refused any treatment from his treating psychiatrist, Dr. Secunda. The ALJ is apparently referring to Simons' failure to attend an agoraphobia clinic recommended by Dr. Paul during his one-time examination of Simons. Simons testified that he did not want to go because "I'm scared to death to do it" and "the thought just terrifies me." (Tr. 47) While these excuses may seem irrational, they are consistent with the symptomatology of borderline personality disorder. Further, there is little evidence as to the expected effectiveness of treatment since Dr. Paul made no recommendation about treatment in his report. See, Stephens v. Ribicoff, 307 F.2d 304 (4th Cir. 1962). Dr. Goppelt's recommendation that Simons attend Alcoholics Anonymous was similarly based on one interview with Simons and there was no indication that the therapy would improve Simons' ability to work. Also, given the ALJ's acceptance of Simons' agoraphobia, it is questionable whether this treatment would be consistent with that finding. Thus the ALJ's findings are not supported by substantial evidence both because of the ALJ's use of the available evidence and his apparent use of impressible considerations. There is no medical evidence to contradict the reports of Drs. Secunda and Paul that state that Simons cannot perform any substantial gainful activity. While Dr. Goppelt, in his report, may disagree with the diagnosis of the other two doctors, he does not provide evidence which supports the ALJ's finding that Simons can perform other work. The testimony of Mr. Wolf also fails to provide support of substantial evidence since it was based on hypothetical conditions which must themselves be supported by substantial evidence before they are of any value. We also note that the ALJ found that Simons could not perform his previous work because it involved substantial dealings with co-workers and ability to deal with stress and frustration. Yet, the ALJ found that Simons was capable of working as a personnel interviewer or office manager in his finding that Simons could transfer his skills to other jobs in the national economy. This case involves more than just a failure by the ALJ to explain why he chose one piece of evidence over another. Rather, it involves the ALJ making a finding of fact which contradicts some evidence without being supported by other evidence. Since the ALJ's finding that Simons can work, as adopted by the Secretary when she refused to review the ALJ's decision, is not supported by substantial evidence, and since there is substantial evidence that Simons is disabled, we reverse the Secretary and remand this case to the Secretary to determine benefits.

499 F.Supp. 507 (1980) RCA CORPORATION, Plaintiff, v. UNITED STATES of America, Defendant. No. 69-Civ. 2633. United States District Court, S. D. New York. August 14, 1980. *508 Cahill Gordon & Reindel, New York City, for plaintiff; Walter C. Cliff, George Wailand, James S. Kaplan, New York City, of counsel. John S. Martin, Jr., U. S. Atty. for the Southern District of New York, New York City, for defendant; William G. Ballaine, Asst. U. S. Atty., New York City, of counsel. LASKER, District Judge. RCA Corporation ("RCA") sues for a refund of nearly $6,000,000 of federal income taxes it paid for 1958 and 1959, plus deficiency interest paid and interest accrued on these amounts. After lengthy but unsuccessful efforts to negotiate a settlement, as well as time-consuming meetings to reach agreement on the facts, the parties executed a comprehensive stipulation of facts. At trial, RCA presented the testimony of an accounting expert who was the sole witness. This memorandum embodies the court's conclusions of law, based on the stipulated facts and testimony. At issue is the extent to which a taxpayer may properly rely on the accrual method of accounting in computing its income for tax purposes. The case involves service contracts made in 1958 and 1959 between RCA and purchasers of new television sets. Under those contracts, the purchaser generally paid RCA a lump sum at the time of purchase, and, in return, RCA agreed to service the television anytime trouble developed over a specified period of from three to twenty-four months. Prior to 1958, such contracts were offered by RCA Service Company, Inc. ("RCAS"), a wholly owned subsidiary of RCA, which was merged into RCA on December 31, 1957, and subsequently operated as a separate corporate division. Both RCAS and RCA kept their books on an accrual basis. The amounts received from the sale of service contracts were initially divided between that portion to be treated as revenue immediately, which covered the costs of selling and processing the contract, plus a profit, and that portion to be treated as unearned revenue, which was credited to a reserve account. Each month throughout the life of the contract a portion of this reserve was credited to revenue, based on statistically derived schedules designed to take into account as revenue each month that portion of prepaid service contract receipts attributable to the services performed that month under such contracts. This scheme was intended to ensure that such receipts were treated as revenue from *509 month to month only in proportion to related expenses incurred, and thus that RCA's income—the difference between its revenues and expenses—was accurately reflected in its books. In computing its 1958 and 1959 income for tax purposes, RCA employed the same method of accounting that it used in keeping its own books. Thus, in reporting its income for those years for tax purposes, RCA only included in income those portions of the amounts received each year from the sale of service contracts that were treated as immediate revenue attributed to the administrative costs of selling the contracts, or attributed, according to RCA's calculations, to services performed during that year. The remainder of the amounts received each year from the sale of service contracts was not included in income for that year, but carried over as a reserve and included in income for subsequent years. In auditing RCA's returns for 1958 and 1959, the Commissioner concluded that RCA's method of spreading the recognition as revenue of prepaid service contract receipts over the life of the contracts did not "clearly reflect income," as required under I.R.C. § 446(a). Invoking his authority under I.R.C. § 446(b), the Commissioner treated RCA's prepaid receipts as revenue in the year received, and recomputed RCA's taxes on that basis. RCA paid the assessments, then commenced this suit to recover them. The mechanics of RCA's method for accruing prepaid service contract revenue are set forth fully in the stipulation of facts. Briefly stated, RCA treated all contracts of a particular length entered into during a particular month as a single category. Drawing on its past experience, RCA developed statistical estimates of the percentage of all the service calls expected to be made under contracts of a particular category that would be made during each month of those contracts' term. These estimates were aggregate figures: RCA did not purport to predict when individual televisions covered by contract within a given category would require service, but only the incidence of service calls under such contracts. RCA continuously refined these estimates in light of its continuing experience. These estimates of relative monthly service call volume provided the basis for RCA's monthly allocation to revenue of a portion of its receipts from the sale of contracts in each category, and ultimately for the recognition of those receipts as revenue in tax years other than that in which they were received. For instance, RCA's projections indicated that 4.33% of all service calls that would be required under all one-year service contracts entered into in September, 1959, would be made in September of that year, 9.08% in October, 7.87% in November, and 8.71% in December. The remaining service calls would all occur during the first nine months of 1960. Consequently, for tax purposes RCA treated as revenue in 1959 (in addition to the amounts treated as immediate revenue attributable to the costs of selling and processing contracts) only 29.96% of the amounts it received in September, 1959 from the sale of one year service contracts. The remainder would have been treated as revenue in 1960, had the Commissioner not intervened and insisted that RCA treat all amounts received in 1959 as revenue in 1959. RCA contends that its accrual method of accounting did "clearly reflect income," and consequently that the Commissioner lacked authority under the Code to require RCA to adopt a different method. Alternatively, RCA argues that it is entitled to a refund of about 75% of the assessments it paid because a Revenue Procedure, Rev.Proc. 71-21, 1971-2 C.B. 549, and related Revenue Ruling, Rev.Rul. 71-299, 1971-2 C.B. 218, promulgated by the Commissioner in 1971, which permit a limited use of accounting procedures like that employed by RCA in 1958 and 1959, are retroactive in effect. The Government responds, first, that it was within the Commissioner's discretion to find that RCA's accounting method did not "clearly reflect income," and therefore to require RCA to use a different method; second, that the Revenue Procedure and Revenue Ruling on which RCA relies do not have retroactive effect; and third, that in *510 any event RCA is not entitled to a refund for taxes paid in 1958 and 1959 because RCA was required to, but did not, obtain the consent of the Commissioner before employing its accrual method in computing its income for tax purposes, since RCAS had never done so. See I.R.C. § 381(c)(4). I. Prior to 1916, the Revenue Acts recognized only the "cash receipts and disbursements" method of accounting. However, in the Revenue Act of 1916 Congress provided that a corporate taxpayer that kept its books on some basis other than actual receipts and disbursements could report its income on the same basis, "unless such other basis does not clearly reflect its income." Revenue Act of 1916, c. 463, § 13(d), 39 Stat. 756. The purpose of the new provision "was to enable taxpayers to keep their books and make their returns according to scientific accounting principles, by charging against income earned during the taxable period, the expenses incurred in and properly attributable to the process of earning income during that period." United States v. Anderson, 269 U.S. 422, 440, 46 S.Ct. 131, 134, 70 L.Ed. 347 (1926). This provision of the 1916 Act is reflected today in section 446 of the Internal Revenue Code of 1954, which provides: "(a) General Rule.—Taxable income shall be computed under the method of accounting on the basis of which the taxpayer regularly computes his income in keeping his books. (b) Exceptions.—If no method of accounting has been regularly used by the taxpayer, or if the method used does not clearly reflect income, the computation of taxable income shall be made under such method as, in the opinion of the Secretary, does clearly reflect income. (c) Permissible methods.—Subject to the provisions of subsections (a) and (b), a taxpayer may compute taxable income under any of the following methods of accounting— (1) the cash receipts and disbursements method; (2) an accrual method; ...." The first and principal question to be resolved here is whether the accrual method of accounting, as implemented by RCA, "clearly reflects income" within the meaning of section 446(a).[1] A. The Government relies principally on a trilogy of decisions of the United States Supreme Court: Automobile Club of Michigan v. Commissioner, 353 U.S. 180, 77 S.Ct. 707, 1 L.Ed.2d 746 (1957), American Automobile *511 Association v. United States, 367 U.S. 687, 81 S.Ct. 1727, 6 L.Ed.2d 1109 (1961), and Schlude v. Commissioner, 372 U.S. 128, 83 S.Ct. 601, 9 L.Ed.2d 633 (1963). In each of these cases the Court upheld the Commissioner's determination that the accrual method of accounting used by the taxpayer did not clearly reflect income; the Government argues here that together they establish that the Commissioner may reject the use, for tax purposes, of any accounting method which defers until subsequent tax years the inclusion in gross income of payments received for services to be rendered at unspecified dates in the future. In the first case in the trilogy, Automobile Club of Michigan v. Commissioner, 353 U.S. 180, 77 S.Ct. 707, 1 L.Ed.2d 746 (1957) ("Michigan"), the automobile club provided a variety of services to its members, at their request, such as road maps and highway repairs. Membership dues were collected annually, in advance. On its books, the club recorded one-twelfth of each dues payment as revenue each month of the membership year. For tax purposes, it reported its gross income as recorded on its books. Thus, it did not include the full amount of each dues payment in its gross income for the tax year in which it was received. Instead dues payments were split, one portion included in gross income for the tax year of receipt, the remainder in gross income for the following tax year, in proportion to the number of months of the membership year which fell within each tax year. The Court, holding that this method of accounting did not clearly reflect income, expressed its rationale in a single sentence: "The pro rata allocation of the membership dues in monthly amounts is purely artificial and bears no relation to the services which petitioner may in fact be called upon to render for the member." Id. at 189. In a footnote, the Court distinguished Beacon Publishing Co. v. Commissioner, 218 F.2d 697 (10th Cir. 1955), in which it was held that the Commissioner exceeded his authority in requiring the taxpayer to treat sums received for prepaid newspaper subscriptions as revenue during the year they were received, rather than over the life of the subscriptions, and Schuessler v. Commissioner, 230 F.2d 722 (5th Cir. 1956), in which the court rejected the Commissioner's attempt to require the taxpayer to treat as revenue during the year received that portion of receipts from the sale of gas furnaces which was properly attributable to the taxpayer's contractual obligation to turn the furnaces on and off each year for five years: "In Beacon, performance of the subscription, in most instances, was, in part, necessarily deferred until the publication dates after the tax year. In Schuessler, performance of the service agreement required the taxpayer to furnish services at specified times in years subsequent to the tax year. In this case, substantially all services are performed only upon a member's demand and the taxpayer's performance was not related to fixed dates after the tax year." 353 U.S. at 189 n.20, 77 S.Ct. at 712 n.20. In many respects, the parties' contrary positions here are reflected in these two quotations. RCA, relying on the statement quoted from the text of the decision, contends that the teachings of this decision and the subsequent decisions in the trilogy is simply that an accounting method that is "purely artificial" is not acceptable, but that a method which can be shown to accurately record related revenues and expenses in the proper accounting period is not. The Government, relying on the quotation from the footnote, argues that the Commissioner may reject any method for deferring recognition of receipts as revenue, no matter how accurately it matches revenues and expenses, if "the contract revenues in question are tied to future services to be performed without relation to fixed dates in the future." We conclude that RCA's position is the correct one. In our view, the subsequent decisions of the Supreme Court establish that the fact that the services paid for are not to be performed on fixed dates is not in and of itself determinative, but is significant only insofar as it throws light on the question whether the challenged accounting method is "artificial" because it *512 fails adequately to ensure that receipts are included in gross income in any tax year only in proportion to related expenses incurred during that year. Two years after the Supreme Court's decision in Michigan, the Second Circuit, in Bressner Radio, Inc. v. Commissioner, 267 F.2d 520 (2d Cir. 1959), nonacq., Rev.Rul. 60-85, 1960-1 C.B. 181 (1960), adopted the interpretation of Michigan which RCA urges here. The facts in Bressner were virtually identical to those of the case at hand: Like RCA, Bressner sold televisions and entered into written contracts to service them. Bressner's service contracts, unlike RCA's, covered initial installation as well as service, and were available for a twelve month term only. Bressner received between $80 and $100 for each contract, the initial cost of installation was approximately $19, and Bressner's experience showed that an average of 8 to 12 service calls would be made during the term of each contract. Accordingly, Bressner treated 25% of the contract price as revenue at time it was received, to cover the costs of installation, and "deferred the balance over the twelve month period of the contract." Id. at 521. The Second Circuit found that this method of accounting did clearly reflect income, that the method which the Commissioner sought to substitute for it (which is similar to the method the Commissioner employed here in recomputing RCA's income for 1958 and 1959) and grossly distorted income, and held that the Commissioner overstepped his authority in rejecting Bressner's method in favor of his own. Distinguishing the Supreme Court's decision in Michigan, the Second Circuit stated: "It is apparent from the decision of the majority that at least for purposes of the decision of the case it assumed that a realistic deferral would have been permissible, and found only that no realistic deferral was made.... The majority appears to have proceeded from an assumption that accrual accounting would be acceptable tax practice." Id. at 526-27. The court found that unlike the taxpayer in Michigan, Bressner had proven that its deferral method was "realistic": "There is nothing apparently artificial about the petitioner's method of deferral here. Drawing on its experience with thousands of contracts it has demonstrated that it was subjected to a reasonably uniform demand for services, so that it could and did anticipate that the expenses incident to the performance which alone would entitle it to regard the sum received as earned would be distributed across the life of the contract. It therefore deferred revenues until they were earned, and thus matched them with foreseeably related expenses, which is the essential purpose of accrual accounting." Id. at 528. It is clear that if Bressner were the last word on the issue, RCA would prevail here. The question, however, is whether subsequent decisions of the Supreme Court have limited or overruled Bressner, and if so to what extent. The second decision in the trilogy is American Automobile Association v. United States, 367 U.S. 687, 81 S.Ct. 1727, 6 L.Ed.2d 1109 (1961) ("AAA"). There the taxpayer, also an automobile club, had accounted for membership dues using the same method as the taxpayer in Michigan —that is, it had recorded dues as revenue on its books ratably over the twelve month membership period, thereby including dues payments in its gross income each tax year only to the extent that that tax year coincided with the membership period. However, in AAA the taxpayer presented "expert accounting testimony indicating that the system used was in accord with generally accepted accounting principles; that its proof of cost of member service was detailed; and that the correlation between that cost and the period of time over which the dues were credited as income was shown and justified by proof of experience." Id. at 691, 81 S.Ct. at 1729. Relying on this testimony, the taxpayer argued that it had demonstrated that its method of deferring the recognition of revenue ratably was not "artificial." *513 The Court of Claims rejected this argument, and the Supreme Court, "[r]ecognizing a conflict between the decision below and that in Bressner Radio, Inc. v. Commissioner," id. at 689, 81 S.Ct. at 1728, granted certiorari. In affirming the Court of Claims' decision on remand, the Court relied on its earlier decision in Michigan, stating that its earlier holding, "that the system of accounting was `purely artificial[,]' was based upon the finding that `substantially all services are performed only upon a member's demand and the taxpayer's performance was not related to fixed dates after the tax year.'" Id. (quoting 353 U.S. at 189 n.20, 77 S.Ct. at 712 n.20). Responding to the taxpayer's argument that the proof at trial established that in the aggregate it provided services to its members evenly throughout the year (despite the fact that it was impossible to know beforehand when any individual member would seek services), and therefore that it was justified in recognizing membership dues as revenue ratably over the membership year, the Court remarked: "[O]ther findings merely reflecting statistical computations of average monthly cost per member on a group or pool basis are without determinate significance to our decision that the federal revenue cannot, without legislative consent and over objection of the Commissioner, be made to depend upon average experience in rendering performance and turning a profit. Indeed, such tabulations themselves demonstrate the inadequacy from an income tax standpoint of the pro rata method of allocating each year's membership dues in equal monthly installments not in fact related to the expenses incurred. Not only did individually incurred expenses actually vary from month to month, but even the average expenses varied-recognition of income nonetheless remaining ratably constant." Id. at 693, 81 S.Ct. at 1730.[2] It would be less than candid to say that we do not find this passage to be cryptic. While it appears to reject out of hand the use of "statistical computations" made on a "group or pool basis" in computing income for tax purposes, it provides as a rationale for doing so only the observation that the taxpayer's pro rata deferral method did not in fact accurately match revenues and expenses. If read broadly as a blanket proscription of the use of statistical computations of average cost "on a group or pool basis," it presents a formidable hurdle to RCA's recovery in this case. We believe, however, that in view of its opacity, and in the light of subsequent decisions, the passage should be more narrowly construed. Indeed, shortly after the decision in AAA, the Second Circuit went out of its way to state its conclusion that the Supreme Court's decision in no way impaired the vitality of Bressner, a case in which deferral was allowed based on "the taxpayer's statistics show[ing] a definite monthly business experience and financial expectancy." Automobile Club of New York, 304 F.2d 781, 784 (2d Cir. 1962). This brings us to the third decision of the trilogy, Schlude v. Commissioner, 372 U.S. 128, 83 S.Ct. 601, 9 L.Ed.2d 633 (1963). In this case, the taxpayers had prevailed in the Court of Appeals, which rendered its decision prior to the Supreme Court's decision in AAA. On the Commissioner's appeal to the Supreme Court, the case was remanded for further consideration in light of AAA, and the Court of Appeals reversed its position *514 and upheld the Commissioner. The Supreme Court "brought the case back once again to consider whether the lower court misapprehended the scope of" AAA, id. at 130, 83 S.Ct. at 602, which may indicate that AAA may not cut so wide a swath as its broad language would suggest. Though the Court did affirm the Court of Appeals' determination that the accrual method employed by the taxpayers in Schlude did not "clearly reflect income," this does not, in view of the facts in Schlude, necessarily indicate that the Court endorsed a broad reading of AAA. To the contrary, we believe that Schlude, by implication, narrowed the scope of AAA. The taxpayers in Schlude, who operated dance studios, sold contracts for specified numbers of hours of dance lessons, ranging from five to 1,200. The contracts specified the period during which the lessons had to be taken, but the actual dates of lessons were arranged from time to time as they were taken. Under the contracts, the student was obliged to pay the full contract price whether or not any or all of the lessons were actually taken. The Court summarized the taxpayers' method of accounting for the amounts received under these contracts as follows: "When a contract was entered into, a `deferred income' account was credited for the total contract price. At the close of each fiscal period, the student record cards were analysed and the total number of taught hours was multiplied by the designated rate per hour of each contract. The resulting sum was deducted from the deferred income account and reported as earned income on the financial statements and the income tax return. In addition, if there had been no activity in a contract for over a year, or if a course were reduced in amount, an entry would be made canceling the untaught portion of the contract, removing that amount from the deferred income account, and recognizing gain to the extent that the deferred income exceeded the balance due on the contract, i. e., the amounts received in advance.... The balance of the deferred income account would be carried forward into the next fiscal year to be increased or decreased in accordance with the number of new contracts, lessons taught and cancellations recognized." Id. at 131-32, 83 S.Ct. at 603. The Court held that it was proper for the Commissioner to reject this method of accounting as not clearly reflecting income, finding the question "squarely controlled" by AAA. The Court concluded that the system employed by the taxpayers suffered from the same vice as the systems disallowed in Michigan and AAA, "since the advance payments related to services which were to be performed only upon customers' demands without relation to fixed dates in the future." The Court's analysis, however, establishes that this fact was significant only because it ensured that the accounting method the taxpayers employed could not accurately match revenues and related expenses: "[T]he studio sought to defer its cash receipts on the basis of contracts which did not provide for lessons on fixed dates after the taxable year, but left such dates to be arranged from time to time by the instructor and his student. Under the contracts, the student could arrange for some or all of the additional lessons or could simply allow their rights under the contracts to lapse. But even though the student did not demand the remaining lessons, the contracts permitted the studio to insist upon payment in accordance with the obligations undertaken and to retain whatever prepayments were made without restriction as to use and without obligation of refund. At the end of each period, while the number of lessons taught had been meticulously reflected, the studio was uncertain whether none, some or all of the remaining lessons would be rendered." Id. at 135-36, 83 S.Ct. at 605 (emphasis added). In a footnote, the Court further explained its reasoning: "The treatment of `gains from cancellations' underlines this aspect of the case. These gains, representing amounts paid *515 or promised in advance of lessons given, were recognized in those periods in which the taxpayers arbitrarily decided the contracts were to be deemed canceled. The studio made no attempt to report estimated cancellations in the year of receipt, choosing instead to defer these gains to periods bearing no economic relationship to the income recognized." Id. at 136 n. 9, 83 S.Ct. at 605 (emphasis added). In light of these passages, it appears that what the Court found "artificial," and therefore impermissible, about the taxpayers' method of accounting for advance payments related to services to be performed "only upon customers' demand without relation to fixed dates in the future" was not that the time of performance was not specified, but rather that the extent of performance was not specified, and consequently there was no assurance that including receipts in gross income to the extent of actual expenses incurred each year was equivalent to including receipts in gross income in proportion to that year's share of total expenses to be incurred over the life of the contract. As the dissent in Schlude points out, this inadequacy could be remedied only through the use of statistical projections of anticipated expenses not unlike those employed by RCA here. And, as the dissenting opinion further indicates, the majority's reference to the use of "estimated cancellations" as the cure for the defect dispels any suggestion that the broad but cryptic language used by the Court in AAA was intended to bar the use of such projections, provided they are adequately supported. See id. at 142, 83 S.Ct. at 608 (Stewart, J., dissenting). A similar view of the trilogy was adopted in Mooney Aircraft, Inc. v. United States, 420 F.2d 400 (5th Cir. 1970). There the court rejected the position which the Government takes here: "The Government argues that Schlude and AAA require that [the cost of performing prepaid services] must arise on fixed dates. But we think that the relevance of the `fixed dates' criteria in Schlude and AAA was that since there were no fixed dates on which services had to be performed, there was no assurance that services would be performed after the tax year.... All that Schlude and AAA would seem to require is that the deferred income is reported as the related costs do in fact occur." Id. at 407-08 (emphasis in original). Though in Mooney the court nonetheless concluded that the taxpayer was not entitled to defer the recognition of revenues for 15, 20, or 30 years until the related expenditure occurred, it did so only because the inordinate length of time involved completely attenuated the relationship between receipt and expenditure and lessened the probability that the expenditure would in fact be paid. Id. at 409-10. Other lower court decisions are not to the contrary. In Artnell Co. v. Commissioner, 400 F.2d 981 (7th Cir. 1968), Boise Cascade Corp. v. United States, 530 F.2d 1367 (Ct. Cl.) cert. denied, 429 U.S. 867, 97 S.Ct. 176, 50 L.Ed.2d 147 (1976), and Morgan Guaranty Trust Co. v. United States, 585 F.2d 988 (Ct.Cl.1978), the courts ruled that the taxpayer was entitled to defer recognition of revenue, although in each case the services involved were to be performed on fixed dates. In Hagen Advertising Displays, Inc. v. Commissioner, 407 F.2d 1105 (6th Cir. 1969), the court ruled that the taxpayer was not entitled to defer the recognition of revenue, but there the taxpayer, which was paid in advance to manufacture advertising signs to be delivered in subsequent tax years, treated the advance payments as revenue only in the year the signs were delivered, even though it often started work on them as soon as it received an order. In our view, the teachings of the trilogy can be briefly summarized as follows: Michigan and AAA establish that a taxpayer may not simply prorate recognition of receipts as revenue over the period in which the service covered by those receipts is to be rendered, because there is no *516 assurance that those services will be rendered ratably over that period. Schlude, on the other hand, establishes that a taxpayer may not, automatically each year, recognize revenue to the extent of actual expenses incurred that year, because there is no assurance that this amount will accurately reflect the portion of the total expenses to be incurred under the contract attributable to that year. In each of these cases the Court found the taxpayers' method of accounting for prepaid receipts "artificial" not, as the Government contends here, because those receipts related to services to be performed at unspecified times in tax years subsequent to that of their receipt, but rather, as RCA argues, because in each case the taxpayers' accounting method failed to account properly for that fact through the use of adequately supported statistical projections. As Schlude makes clear, the use of such projections is essential to any system of accounting on an accrual basis for prepaid revenues covering services to be performed at unspecified times. The Government argues, however, that such projections may not be used in computing income for tax purposes. It relies heavily on the suggestion in AAA that "the federal revenue cannot, without legislative consent and over objection of the Commissioner, be made to depend upon average experience in rendering performance and turning a profit," 367 U.S. at 693, 81 S.Ct. at 1730, and seeks to bolster this suggestion by reference to the following passage from the Supreme Court's recent decision in Thor Power Tool Co. v. Commissioner, 439 U.S. 522, 543, 99 S.Ct. 773, 786, 58 L.Ed.2d 785 (1979): "The primary goal of financial accounting is to provide useful information to management, shareholders, creditors, and others properly interested; the major responsibility of the accountant is to protect these parties from being misled. The primary goal of the income tax system, in contrast, is the equitable collection of revenue; the major responsibility of the Internal Revenue Service is to protect the public fisc.... This difference in objectives is mirrored in numerous differences of treatment.... Financial accounting, in short, is hospitable to estimates, probabilities, and reasonable certainties; the tax law, with its mandate to preserve the revenue, can give no quarter to uncertainty." Id. at 542-43, 99 S.Ct. at 786-87. We find the Government's position unpersuasive. As indicated above, the language the Court used in AAA is far from clear, and must be read in light of the Court's subsequent statements in Schlude. And while it is true that in Thor the Court indicated that the Commissioner, because of his duty to protect the public fisc, must give less quarter to "estimates, probabilities, and reasonable certainties" then a financial accountant may or ought to, the thrust of Thor is that a taxpayer's method of accounting must be justified by hard evidence, including statistical evidence, see id. at 527, 99 S.Ct. at 778 (criticizing the taxpayer for failing to present "statistical evidence justifying its system for writing down inventory), rather than assumptions based on "general business experience," or "well-educated guesses." In our view, a taxpayer is entitled to rely on reliable statistical projections of anticipated expenses in determining the extent to which prepaid amounts should be included in gross income in tax years other than that of their receipt, in accordance with the principles of accrual accounting. Accordingly, we conclude that the Commissioner is not authorized to reject a deferral method of accounting simply because the deferred revenues relate to services to be performed at unspecified times in tax years subsequent to that of receipt. Through the use of statistical projections, a taxpayer using a deferral method may achieve a reasonably precise matching of revenues and expenses despite the fact that the actual time services will have to be *517 performed is not known, thereby computing income "according to scientific accounting principles, by charging against income earned during the taxable period, the expenses incurred in and properly attributable to the process of earning income during that period." United States v. Anderson, supra, 269 U.S. at 440, 46 S.Ct. at 134. RCA contends that the method of accounting it used in 1958 and 1959, which was based, unlike those employed by the taxpayers in Michigan, AAA, and Schlude, on hard statistical data rather than informed hunches, did just that. Assuming that RCA's statistical projections were reliable and properly used, we believe the Commissioner could not require RCA to use a different method of accounting simply because RCA could not know, in advance, when it would be required to provide service under individual service contracts. B. The Government, however, argues more broadly, in the alternative, that the Commissioner may reject any method of accounting that defers the inclusion of payments for future services until later tax years, unless that method is expressly authorized by statute. The short answer to this argument is that the accrual method of accounting is expressly authorized by statute. The longer answer is that the authorities on which the Government relies do not establish that the Commissioner enjoys the unbridled discretion that the Government's argument would vest in him; the ultimate question remains whether a taxpayer's method of accounting "clearly reflects income." The premise for the Government's argument on this point is Congress' introduction and subsequent repeal of sections 452 and 462 of the Internal Revenue Code of 1954. Ch. 736, §§ 452, 462, 68A Stat. 3, repealed, ch. 143, § 1, 69 Stat. 134 (1955). Section 452, a part of the 1954 Code as originally enacted, authorized deferral practices such as that employed by RCA in preparing its returns for 1958 and 1959. Section 462 authorized similar accrual practices. Both provisions were retroactively repealed one year after the Code was enacted "upon [the] insistence by the Treasury that the proposed endorsement of such tax accounting would have a disastrous impact on the Government's revenue." AAA, supra, 367 U.S. at 695, 81 S.Ct. at 1731. In AAA, the Court observed: "It appears that in this action Congress first overruled the long administrative practice of the Commissioner and holdings of the courts in disallowing such deferral of income for tax purposes and then within a year reversed its own action. This repeal, we believe, confirms our view that the method used by the Association could be rejected by the Commissioner. While the claim is made that Congress did not `intend to disturb prior law as it affected permissible accrual accounting provisions for tax purposes,' H.R.Rep. No. 293, 84th Cong. 1st Sess. 4-5, the cold fact is that it repealed the only law incontestably permitting the practice upon which the Association depends." Id. at 695, 81 S.Ct. at 1731. In Schlude the Court again adverted to Congress' action, noting that in AAA the legislature's repeal of "`the only law incontestably permitting the practice upon which [the taxpayer] depends,' was regarded as reinstating long-standing administrative and lower court rulings that accounting systems deferring prepaid income could be rejected by the Commissioner." 372 U.S. at 134, 83 S.Ct. at 604. The Government's argument is that the Court's reading of this legislative history demonstrates the Commissioner's authority to reject any method of accounting that does not treat payments received for future services as gross income in the year of receipt. Although one court may have adopted the position that the government urges *518 here, see Hagen Advertising Displays, Inc. v. Commissioner, 407 F.2d 1105 (6th Cir. 1969), others have clearly rejected it, e. g. Boise Cascade Corp. v. United States, 530 F.2d 1367 (Ct.Cl.), cert. denied, 429 U.S. 867, 97 S.Ct. 176, 50 L.Ed.2d 147 (1976); Mooney Aircraft, Inc. v. United States, 420 F.2d 400 (5th Cir. 1970); Artnell Co. v. Commissioner, 400 F.2d 981 (7th Cir. 1968). We find particularly persuasive the Fifth Circuit's commentary in Mooney: "This alternative ground, based on legislative intent, would seem to dispose of the entire question: all deferrals and accruals are bad unless specifically authorized by Congress. But the Court was careful to discuss the legislative history as dictum and restricted its holding to a finding that the Commissioner did not abuse his discretion in rejecting the AAA's accounting system. It specifically refrained from overruling Beacon and Schuessler, distinguishing them on the ground that future performance was certain. It seems, then, that the Court is for the present taking a middle ground pending Congressional reform and clarification in this extremely confused area of the law: While the repeal of §§ 452 and 462 does not absolutely preclude deferrals and accruals, it indicates that the Commissioner should have very broad discretion to disallow such accounting techniques when there is any reasonable basis for his action." 420 F.2d at 408-09 (footnotes and citation omitted). We agree with this analysis. As the Seventh Circuit stated in Artnell, supra, 400 F.2d at 985: "[T]here must be situations where the deferral technique will so clearly reflect income that the Court will find an abuse of discretion if the Commissioner rejects it." See Thor Power Tool Co. v. Commissioner, supra, 439 U.S. at 533, 99 S.Ct. at 781. The proper test, under the statute, remains whether the accounting method in question "clearly reflects income"—that is, in our view, whether it ensures, with reasonable precision, that deferred revenues are included in gross income in tax years subsequent to that in which they are received only in proportion to the related services performed, and expenses incurred, during those tax years. C. Because we conclude that as a matter of law RCA was entitled to use a deferral method of accounting based on reliable statistical projections in computing its income for tax purposes, so long as that method did "clearly reflect income," and because we conclude, infra, that RCA has adequately demonstrated that the method it used in 1958 and 1959 matched revenues and related expenses with such precision that it was beyond the Commissioner's discretion to conclude that that method did not "clearly reflect income," we need not address RCA's alternative argument that it is entitled to a refund because Revenue Procedure 71-21 and Revenue Ruling 71-299 apply retroactively. These administrative directives reflect the Commissioner's 1971 decision "to allow accrual method taxpayers in certain specified and limited circumstances to defer the inclusion in gross income for Federal income tax purposes of payments received (or amounts due and payable) in one taxable year for services to be performed by the end of the next succeeding taxable year." Rev.Proc. 71-21, § 1, 1971-2 C.B. 549 (1971). Under Revenue Procedure 71-21, a taxpayer who receives advance payment pursuant to an agreement that requires the taxpayer to perform contingent services no later than the end of the tax year following the tax year in which payment is received may defer inclusion of part of the payment in gross income (a) on a statistical basis if adequate data are available to the taxpayer; (b) on a straight-line ratable basis over the time period of the agreement if it is not unreasonable *519 to anticipate at the end of the taxable year of receipt that a substantially ratable portion of the services will be performed in the next succeeding taxable year; or (c) by the use of any other basis that in the opinion of the Commissioner, results in a clear reflection of income. Id. § 3.06. In Revenue Ruling 71-299, 1971-2 C.B. 218 (1971), the Commissioner modified his earlier nonacquiescence in the Second Circuit's decision in Bressner, Rev. Rul. 60-85, 1960-1 C.B. 181 (1960), "to the extent inconsistent with Section 3 of Revenue Procedure 71-21." Although we need not decide whether RCA is entitled to relief under these provisions, it is worth noting that the Government's staunch opposition to RCA's accounting method is undercut at least to some extent by the Commissioner's determination that statistical deferral methods have a place in tax accounting, and will be accepted by the Internal Revenue Service at least in some circumstances, as a proper basis for the computation of income for tax purposes. II. The next question is whether RCA's method of accounting for prepaid service contract revenues, as actually applied in 1958 and 1959, achieved its objective of matching revenues and related expenses with precision. We find that it did. The most telling piece of evidence on this point, as indicated in Exhibit Q to the Stipulation of Facts, which is reproduced below, is the very high correlation between RCA's monthly net sales from its service business, which consisted principally of service contract revenues included in monthly income on the basis of RCA's statistical projections, and the related direct expenses RCA actually incurred during each month of 1958 and 1959. This alone indicates that RCA's accounting method predicted the flux of RCA's service business quite accurately.[3] *520 *521 *522 In addition, Charles Gillette, a partner in the accounting firm of Arthur Young & Co. and chair of its Policy Statements Committee, testified that in his opinion the stipulated facts show that RCA's system achieved "a very high degree of precision,"[4] and at trial the Government stipulated that "it does accomplish its objective, which is to match all revenues for demand and contract to all expenses for demand and contract services."[5] Nonetheless, the Government contends that RCA has not carried its burden of proving that its system is adequate for tax purposes. The Government's limited "concession" that RCA's accounting method does "match all revenues for demand and contract to all expenses for demand and contract services" is representative of one class of objections it makes to RCA's use of that method in computing its taxes. Briefly stated, the Government takes the position that to prevail RCA must prove not only that its accounting system as a whole works with precision, but also that each component of the system does so. Thus, the Government argues that the statistical projections RCA used in determining what portion of service contract receipts should be included in gross revenue each month were not adequate for that purpose for a number of reasons—because in some cases the projections were based on data reflecting service calls performed on demand as well as service calls performed pursuant to service contracts; because their statistical sophistication varied widely; because they protected service call volume rather than dollar expenses; and because they were not broken down to take account of various options available to the purchasers of RCA's service contracts. These objections are material only if the Government is correct that RCA must prove something more than that its accounting method, as a whole, matched revenues and expenses well. We do not believe the Government is correct: the projections were only intended to, and, in our view of the law, need only, operate in the aggregate. If the evidence shows that the whole package of RCA's projections, as applied in 1958 and 1959, achieved a reasonably precise allocation of revenues to the accounting periods in which related expenses were incurred, it is not significant that some of the projections used were "less scientifically, less precisely determined" than others.[6] Moreover, imprecisions in RCA's monthly projections would not necessarily be significant here, since for tax purposes what is controlling is not whether the projections properly matched revenues and expenses from month to month, but whether they did so from year to year. The Government also asserts that RCA has not proven that the data it used in formulating its statistical projections were accurate. But RCA's after-the-fact demonstration that its projections were valid predictors of its expenses creates a strong presumption that the underlying data was accurate, and the Government has not overcome the presumption. The Government contends only that RCA has failed in its proof—it has not suggested that RCA's data gathering procedures, record keeping, or statistical method were defective in any way, and while it would be remarkable if a project of this scope were completely free from error, the Government has not indicated why any errors that may have cropped up would be material here. Moreover, some weight must be given to RCA's interest in compiling accurate information, since that information was used to aid management in scheduling and budgeting for monthly labor and materials requirements, as well as in the preparation of RCA's accounts and tax returns. In the circumstances, we do not believe it necessary that RCA, to establish the reliability of its projections, trace the pedigree of its figures to their source—the reports of thousands of daily service calls. We find that RCA has carried its burden of proving that in practice its *523 accounting theory operated with reasonable precision, and accordingly, we conclude that the Commissioner abused his discretion under section 446 of the Code in requiring RCA to use a different method in computing its taxes. III. The deferral method that RCA used in accounting for prepaid service contract revenues for both book and tax purposes was the method that RCAS used, prior to its merger into RCA on December 31, 1957, in keeping its books. It was not, however, the method RCAS used in preparing its tax returns: for tax purposes, RCAS included all amounts received each year from the sale of service contracts in its gross income for that year. The Government argues that even if the method of accounting employed by RCA in 1958 and 1959 did clearly reflect income, RCA's use of that method constituted a change of accounting method which required the Commissioner's consent, and that RCA's failure to obtain that consent bars any refund now. The merger of RCAS into RCA was a transaction covered by section 381 of the 1954 Code, which deals with the acquisition of the assets of one corporation by another. Section 381(c)(4) provides: "Method of Accounting-The acquiring corporation shall use the method of accounting used by the distributor or transferor corporation on the date of distribution or transfer unless different methods were used by several distributor or transferor corporations or by a distributor or transferor corporation and the acquiring corporation. If different methods were used, the acquiring corporation shall use the method or combination of methods of computing taxable income adopted pursuant to regulations prescribed by the Secretary." No regulations under section 381(c)(4) were promulgated until August 5, 1964, ten years after the statute was enacted, and six years after the merger was completed. As a consequence, the regulations contain "Special Rules" for acquisitions, such as that involved here, that occurred before the regulations came into being. Treas.Reg. § 1.381(c)(4)-1(e) (1964). The Government's position, apparently,[7] is that RCA may not rely on the Special Rules here because it has not proven that at the time of the merger it used a different method of accounting than RCAS, and therefore has not shown that it was entitled under section 381(c)(4) to use any method of tax accounting other than that previously used by RCAS. This position is untenable. On their face, the Special Rules relating to acquisitions occurring prior to August 5, 1964 apply to all such acquisitions, without regard to whether the corporations involved used the same or different methods of accounting at the time of the acquisition. And although this may not conform strictly to the language of section 381(c)(4), it is the only plausible reading of the Special Rules, since prior to the issuance of the regulations on that date there was no way to know definitely under what circumstances the Commissioner would consider the accounting methods of an acquiring and acquired corporation the same or different within the meaning of the statute, and thus no way to know whether the acquiring corporation was required to use the method of accounting previously used by the acquired corporation, or some other method prescribed in as yet non-existent regulations.[8] In our view, *524 whether RCA and RCAS used the same or different methods of accounting at the time of their merger is immaterial here; the sole question is whether, under the Special Rules, RCA's decision in 1958 to adopt a method of accounting for prepaid service contract revenues different from that previously employed by RCAS contravened section 381(c)(4) of the Code. The Government does not dispute that if the Special Rules apply here, RCA's decision is proof against any challenge based on section 381(c)(4). The Special Rules provide that if an acquisition occurred during a tax year of the acquiring corporation for which the statute of limitations has run, then this section does not authorize the Commissioner or the acquiring corporation to change any method or methods of accounting in any taxable year of the acquiring corporation.... Id. § 1.381(c)(4)-1(e)(1). Here the acquisition was completed on December 31, 1957, the last day of a tax year for which the statute of limitations has run, and under this section of the Special Rules RCA's method of accounting cannot be changed.[9] Nothing in the Code or regulations suggests that the refund RCA seeks must be disallowed because RCA did not obtain the consent of the Commissioner before adopting its accrual method of accounting, and we conclude that RCA is not barred from recovery here simply because it adopted a different method of accounting from that used by RCAS prior to their merger. * * * * * * In sum, we conclude that RCA's method of accounting, in theory and in practice, clearly reflected its income for 1958 and 1959, and consequently that the Commissioner abused his discretion under section 446 of the Code in requiring RCA to adopt another method of computing its income for tax purposes. Further, under the applicable regulations, RCA was entitled to employ the accounting method it did employ even though RCAS had not previously used that method for tax purposes. RCA is entitled to refund of the difference between the taxes it actually paid and *525 the taxes it would have paid under its method of accounting, as well as any deficiency interest paid, plus interest. Submit judgment on notice. NOTES [1] The role of accrual accounting in the tax context was succinctly described in Mooney Aircraft, Inc. v. United States, 420 F.2d 400 (5th Cir. 1969): "`Income' has been defined as `a net or resultant determined by matching revenues with related expenses.' Since the Internal Revenue Code allows the deduction of substantially all business expenses it seems reasonably clear that Congress intended to tax only net business income. This objective, however, is complicated by the fact that the tax is exacted on an annual basis whereas business transactions are often spread over two or more years. A business may receive payment for goods or services in one tax year but incur the related expenses in subsequent tax years. The result is that the expenses cannot be used to offset the receipts, and the full amount of the receipts is taxed as though it were all net `profit.' The purpose of `accrual' accounting in the taxation context is to try to alleviate this problem by matching, in the same taxable year, revenues with the expenses incurred in producing those revenues. Accurate matching of expenses against revenues in the same taxable year may occur either by `deferring' receipts until such time as the related expenses are incurred or by `accruing' estimated future expenses so as to offset revenue. Under the deferral concept present receipts are not recognized as `income' until they are `earned' by performing the related services or delivering goods. It is thus not the actual receipt but the right to receive which is controlling; and, from an accounting (if not from a tax) point of view, that `right' does not arise until the money is `earned.' A corresponding principle states that expenses are to be reported in the year the related income is `earned' whether or not actually paid in that year." Id. at 402-03 (footnotes omitted). [2] The Court continued: "Although the findings below seem to indicate that it would produce substantially the same result as that of the system employed, we consider similarly unsatisfactory, from an income tax standpoint, allocation of monthly dues to gross monthly income to the extent of actual service expenditures for the same month computed on a group or pool basis." AAA, 367 U.S. at 693, 81 S.Ct. at 1730 (emphasis added). This sentence presaged the Court's subsequent analysis in the third case in the trilogy, Schlude v. Commissioner, 372 U.S. 128, 83 S.Ct. 601, 9 L.Ed.2d 633 (1963), discussed infra. [3] Exhibit Q [on the following pages] represents graphically the data set forth in ¶ 39 of the Stipulation of Facts. [4] Trial Transcript at 53. [5] Id. at 91. [6] See id. at 69-70. [7] The parties' briefs, which were filed simultaneously, suggest that neither party fully understood the other's position on the issue discussed in this section of the opinion. Consequently, their respective legal contentions were never fully crystallized. [8] The dilemma faced by RCA at the time of its merger with RCAS is illustrative. The stipulation indicates that prior to the merger, RCA used a deferral method of accounting for sales of coupon books that entitled the purchaser to discounts on future purchases of record albums similar to that which it later employed in accounting for service contract revenues. Although the Government asserts that this evidence is insufficient to establish that at the time of the merger RCA and RCAS used different methods of accounting, it certainly suggests that they treated similar types of receipts differently, and thus that section 381(c)(4) would require RCA, following the merger, to account for service contract revenues "pursuant to regulations prescribed by the Secretary," even though no such regulations existed until 1964. In the existing regulatory vacuum, RCA and other taxpayers facing the same dilemma were left to their own devices. The Special Rules embodied in the regulations when they were finally issued ensure that such taxpayers are not penalized for the accounting decisions they made under such circumstances. [9] Even if the merger of RCA and RCAS had occurred during a year for which the statute of limitations had not run, the result would have been the same. The Special Rules provide that if the acquisition occurred during a tax year of the acquiring corporation for which the statute of limitations has not run, and the taxpayer has, for that tax year, (a) adopted or continued a method of accounting consistent with the rules of this section, (b) been granted permission by the Commissioner in accordance with paragraph (e) of § 1.446-1 to use a method or combination of methods of accounting, or (c) adopted a method of accounting that under other sections of the Internal Revenue Code, or regulations thereunder, may be adopted without the consent of the Commissioner, then the method or methods of accounting adopted or continued in the manner described in (a), (b), and (c) shall not be changed, by reason of the rules contained in this section, by the Commissioner or the acquiring corporation for any taxable year ending after the date of distribution or transfer.... Id. 1.381(c)(4)-1(e)(2)(i). If the acquisition occurred during a tax year of the acquiring corporation for which the statute has not run and the taxpayer has, for that tax year, adopted or continued a method or methods of accounting other than in the manner described in (a), (b), and (c) of subdivision (i) of this subparagraph, then the acquiring corporation may (a) Continue to use the method or methods of accounting so adopted or continued if such method or methods clearly reflect income and if proper adjustments were made to reflect the adoption of such method of methods, or (b) Adopt the method or methods of accounting prescribed by this section.... Id. § 1.381(c)(4)-1(e)(2)(ii). Under these provisions RCA would have been entitled to adopt its method of accounting, since we have found that it does clearly reflect income, either under section 1.381(c)(4)-1(e)(2)(i)(c) of the regulations (if, as RCA argues, section 446 of the Code authorized it to use an accrual method that clearly reflects income without obtaining the Commissioner's consent), or otherwise under section 1.381(c)(4)-1(e)(2)(ii)(a) of the regulations.

83 B.R. 206 (1988) In re SASSON JEANS, INC., d/b/a Sasson Industries and Sasson, Debtor. Bankruptcy No. 86 B 12438 (BRL). United States Bankruptcy Court, S.D. New York. January 11, 1988. Cause Remanded May 13, 1988. *207 Cole & Deitz, New York City by Edward N. Meyer, of counsel, for Sasson Jeans, Inc. Trustee. Javits, Robinson, Brog, Leinwand & Reich, P.C., New York City by Robert Leinwand, and Jeffrey Tulchin, of counsel, for Sasson Jeans, Inc. Gerald J. McMahon, New York City, for Paul Guez and Exactitude, Inc. Kaye, Scholer, Fierman, Hays & Handler, New York City by Fredrick B. Rosner, of counsel, for Creditors Committee. Rudolph W. Giuliani, New York City by James Garrity, Asst. U.S. Atty., for U.S.A. CERTIFICATION OF CONTEMPT TO THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF NEW YORK[*] BURTON R. LIFLAND, Chief Judge. I, Burton R. Lifland, Bankruptcy Judge in the above-captioned case, upon the Application of Bert K. Bergenfield, the duly appointed and qualified Chapter 11 Trustee (the "Trustee") of Sasson Jeans, Inc. ("Sasson" and/or the "Debtor"), and after a hearing held on December 11, 1987, on due notice to Paul Guez and Cheryl Adair, do hereby respectfully submit the following Proposed Findings of Fact and Conclusions of Law to the United States District Court for the Southern District of New York. *208 The Trustee moved by Order to Show Cause, signed on December 1, 1987, and returnable on December 11, 1987, for an order adjudging Paul Guez and Cheryl Adair to be in criminal contempt of this Court for disobedience of its orders dated November 10, November 11 and November 25, 1987, which orders directed that the Debtor seal and preserve the writings which were located in dumpsters outside 2610 East 37th Street, Vernon, California. The Trustee recommended that Mr. Guez and Ms. Adair be incarcerated for a fixed term for violating the orders of the Court. The instant order to show cause addresses the second component of a single, continuous course of criminally, contemptuous conduct on the part of Mr. Guez. On November 19, 1987 this Court, from the bench, initially found Mr. Guez to be guilty of criminal contempt as a result of his knowing and willful violation of orders of this Court. (see Exhibit 12). Appropriate findings of fact and conclusions of law were then certified to the District Court. Within one week of the November 19 decision Mr. Guez once again knowingly and willfully violated additional orders of this Court, resulting in the instant criminal contempt matter being scheduled for a hearing. Although the two criminal contempt motions addressed violations of separate orders, each of those orders were entered with an eye toward achieving a single goal, i.e. the expeditious and efficient administration of this Debtor's estate. As demonstrated in the initial certification of contempt Mr. Guez, by violating the subject orders, undermined that goal. Accordingly, this Court views this motion as merely a continuation of the previous one, as both seek the common goal of eliminating continuing impediments to the administration of this Case. On December 11, 1987, I conducted a hearing on the Trustee's Application. Below are this Court's findings of fact and conclusions of law on the most recent issue of criminal contempt. Proposed Findings of Fact (1) Paul Guez is Sasson's sole shareholder and was, until his removal by the Trustee, the President of Sasson, its Chief Executive Officer, and Chief Financial Officer. Cheryl Adair is a business associate of Mr. Guez. (2) On October 10, 1986, Sasson filed a voluntary petition for relief under Chapter 11 of the Bankruptcy Code with the United States Bankruptcy Court for the Central District of California. By court order, dated November 12, 1986, the venue of the Case was transferred to the Southern District of New York. (3) The Official Committee of Unsecured Creditors in the Sasson Chapter 11 case moved, by order to show cause signed February 27, 1987, and again by order to show cause signed May 6, 1987, for an order directing that the United States Trustee appoint a Chapter 11 Trustee to administer the Sasson Chapter 11 case, manage Sasson's business and marshall its assets. (4) Upon the May 6 order to show cause of the Official Committee of Unsecured Creditors for the appointment of a trustee, and the Debtor's subsequent oral application at a hearing held on May 22, 1987 for the appointment of an examiner in lieu of a trustee, the Court signed an order on June 1, 1987, appointing Robert J. Rosenberg as Examiner of Sasson. (Exhibit 2).[1] That order was signed with the consent of Debtor's then counsel and Mr. Guez. (Exhibit 1 at 220 — THE COURT: "this is on consent; is that correct, Mr. Baime? MR. BAIME: Yes. THE COURT: Is that correct Mr. Guez? MR. GUEZ: Yes, Your Honor."). (5) At the May 22nd hearing Mr. Guez explicitly agreed to cooperate with the examiner. (Exhibit 1 at 220 — "THE COURT: With respect to the operations of the business, I expect that the duly retained representative of the creditors, and that includes their accountants, and the examiner, the *209 appointed examiner, will get your complete cooperation. MR. GUEZ: Absolutely, Your Honor."). The order appointing the Examiner, prepared by Debtor's then counsel, provided that a Chapter 11 trustee would be appointed if Sasson did not comply with its provisions. (Exhibit 2, first decretal paragraph). (6) Based on the Debtor's subsequent failure to comply with the June 1, 1987 Order, conceded by Debtor's counsel (see the Court's memo endorsement on Debtor's July 14, 1987 order to show cause for a hearing to determine whether Debtor complied with the terms of the June 1, 1987 order) the Court directed the appointment of a Chapter 11 trustee. Mr. Bergenfield has qualified and is presently acting as Chapter 11 trustee for Sasson. (7) Pursuant to the statutory standards enunciated in 11 U.S.C. § 704 as incorporated by 11 U.S.C. § 1106, as well as the Court's July 30, 1987 order, the Trustee has replaced Paul Guez in managing and operating Sasson, and has been vested with complete control over its operations and management functions since his appointment. (8) The July 30th order specifically directed that all property of the estate be turned over to Mr. Bergenfield, as trustee. (Exhibit 3). The relevant text of that order states: ORDERED that all persons having possession, custody or control of any property of Sasson Jeans, Inc., d/b/a Sasson Industries and Sasson, other than a custodian (as that word is defined in section 101(10) of the Bankruptcy Code), be, and each such person hereby is, specifically directed to turn over all such assets, including, without limitation, all books and records relating to Sasson Jeans, Inc. to Bert K. Bergenfield as Chapter 11 Trustee of Sasson Jeans, Inc. or his written designee; (9) Despite the July 30th Order, Mr. Guez continued to interfere with Sasson's business and with the Trustee. On August 5, 1987, on the record at a hearing, the Court admonished Mr. Guez: Under the circumstances, this record makes it abundantly clear that you do regard this enterprise as your own personal enterprise and apparently as a practical matter, you do not recognize the full role of the Trustee in the operation of the Debtor's business. The testimony has not been rebutted with any credible force that your activities have interfered in the operations and with the Trustee in the performance of his statutory duties concerning this Debtor and under Title 11. You have been displaced in the management functions. You do not seem to have recognized that[.] [E]ven with respect to the period of time that an [E]xaminer was involved with the operations of the business, under limited circumstances[.] [D]ealing with the Debtor's assets as if they are your own, under all the circumstances here is clearly inappropriate and indeed illegal. The right of the Trustee to operate this business without interference is clear. (Exhibit 4 at 162-163). (10) Also on August 5, 1987, the Court signed an order which, in part, specifically states that it is: ORDERED that Paul Guez is specifically directed to turn over all property of Sasson to the Trustee or his written designees. (Exhibit 5). (11) At a hearing held on October 7, 1987, the Trustee informed the Court that Mr. Guez had removed a substantial portion of the Debtor's inventory and other property from a warehouse in Vernon, California in violation of the above orders of the Court. (12) By order to show cause signed November 3, 1987, the Trustee moved to punish Mr. Guez for criminal contempt for orchestrating the removal and concealment of a significant portion of the Debtor's assets. A hearing was held on the Trustee's motion on November 19, 1987. (13) After the November 19, 1987, hearing, the Court concluded that Mr. Guez had knowledge of the terms of the July 30th order and the August 5th order. Specifically, *210 the Court found that Mr. Guez was served with the July 30th order and that the August 5th order was signed in Court at the conclusion of a hearing at which Mr. Guez was present. (Exhibit 16 at 6). The Court stated: I find therefore that substantial assets of the Debtor, (including computer records), all contained in more than twenty trailer loads, were moved from Vernon, California and secreted in a warehouse in Brooklyn, New York. I further find that Paul Guez was intimately involved in, and willfully arranged for: (a) the removal of the assets from California; (b) its shipment to New York; and (c) its concealment from the Trustee — first at his home and, later, at the Brooklyn warehouse in willful and deliberate contravention of the July 30th and August 5th orders. (Id. at 14-15). (14) The Court concluded that Mr. Guez had committed a criminal contempt and proposed that he be imprisoned for not less than two months stating: The Trustee has proven beyond a reasonable doubt, by unrebutted evidence, that Mr. Guez' behavior with regard to the transferring and concealing of the Debtor's inventory, merits the imposition of criminal sanctions. The record establishes beyond a reasonable doubt that Mr. Guez was aware of his obligation to turn over the assets of the Debtor. It is beyond a reasonable doubt that he knowingly and willfully violated the July 30, 1987 and August 5, 1987 written orders (orders which Mr. Guez was either served with or were signed in Court, in his presence, subsequent to a hearing at which he was present), (paragraph 11 supra), and the August 5, 1987 oral direction of this Court to him, which he explicitly consented to abide. Id. Mr. Guez did so by attempting to secrete a substantial portion of the Debtor's assets by moving them from California to the warehouse in Brooklyn. The record establishes beyond a reasonable doubt that the subject property was property of the Debtor's estate. Mr. Guez submitted no convincing evidence which establishes that these assets belonged to any entity other than the Debtor's estate. [Footnote omitted]. (Id. at 18-19). A. The Prior Orders and Directions of this Court (15) At a hearing held on November 10, 1987, counsel to the Debtor, applied for an order directing that the Trustee abandon certain books and records, located in Vernon, California, and that the Trustee release these records to the Debtor. (Exhibit 7 at 5-11). The Court denied the Debtor's application stating: THE COURT: Under the circumstances and in view of the lack of disclosure with respect to the contents of that particular warehouse, an ongoing issue which is scheduled to be further brought forward other than today, I am not going to authorize an abandonment, which could possibly have the potential of allowing for, A., tampering of whatever is there, [B,] adding to it or [C,] subtracting from it. Mr. Meyer's point is well taken that there is no effective way to monitor or police the material that may or may not be there, and we have seen in the past, for example, despite this Court's directions for turning over documents and so forth that notwithstanding this Court's Order, documents get turned over after supposedly all documents had been previously accounted for. I have no hesitancy in authorizing a sealing of those materials at the Debtor's expense, not to be touched until further Order of the Court. (Id. at 9). This order was prompted by the Court's familiarity with Mr. Guez' prior conduct and non-compliance in this case. (See e.g. Exhibit 6 at 16-17 — "THE COURT: That's interesting. Have you turned these papers over to anybody in the past, Mr. Guez? MR. GUEZ: Excuse me, your Honor. The Examiner talks about the same papers and they never — THE COURT: You were supposed to be turning over all these papers relating to the property of Sasson."). *211 (16) At the November 10th hearing the Court determined that the Debtor (Sasson), not the Debtor's estate, should bear the cost of this storage. MR. MEYER: Is it the Debtor who is going to bear this expense or — THE COURT: Absolutely, it's the Debtor who desires the sanctity of the Order of this Court. We will preserve those records at your request and at your expense, Mr. Leinwand. MR. LEINWAND: Your Honor, I think Mr. Meyer is pointing out that at the Debtor's expense — THE COURT: Not the Debtor In Possession's expense or the Trustees' expense. The Trustee is clearly by Order of this Court abandoned property which has been the subject of the sale and further disposition. MR. MEYER: The real party in interest, Your Honor, the positions of the lawyers aside, is Paul Guez. And if it's Paul Guez who wants the stuff sealed up, let him advance the money, if that is what he wants, but shouldn't be borne by this bankruptcy proceeding. MR. LEINWAND: I understand what Mr. Meyer is indicating. The Debtor has funds — THE COURT: I will grant you your application. You will submit an Order. The contents, whatever they are, if they are as you point out, the dumpsters, they are to be sealed without access until further Order of the Court and preserved. MR. LEINWAND: Thank you, Your Honor. THE COURT: Submit such an Order. MR. LEINWAND: I will submit such an Order. THE COURT: Settle it. MR. LEINWAND: I will either get the consent to settle it. I will get — THE COURT: You may take steps to implement it immediately. [Emphasis added.] MR. LEINWAND: I will do that. I would appreciate that. Thank you. (Exhibit 7 at 9-11). (16) Mr. Guez was present in Court on November 10th when this application was made. (See Id. at 26 — "THE COURT: I call your attention, Mr. Leinwand, Mr. Guez is sitting here in the courtroom. . . ." See also, Id. at 29 — "MR. MEYER: While we are waiting, Your Honor, when Mr. Guez walked into this courtroom he brought with him a suitcase full of documents. . . ."). Therefore, I find that Mr. Guez was aware of the Court's concern over monitoring and policing these documents and the direction that the California books and records be sealed and preserved pending further order of the Court. (17) On November 11, 1987, a consent order was submitted to Bankruptcy Judge Brozman, and signed by her. That order provided: [I]t is ORDERED, that the Debtor be and it hereby is directed to forthwith seal and preserve the writings which are or were located in dumpsters outside the premises known as 2610 East 37th Street, Vernon, California and/or at Total Waste Disposal and/or at West Coast Fiber, Inc., and it is further. . . . [Emphasis added]. ORDERED that the Debtor and Paul Guez be and they hereby are jointly and severally directed to bear, utilizing no property which is property of or recoverable by the estate, all costs and expenses in connection with the sealing and preservation of the writings ordered herein; (Exhibit 8). (18) At the insistence of Mr. Guez, these documents were to be shipped to New York. An agreement was reached between counsel to the Debtor, and counsel to the Trustee, whereby the documents would be loaded into two trucks, which would be locked and sealed, and at the Debtor's counsel's suggestion, driven to the Morgan-Manhattan Warehouse on West 21st Street in New York. (Exhibit 13 at 5-6; Dec. 11 Tr. at 49). The trucks were to be there unloaded, under the supervision of counsel to the Trustee and counsel to the Debtor, and placed in a locked room pending further order of the Court (Exhibit 13 at 5-6 and 12-13). *212 (19) At a hearing held on November 25, 1987, the Trustee informed the Court that the trucks had "disappeared", and that Mr. Guez had refused to pay the drivers or to allow the records to be stored at the Morgan-Manhattan Warehouse. (Exhibit 13). (20) On the same day, I signed an order which, inter alia: ORDERED, that the Trustee of Sasson Jeans, Inc. is authorized to employ the services of the U.S. Marshals and the U.S. Marshals are authorized and directed to seize today, from One Whitney Lane, Old Westbury, New York or such other place as they may be found, a certain Yellow Ryder truck, bearing California Licens[e] Plate No. B189022 and a certain Silver and Red U-Haul truck, bearing Massachusetts License Plate No. 304-506, and the contents of said trucks, and to retain custody and control over such trucks, pending the further order of this Court; . . . (Exhibit 14). (21) By Order to Show Cause signed December 1, 1987, the Trustee moved to punish Mr. Guez and Ms. Adair for criminal contempt for violating the Court's orders regarding the sealing and preservation of the books and records. On December 7, 1987, the Court signed an order modifying the second decretal paragraph of the December 1, 1987 Order to Show Cause to provide that service of a copy of that order by overnight mail upon Mr. Guez and Ms. Adair addressed to them at One Whitney Lane, Old Westbury, New York, shall be good and sufficient service. A hearing was held on the Trustee's motion on December 11, 1987. B. The Testimony at the December 11th Hearing. (22) The Trustee called Robert Leinwand, counsel to the Debtor. He testified that he was present in Court on November 10th, and that he participated, at the offices of Cole & Deitz, in the drafting of the November 11th Order which reflected the Court's decision. (Dec. 11 Tr. at 43-44). According to Mr. Leinwand he spoke with Mr. Guez from the offices of Cole & Deitz, before affixing his consent to the November 11th Order, and read the provisions of the order to him. Mr. Leinwand's testimony in this regard is as follows: Q. My question to you, Mr. Leinwand is, did you in the course of your telephone conversation with Mr. Guez read to him the typewritten portion of Exhibit 8, the Order? A. Yes, I did. Q. Did you read parts of it to him more than once? A. I believe I read — I started reading to him the order, reading him the Order. He indicated that I was reading too quickly and asked me to read slower. I started again and read more slowly or slower, and there were several decretal paragraphs that I read on more than one occasion to him. (Id. at 47-48). (23) Mr. Leinwand testified that he believed that Mr. Guez indicated that he did not want the order submitted until Mr. Leinwand conferred with Mr. McMahon. Mr. Leinwand spoke with Mr. McMahon before he signed the consent order, and, on the next day he submitted it to Judge Brozman who signed the order. (Id. at 47-48). The day the order was signed, Mr. Guez once again had the order read to him, over the telephone. (Id. at 52-55). (24) Finally, Mr. Leinwand testified that he had a number of conversations with attorneys at Cole & Deitz regarding where the records would be stored if and when they were shipped to New York. (Id. at 49). He stated that an agreement was reached whereby the documents would be stored at the Morgan-Manhattan Warehouse on West 21st Street and that this arrangement was embodied in a letter which he sent to Paul Guez. (Id. at 49-50; Exhibit 9). (25) Thus, I find that Mr. Guez was fully appraised of the Orders of the Court, from the Bench on November 10th and as signed on November 11th, as well as the arrangements which were made in furtherance of these orders. *213 (26) The Trustee then called Dolores Yarmoff, an attorney with Dennis, Juarez, Shafer & Young, a California law firm acting as special counsel to the Trustee in this matter. She testified that the November 11th Order was faxed to her by Cole & Deitz, and by Mr. Leinwand's office on November 11th. (Dec. 11 Tr. at 52). She stated that she met Ms. Adair on November 11th, in her office, at which time she read the order to Ms. Adair and gave her a copy (Id. at 52-53). Ms. Yarmoff's testimony in regard to her meeting with Ms. Adair is as follows: Q. Did you ever discuss the November 11th Order with Miss Adair. A. Yes, I did. * * * * * * A. I meet [sic.] with Miss Adair at 3:00 o'clock in my office. I brought her to my office and I had placed the Order halfway — approximately halfway across my desk and we read the Order together, and I read the Order out loud and gave her my copy of the Order. Q. Did you ever discuss the November 11th Order with Paul Guez? A. Yes, I did. Q. Would you tell me how that conversation came about. A. After I had told Cheryl Adair that an arrangement had been made between Cole & Deitz and Mr. Leinwand to preserve and store the documents located at 2610 Vernon, I told her that I had been instructed to hire an independent trucking company and truck driver. She told me she was unaware of such arrangement and asked if she could call Paul Guez from my office. Q. Did she make that phone call? A. Yes, she did. Q. Did you actually place the call for her? A. I did. Q. Do you know whether — did you reach Mr. Guez on the first try that you made? A. I don't remember. Q. Did Miss Adair eventually reach Mr. Guez? A. Yes, she did. Q. Were you present when that conversation took place? A. I was. Q. Could you overhear Mr. Guez' end of the conversation? A. Yes. I had asked Miss Adair if she wished to speak to Mr. Guez privately and she indicated no. Q. Would you describe the conversation to the Court, please. A. Well, she spoke to Mr. Guez and told him — read the Order, not read the Order but told him about the Order and also told him that arrangements had been made by Cole & Deitz and Mr. Leinwand to store and preserve the documents, that an independent trucking company and truck driver would be hired to serve this purpose. Q. What did Mr. Guez say in response to that? MR. McMAHON: Objection. THE COURT: Were you part of the conversation? Did you hear Mr. Guez? THE WITNESS: I was present. THE COURT: Overruled. A. He asked me if I could — if I would tell what the terms were exactly. I read the Order to Mr. Guez. He appeared to have an Order before him. He recited portions of the Order and asked me if I would send him a letter setting forth the terms of the arrangements between Mr. Meyer and Mr. Leinwand. Thereafter, I told him I could not do so since I was not privy to the original arrangement. . . . (Id. at 52-55) As noted previously, Debtor's counsel sent a letter to Mr. Guez Dated November 12, 1987, setting forth the agreement for storing the documents. (See Exhibit 9). (27) Ms. Yarmoff further testified that, after their conversation with Mr. Guez, she and Ms. Adair contacted several trucking companies to arrange for the shipment of the records to New York (Dec. 11 Tr. at 56). Ms. Yarmoff testified that arrangements were made to ship the documents in two trucks, a Ryder truck and a U-Haul *214 truck, which were to be sealed and padlocked, and the locks sealed with pink nail polish. (Id. at 56-60; Exhibits 10 and 11). (28) Angela Tese, an attorney with Cole & Deitz, also testified at the hearing. She testified that she spoke with Jeffrey Tulchin, an attorney for the Debtor, on November 23 in order to find out the status of the trucks. (Dec. 11 Tr. at 68-69). Mr. Tulchin informed her that Mr. Guez had refused to pay the truck drivers or to consent to storage of the records at the Morgan-Manhattan Warehouse and that Mr. Guez wanted her to agree to store the trucks in a garage. (Id. at 69-70). Ms. Tese told Mr. Tulchin that this was unacceptable, and that she would not consent. (Id. at 70).[2] (29) United States Marshal Anthony Talley was called to testify at the hearing by the Trustee. Marshal Talley testified that on November 25 he executed the November 25 "Order Directing the Seizure and Preservation of Trucks and Records" by going to Old Westbury, New York. (Exhibit 14; Dec. 11 Tr. at 86-87). He stated that he first went to 1 Whitney Lane but was unable to gain access. (Id. at 87). He then proceeded to 101 Whitney Lane which is the residence of Mrs. Janine Guez. (Id. at 87-88). He testified that he found the Ryder truck at that address, but did not find the U-Haul truck. Marshal Talley testified that the truck was locked and sealed and that he stayed with the truck until a towing company came and took the truck to its warehouse. (Id. at 88-89). Ms. Adair has admitted that she drove the Ryder truck to Old Westbury (Exhibit 15 — "I drove it [(the Ryder truck)] to Old Westbury myself"). (30) Finally, United States Marshal Francis Norris testified at the December 11th hearing. Marshall Norris testified that he went to Old Westbury, New York on November 25th with Marshal Talley. (Dec. 11 Tr. at 92). He testified that while he was there he had several conversations with Mr. McMahon during which Mr. McMahon offered to arrange to have the keys to the trucks delivered to him. (Id. at 92-93). Marshal Norris further stated that Mr. McMahon arranged for a messenger to deliver the keys to him and informed him that the U-Haul truck was located on 34th Street and Tenth Avenue. (Id. at 93). The information which Mr. McMahon relayed to Marshal Norris was furnished by Paul Guez. (See Affidavit in Opposition to Motion for Contempt Citation at paragraph 13). (32) Marshal Norris said that he went to 34th Street and 10th Avenue, on Friday, November 27th, but did not find the U-Haul truck. (Dec. 11 Tr. at 93). Marshal Norris then proceeded to the Ryder Yard on 30th Street and 12th Avenue but again did not find the U-Haul truck. (Id. at 94). He then proceeded to the U-Haul Yard on 23rd Street and 11th Avenue (Id. at 94-95). Marshal Talley spoke to an employee of U-Haul who said that the truck might be by the service entrance. Ultimately, the truck was found parked on 22nd Street just off of 11th Ave. (Id. at 95). (33) Marshal Norris testified that the truck was not sealed and that there were two locks which were clipped, and appeared to have paint or nail polish on them, lying on the rear bumper. (Id. at 95 and 110; Exhibits 10 and 11).[3] Marshal Norris further stated that there were papers protruding from the back of the truck marked Sasson and that there was a Sasson tag laying in the street behind the truck. (Dec. 11 Tr. at 97-98). (34) I find that the testimony of Mr. Leinwand, Ms. Yarmoff, Ms. Tese and Marshals Talley & Norris was entirely credible, and wholly unrebutted. Further, I find that although Mr. Guez and Ms. Adair were afforded adequate notice of the contempt proceeding (discussed below), they did not appear physically or present any evidence at the hearing. *215 (35) Accordingly, I find that Mr. Guez and Ms. Adair had full knowledge of the Court's Orders directing the preservation of the California books and records. I further find that Mr. Guez, with Ms. Adair acting as his full and willing accomplice, willfully and deliberately flouted the Court's orders in taking possession of the trucks, abandoning one on the streets of Manhattan and secreting the other in Old Westbury, and finally in refusing to redeliver the trucks to the Trustee. Due to their actions, the locks and seals were broken on one of the trucks, thereby seriously negating the probative value of the contents of the truck in question. These actions were in clear willful violation of the Orders of the Court. Proposed Conclusions of Law (1) At the outset of the hearing Mr. McMahon, counsel to Mr. Guez, contended that notice of this hearing was defective. Specifically, Mr. McMahon alleged: (A) Mr. Guez was never personally served with the Order to Show Cause, as initially required by that Order. (B) Although the Court subsequently amended the Order to Show Cause, authorizing service by overnight mail upon Mr. Guez, the address used by the Trustee was one at which Mr. Guez "upon information and belief" had not been residing for "the last week or so." (C) The notice failed to meet the standards of: (1) Fed.R.Crim.P. 42; and (2) the Due Process Clause of the Fifth Amendment of the United States Constitution. Each of these allegations are discussed below. None of them, either individually or taken cumulatively, state an adequate basis for finding that the notice provided herein was anything but proper in the context of the underlying facts. (2) Fed.R.Bankr.P. 9020(b), to the extent applicable, governs contempt when not committed in the presence of the Bankruptcy Judge.[4] Its text tracks, almost verbatim, the language of Fed.R.Crim.P. 42(b). A contempt motion pursuant to Rule 9020(b) is a contested matter, (See Advisory Committee Note (1983) to Rule 9014), which is governed by Fed.R.Bankr.P. 9014. That section states in relevant part: In a contested matter in a case under the Code not otherwise governed by these rules, relief shall be requested by motion, and reasonable notice and opportunity for hearing shall be afforded the party against whom relief is sought. . . . The motion shall be served in the manner provided for service of a summons and complaint by Rule 7004. . . . Since Rule 7004(b) permits service by mail, any objection based thereon is without merit. See Fed.R.Bankr.P. 7004(b). (3) As noted, Fed.R.Crim.P. 42(b) is the Criminal Rule counterpart to the above cited Bankruptcy Contempt Rule, covering those situations where the criminal contempt is not committed in the actual presence of the Court. The Second Circuit recently *216 noted, although in a different context, that Rule 42(b) "prescribes the `procedural regularity' for all contempts in the federal regimes . . . except those unusual situations envisioned by Rule 42(a). . . ." Dole Fresh Fruit Co. v. United Banana Co., Inc., 821 F.2d 106 (2d Cir.1987) (Quoting In re Sadin, 509 F.2d 1252, 1255 (2d Cir.1975)). Even directly applying the standards of Rule 42(b), which do not differ substantively in the instant context from Rule 9020(b), there can be no doubt that adequate notice of the instant matter was provided. The relevant text of Rule 42(b) states: A criminal contempt except as provided in subdivision (a) of this rule shall be prosecuted on notice. The notice shall state the time and place of hearing, allowing a reasonable time for the preparation of the defense, and shall state the essential facts constituting the criminal contempt charged and describe it as such. The notice shall be given orally by the judge in open court in the presence of the defendant or, on application of the United States attorney or of an attorney appointed by the court for that purpose, by an order to show cause or an order of arrest. . . . Upon a verdict or finding of guilt the court shall enter an order fixing the punishment. According to the language of this Rule, which was incorporated into Fed.R.Bankr. P. 9020(b), notice of criminal contempt charges must be given either: (a) orally, in open court, by the Judge in the presence of the defendant; or (b) on application of the United States attorney or of an attorney appointed by the court for that purpose by an order to show cause or an order of arrest. (4) The procedure followed in the instant proceeding did not fall squarely within these requirements. The order to show cause scheduling this matter was submitted by Trustee's counsel, and it provided for the United States Marshall's and subsequently Trustee's counsel to serve it upon respondents; and for Trustee's counsel to prosecute the matter. Nonetheless the substance, if not the form of Rule 42, has been complied with, as due process requirements were clearly satisfied. See Bays v. Petan Company of Nevada, Inc., 94 F.R.D. 587, 589-90 (D.Nev.1982). The December 1 order to show cause impliedly appointed Trustee's counsel to prosecute this criminal contempt proceeding, thereby satisfying the terms of Rule 42(b). Id. ("In this case substantial compliance with Rule 42 afforded Respondent due process. . . . It appears, therefore, that the order to show cause impliedly appointed Mr. Neumann [(plaintiff's counsel)] to prosecute this criminal contempt proceeding. [Emphasis added, citation omitted]."). (5) This Court notes that the Second Circuit has ruled that an attorney for a civil litigant, as opposed to a United States Attorney or a disinterested attorney, may properly be assigned to prosecute another party for criminal contempt under Rule 42. Musidor, B.V. v. Great American Screen, 658 F.2d 60 (2d Cir.1981), cert. denied, 455 U.S. 944, 102 S.Ct. 1440, 71 L.Ed.2d 656 (1982). In that opinion the Court stated: In the leading case of McCann v. New York Stock Exchange, 80 F.2d 211, 214 (2d Cir.1935), cert. denied sub nom. McCann v. Leibell, 299 U.S. 603, 57 S.Ct. 233, 81 L.Ed. 444 (1936), Judge Learned Hand acknowledged that to prosecute a criminal contempt committed outside the presence of the court, "the judge may prefer to use the attorney of a party, who will indeed ordinarily be his only means of information. . . . There is no reason why he should not do so, and every reason why he should. . . ." Appellants are well aware that the Advisory Committee on Rules relied upon the McCann case in establishing Federal Rule of Criminal Procedure 42. . . . The practicalities of the situation — when the criminal contempt occurs outside the presence of the court but in civil litigation — require that the court be permitted to appoint counsel for the opposing party to prosecute the contempt. There is no fund out of which to pay other counsel in such an event, nor would it be proper that he be paid by the opposing party. This is not the kind of case for which legal aid societies or public defenders are *217 available. In short, we follow the above quoted statement by Judge Hand in McCann. [Citations omitted]. Id. at 65. Accordingly this Court concludes that Trustee's counsel was properly "appointed" pursuant to Rule 42 to prosecute this matter.[5] (6) Fed.R.Crim.P. 49 governs service and filing of papers in criminal contempt matters. Rule 49(b) states: SERVICE HOW MADE. Whenever under these rules or by order of the court service is required or permitted to be made upon a party represented by an attorney, the service shall be made upon the attorney unless service upon the party personally is ordered by the court. Service upon the attorney or upon a party shall be made in the manner provided in civil actions. The last sentence of Rule 49(b) incorporates by reference the second and third sentences of Fed.R.Civ.P. 5(b). See Notes of Advisory Committee on Federal Rules of Criminal Procedure, Rule 49; see also United States v. Lujan, 589 F.2d 436, 438, n. 1 (9th Cir.1978), cert. denied 442 U.S. 919, 99 S.Ct. 2842, 61 L.Ed.2d 287 (1979). The relevant text of Fed.R.Civ.P. 5(b) states: Service upon the attorney or upon a party shall be made by delivering a copy to the attorney or party or by mailing it to the attorney or party at the attorney's or party's last known address. . . . Service by mail is complete upon mailing. Accordingly, nothing in the Federal Rules of Criminal Procedure requires that there be personal delivery of service of an order of this type.[6] Indeed service solely upon Mr. Guez' attorney would have constituted adequate notice of the instant matter. See Musidor, 658 F.2d at 65 ("as president and chief operating officer of Great American, [appellant] Dymburt admittedly was bound by the order enjoining Great American, its officers and directors from engaging in specific prohibited conduct, and his attorney received notice of the motion [of criminal contempt charges] claiming that Dymburt had violated that order [emphasis added]."). (7) Although personal delivery of service upon Mr. Guez and Ms. Adair was undertaken, each of four attempts proved unsuccessful. (See December 7, 1987 Affidavit of Ronald P. Caso). Therefore on December 7, this Court authorized service of the *218 instant order to show cause upon Mr. Guez and Ms. Adair, via overnight mail to their last known address (i.e. One Whitney Lane). (See December 7, 1987 Order). (8) Despite Mr. Guez' counsel's allegations to the contrary, there can be no doubt that the service upon both Mr. Guez' counsel and Mr. Guez by overnight mail on December 2nd and 7th respectively, as well as on Debtor's counsel by overnight mail on December 2nd, were reasonably calculated under all the circumstances to provide Mr. Guez with sufficient notice of the hearing and to provide him an opportunity to present objections. (9) As recently as November 29 and 30, 1987 Mr. Guez had telegrams delivered to this Court which telegrams both listed: Paul Guez 1 Whitney LN Old Westbury, NY 11568 as his return address.[7] The Order to Show Cause which brought on this hearing was signed on December 1, 1987 only one day after the last Guez telegram listing the Whitney Lane address was received. It is at this address where movants in the instant proceeding served Mr. Guez. In fact, this Court received a telegram from Mr. Guez on December 11, while conducting this hearing listing the "1 Whitney LN" address as Mr. Guez' return address. Accordingly, this Court concludes that Mr. Guez was served with notice of this hearing at his "last known address" and that the notice upon Mr. Guez and his counsel was reasonably calculated under all the circumstances, to apprise Mr. Guez of the pendency of this action.[8] (10) In addition Mr. Guez was afforded adequate opportunity to present his objections. As early as December 3, 1987 both Mr. McMahon, counsel to Mr. Guez, and Mr. Leinwand, counsel to the Debtor, each received copies of the Order to Show Cause scheduling the December 11 criminal contempt hearing. In fact, Mr. McMahon, Guez' counsel, filed papers in opposition to the trustee's motion on December 9, 1987. In addition, as noted above, Mr. Guez and Ms Adair were each served with the Order to Show cause, sent by overnight mail on December 7, 1987, (and therefore they received notice at least three days before the instant hearing).[9] Accordingly, it is beyond *219 question that Mr. Guez and Ms. Adair were afforded adequate notice of these proceedings under the applicable standards. As to Mr. Guez this conclusion is buttressed by the fact, noted above, that the instant hearing is in substance a continuation of the initial criminal contempt proceeding. (11) As I have previously stated: There is a distinction between the purpose to be served by a civil contempt order and a criminal contempt order. "[A] civil contempt order is remedial and coercive in nature, and is intended to secure compliance with lawful judicial decrees." In re Irving, 600 F.2d 1027, 1037 (2d Cir.) cert. denied, 444 U.S. 866 [100 S.Ct. 137, 62 L.Ed.2d 89] (1979). A criminal contempt order on the other hand is intended "to punish willful disregard of the authority of the courts and to deter the occurrence of similar derelictions." Id. (citing U.S. v. United Mine Workers, 330 U.S. 258, 302-303 [67 S.Ct. 677, 700-701, 91 L.Ed. 884] (1947). "Sentences for criminal contempt are punitive in their nature and are imposed for the purpose of vindicating the authority of the court." U.S. v. Mine Workers, 330 U.S. at 302 [67 S.Ct. at 700] (citing Gompers v. Bucks Stove & Range Co., 221 U.S. 418, 441 [31 S.Ct. 492, 498, 55 L.Ed. 797] (1911). A defendant will be held in criminal contempt for not complying with an appropriate, clear order, where that noncompliance is found, beyond a reasonable doubt, to have been willful. Falstaff Brewing Corp. v. Miller Brewing Co., 702 F.2d 770, 782 (9th Cir.1983); Powell v. Ward, 643 F.2d 924, 933 n. 12 (2d Cir.1981), cert. denied 454 U.S. 832 [102 S.Ct. 131, 70 L.Ed.2d 111] (1981). Willfulness in contempt cases is defined as "a deliberate or intended violation, as distinguished from an accidental, inadvertent, or negligent violation of an order." Falstaff Brewing Corp. v. Miller Brewing Co., 702 F.2d 770, 782 (9th Cir. 1983). (Exhibit 16 at pp. 16-17) (12) On December 11, 1987, after considering all of the evidence, I concluded: THE COURT: What the Court is reacting to is the record that's been placed before me and all of the evidence that's been put in, the testimony from the stand, all of the evidence which has been not only substantially unrebutted but wholly unrebutted. It is quite clear that the Trustee has sustained its burden and established a case of criminal contempt against Mr. Guez. And I am prepared again to certify that this Court's authority has been flouted, that there is disobedience and contumacious conduct by the respondent to warrant a certification of both criminal and civil contempt in this case. The only thing I understand is being asked is criminal contempt. There were clear directions, full knowledge, and it's been established there was full knowledge on the part of Mr. Guez of his obligation to preserve the integrity of the trucks and the contents of those trucks. That through his willful conduct once again the property that is under the aegis of this Court has been placed in a position of jeopardy, so that the reliability of that property for any purposes, whether it be for purposes of rebutting or advanc[ing] causes in litigation is no longer sacrosanct and subject to without cavil acceptance by the Court. Under the circumstances I will request submission of finding and conclusions. . . . MR. MEYER: Has Your Honor made any ruling with respect to Miss Adair? THE COURT: Yes, I find that she has not responded and I find the testimony fully supports a finding of criminal contempt on her part, and Mr. Guez is a person who accomplished his feats of prestidigitation with respect to the trucks with Miss Adair as a full and *220 willing and in this case willful accomplice, and the record so supported that. (Dec. 11 Tr. at 139-141). (13) Under the circumstances, the imposition of criminal contempt sanctions is clearly warranted. Mr. Guez, with the aid of Ms. Adair, has again elected to deliberately disregard clear and unambiguous Orders of the Court. The Trustee has proven beyond a reasonable doubt that Mr. Guez and Ms. Adair, although aware of the Court's orders which provided for the sealing and preservation of the documents, knowingly and willfully violated them. They did so by refusing to pay the truck drivers, by interfering with the arrangements which were made for storage of the documents at the Morgan-Manhattan Warehouse, and by taking custody of the trucks and refusing, when ordered, to redeliver them to the Trustee. As a result of their actions, the locks and seals on one of the trucks were broken, the contents disturbed, and the reliability and probative value of the documents were rendered highly dubious. (14) Accordingly, and in keeping with accepted procedures, I am prepared to certify that Mr. Guez and Ms. Adair be held in criminal contempt. See Hubbard v. Fleet Mortg. Co., 810 F.2d 778, 780 (8th Cir. 1987); In re Industrial Tool Distributors, Inc., 55 B.R. 746 (N.D.Ga.1985); In re Crabtree, 47 B.R. 150 (Bankr.E.D.Tenn. 1985). See also Martin-Trigona v. Shiff, 702 F.2d 380, 383 (2d Cir.1983) ("the bankruptcy court was not empowered to order a recalcitrant witness to be imprisoned for civil contempt.").[10] (15) Although this Court has not considered Mr. Guez's prior conduct in reaching its conclusion that he is in criminal contempt, it will consider those activities in recommending a sentence. (See generally, Fed.R.Crim.Pro. 32(c); 18 U.S.C. § 3552(b) and 18 U.S.C. § 3553(a)). The evidence adduced at this hearing demonstrates, beyond peradventure that Mr. Guez regards himself as beyond the reach of the Rule of Law. (16) In addition to his obstinate refusal to turn over the books and records of Sasson to the Trustee, (See Exhibits 3; Exhibit 6 at pp. 16-17; Exhibit 7 at p. 29), his refusal to obey this Court's May 22, 1987 and June 1, 1987 orders with respect to the requirement that the examiner be a co-signatory on all Sasson checking accounts, (See Exhibit 1 at pp. 214, 221-22; Exhibit 2; and Exhibit 4 at pp. 32-33), and his adversarial attitude concerning the Trustee's efforts to take control of Sasson, (See Exhibit 4 at pp. 58-150; Exhibit 5), Mr. Guez has spared no effort to impede and disrupt this proceeding. His violation of the November 10 and November 11, 1987 orders, virtually on the heels of this Court's decision that he had committed an act of criminal contempt by stealing the debtor's inventory, evidences a continuing cavalier disrespect for this Court. For this reason, I recommend that Mr. Guez be imprisoned for a term of four months. (17) With respect to Cheryl Adair, I have taken into consideration her willful and conceded noncompliance with the orders of this Court, her involvement in the September taking of the assets from the California warehouse (see Exhibit 12 at 32 and 39), and her apparent willingness to do Mr. Guez' bidding even if it is patently unlawful. For this reason, the Court recommends that Ms. Adair be imprisoned for 30 days. (18) I certify these proposed findings of fact and conclusions of law to the District Court. NOTES [*] Editor's note: This certification, and the related certification of December 2, 1987, which is reported at 80 B.R. 289, are presently pending before the District Court. [1] All of the exhibits which are referred to were introduced into evidence at the criminal contempt hearing held on December 11, 1987, and unless otherwise indicated, "Tr." refers to pages of the transcript of the December 11th hearing. [2] Mr. Tulchin was present in the Courtroom at all times. He did not, however, take the stand to dispute Ms. Tese's recollection of the events. [3] Ms. Yarmoff had previously identified the nail polish on those locks as having been furnished by her (Dec. 11 Tr. at 59-60). [4] Fed.R.Bankr.P. 9020(c) states that if timely objections are filed to this order it "shall be reviewed as provided in Rule 9033." Pursuant to the text of Fed.R.Bankr.P. 9033(d): "The district judge shall make a de novo review upon the record or, after additional evidence, of any portion of the bankruptcy judge's findings of fact or conclusions of law to which specific written objection has been made in accordance with the rule. The district judge may accept, reject, or modify the proposed findings of fact or conclusions of law, receive further evidence, or recommit the matter to the bankruptcy judge with instructions." In a recent opinion addressing the scope of such a de novo review the Sixth Circuit stated: "[Appellant's] primary point appears to be that the district court failed to conduct a new hearing with live appearances by the witnesses who had testified in the bankruptcy court. He argues that the district court could not make the necessary determinations of credibility from a paper record. This argument reflects a fundamental misunderstanding of the concept of de novo review. . . . The district court's de novo review is similar in scope to the court's de novo review of magistrate's report; and in United States v. Raddatz, 447 U.S. 667, 674-76 [100 S.Ct. 2406, 2411-12, 65 L.Ed.2d 424] (1980), the Supreme Court found that de novo review under the Federal Magistrates Act does not require the district court to conduct a new hearing on contested issues." DRD, Ltd. v. Dezign Corp. (In re Dezign Corp.), 834 F.2d 172 (6th Cir.1987). [5] Although this Court is aware of the Supreme Court's opinion in Young v. U.S. ex rel. Vuitton et Fils S.A., ___ U.S. ___, 107 S.Ct. 2124, 95 L.Ed.2d 740 (1987), it finds the matter at hand to be distinguishable. See generally Sassower v. Sheriff of Westchester County, 824 F.2d 184, 191 (2d Cir.1987). Specifically, this criminal contempt proceeding was prosecuted by the chapter 11 Trustee who was appointed pursuant to 11 U.S.C. § 1104(c) (a "disinterested" appointee), by a member of the Department of Justice (the United States Trustee, see 28 U.S.C. §§ 581 and 503). Accordingly, the chapter 11 Trustee, as a fiduciary vested with a public trust, lacks the characteristics of "interestedness" and the attendant potential for personal gain which tainted the prosecuting party in Young. [6] In a persuasive opinion addressing the issue of adequate notice in state court criminal contempt proceedings, the Civil Court of the City of New York stated: "An alleged contemnor who may be punished for criminal contempt must be given a notice of the proceeding and an opportunity to be heard. A person may not, however, violate orders with impunity. If `personal delivery' were required, it would be fairly easy for a person who is disobeying a court order to continue to flaunt the courts by trying to avoid service. See Silverstein v. Diaz, 124 Misc.2d 597, 476 N.Y.S.2d 978 (Civ.Ct.Queens Co.1984); Frey v. Sipos, N.Y.L.J. June 20, 1985, p. 12, col. 5 (App.T. 2d Dept). The Court of Appeals has recently noted that those who avoid service may be validly served anyway. Bossuk v. Steinberg, 58 N.Y.2d 916, 918-19, 460 N.Y.S.2d 509, 447 N.E.2d 56 (1983). `It is hornbook law that a constitutionally proper method of effecting substituted service need not guarantee that in all cases the defendant will in fact receive actual notice (Dobkin v. Chapman, 21 NY2d 490, 502, [289 N.Y.S.2d 161, 236 N.E.2d 451]). It suffices that the prescribed method is one "reasonably calculated under all the circumstances, to apprise [the] interested part[y] of the pendency of the action" (Mullane v. Central Hanover Trust Co., 339 U.S. 306, 314 [70 S.Ct. 652, 657, 94 L.Ed. 865]).'" Department of Housing Preservation v. Arick, 131 Misc.2d 950, 503 N.Y.S.2d 489, 493-94 (N.Y.City Civ.Ct.1986) cited with approval in Dept. of Housing Preservation and Development of City of NY v. 24 West 132 Equities, Inc., 137 Misc.2d 459, 524 N.Y.S.2d 324 (App.T. 1st Dept.1987). [7] In addition, Mr. Guez testified before this Court on October 27, 1987 and November 19, 1987 that his current address is One Whitney Lane, Old Westbury, New York. In a telegram addressed to this Court on November 29, 1987, Ms. Adair also gave her address as One Whitney Lane, Old Westbury, New York. [8] As noted by another court confronted with this issue, "In the particular context of contempts not committed in the immediate presence of the court, it is frequently the case that those who have flagrantly violated the court's orders are not disposed to make themselves readily available for personal delivery of notice that they are to be prosecuted for contempt of those orders." 24 West 132 Equities, Inc., N.Y.L.J. December 11, 1987, at 12 col. 1 (App.T. 1st Dept.). This Court is aware of this situation, whereby the alleged victim of defective service is in reality the master of his own fate, and accordingly finds the statement by Guez' counsel, in the Affidavit in Opposition to Motion for Contempt Citation, that "While Mr. Guez has, on occasion, stayed there [(One Whitney Lane)], upon information and belief, he has not been residing there for the last week or so." to be insufficient to alter the conclusion that Mr. Guez received adequate notice of the instant hearing. Indeed the Trustee's duties and responsibilities in the instant case are substantial enough. It would be above and beyond the call of his administrative mandate to compel him, in addition, to keep tabs on Mr. Guez' day-to-day whereabouts. In reversing a conviction for failure to surrender to United States marshalls pursuant to a court order, the Ninth Circuit stated, "It may well be . . . that if Grattan [(the defendant)] had intentionally, for the purpose of avoiding his duty to appear when ordered to do so, put himself beyond the power of the court to notify him, that would suffice to sustain the conviction." United States v. Grattan, 603 F.2d 116, 118 (9th Cir.1979). Similarly, based on the facts of the instant matter, Mr. Guez cannot successfully contend that the notice at issue was defectively served because he allegedly was not present at One Whitney Lane, after representing to this Court and the parties in this Case, on a number of very recent occasions, that that was his address. [9] See In re Timmons, 607 F.2d 120, 125 (5th Cir.1979) ("We are not prepared to hold either that discretion was abused by allowing only 48 hours to prepare for trial of the [criminal] contempt charge or that, even if it was any prejudice was suffered thereby."); United States v. Robinson, 449 F.2d 925, 931 (9th Cir.1971) (24-hour notice of a criminal contempt hearing was found to be adequate where it was really a renewal of a prior motion, same counsel had represented defendants throughout proceedings, and there was no real doubt on anyone's part as to the scope of the inquiry.) [10] This procedure is not inconsistent with the operation of Fed.R.Bankr.P. 9020. See In re Sequoia Auto Brokers Ltd., Inc., 827 F.2d 1281, 1291 n. 19 (9th Cir.1987).

583 F.Supp. 23 (1983) Dr. Abbie JORDAN, Plaintiff, v. BOARD OF REGENTS, UNIVERSITY SYSTEM OF GEORGIA, et al, Defendants. Civ. A. No. 481-542. United States District Court, S.D. Georgia, Savannah Division. September 30, 1983. *24 Joseph B. Bergen, Savannah, Ga., for plaintiff. Alfred Evans, Jr., Georgia Asst. Atty. Gen., Atlanta, Ga., for defendants. ORDER ALAIMO, Chief Judge. Dr. Abbie Jordan, aggrieved by termination of her employment as an assistant professor at the Savannah State College (a branch of the university system of the State of Georgia), brings this action pursuant to 42 U.S.C. § 1983 and, its jurisdictional counterparts, 28 U.S.C. §§ 1331 and 1343. She appends state law claims for breach of contract and slander, praying for injunctive and declaratory relief, compensatory and punitive damages, as well as attorney's fees and costs of the litigation. The defendants are the Board of Regents of the University System of the State of Georgia, its individual board members, the president and former acting-president of Savannah State College and its former acting head of the department in which plaintiff had been employed. The "Nature of Action," as stated in ¶¶ 9 and 10 of her complaint, is: 9. This is a proceeding seeking Compensation for plaintiff as a result of the arbitrary and capricious manner in which the defendants treated plaintiff in connection with her professional employment as an associate professor at Savannah State College, who was deprived of her rights secured by the Constitution and laws as a tenured associate professor at Savannah State College to which she had a legitimate claim of entitlement to continued employment and in which she has a proprietary interest, when she was illegally terminated from that employment without prior notice and proper opportunity to be heard. 10. The plaintiff seeks a Declaratory Judgment setting forth her rights in the premises, an Injunction prohibiting the defendants from maintaining a policy or practice of discrimination against plaintiff with respect to its failure to rehire plaintiff for the Academic Year 1980-81 and subsequent years, and to compensate *25 plaintiff for Damages she sustained and is sustaining as a result thereof. The complaint was countered with a motion for a judgment on the pleadings. Fed. R.Civ.P. 12(c). While, at a pretrial conference, the Court indicated the motion had substantial merit (see transcript of the pretrial hearing, attached hereto as Exhibit "A"), it later entered an Order denying the motion on the usual ground that it could not be said that there were no conceivable set of circumstances, under the pleadings, entitling plaintiff to some recovery. Thereafter, the defendants filed a comprehensive motion for summary judgment based upon: (1) Plaintiff's Complaint, (2) Defendants' "Defenses and Answer," (3) The "Proposed Pretrial Order," (4) Board of Regents' Policy I-5, and (5) The complete Record (transcript of the evidence and documents introduced into evidence) of the proceedings before the Board of Regents, along with the decision of the Board of Regents, certified to this Honorable Court along with this Motion. After a painstaking review of the record, the Court has come to the conclusion that there is no genuine issue of material fact in this case. It would be an unconscionable burden to both parties to subject them to the costs and rigors of a trial. The defendants are clearly entitled to summary judgment. THE FACTS The following recitation of facts has been drawn from the plaintiff's complaint; the Board of Regents' applicable Policy regarding employment contracts, certified to the Court by the executive secretary of the Board of Regents and filed in the record on July 21, 1983; the certified transcript of the proceedings before the Board of Regents, its findings of fact, conclusions of law and decision thereon, properly certified to this Court. From the foregoing, it appears that the plaintiff, Dr. Abbie Jordan, was first employed as an instructor at Savannah State College in 1965. She continued to serve as a faculty member at that institution pursuant to a series of single nine-month academic-year contracts through the academic year 1979-80, commencing in September 1979 and ending in June 1980. As an educational institution of the University System of Georgia, Savannah State College is subject to the complete governance, management and control of the Board of Regents of the University System of Georgia, an agency of the Executive Branch of the State of Georgia. While she worked at Savannah State College, her actual employer was the Board of Regents. See O.C.G.A. §§ 20-3-31, 20-3-32, 20-3-51, 20-3-53, 20-3-57. Dr. Jordan was a tenured employee of the System. However, under applicable Board of Regents' Policy, all faculty members —tenured and untenured—are required to be employed under written single-year contracts, for a nine-month academic year. The form of such contracts is specified by written Board Policy. A consequence of a faculty member's failure to sign and return the contract offered to her within the period of time prescribed in the standard-form contract (fifteen days) is the exhaustion of any right to continued employment. On June 25, 1980, the then-acting president of Savannah State College forwarded to plaintiff her proposed Regents' faculty employment contract for the academic year 1980-81, to commence on September 13, 1980, and end on June 12, 1981. The contract offered to Dr. Jordan was in the form specified by the Board of Regents, including the paragraph stating that Dr. Jordan could signify her acceptance of the contract for the ensuing academic year by signing and returning the contract to the acting president within fifteen days following the date the contract was offered. This fixed a deadline of July 10, 1980, for her acceptance. The sole differences between the contract offered to the plaintiff for 1980-81 and her contract for the previous year were that the new proposed contract reflected a salary increase slightly in excess of $1,000 *26 and indicated the particular department to which she was assigned and budgeted. Dr. Jordan did not sign and return the contract within the specified period; rather, on July 9, 1980, she returned the contract unsigned along with a letter objecting to the contract's designation of her department. The acting president replied immediately, advising plaintiff that all academic contracts had been prepared indicating, among other things, the particular department to which a faculty member was assigned and that the contract offered to her was correct as to its designation. Acting President Hall also extended the date for Dr. Jordan's acceptance until July 18, 1980. For the second time, on July 14, 1980, Dr. Jordan rejected the employment contract offered her. Along with her rejection, she requested reconsideration of her desire to have her departmental designation deleted. On August 6, 1980, Acting President Hall returned the unsigned contract to Dr. Jordan for the third time, advising her in his transmittal letter: "Please be advised that you will not be placed on Savannah State College's payroll for the ensuing academic year without our having a signed contract from you." The plaintiff did not respond to the third offer of the contract by signing it, nor did she report for duty or meet her Fall classes on September 13, 1980. In fact, she never returned to work and was terminated on November 4, 1980. On October 13, 1980, she, for the third time, returned her contract unsigned and, in addition, returned a payroll check which had been inadvertently sent her through clerical error. In her letter of transmittal returning the check, she stated: "Acceptance of the check would be an implication of my acceptance of the contract under which the check was issued." On September 15, 1980, the president of Savannah State College received a wire from plaintiff advising him that she had to return to the hospital on September 15 in connection with complications from recent surgery. She did not indicate how long she would be in the hospital and, more importantly, did not utilize Savannah State College's routine sick leave procedures. She had used such procedures before but, for some reason, did not do so in this instance. As previously stated, she never did report to assume her teaching responsibilities, even though her doctor said it was medically possible for her to resume work. Following Dr. Jordan's third rejection, on October 13, 1980, of the contract offered to her, the new president of Savannah State College inquired of the central office of the Board of Regents for advice as to how to proceed. He was instructed by the executive secretary of the Board that he should notify all individuals who had not signed their contracts within the stipulated fifteen days that this would be interpreted as a resignation from the University System. This was communicated to Dr. Jordan by a letter dated October 16, 1980, stating to her that she would have ten days to sign the contract, with a proviso that her signature on the contract would not preclude her from presenting her complaint regarding department designation to the soon-to-be-formed grievance committee. As of November 4, 1980, Dr. Jordan had neither signed the employment contract nor reported to assume any teaching responsibilities; and, on that date, the president advised Dr. Jordan in writing that, because she had repeatedly refused to sign and return the employment contract offered to her, her employment at Savannah State College was at an end because she had in fact abandoned her employment. Aggrieved by this decision, Dr. Jordan asked for and was given a plenary evidentiary hearing before the Board of Regents. (A complete record of those proceedings has been certified to this Court and filed for the record.) It was the Board's ultimate conclusion that: "The refusal by the appellant to accept, sign and return the employment contract repeatedly offered to her within the time provided by the Policies of the Board, was, under the circumstances, *27 an abandonment of her employment rights at Savannah State College and tantamount to a resignation as a faculty member at this institution." This decision of the Board was entered on April 15, 1981. Being dissatisfied with this decision, the plaintiff, on December 22, 1981 (more than a year following President Rayburn's notice to her that her employment was at an end), filed the instant law suit. As previously stated, Dr. Jordan's complaint is based upon an illegal termination of what she claims was "a legitimate claim of entitlement to continued employment and in which she had a proprietary interest." In addition, she claims the basic "deprivation of due process," "equal protection" and "first amendment" claims, as well as two state law claims. The Court concludes that, having failed to return a signed contract, plaintiff had no legal entitlement to continued employment. She unquestionably abandoned her job. Moreover, there is absolutely no invidious discrimination against the plaintiff disclosed by the record, rising to a denial of equal protection of the law. In addition, there is absolutely nothing in the record to show that her termination was caused by the exercise of her first amendment rights. Her first amendment and equal protection claims (sounding in employment discrimination) are barred by the applicable 180-day statute of limitations. Finally, plaintiff received all process due her. CONCLUSIONS OF LAW In Parratt v. Taylor 451 U.S. 527, 536-537, 101 S.Ct. 1908, 1913, 68 L.Ed.2d 420 (1981), the Supreme Court enumerated four requirements for the existence of a valid "due process" claim. Two of them were that there must be a constitutionally protected property or liberty interest in issue and that the deprivation of the protected interest must be without "due process of law." Here, plaintiff's voluntary refusal to accept and sign the employment contract offered her exhausted any right she may have had to continued employment. There was no property or liberty interest left. See Guinn v. King, No. C75-1043A (N.D.Ga., June 30, 1977), aff'd 608 F.2d 522 (5th Cir.1979) [unreported]; Kalme v. West Virginia Board of Regents, 539 F.2d 1346, 1348 (4th Cir.1976); Akyeampong v. Coppin State College, 538 F.Supp. 986, 990-991 (D.Md.1982). Plaintiff was not denied due process of law. Her complaint sounds in breach of contract (one of her pendent state law claims) for which she had an ample remedy in a state forum. Parratt v. Taylor, supra; Casey v. Depetrillo, 697 F.2d 22 (1st Cir.1983). In addition, she was offered and took advantage of a plenary evidentiary hearing before the Board of Regents, a quasi-judicial body. See Board of Education of Rogers, Ark. v. McCluskey, 458 U.S. 966, 102 S.Ct. 3469, 73 L.Ed.2d 1273 (1982); Viverette v. Lurleen B. Wallace State Junior College, 587 F.2d 191, 193 (5th Cir.1979). The Board's findings and conclusions that she had waived her right to continued employment are amply supported by the evidence before that body. As the Supreme Court pointed out in McCluskey, "§ 1983 does not extend the right to relitigate in federal court evidentiary questions arising out of school disciplinary proceedings or the proper construction of school regulations." McCluskey, supra 458 U.S. at 970, 102 S.Ct. at 3472, 73 L.Ed.2d at 1277 (citation omitted). In sum, in view of the ample due process already accorded her by the Board of Regents, this Court is of the opinion that she is not entitled to relitigate the circumstances surrounding the ending of her employment. The equal protection claim, as well as the first amendment claim, asserting forms of discrimination in employment, are barred by the applicable statute of limitations. It is obvious that the plaintiff's claim is based upon a decision made over a year prior to the filing of the complaint. Accordingly, the 180-day period of limitations of O.C.G.A. § 45-19-36(a), analogous *28 to employment discrimination situations, clearly bars these claims. See Harmond v. Board of Regents, University System of Georgia, No. CV 481-326 (S.D.Ga., March 25, 1982), aff'd 691 F.2d 511 (11th Cir.1982) (per curiam) [unpublished decision]; Solomon v. Hardison, No. C82-648A (N.D.Ga., April 27, 1983). Considering the merits of the equal protection claim, there is no assertion of invidious discrimination against some discrete class to which plaintiff belongs. See Oyler v. Boles, 368 U.S. 448, 456, 82 S.Ct. 501, 505, 7 L.Ed.2d 446 (1962); United States v. Blitstein, 626 F.2d 774, 782 (10th Cir.1980). Similarly, the first amendment claim is meritless. The record shows that none of her speech-related claims involved "public issues," but merely her personal complaints about the internal operation of the institution. See Connick v. Myers, ___ U.S. ___, 103 S.Ct. 1684, 75 L.Ed.2d 708 (1983). Finally, even if such "speech" was a public concern, the Board of Regents' Policy requiring the signing and acceptance of a written employment contract would have resulted in a termination in any event. See Mount Healthy City School District Board of Education v. Doyle, 429 U.S. 274, 285, 97 S.Ct. 568, 575, 50 L.Ed.2d 471 (1977). On September 7, plaintiff's counsel filed what he entitled "Plaintiff's Further Response to Defendant's Motion for Summary Judgment," to which he attached an affidavit by Dr. Jordan. A careful examination of the affidavit and a comparison of it with plaintiff's counsel's previous briefs, however, discloses that the affidavit is nothing more than a rehash of counsel's argument subscribed by plaintiff. In summary, this Court rejects (as it must) Dr. Jordan's request that it intrude upon and interfere with the internal affairs of the University System of the State of Georgia by reversing the decision of the Board of Regents. Accordingly, on the federal claims asserted, summary judgment is granted to the defendants. In the exercise of the Court's discretion, United Mine Workers v. Gibbs, 383 U.S. 715, 726, 86 S.Ct. 1130, 1139, 16 L.Ed.2d 218 (1966), the Court declines to exercise jurisdiction over the state law claims and they are hereby dismissed without prejudice. The Clerk of Court is directed to enter an appropriate judgment. *29 EXHIBIT A *30 JORDAN v. BOARD OF REGEANTS; CV481-542. NOVEMBER 1, 1982. CONVENE AT 8:40 A.M. THE COURT: tell me this, Mr. Bergen: Did this woman get three offers? MR. BERGEN: Yes, sir; but they— THE COURT: And then, to really be in a particular department? MR. BERGEN: Well, I think the main thing is the offers were different than the offers—that distinguishes it from that gun case or the— THE COURT: I do not think it does. I really do not. I am really puzzled about her refusal to sign the letters—the contracts. MR. BERGEN: Well, she didn't want to refuse. She never did intend to refuse. She wanted to—obviously, kept going back and writing letters back and forth. She wanted the contract, but the contract— THE COURT: On her terms. MR. BERGEN: Well, that would be the— THE COURT: Yes, but I mean, is this not basically it? MR. BERGEN: Well, on the terms that she had before, that is the main—and I think that is the—I submit that that is— THE COURT: Well, what was the difference? Tell me what it was. She was in languages, was she? MR. BERGEN: She was in—it was in the department of her designation. THE COURT: Remedial Reading or some sort of thing? MR. BERGEN: Yes, sir. THE COURT: Well, did they— MR. BERGEN: She wasn't given the same designation that she had—classification is the word I was looking for—that she had at the previous— THE COURT: You know, I really do not think you have a case. MR. BERGEN: Well, it is a tough—it is a close question. I think that is the whole— THE COURT: Yes. I really do not think you have a case. And really, it would be a shame to try this thing and, then, have them say up above that—I am inclined to think that the best thing I can do for you is to sustain the motion on the pleadings, which would be the most tenuous basis that you could possibly dismiss a case, and let you go ahead and take it up. MR. BERGEN: Appeal it. THE COURT: Yes. Because I—frankly, from what I have read, both your authority as well as his, I just do not feel that you have a case. I mean if these pleadings are right, you know? MR. BERGEN: Yes, sir. I didn't leave much out I don't think. THE COURT: No, you did not, but I say, I think there is a full enough exposition of the facts in the pleadings themselves. Do you not agree? MR. BERGEN: Yes, sir. It certainly was intended to be. THE COURT: That it frames the issue as best you could put it. MR. BERGEN: I don't think either one of us have a dispute about the facts in this case. We have the same exhibits. We agreed on all that. THE COURT: Well, it seemed that way, and I think that there are enough facts shown by your pleadings, which taken most favorably, would properly frame this issue. So, that if you have any basis for a recovery, they will reverse it. MR. BERGEN: I see. I think you are right. You may be doing me— THE COURT: Well, I think, in the long run, the cheapest way to handle this case is this way. MR. BERGEN: All right, sir. Unless we settle it. THE COURT: Yes. What about that? (OFF THE RECORD DISCUSSION.) *31 THE COURT: The reason I feel this way is that I think that her entitlement in the case was really to a contract offer, and under that, I think her rights arising from her tenure were fully satisfied by the employment contract offered to her on three separate occasions. MR. BERGEN: That is all she is really entitled to is— THE COURT: I did not see any fundamental change, and after all, there has to be a certain degree of latitude in an administration with respect to the type of work they may have to do. There has to be some reasonable relationship to the qualification, but after all, they have some latitude in running the system, so that I think a repeated rejection of the contract pretty much seals the fate of her claims and, as far as I feel, the entire case. So, for that reason, I would sustain a motion for judgment on the pleadings in view of that with respect to the 1983 claims. I would also grant it with respect to the State Law claims—the pendant claims—as a matter of discretion without prejudice. That is my best shot at it. I still think you ought to see about— MR. EVANS: I would be happy to. If you will write me the letter, I— MR. BERGEN: I've got it— THE COURT: See about disposing of it, really, because, after all, the litigation is going to be expensive, and there is always a chance—you know. For this reason: you have asked for a judgment on the pleadings, and they may say, you know, "too skimpy." MR. EVANS: Close to a motion to dismiss. THE COURT: Yes. MR. EVANS: I understand. Maybe I should put the documents in and convert it to a summary judgment. THE COURT: Okay. But nevertheless, they might say that. See? So, that is one risk you run, but I am according the relief you asked. (RECESS AT 8:58 A.M.) CERTIFICATE I hereby certify that the foregoing five (5) pages of typewritten material were taken down by me, transcribed under my supervision, were proofread by me, and are true and correct to the best of my ability; I further certify that I am a disinterested party to this action and am neither kin nor counsel to any of the parties hereto; This 29th day of August, 1983. WALTER CRAIG DELOACH Official Court Reporter

587 N.E.2d 1095 (1992) 225 Ill. App.3d 244 167 Ill.Dec. 480 KROPP FORGE COMPANY, Respondent-Appellant, v. The INDUSTRIAL COMMISSION, et al. Francene Zozaski, as parent and custodian of Christopher Zozaski and Gregory Zozaski, minor children of Dennis Zozaski, deceased, Petitioners), Appellees. No. 1-91-0175WC. Appellate Court of Illinois, First District, Industrial Commission Division. January 31, 1992. *1096 Jobin & Flynn, Chicago, for respondent-appellant. Lannon, Lannon & Barr, Ltd., Chicago (Richard J. Barr, Jr., of counsel), for appellees. Justice STOUDER delivered the opinion of the court: Following the death of Dennis Zozaski, the petitioners, Francene, Christopher, and Gregory Zozaski, brought a claim for workers' compensation against the respondent, Kropp Forge Company. The arbitrator found that Dennis's death arose out of his employment and awarded Christopher and Gregory, who were Dennis's minor sons, $283.33 per week, until the youngest reached the age of 18. The Industrial Commission affirmed the arbitrator's decision, and the circuit court confirmed the Commission's decision. The respondent appeals. At the hearing before the arbitrator, it was established that the respondent is a forging manufacturer which uses several furnaces to treat various metals. Dennis Zozaski, the decedent, was employed by the respondent as an instrument technician. His job was to maintain, inspect, and repair various instruments located on the outside and inside of the respondent's furnaces. Dale Sevhla of the Cicero Police Department was called to the respondent's company at 5:00 a.m. on October 4, 1985. Sevhla observed a body in flames inside furnace 201. After waiting eight hours for the furnace to cool, he entered and removed the decedent's body. The decedent was still wearing his glasses. Evidence technicians also removed four beer cans, pliers, a gauge, a wrench set, goggles, and a hard hat. No flashlight was found in the furnace. Furnace 201 was approximately 10 feet high, 10 feet wide, and 35 to 40 feet long. Materials were wheeled in and out of the furnace on a flatbed car which had steel wheels and ran on steel tracks. When the car entered the furnace, it became the furnace's floor, covering the entire length and width of the furnace. A door would then come down to close the furnace. The decedent was found pinned between the back wall of the furnace and the car. The decedent arrived at work at approximately 6:15 a.m. on October 3, 1985. His supervisor was not present. Co-employee Mark Bolen testified that he gave the decedent a ride to work that morning and did not notice alcohol on his breath. The last time Bolen spoke with the decedent was 7:30 a.m. that day on the telephone. The decedent told Bolen he was feeling tired and was going to find a place to lie down. Bolen admitted that he had given a prior statement in which he stated that the decedent had said he wanted to find a hole to crawl into. Bolen left work at 2:30 p.m. without the decedent. He noted that he had never seen the decedent sleeping in a furnace or anywhere else on the job. Michael McDaniels, the decedent's immediate supervisor, testified that the employees in his charge, including the decedent, *1097 often performed unscheduled work inside the furnaces. McDaniels stated that his instrument repairmen would not know when a furnace was going to be run. When working inside a furnace, an employee was supposed to chain the door up so it could not close. In addition, tags were to be placed on the furnace warning that a worker was inside. Safety rules and bulletins were posted in the shop, and warning stickers were made available to employees. However, McDaniels stated that hardly anyone ever followed these safety procedures. The workers also did not notify anyone when they were working inside a furnace. When McDaniels saw workers not following safety procedures, he would reprimand them, but there were no written disciplinary actions and he did not punish them in any way. According to McDaniels, a flashlight would not normally be needed for an inspection of a furnace, although it would be handy to have one. He noted that there was enough natural light by furnace 201 for someone to be able to inspect inside. However, to do repairs, a flashlight would be needed. McDaniels further testified that the decedent had worked for him for approximately three years. During that time, he had observed the decedent inside furnaces approximately once every two weeks. The decedent had a hearing problem, and McDaniels sometimes had to yell to be heard by him. The decedent had often told McDaniels that he wanted to find a hole to crawl into, but McDaniels had never seen the decedent sleeping on the job. Occasionally, the decedent had come to work and told McDaniels that he had been drinking. On those occasions the decedent did not smell of alcohol, nor did he stumble or stagger. McDaniels would watch him closely and noted that he was able to perform his duties. According to McDaniels, the decedent was not a beer drinker and there were often empty beer cans scattered all around the furnace area. McDaniels stated that the decedent never drank at work, nor did McDaniels ever see him bring alcohol to work. Pat Rangel, the chief metallurgist and heat treatment superintendent for the respondent, testified that no work could be done on a furnace without her knowledge. According to Rangel, such work would have to be ordered by a letter from her department to the instrument department. Standard procedure required a minimum of two men for any repair work. If inside work was required, the furnace doors would be blocked or chained. Rangel stated that she had never seen an instrument repairman inside a furnace. Rangel further testified that no repairs were scheduled for furnace 201 on October 3, 1985. She stated there were no problems with furnace 201 that day or in the days immediately prior. According to Rangel, the flatbed car had been pulled out of furnace 201 and it was turned off on the morning of October 2, 1985. The furnace then remained open until 10:30 a.m. on October 3, 1985, when the car was moved into the furnace to obtain floor space. The car was removed at 4:00 p.m., loaded, placed in the furnace at 7:00 p.m., and the furnace was activated. Rangel further stated that she had had a conversation with the decedent in her office on October 2, 1985. They were face to face, about four feet apart. She spoke in a normal tone and the decedent appeared to understand her. Both McDaniels and Rangel testified regarding the ventilation in furnace 201. Rangel stated that ventilation would come from the open door of the furnace, and cross ventilation from the floor. McDaniels stated that this ventilation occurred when the flatbed car was out and the furnace door was open. According to McDaniels, there were occasional gas leaks inside the furnaces, which the instrument repairmen were required to fix. Rangel stated that approximately one month prior to the decedent's death, another furnace, 202, had exploded. The suspected cause was gas accumulation. Following the decedent's death, OSHA conducted an investigation and ordered the removal of certain obsolete piping to improve the ventilation of furnace *1098 201. McDaniels stated that this only slightly changed the ventilation. McDaniels and Rangel both testified regarding the sound and speed of a flatbed car as it moved into a furnace. McDaniels described the motor as quiet, but the wheels made a squeaky noise. He described the speed as walking speed or one foot per second. Rangel stated the wheels squealed and it was quite noisy. She described the speed as a very slow walk. Frank Cooney, another of respondent's employees, testified that he saw the decedent at approximately 6:15 a.m. on October 3, 1985. There was nothing unusual about the decedent, and he did not smell of alcohol. Cooney stated that the decedent was hard of hearing and it was necessary to get his attention first and then talk "real loud" to him. Additionally, Cooney had never seen the decedent sleeping during work. Francene Zozaski, the decedent's former wife, testified that he had a hearing problem that made it necessary to be within a few feet of him to communicate. She also stated that the decedent read lips. According to Zozaski, the decedent wore glasses but would take them off before napping. The decedent's pre-employment physical report was introduced. It indicated a problem with the decedent's hearing and recommended that a further examination be done to determine whether he needed a hearing aid. It was stipulated that the decedent had received treatment at a hospital detoxification center approximately 10 months prior to his death. The respondent attempted to introduce these hospital records, contending they showed the decedent's lifelong problem with drinking. The arbitrator ruled the records inadmissible, stating that what happened to the decedent 10 months earlier was not relevant to whether he was intoxicated the day he died. Dr. Schaffer, chief toxicologist of the Cook County Medical Examiner's Office, described two tests done on blood and brain tissue samples taken from the decedent. According to Schaffer, the decedent was intoxicated. However, he also stated that a person's intoxication depends on the individual's level of alcohol tolerance, and a person's tolerance affects whether he can perform certain activities. Schaffer admitted that he did not know the decedent's tolerance for alcohol. The arbitrator found that the decedent had sustained an accident which arose out of and in the course of his employment and which caused his death. He therefore awarded death benefits as previously described. The Commission affirmed the arbitrator's decision, and the circuit court confirmed the Commission's decision. On appeal, the respondent first argues that the Commission's decision that the decedent's injuries and death arose out of his employment was against the manifest weight of the evidence. The respondent contends that death benefits should have been denied in the instant case because the decedent manifested a clear intention to remove himself from his employment when he advised his co-worker, Bolen, that he was going to find a place to lie down. The respondent also asserts that no evidence was presented that the decedent was performing his duties at the time of his death. An injury is compensable under the Act only if it arises out of and in the course of employment. (Panagos v. The Industrial Comm'n (1988), 171 Ill.App.3d 12, 120 Ill.Dec. 836, 524 N.E.2d 1018.) For an injury to arise out of one's employment, it must have an origin in some risk connected with or incidental to the employment so that there is a causal connection between the employment and the injury. (Fire King Oil Co. v. The Industrial Comm'n (1976), 62 Ill.2d 293, 342 N.E.2d 1.) An injury is in the course of employment when it occurs within the period of employment at a place where the employee can reasonably be expected to be in the performance of his duties and while he is performing those duties or something incidental thereto. (Panagos, 171 Ill.App.3d at 15, 120 Ill.Dec. at 838, 524 N.E.2d at 1020.) If an employee is injured as the result of his violation of the employer's safety rules, but is attempting to do the work he is employed to do, but merely violating the rule *1099 as to the manner of doing it, his injury is compensable. Chadwick v. The Industrial Comm'n (1989), 179 Ill.App.3d 715, 128 Ill. Dec. 555, 534 N.E.2d 1000. It is the function of the Industrial Commission to decide questions of fact and causation and to judge the credibility of the witnesses. (O'Dette v. The Industrial Comm'n (1980), 79 Ill.2d 249, 38 Ill.Dec. 133, 403 N.E.2d 221.) The decision of the Industrial Commission should not be disturbed unless it is contrary to the manifest weight of the evidence. (Orsini v. The Industrial Comm'n (1987), 117 Ill.2d 38, 109 Ill.Dec. 166, 509 N.E.2d 1005.) A reviewing court should not overturn the Industrial Commission's findings simply because different inferences could be drawn, or otherwise substitute its judgment for that of the Commission. Hoegger v. The Industrial Comm'n (1987), 158 Ill.App.3d 1025, 111 Ill.Dec. 206, 512 N.E.2d 110. In the instant case, the evidence was conflicting as to whether the decedent was in fact working for the respondent at the time he sustained the injuries which resulted in his death. While Bolen testified that the decedent told him he was going to find a place to sleep, he admitted that in an earlier statement he had said the decedent merely told him he wanted to find a hole to crawl into. McDaniels, the decedent's supervisor, stated that he had often heard the decedent say this, but had never found him sleeping on the job. Cooney, another co-worker of the decedent, also testified that he never saw the decedent sleeping at work. Furthermore, the decedent was wearing his glasses when his body was found and this appears to be inconsistent behavior for one whose alleged purpose was to take a nap. Additionally, although Rangel testified that no work could be done on the furnaces without her knowledge, her testimony was contradicted by McDaniels, who stated that his instrument repairmen often performed unscheduled work inside the furnaces. The respondent also asserts that the decedent could not have been working in the furnace since no flashlight was found with his body. However, McDaniels's testimony indicated that certain inspections could be done on the inside of the furnaces without a flashlight. Furthermore, other work tools were found near the decedent's body. We note that several witnesses testified to the decedent's hearing problem. Only Rangel stated that she had no problem communicating with the decedent. The evidence of the decedent's pre-employment examination suggests that the respondent was aware of the decedent's hearing problem. Finally, while it appears that the decedent did not follow the proper safety procedures, McDaniels testified that hardly anyone ever followed them, and there was no apparent policy for enforcing them. Clearly, there was enough evidence presented in the instant case from which the Industrial Commission could reasonably infer that the decedent had been performing his work in an area where he was expected to be at the time he died. Additionally, the fact that he may have violated safety rules is irrelevant, especially since there was evidence that they were not enforced. For these reasons, we hold that the Commission's finding was not against the manifest weight of the evidence. The respondent next argues that the decedent's intoxication barred the recovery of death benefits as a matter of law. It contends that the decedent's death either arose out of the intoxication, or the intoxication was of such a degree that it constituted a departure from his employment. Intoxication is not a per se bar to workers' compensation benefits. (Riley v. The Industrial Comm'n (1991), 212 Ill. App.3d 62, 156 Ill.Dec. 411, 570 N.E.2d 887.) For compensation to be denied on the basis of intoxication, the evidence must show that the employee was so intoxicated that the court can say as a matter of law that the injury arose out of his drunken condition and not out of his employment. (Paganelis v. The Industrial Comm'n (1989), 132 Ill.2d 468, 139 Ill.Dec. 477, 548 N.E.2d 1033; Riley v. The Industrial Comm'n (1991), 212 Ill.App.3d 62, 156 Ill. Dec. 411, 570 N.E.2d 887.) Whenever an employee is so drunk and helpless that he *1100 can no longer follow his employment, and he is injured in that condition, his injury does not arise out of his employment. However, intoxication which does not incapacitate the employee from following his occupation is not sufficient to defeat the recovery of compensation even though the intoxication may be a contributing cause of his injury. District 141, International Association of Machinists & Aerospace Workers v. The Industrial Comm'n (1980), 79 Ill.2d 544, 39 Ill.Dec. 196, 404 N.E.2d 787. Resolving disputes in the evidence and drawing reasonable inferences and conclusions therefrom is the responsibility of the Industrial Commission. (County of Cook v. The Industrial Comm'n (1988), 177 Ill. App.3d 264, 126 Ill.Dec. 595, 532 N.E.2d 280.) The Commission's findings will not be reversed on appeal unless they are against the manifest weight of the evidence. Glover v. The Industrial Comm'n (1985), 140 Ill.App.3d 361, 92 Ill.Dec. 794, 485 N.E.2d 605. In the instant case, Dr. Schaffer opined that the decedent was intoxicated. However, he also stated that a person's level of tolerance for alcohol would affect whether he could perform certain tasks. Schaffer admitted that he did not know the decedent's tolerance for alcohol. Additionally, McDaniels testified that on occasion the decedent would come to work and tell McDaniels that he had been drinking. McDaniels would watch the decedent closely and noted that he was able to perform his work. While four beer cans were found in the furnace with the decedent's body, McDaniels stated that there were often empty beer cans in the furnace area. Also, none of the witnesses who last saw the decedent noticed the smell of alcohol, or anything unusual about him. We find that the evidence in the instant case was such that the Commission could have reasonably inferred that the decedent's death did not arise out of intoxication and that he was not so intoxicated that it constituted a departure from his employment. Accordingly, the Commission's conclusion was not against the manifest weight of the evidence. Finally, the respondent contends that the circuit court improperly excluded the decedent's medical records from evidence. Specifically, it argues that the decedent's hospital records relating to his treatment in a detoxification program should have been admitted into evidence. At arbitration, the respondent argued that the records were relevant to show the decedent's alleged lifelong problem with drinking. Before the circuit court, the respondent also argued for the first time that the records were relevant to the issues of the decedent's tolerance for alcohol and his hearing condition. An arbitrator's decision should not be reversed based on contentions not presented to him and raised for the first time on appeal. Failure to raise issues before the arbitrator results in their waiver. Thomas v. The Industrial Comm'n (1980), 78 Ill.2d 327, 35 Ill.Dec. 794, 399 N.E.2d 1322. Initially, we note that we agree with the arbitrator's ruling that the records were irrelevant to the issue of whether the decedent was drunk at the time he died. Furthermore, the petitioners' attorney stipulated that the decedent had undergone a hospital detoxification program 10 months prior to his death. Therefore, the arbitrator was aware that the decedent had a drinking problem in his past. Additionally, we hold that since the respondent's other bases for admission of the records were never presented to the arbitrator they are waived and the circuit court was correct in not considering them on appeal. Accordingly, the judgment of the circuit court of Cook County is affirmed. Affirmed. McCULLOUGH, P.J., and WOODWARD, LEWIS and RAKOWSKI, JJ., concur.

692 F.2d 749 Ray, Appeal of 81-1950 UNITED STATES COURT OF APPEALS Third Circuit 9/14/82 1 W.D.Pa. AFFIRMED

Order filed, June 27, 2018. In The Court of Appeals For The First District of Texas ____________ NO. 01-18-00505-CV GUICE ENGINEERING, INC., Appellant V. SHEILA TURNER, INDIVIUALLY AND AS NEXT FRIEND OF D. J. T., JR. AND A. T., MINOR CHILDREN AND DANNY EARL CAIN AS REPRESENTATIVE OF THE ESTATE OF DAVID JUSTIN TURNER, AND AS NEXT FRIEND OF D. J. T., JR. AND A. T., Appellee On Appeal from the 295th District Court Harris County, Texas Trial Court Case 2015-73209 ORDER The reporter’s record in this case was due 06/11/2018. See Tex. R. App. P. 35.1. The court has not received a request to extend time for filing the record. The record has not been filed with the court. Because the reporter’s record has not been filed timely, we issue the following order. We order, the official (or substitute) court reporter, to file the record in this appeal, if any, within 10 days of the date of this order. PER CURIAM 

TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN NO. 03-15-00058-CR Brady Alan Daniel, Appellant v. The State of Texas, Appellee FROM THE DISTRICT COURT OF MILLS COUNTY, 35TH JUDICIAL DISTRICT NO. 3029, HONORABLE STEPHEN ELLIS, JUDGE PRESIDING MEMORANDUM OPINION Appellant Brady Alan Daniel appeals from a conviction for aggravated assault. See Tex. Penal Code § 22.02. In two points of error, Daniel challenges the sufficiency of the evidence supporting his guilty plea under article 1.15 of the Texas Code of Criminal Procedure and the enhancement of his offense as a repeat offender. See Tex. Code Crim. Proc. art. 1.15; Tex. Penal Code § 12.42(b). We will affirm the judgment of conviction. BACKGROUND Daniel and the complainant, Angela Skelton, had dated for approximately five and a half years prior to the incident giving rise to his arrest. Skelton resided with Daniel and her three children from a previous marriage in a mobile home owned by Daniel’s father. On February 18, 2014, Daniel learned while at work that the hours on his schedule had been reduced. When he arrived home, Daniel, upset, went with Skelton to purchase beer. When Daniel and Skelton returned from the store, they sat in the car and Daniel drank. After a while, Skelton went inside to prepare dinner. Daniel continued drinking. Approximately 45 minutes later, Daniel charged into the residence and demanded of Skelton, “What are you doing at our house?” Daniel, enraged, knocked Skelton to the floor and began to strike her in the face with his fists and to strangle her. Skelton managed to bite Daniel’s thumb and escape. Skelton took her children and drove to the nearby residence of Daniel’s cousin, who called the police. Skelton had a fractured orbital socket and had to have a metal plate inserted into her face. Daniel was arrested and indicted for aggravated assault causing serious bodily injury. On November 17, 2014, Daniel waived his right to a jury and entered an open guilty plea. The trial court accepted Daniel’s plea and conducted a hearing at which several witnesses, including Skelton and Daniel, testified. Plea paperwork, signed by Daniel, Daniel’s attorney, the attorney for the State, and the trial court judge, was admitted into evidence and contained Daniel’s written judicial confession. The trial court found Daniel guilty of aggravated assault and found true the repeat-offender allegation in the indictment, thereby enhancing Daniel’s sentence to that for a first degree felony. Daniel was sentenced to 35 years’ confinement. This appeal followed. DISCUSSION Guilty Plea In his first point of error, Daniel contends that the evidence “is legally insufficient” to support his conviction for aggravated assault. While the United States Constitution does not require that the State present evidence in support of a guilty plea in Texas courts, article 1.15 of the 2 Texas Code of Criminal Procedure constitutes “an additional procedural safeguard” not required by federal constitutional law. Menefee v. State, 287 S.W.3d 9, 13 (Tex. Crim. App. 2009). Article 1.15 requires that the State “introduce evidence into the record showing the guilt of the defendant” and prohibits the conviction for a felony of a person upon his guilty plea “without sufficient evidence to support the same.”1 Tex. Code Crim. Proc. art. 1.15. “By its plain terms,” article 1.15 “requires evidence in addition to, and independent of, the plea itself.” Menefee, 287 S.W.3d at 14. Evidence supporting a guilty plea “may take many forms,” including a judicial confession or the defendant’s testifying in open court, where he admits his culpability or acknowledges generally that the allegations against him are true and correct. Id. at 13. Daniel maintains that “the statutory requirements for satisfying guilt in a felony case have not been satisfied,” because his plea was “supported by insufficient evidence.”2 Immediately 1 Article 1.15 provides: No person can be convicted of a felony except upon the verdict of a jury duly rendered and recorded, unless the defendant, upon entering a plea, has in open court in person waived his right of trial by jury in writing in accordance with Articles 1.13 and 1.14; provided, however, that it shall be necessary for the state to introduce evidence into the record showing the guilt of the defendant and said evidence shall be accepted by the court as the basis for its judgment and in no event shall a person charged be convicted upon his plea without sufficient evidence to support the same. Tex. Code Crim. Proc. art. 1.15. 2 Daniel’s argument appears to be based on an assumption that the trial court could not consider any evidence following its acceptance of his guilty plea but prior to its finding him guilty. In making this assumption, Daniel is conflating the court’s acceptance of a guilty plea with its judgment of conviction. Article 1.15 guarantees that no person “shall . . . be convicted upon his plea without sufficient evidence” accepted by the court as “the basis for its judgment.” Id. Therefore, under article 1.15, “evidence is received to support the judgment, not to accept a plea of guilty or 3 following the acceptance of Daniel’s plea, the trial court admitted into evidence a document entitled “Written Admonitions to the Defendant From Plea to Court.” Under the subheading “Waivers, Consent, Stipulation, and Judicial Confession,” appears the following: The Defendant consents to a stipulation of the evidence and testimony and to introduction of testimony by affidavits, written statements of the witnesses and any other documentary evidence. The Defendant JUDICIALLY CONFESSES and stipulates to committing the offense(s) of Aggravated Assault within the indictment or information or as a lesser-included offense to the offense charged in the indictment or information. Upon the defendant’s oath the defendant does hereby swear or affirm: “My name is correctly spelled in the indictment or information, I have read the indictment or information filed in this case and I committed each and every act alleged therein, except those acts waived by the State. All facts alleged in the indictment or information are true and correct. I am guilty of the instant offense as well as all lesser included offenses. All enhancement and habitual allegations as set forth in the indictment are true and correct, except those waived by the State . . . . I swear to the truth of all of the foregoing.” Beneath this text are the signatures of Daniel, Daniel’s attorney, the prosecutor, and the trial court judge. A judicial confession, “standing alone, is sufficient to sustain a conviction upon a guilty plea, and to satisfy the requirements of Article 1.15.” Chindaphone v. State, 241 S.W.3d 217, 220 (Tex. App.—Fort Worth 2007, pet. ref’d). It must, however, cover “all of the elements of the charged offense.” Menefee, 287 S.W.3d at 13; see also Dinnery v. State, 592 S.W.2d 343, 353 (Tex. Crim. App. 1979). Where, as here, the accused specifically states in the judicial confession, “I have nolo contendere.” Ex parte Martin, 747 S.W.2d 789, 792 (Tex. Crim. App. 1988). To the extent Daniel argues that the trial court erroneously considered evidence following the acceptance of his plea and that this evidence cannot be considered under article 1.15, we disagree. 4 read the indictment or information filed in this case and I committed each and every act alleged therein” and the referenced indictment sets out the relevant elements of the offense, the requirement has been satisfied. Chindaphone, 241 S.W.3d at 220; see Brooks v. State, Nos. 03-13-00251-CR, 03–13–00252–CR, 03–13–00253–CR, 03–13–00254–CR, 2014 WL 2918000, at *3 (Tex. App.—Austin June 19, 2014, no pet.) (mem. op.). The indictment against Daniel charged that he “intentionally, knowingly, or recklessly cause[d] serious bodily injury to Angela Janette Skelton, by striking her on the face or body, which caused serious bodily injury.” In so doing, it set forth the relevant elements for aggravated assault, precisely tracking the statutory language of section 22.02 of the Texas Penal Code. See Tex. Penal Code §§ 22.01, .02 (“A person commits an offense if the person . . . intentionally, knowingly, or recklessly causes bodily injury to another, including the person’s spouse; . . . and the person . . . causes serious bodily injury to another, including the person’s spouse.”). In addition to admitting Daniel’s judicial confession and stipulations, the trial court heard testimony from Skelton that “next thin[g] I know, I’m on the ground and he is on top of me. He started punching me . . . in the face.” Skelton also testified that she told medical staff at the hospital following the assault “that [Daniel] repeatedly hit me and repeatedly choked me.” Daniel himself testified that while he could not remember much, “I know that I did it, that I hurt her.” Based on our review of the record, we conclude that the evidence is sufficient to support the trial court’s finding of guilt. Daniel’s signed judicial confession and stipulations, as well as the testimony of Skelton and Daniel, are sufficient to support a finding of Daniel’s guilt. We therefore overrule Daniel’s first point of error. 5 Enhancement In his second point of error, Daniel contends that “the evidence is legally insufficient to support enhancement of the offense charged from a second to a first-degree felony.” The indictment against Daniel contains an enhancement paragraph alleging a prior conviction for the felony offense of tampering with physical evidence. Under section 12.42(b) of the Texas Penal Code, “if it is shown on the trial of a felony of the second degree that the defendant has previously been finally convicted of a felony . . . , on conviction the defendant shall be punished for a felony of the first degree.” Tex. Penal Code § 12.42(b). To establish the fact of a prior conviction, the State must prove beyond a reasonable doubt that (1) a prior conviction exists, and (2) the defendant is linked to that conviction. Flowers v. State, 220 S.W.3d 919, 921 (Tex. Crim. App. 2007). There is no “best evidence” rule requiring that a prior conviction be proved by a specific document. Id. While evidence of a certified copy of a final judgment and sentence is “preferred and convenient,” a defendant’s admission or stipulation is also sufficient. Id. Daniel emphasizes that he did not plead true to any enhancement. However, following the trial court’s acceptance of his guilty plea, the trial court admitted into evidence a certified copy of Daniel’s final judgment and sentence for the felony offense of tampering with physical evidence. That copy, standing alone, is sufficient to prove Daniel’s prior conviction. See id. Moreover, stipulating to a prior conviction “removes the need for proof” of that conviction. Bryant v. State, 187 S.W.3d 397, 400 (Tex. Crim. App. 2005). Where an accused stipulates that he has read the indictment and committed “each and every act alleged therein” and 6 the indictment contains an enhancement paragraph regarding a prior conviction, the fact of the prior conviction is sufficiently proved. Brooks, 2014 WL 2918000, at *4. Here, not only did Daniel make such a stipulation, but he also stipulated, “All enhancement . . . allegations as set forth in the indictment are true and correct.” Given the admission of a certified copy of Daniel’s final judgment and sentence for a prior felony conviction and Daniel’s stipulations to the veracity of the indictment—specifically its enhancement paragraph—the evidence was legally sufficient to support the enhancement of Daniel’s charged offense to a first-degree felony. We therefore overrule Daniel’s second point of error. CONCLUSION Having overruled both points of error, we affirm the trial court’s judgment of conviction. __________________________________________ Scott K. Field, Justice Before Chief Justice Rose, Justices Pemberton and Field Affirmed Filed: December 10, 2015 Do Not Publish 7 

FILED NOT FOR PUBLICATION OCT 15 2014 MOLLY C. DWYER, CLERK UNITED STATES COURT OF APPEALS U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT JUAN DEDIOS GARCIA-HERRERA, No. 13-35435 Petitioner - Appellant, D.C. No. 2:12-cv-01711-RSM v. MEMORANDUM* NATHALIE ASHER, Immigration and Customs Enforcement Field Office Director; et al., Respondents - Appellees. Appeal from the United States District Court for the Western District of Washington Ricardo S. Martinez, District Judge, Presiding Submitted October 6, 2014** Seattle, Washington Before: PAEZ, BYBEE, and CALLAHAN, Circuit Judges. Juan Dedios Garcia-Herrera appeals the district court’s denial of his habeas petition for lack of jurisdiction. We note that on September 26, 2014, we ordered * This disposition is not appropriate for publication and is not precedent except as provided by 9th Cir. R. 36-3. ** The panel unanimously concludes this case is suitable for decision without oral argument. See Fed. R. App. P. 34(a)(2). Garcia-Herrera to file a status report, informing the court of whether he remained in the United States and of the status of his application for relief under the Deferred Action for Childhood Arrivals (“DACA”) program. Garcia-Herrera responded on October 6, informing the court that he was still present in the United States and that his DACA application had been denied. Because Immigration and Customs Enforcement’s (“ICE”) refusal to delay his removal pending the adjudication of his DACA application formed the basis of Garcia-Herrera’s habeas petition, it appears that this case may be moot. However, we dismiss on the alternate ground of lack of jurisdiction. The district court held that two statutory provisions, 8 U.S.C. § 1252(b)(9) and 8 U.S.C. § 1252(g), deprived it of jurisdiction over Garcia-Herrera’s habeas petition. The former requires that claimants seek “review of all questions of law and fact . . . arising from any action taken or proceeding brought to remove an alien from the United States” through a petition for review in the appropriate court of appeals. 8 U.S.C. § 1252(b)(9); see also 8 U.S.C. § 1252(a)(5). The latter expressly bars habeas jurisdiction over “any cause or claim . . . arising from the decision or action by the Attorney General to commence proceedings, adjudicate cases, or execute removal orders against any alien under this chapter.” 8 U.S.C. § 1252(g) (emphasis added). 2  Garcia-Herrera argues that 8 U.S.C. § 1252(b)(9) does not bar his habeas petition because he is not challenging the merits of the underlying removal order. Rather, he challenges ICE’s decision not to delay his removal pending the adjudication of his application for relief under DACA. However, by his own formulation, this constitutes a challenge to ICE’s decision to execute a removal order. Therefore, the district court properly dismissed his habeas petition for lack of jurisdiction under 8 U.S.C. § 1252(g). DISMISSED. 3 

United States Court of Appeals Fifth Circuit F I L E D UNITED STATES COURT OF APPEALS for the Fifth Circuit December 22, 2005 _____________________ Charles R. Fulbruge III Clerk No. 04-60320 consolidated with No. 04-60331 _____________________ UNITED STATES OF AMERICA, Plaintiff-Appellee, VERSUS DAVID WALLACE Defendant-Appellant. _________________________________________________________________ Appeal from the United States District Court for the Southern District of Mississippi _________________________________________________________________ (2:01-CR-8-2) Before JONES, DeMOSS, and CLEMENT, Circuit Judges. PER CURIAM:* Appellant David Wallace was indicted on April 3, 2001 for possession of counterfeit currency in violation of 18 U.S.C. § 472. He was released on bail, and he subsequently absconded and failed to appear for his change of plea hearing. On April 10, 2003, Wallace was apprehended while robbing a bank, and he was indicted two weeks later for bank robbery in violation of 18 U.S.C. § 2113(a) and (d), brandishing a firearm during and in relation to * Pursuant to 5TH CIR. R. 47.5, the Court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR. R. 47.5.4. the robbery in violation of 18 U.S.C. § 924(c)(1), and aiding and abetting with respect to both charges in violation of 18 U.S.C. § 2. The aiding and abetting charges were later dropped. After originally pleading not guilty to the charges against him, Wallace agreed to plead guilty to both indictments pursuant to the terms of a written Memorandum of Understanding (“MOU”). The MOU provided that if Wallace plead guilty to all three counts contained in the two indictments, the Government would recommend a sentence in the lower ten percent of the sentencing range calculated by the court for the counterfeiting and bank robbery charges. It further provided that the Government would recommend an additional one- level downward adjustment for acceptance of responsibility should Wallace otherwise qualify for a two-level downward adjustment for acceptance of responsibility on the bank robbery charge. The MOU also contained a waiver of the right to appeal the sentence or contest the conviction or sentence in any post-conviction proceeding under 28 U.S.C. § 2255, a merger provision indicating that there were no promises external to the plea agreement, and a statement that the defendant expressly acknowledged “no reliance upon anyone’s calculation of a particular guideline range for the offenses constituting [the] plea.” On October 29, 2003, the district court judge read Wallace the requisite plea admonishments before accepting his guilty plea as to 2 both indictments.1 Sentencing was set for early 2004. At sentencing, there was a discussion regarding whether Wallace was eligible for a downward adjustment for acceptance of responsibility on the bank robbery charge.2 The district court agreed with the recommendation of the presentence report (“PSR”) and the probation officer that U.S.S.G. § 1B1.1’s grouping requirement had the effect of preventing the court from giving Wallace any downward adjustment for acceptance of responsibility absent extraordinary circumstances. The court stated that it did not find extraordinary circumstances in Wallace’s case and refused to accept defense counsel’s argument that it should group the charges in the way defense counsel and the U.S. Attorney had when estimating Wallace’s offense level during plea bargaining, a grouping that would have allowed a three-level downward adjustment for acceptance of responsibility. The U.S. Attorney conceded that the Government had thought the defendant would get a downward adjustment, stating “I would have to defer to probation as for what is the required way. 1 Specifically, the judge asked Wallace (1) whether he understood that it was the judge who would determine what the appropriate sentencing guideline was, regardless of what Wallace’s attorney or the Government might have told him; and (2) whether he understood that a defendant normally has a right to appeal and that under the terms of the plea agreement Wallace was giving up that right. Wallace answered both questions in the affirmative. The judge also asked Wallace whether there were any side agreements or promises made that were not contained in the plea agreement, to which Wallace responded no. 2 Wallace had already conceded that he was not eligible for a downward adjustment on the counterfeiting charge because he had absconded after the court released him on bail. 3 Although it was an inducement to [Wallace], I’m sure, to enter his plea that he thought that he was going to get that three levels on the bank robbery.” After hearing Wallace’s final statement — during which Wallace complained that he thought acceptance of responsibility was automatic and asked to withdraw his guilty plea — the court reminded Wallace that when he plead guilty, he acknowledged that it was the judge who would determine his sentence under the guidelines. The court then sentenced Wallace to concurrent sixty-five month terms of imprisonment for the counterfeiting and bank robbery charges and a consecutive eighty- four month term of imprisonment for the brandishing a firearm charge. Final judgment was entered and Wallace timely appealed and moved for consolidation of the cases. This Court granted Wallace’s motion for consolidation and now considers the three interrelated issues on appeal: (1) whether the waiver of appeal in the plea agreement should be enforced; (2) whether Appellant-Wallace was induced to change his plea from not guilty to guilty by promises made outside of the plea agreement such that the district court erred in refusing to allow Wallace to withdraw his guilty plea; and (3) whether Booker/Fanfan should allow reversal for resentencing. For the reasons stated below, we DISMISS Wallace’s appeal. I. The Government asks us to dismiss this appeal because of the waiver provision in the plea agreement. Whether a defendant’s 4 waiver of appeal should be enforced is a question of law. Questions of law are reviewed de novo. United States v. Farmigoni, 934 F.2d 63, 65 (5th Cir. 1991). This Court will enforce a waiver when a defendant knowingly and voluntarily waives his right to appeal. See United States v. Baymon, 312 F.3d 725, 726 (5th Cir. 2002); United States v. Martinez, 263 F.3d 436, 438 (5th Cir. 2001); United States v. Melancon, 972 F.2d 566, 568 (5th Cir. 1992). However, if the Government has breached or elected to void a plea agreement, “the defendant is necessarily released from an appeal waiver provision contained therein.” United States v. Gonzalez, 309 F.3d 882, 886 (5th Cir. 2002). Because the record indicates that Wallace knowingly and voluntarily waived his right to appeal, resolution of this issue turns on whether, as Wallace contends, the Government breached the plea agreement by failing to keep promises made in association with it, as discussed below. Wallace’s main argument on appeal is that the district court erred in refusing to allow him to withdraw his guilty plea because he was induced into pleading guilty by promises made outside of the plea agreement that he would automatically, by virtue of pleading guilty, receive a three-level downward adjustment for acceptance of responsibility.3 Wallace did not make this objection in district court; therefore, we review for plain error. United States v. 3 Wallace does not argue that the written terms of the plea agreement were breached, just promises made in association with the plea agreement. 5 Munoz, 408 F.3d 222, 226 (5th Cir. 2005); United States v. Brown, 328 F.3d 787, 790 (5th Cir. 2003). Although Wallace is correct that “evidence of discussions surrounding the negotiations of the written agreement may establish the existence of a promise,” which if not kept, may give rise to a breach, United States v. Kirk, 70 F.3d 791, 793 (5th Cir. 1995), the record contains no evidence of a promise that Wallace would receive a three-point downward adjustment, and Wallace’s testimony at the Rule 11 hearing, together with the written plea agreement, indicate that no such promise was made, United States v. Corbett, 742 F.2d 173, 175-77 (5th Cir. 1984). Accordingly, the district court did not commit error, plain or otherwise, in refusing to allow Wallace to withdraw his guilty plea, Corbett, 742 F.2d at 175-77, and because we find that neither the written terms of nor any promises external to the plea agreement were breached, we will enforce the waiver of appeal provision in that document. Finally, Wallace argues that because the district court applied the sentencing guidelines in a mandatory fashion when determining the adjustment for acceptance of responsibility, this Court should reverse and remand for resentencing under Booker/Fanfan. Because Wallace is bound by the waiver of appeal in his plea agreement, as discussed above, we do not have jurisdiction to consider this issue. United States v. Burns, No. 04-11357, ___ F.3d ___, 2005 WL 3388548, at *7 (5th Cir. Dec. 13, 2005). II. 6 Accordingly, Wallace’s appeal is DIMISSED. 7 

In the Court of Appeals Second Appellate District of Texas at Fort Worth ___________________________ No. 02-18-00209-CR ___________________________ EX PARTE LAURA ANN SIPES On Appeal from the 89th District Court Wichita County, Texas Trial Court No. 188,052-C Before Kerr and Birdwell, JJ.; and Michael C. Massengale (Former Justice, Sitting by Assignment) Per Curiam Memorandum Opinion  MEMORANDUM OPINION AND JUDGMENT We have considered Laura Ann Sipes’s and the State of Texas’s “Joint Motion for Reversal of the Trial Court’s Judgment Without Regard to its Merits.” The joint motion is GRANTED, and because the Governor of Texas has withdrawn extradition warrant numbers 14-71324 and 14-71445 at the request of the Governor of Missouri, without regard to the merits, we • VACATE the trial court’s judgment, • DISMISS the writ of habeas corpus, and • ORDER Laura Ann Sipes released and discharged from any further obligations under governor’s extradition warrant numbers 14-71324 and 14- 71445. See Ex parte Gorham, 242 S.W.2d 425, 426 (Tex. Crim. App. 1951). Per Curiam Do Not Publish Tex. R. App. P. 47.2(b) Delivered: April 4, 2019 2 

607 F.Supp. 484 (1985) Ana M. CHAVEZ, Plaintiff, v. GUARANTY BANK & TRUST COMPANY, a Colorado corporation, Defendant. Civ. A. No. 84-Z-1473. United States District Court, D. Colorado. April 16, 1985. Daniel R. Satriana, Jr., Hall & Evans, Denver, Colo., for plaintiff. Laura Ann Wing, Rothgerber, Appel & Powers, Denver, Colo., for defendant. ORDER DISMISSING STATE CLAIMS WEINSHIENK, District Judge. This matter is before the Court on defendant Guaranty Bank & Trust Company's Motion to Dismiss. Plaintiff Ana M. Chavez filed this action against defendant *485 alleging discriminatory treatment and discriminatory discharge by defendant. Plaintiff also claims that pursuant to state law her discharge was "improper, unwarranted and in breach of Defendant's employee manual," and that defendant acted in bad faith and against public policy. Plaintiff alleges jurisdiction pursuant to Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e-5(f)(3), as well as 28 U.S.C. § 1331, and pendent jurisdiction. Guaranty Bank & Trust Company's Motion contends that plaintiff's second and third claims for relief, the state law claims, fail to state a claim. Alternatively, defendant argues that the Court should refuse to exercise pendent jurisdiction over these claims. The Court has reviewed the motion, the submitted legal memoranda and the relevant case law, and is now fully advised and prepared to rule. Generally, a Court may exercise pendent jurisdiction when, as in this case, there is a substantial federal claim and the state claims derive from a common nucleus of operative facts. United Mine Workers v. Gibbs, 383 U.S. 715, 86 S.Ct. 1130, 16 L.Ed.2d 218 (1966). However, the Gibbs common nucleus of operative facts test does not end the inquiry into whether this Court has the power to hear the plaintiff's nonfederal claims along with the federal one. As stated in Owen Equipment & Erection Co. v. Kroger, 437 U.S. 365, 98 S.Ct. 2396, 57 L.Ed.2d 274 (1978): Beyond this constitutional minimum, there must be an examination of the posture in which the nonfederal claim is asserted and of the specific statute that confers jurisdiction over the federal claim, in order to determine whether "Congress in [that statute] has ... expressly or by implication negated" the exercise of jurisdiction over the particular nonfederal claim. Aldinger v. Howard, supra, [427 U.S. 1] at 18, 96 S.Ct. 2413, [at 2422], 49 L.Ed.2d 276 [(1976)]. The Court is persuaded that the Kroger test precludes the Court from exercising pendent jurisdiction in this action. The reasons for this decision rest primarily in the nature and history of Title VII. Congress has provided for specific equitable relief in Title VII actions, and has expressed its desire that these matters be resolved as expeditiously as possible. Furthermore, Title VII actions are tried to the Court. It is evident to this Court that the exercise of pendent jurisdiction would impair the statutory scheme so carefully constructed by Congress in Title VII. These considerations, as well as others, have been examined thoroughly in the case law. See Mongeon v. Shellcraft Industries, Inc., 590 F.Supp. 956 (D.Vt.1984); Frye v. Pioneer Logging Machinery, Inc., 555 F.Supp. 730 (D.S.C.1983).[1] In addition, the Court notes that, even if congressional intent would not be frustrated by the exercise of pendent jurisdiction over state claims in Title VII actions, the Court's power is a discretionary one. Gibbs, 383 U.S. 715, 86 S.Ct. 1130, 16 L.Ed.2d 218. The Court need not exercise this power if dismissal of the claims will better serve the interests of judicial economy, convenience and fairness to litigants. Id. at 726, 86 S.Ct. at 1139. While the damages sought in this action are the same as those available under Title VII, the Court notes that the state claims pressed here introduce a strong possibility of jury confusion, as well as the probability that the state issues will predominate at trial. Finally, speedy resolution of discrimination suits, a concern of particular importance to Congress in the drafting of Title VII, would be enhanced by trying the Title VII action alone. Accordingly, the Court *486 will not assume pendent jurisdiction over these two state law claims. Having concluded that the exercise of pendent jurisdiction is inappropriate in this case, the Court does not reach the question of whether the state claims for relief are properly stated. Therefore, it is ORDERED that defendant's Motion to Dismiss is granted. It is FURTHER ORDERED that plaintiff's second and third claims for relief are hereby dismissed with prejudice as to litigation in this forum, but without prejudice as to litigation in state court. NOTES [1] Other judges in this district also have declined to exercise jurisdiction over pendent claims in Title VII actions. See Haroldson v. Hospitality Systems, Inc., 596 F.Supp. 1460 (D.Colo.1984) (Kane, J.); Anderson v. Silvercreek Development Co., No. 84-M-1770, slip op. (D.Colo. Nov. 30, 1984) (Matsch, J.). Cf. Ritter v. Colorado Interstate Gas Co., 593 F.Supp. 1279 (D.Colo.1984) (Carrigan, J.); Borumka v. Rocky Mountain Hospital and Medical Service, 599 F.Supp. 857 (D.Colo.1984) (Moore, J.) (ADEA cases).

889 F.2d 401 58 USLW 2293 The STATE OF NEW YORK, the City of New York, the New YorkCity Health & Hospitals Corp., Dr. Irving Rust, on behalf ofhimself, his patients and all others similarly situated, Dr.Melvin Padawer, on behalf of himself, his patients, and allothers similarly situated, Medical and Health ResearchAssociation of New York City, Inc., Planned Parenthood ofNew York City, Inc., Planned Parenthood ofWestchester/Rockland, and Health Services of Hudson County,New Jersey, Plaintiffs-Appellants,v.Dr. Louis SULLIVAN, or his successor, Secretary of theUnited States Department of Health and HumanServices, Defendant-Appellee. Nos. 575, 633, Dockets. 88-6204, 88-6206. United States Court of Appeals,Second Circuit. Argued Jan. 4, 1989.Decided Nov. 1, 1989. Suzanne Lynn, Asst. Atty. Gen., Chief, Civ. Rights Bureau, New York State Dept. of Law, New York City (Robert Abrams, Atty. Gen. of the State of N.Y., Marla Tepper, Asst. Atty. Gen., New York City, of counsel), for plaintiff-appellant, The State of N.Y. Rachel N. Pine, New York City (Janet Benshoof, Lynn Paltrow, Catherine Weiss, American Civ. Liberties Union, New York City, Norman Siegel, Art Eisenberg, New York Civ. Liberties Union, New York City, Laurie R. Rockett, Hollyer, Jones, Brady, Smith Troxwell, Barrett & Chira, New York City, of counsel), for plaintiffs-appellants Dr. Irving Rust, Dr. Melvin Padawer, Medical and Health Research Ass'n of New York City, Inc., Planned Parenthood of New York City, Inc., Planned Parenthood of Westchester/Rockland, and Health Services of Hudson County, New Jersey. Peter Zimroth, Corp. Counsel, City of New York, New York City (Lorna Bade Goodman, Asst. Corp. Counsel, Chief, Affirmative Litigation Div., Hillary Weisman, Asst. Corp. Counsel, City of New York, New York City, of counsel), for plaintiffs-appellants City of New York and City of New York Health and Hospitals, Corp. Alfred Mollin, Atty., Appellate Staff, Civ. Div., Dept. of Justice, Washington, D.C. (John R. Bolton, Asst. Atty. Gen., John F. Cordes, Appellate Staff, Civ. Div., Dept. of Justice, Washington, D.C., Rudolph W. Giuliani, U.S. Atty. for S.D.N.Y., New York City, Joel Mangel, Deputy Chief Counsel, Public Health Service, Carol Conrad, Office of the Gen. Counsel, Dept. of Health and Human Services, Washington, D.C., of counsel), for defendant-appellee. Kent Masterson Brown, Lexington, Ky., Michael Vaccari, New York City, and Clarke D. Forsythe, Americans United for Life Legal Defense Fund, Chicago, Ill., of counsel, submitted a brief in support of appellee for amici curiae American Academy of Medical Ethics, Ass'n of American Physicians & Surgeons, American Ass'n of Pro Life Obstetricians and Gynecologists, American Ass'n of Pro-life Pediatricians, Nat. Doctors for Life, Christian Medical Soc., Christian Medical Foundation, Alabama Physicians for Life, Physicians for Moral Responsibility, Nat. Ass'n of Pro-life Nurses, California Pro-life Nurses Ass'n, Georgia Nurses for Life, Indiana Nurses Concerned for Life, Missouri Nurses for Life, New York State Nurses for Life, Inc., Pennsylvania Nurses for Life, Rhode Island Nurses for Life, Washington Pro-life Nurses Ass'n, Southern Center for Law and Ethics, and Certain Fellows and Members of the American College of Obstetricians and Gynecologists and of the American Medical Ass'n. Kirk B. Johnson, Edward B. Hirshfeld, American Medical Ass'n, Chicago, Ill., Ann E. Allen, American College of Obstetricians and Gynecologists, Washington, D.C., Jack R. Bierig, David F. Graham, Lynn D. Fleisher, and Richard D. Raskin, Sidley & Austin, Chicago, Ill., of counsel, submitted a brief in support of appellants for amici curiae the American Medical Ass'n, American College of Obstetricians and Gynecologists, and American Soc. of Human Genetics. Bruce S. Wolff, Charles S. Sims, Suzette Brooks and William S. Koenig, Proskauer Rose Goetz & Mendelsohn, New York City, of counsel, submitted a brief in support of appellants for amici curiae the American Public Health Ass'n, the Ass'n of State and Territorial Health Officers, the Ass'n of Schools for Public Health, the American College of Physicians, the American Medical Student Ass'n, the Ass'n of Reproductive Health Professionals, the California Coalition of Nurse Practitioners, the Maryland Dept. of Health and Mental Hygiene, the Nat. Ass'n of Nurse Practitioners in Family Planning, the Nat. Urban League, the Nurses Ass'n of the American College of Obstetricians and Gynecologists, the Ohio Dept. of Health, the Wisconsin Nurse Practitioners in Reproductive Health, and Dr. Allan Rosenfield, Dean of the Columbia University School of Public Health. Jonathan Lang, Ann Barcher, Barry Ensminger, Janice Goodman, Mary Sue Henifin, Kent Hirozawa, Susan Waltman and Sheldon Oliensis, President, the Ass'n of the Bar of the City of New York, New York City, of counsel, submitted a brief in support of appellants for amicus curiae the Committees on Civ. Rights, Medicine and Law, and Sex and Law of the Ass'n of the Bar of the City of New York. Julius L. Chambers, Charles S. Ralston, John C. Dubin, Sherrilyn A. Ifill and Charlotte B. Rutherford, NAACP Legal Defense and Educational Fund, Inc., New York City of counsel, submitted a brief in support of appellants for amicus curiae NAACP Legal Defense and Educational Fund, Inc.). Nadine Taub, Rutgers University School of Law, Newark, N.J., Sarah E. Burns, Legal Director, NOW Legal Defense and Educ. Fund, New York City, John H. Hall, Walter J. Walsh and Joel Kosman, Debevoise & Plimpton, New York City of counsel, submitted a brief in support of appellants for amici curiae NOW Legal Defense and Educ. Fund, Nat. Abortion Rights Action League, American Ass'n of University Women, American Humanist Ass'n, American Jewish Congress, Americans for Religious Liberty, Catholics for a Free Choice, Center for Population Options, Committee to Defend Reproductive Rights, Episcopal Women's Caucus, Equal Rights Advocates, Inc., Nat. Abortion Federation, Nat. Council of Jewish Women, Nat. Emergency Civ. Liberties Committee, Nat. Organization for Women, Nat. Women's Health Network, Nat. Women's Political Caucus, Organization of Pan-Asian American Women, Public Citizen Health Research Group, United Church of Christ, Women's Equity Action League, Women's Law Project; Women's Legal Defense Fund, Young Women's Christian Ass'n of U.S.A.). David M. Becker and Virginia A.S. Kling, Wilmer, Cutler & Pickering, Washington, D.C., of counsel, submitted a brief in support of appellants for amici curiae Representative Bill Green, Senators Barbara A. Mikulski, Lowell P. Weicker, Jr., Brock Adams, John H. Chafee, Alan Cranston, Howard M. Metzenbaum, Paul Simon, Robert T. Stafford, William S. Cohen, Daniel J. Evans, Bob Packwood, and Timothy E. Wirth, and Representatives Daniel K. Akaka, Les AuCoin, Julian C. Dixon, Vic Fazio, William H. Gray III, Steny H. Hoyer, William Lehman, Robert J. Mrazek, John Edward Porter, Martin Olav Sabo, Henry A. Waxman, Jim Bates, Rick Boucher, Cardiss Collins, Mickey Leland, James H. Scheuer, Ron Wyden, Gary L. Ackerman, Chester G. Atkins, Anthony C. Beilenson, Howard L. Berman, Sherwood L. Boehlert, Don Bonker, Barbara Boxer, George E. Brown, Jr., Albert G. Bustamante, Benjamin L. Cardin, Thomas R. Carper, George W. Crockett, Jr., Peter A. DeFazio, Ronald V. Dellums, Mervyn M. Dymally, Don Edwards, Lane Evans, Dante B. Fascell, Walter E. Fauntroy, Barney Frank, Bill Frenzel, Robert Garcia, Sam Gejdenson, Benjamin A. Gilman, Charles A. Hayes, James M. Jeffords, Nancy L. Johnson, Robert W. Kastenmeier, Joseph P. Kennedy II, Peter H. Kostmayer, Richard H. Lehman, Sander M. Levin, Mel Levine, John Lewis, Mike Lowry, Matthew G. Martinez, Robert T. Matsui, George Miller, John R. Miller, Jim Moody, Constance A. Morella, Bruce A. Morrison, Stephen L. Neal, Nancy Pelosi, Claude Pepper, Charles B. Rangel, Marge Roukema, Claudine Schneider, Patricia Schroeder, Christopher Shays, David E. Skaggs, Louise M. Slaughter, Lawrence J. Smith, Olympia J. Snowe, Stephen J. Solarz, Pete Stark, Gerry E. Studds, Edlophus Towns, Morris K. Udall, Ted Weiss, Alan Wheat, and Howard Wolpe. Mark E. Chopko, Gen. Counsel and Helen M. Alvare, U.S. Catholic Conference, Washington, D.C., of counsel, submitted a brief in support of appellee for amicus curiae the U.S. Catholic Conference). James Bopp, Jr., and Richard E. Coleson, Brames, McCormick, Bopp & Abel, Terre Haute, Ind., of counsel, submitted a brief in support of appellee for amici curiae U.S. Senator Gordon J. Humphrey and U.S. Congressmen Thomas J. Tauke, Thomas A. Luken, Thomas J. Bliley, Dan Coats, Christopher H. Smith, Henry J. Hyde, Alan B. Mollohan, and Vin Weber. Before KEARSE, CARDAMONE and WINTER, Circuit Judges. WINTER, Circuit Judge: 1 This appeal involves the validity of regulations promulgated by the Secretary of Health and Human Services (the "Secretary"). The statutory authority for these regulations is Section 1008, 42 U.S.C. Sec. 300a-6, of Title X of the Public Health Service Act, 42 U.S.C. Secs. 300 to 300a-41 (1982 & Supp. V 1987) ("Title X"). Section 1008 states: "None of the funds appropriated under this subchapter shall be used in programs where abortion is a method of family planning." 42 U.S.C. Sec. 300a-6. The regulations in question were promulgated in early 1988 and constitute a divergence from past agency policy. The new regulations limit the activities of Title X grantee projects with regard to counseling and referral for abortion, require physical and financial separation of Title X projects from prohibited activities, and restrict advocacy concerning abortions by Title X projects. 2 In challenging the new regulations, plaintiffs raise three principal issues: (i) whether the regulations are consistent with Section 1008; (ii) whether the prohibition on counseling concerning abortion within Title X projects violates the First and Fifth Amendment rights of pregnant women; and (iii) whether the regulations on counseling and advocacy infringe the First Amendment rights of health care providers. We hold that the regulations in question are a permissible construction of the statute and do not violate the constitutional rights of women or Title X grantees. BACKGROUND 3 The facts are not in dispute and are amply described in the district court opinion, State of New York v. Bowen, 690 F.Supp. 1261 (S.D.N.Y.1988), familiarity with which is assumed. A brief recounting will therefore suffice for purposes of this opinion. Title X of the Public Health Service Act, 42 U.S.C. Secs. 300 to 300a-41 authorizes the Secretary to make grants to public and private nonprofit entities to establish and operate family planning projects. It is the single largest source of federal funding of family planning services. Appellants include a number of Title X grantees--the State of New York, which receives Title X funds through the New York State Department of Health; the City of New York; the New York City Health and Hospitals Corporation; Planned Parenthood of New York City, Inc.; Planned Parenthood of Westchester/Rockland; Medical and Health Research Association of New York City, Inc.; Health Services of Hudson County, New Jersey; and Dr. Irving Rust and Dr. Melvin Padawer, doctors who supervise Title X-funded programs, who are suing on behalf of themselves and their patients. The defendant is the Secretary of the Department of Health and Human Services. 4 The Secretary has the power to make Title X grants "in accordance with such regulations as [he] may promulgate." 42 U.S.C. Sec. 300a-4(a). On February 2, 1988, the Secretary promulgated the regulations in question pursuant to Section 1008. The new regulations impact on counseling concerning abortion, geographic and administrative relationships between Title X grantees and those engaging in activities concerning abortion, and advocacy concerning abortion. There is little doubt that the new regulations were intended as a departure from prior administrative practice. While Title X funds were never permitted in the past to be used either to perform or to subsidize actual abortions, see 36 Fed.Reg. 18,465, 18,466 (1971) (codified at 42 C.F.R. Sec. 59.5(a)(9) ("The project will not provide abortion as a method of family planning."); see also 42 C.F.R. Sec. 59.5(a)(5) (1986), administrative interpretations at first permitted, and later required, Title X projects to provide information about, and referral for, abortions, including names and addresses of abortion clinics. See U.S. Dep't of Health, Educ. & Welfare, Program Incentives for Project Grants for Family Planning Services (Jan.1976); U.S. Dep't of Health and Human Services, Program Guidelines for Project Grants for Family Planning Services Sec. 8.6 (1981). Title X programs thus included "non-directive" counseling about abortion as a method of family planning. Abortion-related activities permissible under the earlier practice have been summarized as follows: 5 [T]he provision of information concerning abortion services, mere referral of an individual to another provider of services for an abortion, and the collection of statistical data and information regarding abortion are not considered to be proscribed by Sec. 1008. The provision of "pregnancy counseling" in the sense of encouraging persons to obtain abortions and the provision of transportation to persons to enable them to obtain abortions, on the other hand, are considered to be proscribed by Sec. 1008. The test to be applied, then, appears to be whether the immediate effect of the activity in question is to encourage or promote the use of abortion as a method of family planning. If the immediate effect of the activity is essentially neutral as in the cases of mere referral or collection of statistical data, then the activity does not fall afoul of Sec. 1008. 6 Memorandum from C. Conrad, Office of the General Counsel, Department of Health, Education and Welfare, to E. Sullivan (Apr. 14, 1978) (footnotes omitted) (reproduced in Brief of the Secretary of Health and Human Services as Amicus Curiae at Attachment B, Valley Family Planning v. North Dakota, 661 F.2d 99 (8th Cir.1981) [hereinafter Memorandum of Apr. 14, 1978]. 7 The new regulations expressly prohibit those activities that "assist" a woman to obtain an abortion, while not interfering with the right to receive information about abortion from sources other than Title X projects. See 42 C.F.R. Sec. 59.10 (1988); see also 53 Fed.Reg. 2941-42 (1988). The regulations thus curtail counseling, nondirective or not, by Title X projects concerning abortion. In attempting to "set specific standards for compliance with the statutory requirement that none of the funds appropriated under Title X may be used in programs where abortion is a method of family planning," 53 Fed.Reg. 2922 (1988), Section 59.8(a)(1) of the regulations states that "[a] Title X project may not provide counseling concerning the use of abortion as a method of family planning." 42 C.F.R. Sec. 59.8(a)(1) (1988). Section 59.8(a)(3) goes on to explain: 8 (3) A Title X project may not use prenatal, social service or emergency medical or other referrals as an indirect means of encouraging or promoting abortion as a method of family planning, such as by weighing the list of referrals in favor of health care providers which perform abortions, by including on the list of referral providers health care providers whose principal business is the provision of abortions, by excluding available providers who do not provide abortions, or by "steering" clients to providers who offer abortion as a method of family planning. 9 42 C.F.R. Sec. 59.8(a)(3) (1988). The regulations thus allow a service provider to respond to a client's inquiry for information about abortion by furnishing the name of abortion providers, but only in a prescribed fashion. After a client is diagnosed as pregnant, "the project refers the woman for prenatal pregnancy care rather than providing 'options counseling,' which could violate section 1008 by influencing her choice toward abortion." 53 Fed.Reg. 2932 (1988). The discussion accompanying the new regulations explains that the limitations on "conscious weighting" of the referral lists does not prohibit the "inclusion of facilities, such as hospitals, in which abortions are performed if they are also major providers of prenatal care and other services and the referral is specifically made to the providers of prenatal care services." 53 Fed.Reg. 2938 (1988). The provision does, as noted, ban inclusion of providers whose "main function" is to provide abortions. Id. 10 Subsection (4) states that the regulations do not prohibit provision of information "medically necessary to assess the risks and benefits of different methods of contraception," provided no counseling with respect to abortion is furnished. 42 C.F.R. Sec. 59.8(a)(4) (1988). Specifically, keeping on hand copies of the yellow pages that contain advertisements for and information on where to obtain an abortion, to be given to a client who asks for them, is permitted: "[K]eeping the yellow pages in the project office and provision of medical records to another medical provider would not be proscribed, as they are not actions that directly 'assist' a woman to obtain an abortion." 53 Fed.Reg. 2942 (1988).1 11 The second area of change under the new regulations concerns "program integrity." Section 59.9 provides that "[a] Title X project must be organized so that it is physically and financially separate" and "must have an objective integrity and independence from prohibited activities." 42 C.F.R. Sec. 59.9 (1988). The integrity and independence of Title X projects are to be evaluated on a case-by-case basis. That evaluation will take into account, inter alia, whether separate accounting records are maintained, whether facilities in which prohibited activities occur are physically separate from Title X facilities, and whether the personnel in the Title X project also serve in projects in which prohibited activities occur. 42 C.F.R. Sec. 59.9(a)-(d) (1988). 12 The third area relates to advocacy concerning abortion. Section 59.10 prohibits the use of Title X funds for activities that "encourage, promote or advocate abortion," and sets forth the following guidelines, illustrated with examples: 13 (a) A Title X project may not encourage, promote or advocate abortion as a method of family planning. This requirement prohibits actions to assist women to obtain abortions or increase the availability or accessibility of abortion for family planning purposes. Prohibited actions include the use of Title X project funds for the following: 14 (1) Lobbying for the passage of legislation to increase in any way the availability of abortion as a method of family planning; 15 (2) Providing speakers to promote the use of abortion as a method of family planning; 16 (3) Paying dues to any group that as a significant part of its activities advocates abortion as a method of family planning; 17 (4) Using legal action to make abortion available in any way as a method of family planning; and 18 (5) Developing or disseminating in any way materials (including printed matter and audiovisual materials) advocating abortion as a method of family planning. 19 42 C.F.R. Sec. 59.10(a) (1988). 20 Appellants filed two separate actions, New York v. Bowen, No. 88-0701, and Rust v. Bowen, No. 88-0702, later consolidated, seeking declaratory and injunctive relief to prevent implementation of the new regulations. Appellants argued that the new regulations violated the letter and intent of Title X and worked a deprivation of First and Fifth Amendment rights. In a thorough opinion, the district court rejected appellants' contentions and upheld the regulations. Despite the Secretary's departure from past interpretations, the district court found the new regulations to be supported by "sufficiently reasonable grounds that they should not be set aside as arbitrary or capricious." State of New York v. Bowen, 690 F.Supp. at 1272. Similarly, the district court found appellants' constitutional claims to lack merit, holding that the regulations did not impermissibly interfere with either patients' First and Fifth Amendment rights to receive information about abortion services, id. at 1272-74, or Title X grantees' First Amendment rights to engage in speech concerning abortion. DISCUSSION 1. Statutory Issues 21 We first examine whether the regulations in question embody a construction of the statute that legitimately effectuates Congressional intent. See Chevron U.S.A. v. Natural Resources Defense Council, 467 U.S. 837, 842-43, 104 S.Ct. 2778, 2781-82, 81 L.Ed.2d 694 (1984). Under Title X, the Secretary is empowered to make grants and enter into contracts "to assist in the establishment and operation of voluntary family planning projects which shall offer a broad range of acceptable and effective family planning methods and services." 42 U.S.C. Sec. 300(a). His discretion, however, is subject to the restriction of Section 1008 that "[n]one of the funds appropriated under this subchapter shall be used in programs where abortion is a method of family planning." 42 U.S.C. Sec. 300a-6. We believe that Section 1008 authorizes the regulations in question. 22 Appellants contend that the statute proscribes only the providing for, or the funding of, the performance of abortions and that the Secretary may not prohibit abortion counseling. This is a highly strained construction of Section 1008. A principal function of grantees under Title X is to provide information or "counseling" as to a range of methods of family planning. A program that counsels use of a particular contraceptive device plainly treats that device as a "method of family planning." In this context, it would be wholly anomalous to read Section 1008 to mean that a program that merely counsels but does not perform abortions does not include abortion as a "method of family planning." Moreover, when Congress has sought to prohibit the use of federal funds to perform actual abortions, it has used language specifically tailored to that end. See, e.g., Pub.L. No. 100-202, 101 Stat. 1329-99 (1987) ("Hyde Amendment" to appropriations act stating: "None of the Federal funds provided in this Act shall be used to perform abortions except where the life of the mother would be endangered if the fetus were carried to term...."). In the present context, the natural construction of Section 1008 is that the term "method of family planning" includes counseling concerning abortion. 23 Nothing in the legislative history of Title X detracts from that conclusion. The Conference Report thus stated that "[i]t is, and has been, the intent of both Houses that the funds authorized under [Section 1008] be used only to support preventive family planning services, population research, infertility services, and other related medical, informational, and educational activities. The conferees have adopted the language contained in section 1008, which prohibits the use of such funds for abortion, in order to make clear this intent." Conf.Rep. No. 91-1667, 91st Cong., 2d Sess., reprinted in 1970 U.S.Code Cong. & Admin.News 5068, 5080, 5081-82. The comments of a number of legislators similarly support the Secretary's position. See, e.g., 116 Cong.Rec. 37,375 (1970) (remarks of Rep. Dingell) ("During the course of House hearings ... there was some confusion regarding the nature of the family planning programs envisioned, whether or not they extended to include abortion as a method of family planning. With the 'prohibition of abortion' amendment--title X, section 1008--the committee members clearly intend that abortion is not to be encouraged or promoted in any way through this legislation."); 116 Cong.Rec. 37,371 (1970) (statement of Rep. Pickle) ("I strongly support ... the provision in the House version of this legislation that prevents this bill from being construed as support for abortion."). 24 Appellants' contrary view of the legislative history is based entirely on highly generalized statements about the expansive scope of the family planning services intended to be provided by Title X grantees. See, e.g., S.Rep. No. 1004, 91st Cong., 2d Sess. 3, excerpted in 116 Cong.Rec. 24,094 (1970) ("This legislation is designed to make comprehensive, voluntary family planning services, and information relating thereto, readily available to all persons in the United States desiring such services; to provide greatly increased support for biomedical, behavioral, and operational research relevant to family planning and population; to develop and disseminate information on population growth; and to coordinate and centralize the administration of family planning and population research programs conducted by the Department of Health, Education and Welfare."); id. at 10, 116 Cong. Rec. at 24,095-96 ("The committee does not view family planning as merely a euphemism for birth control. It is properly a part of comprehensive health care and should consist of much more than the dispensation of contraceptive devices."); 116 Cong.Rec. 37,370 (1970) (statement of Rep. Bush) ("Most important is that this legislation be recognized as ... a health-care service mechanism and not a population control mechanism."); 116 Cong.Rec. 37,380 (statement of Rep. Kyros) ("[This legislation] will make an important contribution to the health of American mothers and children. This bill will make family planning services available to low-income women who presently want and need but cannot afford them and will increase the federal role in population research."); 116 Cong.Rec. 24,093 (statement of Sen. Hart) (legislation "moves toward providing much needed medical family planning services to millions of women who cannot afford them, and it provides for the research that will help us better to understand the phenomena of population growth and enable all couples to regulate fertility according to their individual consciences"). Whatever force such generalized statements might have in the absence of Section 1008, however, they do not specifically mention counseling concerning abortion as an intended service of Title X projects, and they surely cannot be read to trump a section of the statute that specifically excludes it. See Jewell Ridge Coal Corp. v. Local No. 6167, United Mine Workers of America, 325 U.S. 161, 168-69, 65 S.Ct. 1063, 1067-68, 89 L.Ed. 1534 (1945) (general remarks not probative of Congressional intent on narrow issue). 25 Similarly, we are unpersuaded that subsequent refunding of Title X by later Congresses is significant in the instant case. Cf. Tennessee Valley Auth. v. Hill, 437 U.S. 153, 190-93, 98 S.Ct. 2279, 2299-2301, 57 L.Ed.2d 117 (1978) (subsequent appropriation irrelevant to previously enacted substantive law). Congress has not reenacted Title X, and the reauthorization of funding2 does not imply that Congress was aware of, much less endorsed, every expenditure of funds by the agency. Reauthorization, for example, may simply imply acquiescence in the exercise of discretion by the agency. General statements by members of Congress at the time of refunding, see, e.g., 119 Cong.Rec. 9593 (1973) (statement of Sen. Pell) (urging extension of funding and noting that "these programs seem to be working well"); 124 Cong.Rec. 31,252 (1978) (statement of Rep. Rogers), are similarly unenlightening. Moreover, " 'the views of a subsequent Congress form a hazardous basis for inferring the intent of an earlier one.' " Consumer Prod. Safety Comm'n v. GTE Sylvania, Inc., 447 U.S. 102, 117, 100 S.Ct. 2051, 2060, 64 L.Ed.2d 766 (1980) (quoting United States v. Price, 361 U.S. 304, 313, 80 S.Ct. 326, 331, 4 L.Ed.2d 334 (1960)). "[E]ven when it would otherwise be useful, subsequent legislative history will rarely override a reasonable interpretation of a statute that can be gleaned from its language and legislative history prior to its enactment." Consumer Prod. Safety Comm'n v. GTE Sylvania, 447 U.S. at 118 n. 13, 100 S.Ct. at 2061 n. 13. 26 In addition, the rejection by Congress of proposed amendments to Title X specifically prohibiting funds for counseling and referral for abortion, see H.R.Rep. No. 159, 99th Cong., 1st Sess. 6-7 (1985); 124 Cong.Rec. 37,045-46 (1978), is not helpful to interpretation because Congress may have believed that the statute already provided for such a result. See 124 Cong.Rec. 37,046 (1978) (statement of Rep. Rogers) ("[T]he point of what we are doing in title X ... is to let people know how to avoid pregnancy. We cannot use any funds for abortion. The amendment is not needed."); see also 120 Cong.Rec. 21,688 (1974) (remarks of Rep. Roncallo); 124 Cong.Rec. 31,238 (1978) (statement of Rep. Rogers) ("simple extension" of Title X is not a "pro-abortion vote"). Finally, the existence of a lengthy political debate in Congress over the last several years on the general subject of funding for counseling and referral for abortion, see Appellants' Br. at 35-36, is not a reason for courts to alter their interpretation of Title X as enacted. 27 Appellants next argue that the Secretary is bound by prior administrative constructions of the statute and may not, therefore, promulgate regulations diverging significantly from past practice, even if the Secretary determines that practice was at odds with Congressional intent. The fact that an agency is departing from a long-held prior interpretation is of course an item to be taken into account by a court reviewing agency actions. Such a departure does not of course entitle a court to eschew all deference to the agency's judgment. Indeed, the Supreme Court has directly held that courts must show some deference to a rescission or modification of regulations as well as to an agency's initial interpretation. Motor Vehicle Mfrs. Ass'n v. State Farm Mut. Auto. Ins. Co., 463 U.S. 29, 41, 103 S.Ct. 2856, 2865, 77 L.Ed.2d 443 (1983). In American Trucking Ass'n v. Atchison, Topeka & S.F. Ry. Co., 387 U.S. 397, 87 S.Ct. 1608, 18 L.Ed.2d 847 (1967), for example, the Supreme Court upheld the authority of the Interstate Commerce Commission to alter an interpretation of a statute that it had followed for some twenty-five years on the ground that it had decided that interpretation was incorrect. The Court remarked that an agency "faced with new developments or in light of reconsideration of the relevant facts and its mandate, may alter its past interpretation and overturn past administrative rulings and practice." 387 U.S. at 416, 87 S.Ct. at 1618. Similarly, in Chevron, the Supreme Court rejected the argument that an agency's interpretation "is not entitled to deference because it represents a sharp break with prior interpretations of the [statute in question]." Chevron, 467 U.S. at 862, 104 S.Ct. at 2791. Such revised interpretation deserves deference because "[a]n initial agency interpretation is not instantly carved in stone" and "the agency, to engage in informed rulemaking, must consider varying interpretations and the wisdom of its policy on a continuing basis." Id. at 863-64, 104 S.Ct. at 2791-92. 28 We recently applied these principles in Securities Indus. Ass'n v. Board of Governors of the Federal Reserve System, 839 F.2d 47 (2d Cir.), cert. denied, --- U.S. ----, 108 S.Ct. 2830, 100 L.Ed.2d 931 (1988), in which we upheld an outright reversal of regulatory policy based on the Federal Reserve Board's reevaluation of the Congressional scheme embodied in the Glass-Steagall Act, 12 U.S.C. Secs. 24 (Seventh), 78, 377-78 (1982 and Supp. V 1987). We held that that Act provided the Federal Reserve Board with adequate authority to allow bank holding-company subsidiaries to deal in certain securities notwithstanding a long-existing, previously unchallenged regulatory prohibition on such dealing. In the instant case, the Secretary has concluded that prior policy failed to implement the statute. See 53 Fed.Reg. 2923 ("Upon review of the guidelines, however, the Department for several reasons no longer believes that these [past] approaches were correct."). As noted above, we believe that the language and history of Title X are fully consistent with the regulations challenged in the instant case. Even if less than the customary deference is accorded the Secretary in light of prior administrative construction, the regulations before us must be upheld. 29 Turning to the program integrity regulations, appellants contend that the separation requirements of Section 59.9 of the regulations, mandating separate facilities, personnel and records, frustrate the intent of Congress that Title X programs be an integral part of a broader health care system. They argue that such integration is impermissibly burdened because the efficient use of non-Title X funds by Title X grantees will be adversely affected by the regulations. For support, they rely principally on the generalized language in the House Conference Report that "[t]he legislation does not and is not intended to interfere with or limit programs conducted in accordance with State or local laws and regulations which are supported by funds other than those authorized under this legislation." Conf.Rep. No. 1667, 91st Cong., 2d Sess. 6, reprinted in 1970 U.S.Code Cong. & Admin.News 5080, 5082. The argument proves too much, however, because it contemplates that non-federal grantors can override specific restrictions embodied in federal legislation. 30 Moreover, the Secretary could reasonably conclude that a degree of separation beyond arbitrary bookkeeping entries between Title X projects and projects counseling or performing abortions is necessary if Section 1008's restriction is to be given any meaning in practice. Indeed, the new separation requirements are hardly a major departure from past administrative construction. For example, in 1978, the Department of Health and Human Services' predecessor agency acknowledged that "the grantee must insure that [a] Title X-supported program is separate and distinguishable from those other [abortion-related] activities. Separate bookkeeping entries are not enough." Memorandum of Apr. 14, 1978, supra, at 5. We believe the new regulations fit comfortably within that policy. Finally, the new regulations, as described earlier, provide flexibility in requiring a case-by-case evaluation of compliance by Title X projects. 53 Fed.Reg. 2940. We thus conclude that the separation requirements are within the Secretary's authority based on a valid construction of the statute. See State of New York v. Bowen, 690 F.Supp. at 1267, 1271-72. 31 We need say little to dispose of appellants' contention that the regulations are arbitrary and capricious, as that test is functionally equivalent to the reasonableness test of Chevron, 467 U.S. at 843-45, 104 S.Ct. 2781-83. 2. Constitutional Issues 32 Appellants also argue that the counseling and advocacy regulations are unconstitutional on several grounds. First, they assert that the regulations impermissibly burden a woman's privacy right to an abortion. Second, they contend that the regulations violate the First Amendment. On both points, however, Supreme Court precedent is to the contrary. 33 With regard to the right of privacy, the Supreme Court has held that government has no constitutional obligation to subsidize an activity merely because the activity is constitutionally protected. See, e.g., Cammarano v. United States, 358 U.S. 498, 515, 79 S.Ct. 524, 534, 3 L.Ed.2d 462 (1959) (Douglas, J., concurring). The Court has specifically held, moreover, that government may validly choose to favor childbirth over abortion and to implement that choice by funding medical services relating to childbirth but not those relating to abortion. In Maher v. Roe, 432 U.S. 464, 97 S.Ct. 2376, 53 L.Ed.2d 484 (1977), the Court upheld a statute that provided Medicaid recipients with payments for medical services related to childbirth but denied such payments for nontherapeutic abortions. In doing so, it noted that "[t]here is a basic difference between direct state interference with a protected activity and state encouragement of an alternative activity consonant with legislative policy." 432 U.S. at 475, 97 S.Ct. at 2383. It also noted that the constitutional right of privacy recognized in Roe v. Wade, 410 U.S. 113, 93 S.Ct. 705, 35 L.Ed.2d 147 (1973) "implies no limitation on the authority of a State to make a value judgment favoring childbirth over abortion, and to implement that judgment by the allocation of public funds." 432 U.S. at 474, 97 S.Ct. at 2382. In Harris v. McRae, 448 U.S. 297, 100 S.Ct. 2671, 65 L.Ed.2d 784 (1980), the Court upheld the constitutionality of the Hyde Amendment, which denies public funds for some medically necessary abortions. The Court explained that that provision "places no governmental obstacle in the path of a woman who chooses to terminate her pregnancy, but rather, by means of unequal subsidization of abortion and other medical services, encourages alternative activity deemed in the public interest." Id. at 315, 100 S.Ct. at 2687. 34 The Supreme Court had occasion to revisit Maher and McRae in its recent decision in Webster v. Reproductive Health Services, --- U.S. ----, 109 S.Ct. 3040, 106 L.Ed.2d 410 (1989). In Webster, the Court upheld against a variety of constitutional challenges a Missouri statute providing inter alia that no public facilities or employees be used to perform abortions and that physicians conduct viability tests prior to performing abortions. 35 The Court reaffirmed the vitality of the Maher-McRae line of cases in its discussion of the Missouri statute's prohibition on the use of public resources for the performance of abortions, quoting its decision in DeShaney v. Winnebago County Dep't of Social Servs., --- U.S. ----, 109 S.Ct. 998, 103 L.Ed.2d 249 (1989), to explain that "the Due Process Clauses generally confer no affirmative right to governmental aid, even where such aid may be necessary to secure life, liberty, or property interests of which the government itself may not deprive the individual." Webster, 109 S.Ct. at 3051 (quoting DeShaney, 109 S.Ct. at 1003). 36 The Court of Appeals in Webster had ruled that Missouri's proscription on the use of public facilities or employees in abortion services ran afoul of Roe v. Wade because it "prevent[ed] access to a public facility" and therefore "clearly narrow[ed] and in some cases foreclose[d] the availability of abortion to women." Reproductive Health Service v. Webster, 851 F.2d 1071, 1081 (8th Cir.1988). The Supreme Court disagreed, stating that the Court of Appeals' analysis was not materially different from the argument rejected in Maher and McRae. Webster, 109 S.Ct. at 3052. "As in those cases," the Court stated, "the State's decision here to use public facilities and staff to encourage childbirth over abortion 'places no governmental obstacle in the path of a woman who chooses to terminate her pregnancy.' " Id. (quoting McRae, 448 U.S. at 315, 100 S.Ct. at 2687). Because the funding restrictions upheld in McRae and Maher were constitutionally permissible despite their potential limits upon the choices of women seeking abortions, the Court found that "it strains logic" to suggest that a similar restriction on the use of public facilities and employees would be constitutionally infirm, id., and pointed out that "[i]f the State may 'make a value judgment favoring childbirth over abortion and ... implement that judgment by the allocation of public funds,' surely it may do so through the allocation of other public resources, such as hospitals and medical staff." Id. (citation omitted) (quoting Maher, 432 U.S. at 474, 97 S.Ct. at 2382). 37 We do not disagree with our dissenting colleague that the regulations in question may hamper or impede women in exercising their right of privacy in seeking abortions. Webster, however, emphasized that so long as no affirmative legal obstacle to abortion services is created by a denial of the use of governmental money, facilities, or personnel, the practical effect of such a denial on the availability of such services is constitutionally irrelevant. Certainly, an outright prohibition on the performance of any particular medical procedure in public hospitals or clinics will, if they constitute a substantial portion of such facilities in a local market, make provision of the particular service more expensive and less available. In Webster, Missouri denied the provision of abortion services in all public facilities, including hospitals, in order to "encourage childbirth over abortion." 109 S.Ct. at 3052. This seems to us a prohibition substantially greater in impact than the regulations challenged in the instant matter. Since these regulations create no affirmative legal barriers to access to abortion, therefore, Webster clearly refutes the privacy claims raised by plaintiffs.3 For these reasons, we also believe that Webster cannot be reconciled with the recent decision of the First Circuit in Massachusetts v. Secretary of Health and Human Servs., No. 88-1279, slip op. at 26-40 (1st Cir. May 8, 1989) (holding regulations unconstitutional because they pose an obstacle to abortion), opinion withdrawn and en banc rehearing granted, (order of Aug. 9, 1989). 38 With regard to speech rights,4 the Secretary's implementation of Congress's decision not to fund abortion counseling, referral or advocacy also does not, under applicable Supreme Court precedent, constitute a facial violation of the First Amendment rights of health care providers or of women. The Court has extended the doctrine that government need not subsidize the exercise of fundamental rights to speech rights. In Regan v. Taxation with Representation of Washington, 461 U.S. 540, 103 S.Ct. 1997, 76 L.Ed.2d 129 (1983), a nonprofit group, Taxation with Representation ("TWR"), claimed that the prohibition against substantial lobbying by organizations exempt from tax under I.R.C. Sec. 501(c)(3) imposed an "unconstitutional condition" on the receipt of tax-deductible contributions. The Supreme Court, in rejecting this contention, stated: 39 The [Internal Revenue] Code does not deny TWR the right to receive deductible contributions to support its non-lobbying activity, nor does it deny TWR any independent benefit on account of its intention to lobby. Congress has merely refused to pay for the lobbying out of public moneys. This Court has never held that Congress must grant a benefit such as TWR claims here to a person who wishes to exercise a constitutional right. 40 461 U.S. at 545, 103 S.Ct. at 2001. It again noted that "a legislature's decision not to subsidize the exercise of a fundamental right does not infringe the right." Id. at 549, 103 S.Ct. at 2002. "The reasoning of these decisions is simple: 'although government may not place obstacles in the path of a [person's] exercise of ... freedom of [speech], it need not remove those not of its own creation.' " Id. at 549-50, 103 S.Ct. at 2002-03 (quoting McRae, 448 U.S. at 316, 100 S.Ct. at 2688); see also DKT Memorial Fund v. Agency for Int'l Dev., 887 F.2d 275, 286-294 (D.C.Cir. Oct. 10, 1989) (abortion-related restrictions on use of funds by international population planning program upheld as mere refusal to subsidize particular exercise of speech rights). 41 In addition, appellants argue that the restrictions on the subsidization of speech contained in the regulations are impermissible because the government may not condition receipt of a benefit on the relinquishment of constitutional rights. See Perry v. Sindermann, 408 U.S. 593, 597, 92 S.Ct. 2694, 2697, 33 L.Ed.2d 570 (1972); Taxation With Representation, 461 U.S. at 545, 103 S.Ct. at 2001. This case is distinguishable from Perry, however, because individuals employed by Title X projects remain free to say whatever they wish about abortion outside the Title X project. See 42 C.F.R. Sec. 59.10(b)(6), (7) (1988). Perry, by contrast, involved a situation in which an individual was penalized precisely for exercising First Amendment rights outside the scope of his employment. 42 We do not regard the "program integrity" regulations as permitting the Secretary to deny funding to health care providers because they employ personnel who perform or counsel abortions outside their employment by the Title X grantee. Cf. Webster v. Reproductive Health Servs., --- U.S. ----, 109 S.Ct. 3040, 3052 n. 8, 106 L.Ed.2d 410 (1989) ("This case might ... be different if the State barred doctors who performed abortions in private facilities from the use of public facilities...."). Although "[t]he existence of separate personnel" may be considered under 42 C.F.R. Sec. 59.9(c) (1988) in determining whether Title X facilities are in fact separate from, and independent of, abortion-related facilities, the Secretary must consider numerous other factors, including distinct accounting records, physical separation, and the degree to which signs and other written indicia denote the two as separate facilities. 42 C.F.R. Sec. 59.9 (1988). Thus "[w]here sharing of personnel exists, but the project can demonstrate on an overall basis that it is objectively separated from prohibited activities, the Department will determine that the project is in compliance with Sec. 59.9." 53 Fed.Reg. at 2941. In addition, the regulations do not authorize the Secretary to take the non-Title X employment activities of personnel into account in determining whether to grant a facility Title X status. 43 Our dissenting colleague relies upon Thornburgh v. American College of Obstetricians & Gynecologists, 476 U.S. 747, 106 S.Ct. 2169, 90 L.Ed.2d 779 (1986) and City of Akron v. Akron Center for Reproductive Health, Inc., 462 U.S. 416, 103 S.Ct. 2481, 76 L.Ed.2d 687 (1983). These cases, however, involved laws that regulated the flow of information from doctors to patients without regard to whether public funds were being used. Given the numerous Supreme Court decisions discussed supra that distinguish between direct regulation and conditions on public funding, neither Thornburgh nor City of Akron control the present action. See also DKT Memorial Fund, 887 F.2d at 286-287. 44 We also note that the decision in Republican Nat'l Comm. v. Federal Election Comm'n, 487 F.Supp. 280 (S.D.N.Y.1980) [hereinafter RNC ], certified questions answered, 616 F.2d 1 (2d Cir.1980), aff'd, 445 U.S. 955, 100 S.Ct. 1639, 64 L.Ed.2d 231 (1980), supports our conclusion. In RNC, plaintiffs argued that conditioning the public funding of a presidential campaign on the observance of limits on expenditures, held to be unconstitutional in Buckley v. Valeo, 424 U.S. 1, 96 S.Ct. 612, 46 L.Ed.2d 659 (1976), deprived candidates and their supporters of their First Amendment rights. The three-judge district court held that "[w]hile Congress may not condition benefit on the sacrifice of protected rights, the fact that a statute requires an individual to choose between two methods of exercising the same constitutional right does not render the law invalid, provided the statute does not diminish a protected right." 487 F.Supp. at 284-85 (citations omitted). In the instant case, potential grantees may seek funding from the states or other governmental units or from private sources as well as from the federal government, subject only to the separation requirements described above. In contrast, RNC upheld a statutory scheme in which candidates are compelled to select either exclusively public or exclusively private funding. Moreover, under RNC, the candidates' choice is further circumscribed because the alternative of private fundraising is subject to stringent limits on the size of permissible contributions. See 2 U.S.C. Sec. 441a (1988). Title X does not compel any such one-or-the-other choice and is not accompanied by statutory constraints on alternative sources of funding. 45 Finally, we add two qualifications. First, the present action does not pose the issues that might arise if a doctor were to treat private patients in an entity that receives Title X funds. In such a situation, the regulations limiting the role of Title X clinics with regard to abortion might be read to preclude the physician from giving advice concerning abortions to a patient who was in the clinic, not to take advantage of the services it offers as a Title X grantee, but to see her regular doctor. This issue appears to have been raised in Webster with regard to physicians in state-supported hospitals but mooted before the Supreme Court decision. See supra note 4; Reproductive Health Services v. Webster, 662 F.Supp. 407, 427-28 (W.D.Mo.1987). Whether this issue arises in the context of Title X clinics is not clear on the present record, and we do not reach it. 46 Second, we note that the regulations in question do not facially discriminate on the basis of the viewpoint of the speech involved. The regulations require that requests for information on abortion be answered by the factual statement that the particular program does not include it as a family planning method and that only pre-natal services other than abortion are offered. Argumentation pro or con as to the advisability of an abortion for a particular woman is neither required nor authorized. The woman is thus under no pressure as a result of the regulations to accept or reject the services offered. Nor do the regulations in any way suggest that Title X funds may be used for public anti-abortion advocacy. Should the actual effect of the regulations be otherwise, the issues raised thereby can be resolved on a proper record.5 CONCLUSION 47 For the foregoing reasons, we affirm the judgment of the district court. CARDAMONE, Circuit Judge, concurring: 48 I concur in Judge Winter's thorough opinion to affirm because I agree that the regulations promulgated by the Secretary are permissible under Title X, and are not constitutionally infirm. If experience under the regulations proves otherwise, a challenge may later be raised and resolved. I write separately to express two concerns. 49 The first concern is directed at the regulation requiring the Secretary to consider "[t]he existence of separate personnel" as a factor in determining the "objective integrity and independence [from abortion-related facilities]" of Title X facilities. See 42 C.F.R. Sec. 59.9(c) (1988). This factor allows the Secretary in allocating Title X funding to consider whether Title X health-care providers perform or counsel abortions outside of their employment. The concern this raises is whether the Secretary may withhold funding from health-care providers based upon their exercise of First Amendment rights outside the scope of their Title X employment; a course of action explicitly found unconstitutional in Perry v. Sindermann, 408 U.S. 593, 597, 92 S.Ct. 2694, 2697, 33 L.Ed.2d 570 (1972); see also Webster v. Reproductive Health Servs., --- U.S. ----, 109 S.Ct. 3040, 3052 n. 8, 106 L.Ed.2d 410 (1989) ("This case might ... be different if the State barred doctors who performed abortions in private facilities from the use of public facilities...."). 50 Despite my concerns under Perry, I do not believe Sec. 59.9(c) is constitutionally unsound. The regulation's plain language indicates that the Secretary will consider the existence of separate personnel in conjunction with several other factors: the maintenance of distinct accounting records, the physical separation of facilities, and the degree to which signs and other written indicia denote the two as separate facilities. Thus, "[w]here sharing of personnel exists, but the project can demonstrate on an overall basis that it is objectively separated from prohibited activities, the Department will determine that the project is in compliance...." 53 Fed.Reg. 2922, 2941 (1988). In addition, there is no evidence in the record before us that the Secretary has relied or intends to rely upon the non-Title X employment activities of personnel in determining whether to grant a facility Title X status. 51 The second concern relates to the regulations insofar as they do not permit Title X attending physicians to provide the Yellow Pages found in an ordinary telephone book to a patient requesting information about health-care providers who perform and counsel patients regarding abortions. The Secretary's oral and written interpretations of the regulations state that Title X grantees may "keep[ ]" but not "provi[de]" the Yellow Pages. See 53 Fed.Reg. 2922, 2942 (1988). In addition, the plain language of Sec. 59.8(a)(3) prohibits the inclusion of "health care providers whose principal business is the provision of abortions" in referral lists given to patients. Because such facilities are listed in the Yellow Pages, this regulation bars their use as a reference source for Title X patients. 52 Under the regulations, a Title X physician's hands are tied with respect to the response he or she may give to a patient seeking abortion information. Crafting the regulations in this fashion constitutes a trap for the mostly unsophisticated and unwary patients,1 and jeopardizes the ability of Title X physicians to safeguard the health of those seeking their expert advice. For example, a Title X grantee must refer patients to facilities that do not perform or counsel abortions, see 42 C.F.R. Sec. 59.8(a)(3) & (b)(4) (1988), regardless of whether the grantee believes the facility is sound medically or not. Moreover, the list must include all such facilities because the Secretary has ruled that excluding any such provider is inappropriate under Title X. The dilemma that comes to mind occurs when the Title X grantee knows that a health-care provider that does not perform or counsel abortions is--in the physician's opinion--not medically of high quality, but must nonetheless list that facility as a proper reference to a patient seeking the grantee's advice. 53 When faced with a somewhat analogous predicament, the Supreme Court, addressing the issue of what information must be supplied by a physician to facilitate a patient's "informed consent," declined to define the information provided by the physician narrowly. Rather, the Court required only that the physician indicate "what would be done and ... its consequences" because a more detailed definition "might well confine the attending physician in an undesired and uncomfortable straitjacket in the practice of his profession." Planned Parenthood v. Danforth, 428 U.S. 52, 67 n. 8, 96 S.Ct. 2831, 2840 n. 8, 49 L.Ed.2d 788 (1976). 54 It strikes me that a regulation allowing the Yellow Pages to be "kept" but not "provided" is a small and petty contrivance, inconsistent with our nation's high principles. Hence, although I vote to affirm because the subject regulations meet the letter of the law, I must say that in my view they fall woefully short of the tolerant spirit that gave birth to and should continue to animate our constitutional system. KEARSE, Circuit Judge, dissenting in part: 55 I respectfully dissent from so much of the judgment as upholds the new regulations promulgated by the Secretary of Health and Human Services with respect to abortion counseling and referrals. Even assuming that the Secretary's new interpretation of Title X, 42 U.S.C. Secs. 300 et seq. (1982 & Supp. V 1987), is entitled to deference, I view these regulations as arbitrary and capricious and as violative of rights guaranteed by the Constitution. 56 Section 59.8(a)(1) of the new regulations, see 42 C.F.R. Secs. 59.7-59.10 (1988), entitled in part "Prohibition on counseling and referral for abortion services," provides that a "Title X project may not provide counseling concerning the use of abortion ... or provide referral for abortion." There can be no doubt that the Secretary intends this regulation to forbid a grantee from informing a pregnant woman of the availability of abortion and even from telling her where she can get abortion-related information. For example, though the regulations permit a grantee to give the woman a list of prenatal-care service providers that might also offer abortions, the list must comply with several requirements. It must include any available prenatal-care providers that do not perform abortions; it cannot include providers that offer abortions as their "principal business"; and it cannot "weigh[ ]" in favor of abortion providers. 42 C.F.R. Sec. 59.8(a)(3). The grantee is not allowed to inform the woman which providers on the list, in addition to offering prenatal care, also perform abortions. Rather, care providers that also perform abortions may be included only if "the referral is specifically made to the providers of prenatal care services." 53 Fed.Reg. 2922, 2938 (1988) (emphasis added). Indeed, the grantee is required to inform the client about care to preserve the unborn fetus. Section 59.8(a)(2), for example, provides that "once a client served by a Title X project is diagnosed as pregnant, she must be referred for appropriate prenatal and/or social services by furnishing a list of available providers that promote the welfare of mother and unborn child." (Emphasis added.) 57 The majority states that the regulations "do not facially discriminate on the basis of viewpoint of the speech involved," that they do not authorize argumentation "pro or con" as to the advisability of abortion, and that they do not suggest "in any way" that Title X funds may be used for advocacy against abortion. I submit that precisely the opposite is plain from the face of the regulations. In addition to the regulations discussed above, for example, Sec. 59.8(b)(4) provides that when a woman asks for a list of abortion providers, the grantee is not permitted to give her a list that includes entities whose principal business is abortion, or a list that does not include "providers of prenatal care in the area which do not provide or refer for abortions." (Emphasis added.) In contrast, Sec. 59.8(b)(5) provides that when a woman asks for information on abortion, the grantee is permitted to "tell[ ] her that the project does not consider abortion an appropriate method of family planning and therefore does not counsel or refer for abortion"; it is permitted to "tell[ ] the client that the project can help her to obtain prenatal care and necessary social services, and provide[ ] her with a list of such providers from which the client may choose." 58 Thus, the express prescriptions and proscriptions in the regulations require the grantee to emphasize prenatal care and prohibit it from identifying any entity as a provider of abortions. Plainly, the regulations facially discriminate on the basis of viewpoint and control the content of the grantee's permitted speech. 59 In Regan v. Taxation With Representation, 461 U.S. 540, 103 S.Ct. 1997, 76 L.Ed.2d 129 (1983), the Supreme Court warned that the government may not, consistent with First Amendment constraints, manipulate subsidy programs in a way " 'ai[med] at the suppression of ... ideas' " it considers undesirable. Id. at 548, 103 S.Ct. at 2002 (quoting Cammarano v. United States, 358 U.S. 498, 513, 79 S.Ct. 524, 533, 3 L.Ed.2d 462 (1959)). In my view, just such an impermissible manipulation has occurred here. 60 This content restriction is all the more pernicious because it deprives a woman of her constitutionally protected right, recognized in Roe v. Wade, 410 U.S. 113, 93 S.Ct. 705, 35 L.Ed.2d 147 (1973), to choose whether or not she will have an abortion. The regulations at issue here prohibit the physician in a Title X facility from communicating to his patient frank and complete advice if it involves consideration of abortion. They require him, in referring his patient to other health-care providers, to identify only prenatal-care facilities. If his pregnant patient raises the subject of abortion, he is required to tell her that he cannot give her any advice or counseling on the subject. If she asks where she can get information, the regulations prohibit even an informative response. 61 Though the majority seems to believe that it is sufficient that the grantee is allowed to keep the "yellow pages" in its offices, a telephone book seems a poor substitute for the advice of one's doctor. Further, the Secretary's interpretations of the regulations, both written and oral, reveal that the Title X grantee is not even allowed to refer the woman to the yellow pages. Thus, the written interpretation of the regulations says merely that the grantee may "keep[ ]" the yellow pages, while in the same sentence referring to other information that may be "provi[ded]." 53 Fed.Reg. 2922, 2942 (1988). There is no indication in the written interpretation that the yellow pages may be "provided," and at oral argument of this appeal, the Secretary stated that they could not. 62 By damming the flow of information from physician to patient, the Secretary's regulations impermissibly impede a woman's exercise of her constitutional privacy right. Time and again, the Supreme Court has emphasized that governmental regulation violates a woman's right to choose between childbirth and abortion when it interferes with the information and advice she may be given by her physician. In City of Akron v. Akron Center for Reproductive Health, Inc., 462 U.S. 416, 103 S.Ct. 2481, 76 L.Ed.2d 687 (1983) ("Akron "), the Court stated that "a pregnant woman must be permitted, in consultation with her physician, to decide to have an abortion and to effectuate that decision 'free of interference by the State.' " Id. at 429-30, 103 S.Ct. at 2492-93 (quoting Roe v. Wade, 410 U.S. at 163, 93 S.Ct. at 731). In Thornburgh v. American College of Obstetricians and Gynecologists, 476 U.S. 747, 106 S.Ct. 2169, 90 L.Ed.2d 779 (1986) ("Thornburgh "), the Court disapproved a requirement that a physician provide a woman with a list of agencies offering alternatives to abortion, finding it to be "nothing less than an outright attempt to wedge the [state]'s message discouraging abortion into the privacy of the informed-consent dialogue between the woman and her physician." Id. at 762, 106 S.Ct. at 2179. 63 Unlike the regulatory schemes in such cases as Harris v. McRae, 448 U.S. 297, 100 S.Ct. 2671, 65 L.Ed.2d 784 (1980), and Maher v. Roe, 432 U.S. 464, 97 S.Ct. 2376, 53 L.Ed.2d 484 (1977), in which the regulating authority was found merely to have refused to extend an affirmative benefit to women who freely chose abortion, but not to have placed obstacles in the way of an informed choice, the Secretary's regulations here plainly interfere with the pregnant woman's freedom to decide which course of action she prefers. In some cases, the information ban will delay the appropriate education of the patient to such an extent that she is denied any genuine choice. In some cases, the patient will never be fully informed, for as the Secretary has acknowledged, "[f]or many clients, family planning programs are their only continuing source of health information and medical care." U.S. Dep't of Health and Human Services, Program Guidelines for Project Grants for Family Planning Services Sec. 9.4 (1981). These regulations prevent such a program from giving the client any substantive information regarding abortion as an option; if she asks where she may obtain such information, her Title X physician is prohibited from telling her. 64 By prohibiting the delivery of abortion information and prohibiting communication even as to where such information can be obtained, the present regulations deny a woman her constitutionally protected right to choose. She cannot make an informed choice between two options when she cannot obtain information as to one of them. 65 In sum, I would rule that just as a "State may not require the delivery of information designed 'to influence the woman's informed choice between abortion or childbirth,' " Thornburgh, 476 U.S. at 760, 106 S.Ct. at 2177 (quoting Akron, 462 U.S. at 444, 103 S.Ct. at 2500), the government may not forbid the delivery of certain information in order to promote an uninformed choice. 66 I would also rule that the new regulations on counseling and referral are arbitrary and capricious. Certainly the proscription of Sec. 1008, i.e., that "[n]one of the funds appropriated under this subchapter shall be used in programs where abortion is a method of family planning," 42 U.S.C. Sec. 300a-6, does not on its face require a ban on the communication of information or on grantees' directing a pregnant woman to a non-Title X entity from which she can obtain information and counseling on abortion. The Secretary's prior interpretation was that "the provision of information concerning abortion services [and] mere referral of an individual to another provider of services for an abortion ... are not considered to be proscribed by Sec. 1008." 67 Nor has practice suggested that the Secretary's about-face was needed for enforcement purposes. Regulations embodying the prior interpretation were in effect for some 17 years, and the Secretary cites no abuse of the prior regulatory scheme. Indeed, a 1982 report of the U.S. General Accounting Office, following review of grantee compliance with the strictures of Title X and the regulations thereunder, found "no evidence that title X funds had been used for abortions or to advise clients to have abortions," and "no indications that any women were ... encouraged to have abortions." Rather, at oral argument of this case in the district court, the Secretary admitted that his new regulations were the result of a shift in the political climate. Thus, he stated that 68 it is certainly true that one of the prime reasons for these regs is a stricter enforcement of the separation of abortion as family planning from Title X programs. That is a matter of policy. It is a matter of politics. 1 I do not agree with my colleagues that the regulations at issue permit the "keeping," but not the "providing," of the yellow pages to a client who asks for them. The sentence they refer to is contained in the discussion accompanying the new regulations and uses the word "keeping," not as a limiting concept, but as a response to a criticism that the regulations would prohibit "even keeping copies of the telephone yellow pages which contain advertisements by abortion clinics." 53 Fed.Reg. 2922, 2941 (1988). I believe it fairly self-evident that this response makes no sense if the yellow pages may not be provided when requested, particularly since neither the regulations nor the discussion explicitly prohibits their provision upon request 2 Title X was extended through fiscal year 1974 by Pub.L. No. 93-45, 87 Stat. 91 (1973). It was reauthorized in 1975, Pub.L. No. 94-63, 89 Stat. 304 (1975); again in 1977, Pub.L. No. 95-83, 91 Stat. 383 (1977); again in 1978, Pub.L. No. 95-613, 92 Stat. 3093 (1978); again in 1981, Pub.L. No. 97-35, 95 Stat. 358 (1981); and again in 1984, Pub.L. No. 98-512, 98 Stat. 2409 (1984). See H.R.Rep. No. 159, 99th Cong., 1st Sess. 2 (1985) (summarizing history). Since 1985 the Title X program has been funded through a series of continuing resolutions 3 Title 42 C.F.R. Sec. 59.8(a)(3) (1988) prohibits Title X providers from "excluding available providers who do not provide abortions." This language was not intended to prevent a Title X grantee from excluding a facility that it regards as medically unsound for reasons other than its failure to provide abortions. As the discussion accompanying the regulations makes clear, the language was intended only to prevent "the deliberate exclusion in the composition of the list of providers that do not provide abortions or referrals for abortion." 53 Fed.Reg. at 2938. Title 42 C.F.R. Sec. 59.8(b)(4) prohibits the exclusion of "appropriate providers which do not provide or refer for abortions." The word "appropriate" leaves room for judgments as to the medical worthiness of such providers and the portion of the discussion quoted above applies to (b)(4) as well 4 One of the provisions of the Missouri statute at issue in Webster prohibited the use of public funds, personnel or facilities for the purpose of "encouraging or counseling" a woman to have an abortion not necessary to save her life, and the Webster plaintiffs had attacked that section of the statute on First Amendment grounds in the Court of Appeals. See Reproductive Health Service v. Webster, 851 F.2d 1071, 1078 (8th Cir.1988). Plaintiffs, however, abandoned that claim before the Supreme Court, rendering the question moot, so we do not have the benefit of an explicit decision on the First Amendment issues implicated there 5 For these reasons, we again disagree with the decision in Massachusetts v. Secretary of Health and Human Servs., No. 88-1279, slip op. at 41-43 (1st Cir. May 8, 1989) (holding that regulations violate First Amendment), opinion withdrawn and en banc rehearing granted, (order of Aug. 9, 1989) 1 It has been said that Title X, as the single largest federally-funded family planning program, serves 4.3 million people: its targeted population consists of an estimated 14.5 million women at risk of unintended pregnancy, including 5 million adolescents between the ages of 15 and 19, and 9.5 million adult women between the ages of 20 and 44, all of whom have an income 150 percent below the poverty level. Note, The Title X Family Planning Gag Rule: Can the Government Buy Up Constitutional Rights?, 41 Stan.L.Rev. 401, 408 (1989)

269 F.3d 162 (3rd Cir. 2001) ROBERT FRANCIS, PETITIONER,v.JANET RENO, ATTORNEY GENERAL; AND DORIS MEISSNER, COMMISSIONER OF THE IMMIGRATION AND NATURALIZATION SERVICE No. 00-2375 UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT Argued February 7, 2001October 16, 2001Amended October 30, 2001 Petition for Review of an Order of the Board of Immigration Appeals (INS No. Ahw-wwc-sny)[Copyrighted Material Omitted] Stephan D. Converse, Esquire, (Argued) Anderson, Converse & Finnick, P.C., 1423 East Market Street York, Pennsylvania 17403, Attorney for Petitioner David W. Ogden Assistant Attorney General, Civil Division, Linda S. Wendtland Assistant Director, Gretchen M. Wolfinger, Esquire, (Argued) Terri J. Scadron, Esquire, Matthew R. Hall, Esquire, Office Of immigration Litigation, Civil Division, United States Department of Justice, P.O. Box 878, Ben Franklin Station Washington, D.C. 20044, Attorneys for Respondent 1 Before: Scirica, McKEE and Stapleton, Circuit Judges OPINION OF THE COURT McKEE, Circuit Judge 2 We are asked to decide if a state misdemeanor conviction for vehicular homicide is a "crime of violence" within the meaning of 18 U.S.C. S 16. Robert Francis was convicted of two counts of homicide by vehicle in Pennsylvania. Thereafter, the Immigration and Nationalization Service charged Francis with removability based upon its assertion that he had been convicted of an "aggravated felony" pursuant to the Immigration and Nationality Act ("INA"). 8 U.S.C. S 1227(a)(2)(A)(iii). 3 The Immigration Judge ruled that homicide by vehicle as defined in Pennsylvania is not an "aggravated felony" under the INA, and the INS appealed to the Board of Immigration Appeals ("BIA"). The BIA disagreed. The Board ruled that homicide by vehicle is "a crime of violence" under S16, thus it is an "aggravated felony" under the INA, and thus Francis is removable. The Board therefore entered a final order of removal against Francis. This petition for review followed. For the reasons that follow, we will grant Francis' petition and remand to the BIA with instructions to vacate its order of removal. I. Background Facts and Procedure 4 Robert Francis is 67 years-old, has lived in the United States for over 25 years, and is married to a United States citizen. Administrative Record ("AR") at 102. However, Francis is a citizen of Jamaica. He entered the United States in 1975 as a "Nonimmigrant Visitor for Pleasure." In 1987, he adjusted his immigration status to "Conditional Resident," a legal resident status. 5 In May of 1993, Francis caused a tragic traffic accident wherein two people were killed on Interstate 95 in Philadelphia. He was thereafter convicted in state court of two counts of homicide by vehicle in violation of 75 Pa. C.S.A. S 3732.1 which provided at the time of Francis' offenses that 6 [a]ny person who unintentionally causes the death of another person while engaged in the violation of any law of this Commonwealth or municipal ordinance applying to the operation or use of a vehicle or to the regulation of traffic except section 3731 (relating to driving under influence of alcohol or controlled substance) is guilty of homicide by vehicle, a misdemeanor of the first degree, when the violation is the cause of death. 7 Francis was sentenced to two consecutive sentences of eighteen to sixty months in prison for the conviction. At the conclusion of that sentence, he was held on an INS detainer. The INS then initiated removal proceedings based upon its assertion that his state court conviction made him removable as an "aggravated felon" under the BIA. As noted above, the Immigration Judge terminated the proceedings in Francis' favor, but the INS reversed and ordered his removal. That order of removal is now before us based upon Francis' petition for review. II. Jurisdiction 8 The Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (IIRIRA) divests this court of jurisdiction over a final order of removal against an alien convicted of certain delineated offenses. 8 U.S.C. S 1252(a)(2)(C);2 Liang v. INS, 206 F.3d 308 (3d Cir. 2000). However, jurisdiction is only removed under the IIRIRA if "(1) the petitioner is an alien (2) who is deportable by reason of having been convicted of one of the enumerated offenses." Drakes v. Zimski, 240 F.3d 246, 247 (3d Cir. 2001).3 Therefore, we must initially determine whether these two statutory prerequisites to the limitation of our jurisdiction are satisfied. Id. 9 There is no dispute that Francis is an alien. Thus, the jurisdictional question that we must address is whether Francis' offense -- homicide by vehicle in violation of 75 Pa. C.S.A. S 3732 -- is "one of the enumerated offenses" under the IIRIRA. We hold that it is not. III. Discussion 10 8 U.S.C. S 1227(a)(2)(A)(iii) states that any alien convicted of an "aggravated felony" is deportable. 8 U.S.C. S 1101(a)(43)(F) defines "aggravated felony" under the INA to include any "crime of violence." The INA does not directly define "crime of violence." Instead, it incorporates the definitions set forth in the Crimes Code at 18 U.S.C. S 16. See 8 U.S.C. S 1101 (43)(F).4 "Crime of violence" is defined therein as: 11 (a) an offense that has as an element the use, attempted use, or threatened use of physical force against the person or property of another, or 12 (b) any other offense that is a felony and that, by its nature, involves a substantial risk that physical force against the person or property of another may be used in the course of committing the offense. 13 18 U.S.C. S 16. The BIA concluded that subsection (a) is not applicable to Francis' state conviction, but held that his offense fell within the confines of subsection (b). We agree that Francis' state conviction does not fall underS 16(a). However, we disagree with the BIA's conclusion that it is included under S 16(b). 14 In order for a conviction to be a "crime of violence" under subsection (b), the offense must first be a "felony;" and second, it must be an offense that "by its nature, involves a substantial risk that physical force against the person or property of another may be used in the course of committing the offense." 18 U.S.C. S 16(b). 15 Francis argues that vehicular homicide under Pennsylvania law fails to meet either requirement. He argues that the offense is a misdemeanor under Pennsylvania law and therefore cannot qualify as a felony for purposes of the INA. He also argues that it is not an offense that "by its nature, involves a substantial risk that physical force against the person or property of another may be used in the course of committing the offense." 18 U.S.C. S 16(b). Finally, Francis argues that S 16(b) requires specific intent and that homicide by vehicle involves a much lower level of culpability under Pennsylvania law. 16 A. Whether A Misdemeanor Can Be A Felony Under S 16(b) 17 Francis claims that inasmuch as he was convicted of a misdemeanor under Pennsylvania law, he is not a felon; "much less an `aggravated' one." Francis Br. at 6. In United States v. Graham, 169 F.3d 787 (3d Cir. 1999), we held that a crime can be regarded as an aggravated felony even if it is categorized as a misdemeanor. There, Graham pled guilty to illegally reentering this country following deportation in violation of 8 U.S.C. S 1326. At sentencing, an issue arose as to whether he should be classified as an aggravated felon under U.S.S.G. S 2L1.2(b)(1)(B). A defendant who is classified as an aggravated felon faces a sixteen-level increase in his/her offense level under the Sentencing Guidelines.5 The district court sentenced Graham as an aggravated felon based upon the court's conclusion that his prior state misdemeanor conviction for petit larceny qualified as an aggravated felony even though the state where he committed the offense defined it as a misdemeanor. "The aggravated felony classification changed Graham's guideline sentence range from 21-27 months to 70-87 months." 169 F.3d at 788. On appeal, we framed the issue as follows: 18 whether a misdemeanor can be an "aggravated felony" under a provision of federal law even if it is not, technically speaking a felony at all. The particular question is whether petit larceny, a class A misdemeanor under New York law that carries a maximum sentence of one year, can subject a federal defendant to the extreme sanctions imposed by the "aggravated felon" classification [contained in 8 U.S.C. S 1101(a)(43)]. 19 Id., at 788. We answered in the affirmative. In resolving the issue, we focused on an amendment to S 1101(a)(43)(G), which lowered the imprisonment threshold from five years to one year. We explained that felonies had historically been defined as those crimes that are punishable by at least a year in prison. Those offenses punishable by less time in prison had historically been defined as misdemeanors. However, we concluded that the term "aggravated felony" is a term of art which can include "certain misdemeanants who receive a sentence of one year," id. at 792, even though the underlying crime has been labeled a "misdemeanor" under state law. 20 Our analysis in Graham does not, however, answer the question presented here. Graham was an aggravated felon pursuant to 8 U.S.C. S 1101(a)(43)(G). That subsection specifically defined theft crimes as aggravated "felonies" so long as "the term of imprisonment [is] at least one year." Id. at 789.6 Graham had clearly been convicted of a state theft offense, and that offense, though categorized by New York as a Class A misdemeanor, had "a maximum of a year's imprisonment under New York law." Id. at 789. That is all subsection (43)(G) required. Francis is charged with an aggravated felony under subsection (43)(F). As stated above, that provision of the INA requires a "crime of violence" under 18 U.S.C. S 16. We must therefore determine if S 16(b), which specifically refers only to "felonies," includes offenses that have been categorized as "misdemeanors" by the state that has defined the underlying conduct as criminal. Thus, although Graham may be instructive, it does not control our determination of Congress' intent in adopting 18 U.S.C. S 16. 21 The BIA concluded that it is irrelevant that Pennsylvania labels the offense as a misdemeanor. The BIA used the federal default definition of felony found in 18 U.S.C. S 3559 to conclude that, irrespective of the state classification, Francis' conviction was a felony under federal law. 18 U.S.C. S 3559 defines "felony" as an offense that is not otherwise classified where "the maximum term of imprisonment authorized is... less than five years but more than one year."7 The BIA reasoned "it is both fair and logical to rely on the federal statutory definition of `felony' when that term appears in a federal statute that is applicable in the respondent's case." AR at 4. 22 The government argues that the BIA's analysis is entitled to deference under Chevron v. Natural Resources Defense Council, 467 U.S. 837 (1984). Under Chevron: 23 [w]hen a court reviews an agency's construction of the statute which it administers, it is confronted with two questions. [1] First, always, is the question whether Congress has directly spoken to the precise question at issue. If the intent of Congress is clear, that is the end of the matter; for the court, as well as the agency, must give effect to the unambiguously expressed intent of Congress. [2] If, however, the court determines Congress has not directly addressed the precise question at issue, the court does not simply impose its own construction on the statute, as would be necessary in the absence of an administrative interpretation. Rather, if the statute is silent or ambiguous with respect to the specific issue, the question for the court is whether the agency's answer is based on a permissible construction of the statute. 24 Chevron, 467 U.S. 837, 842-43 (1984) (emphasis added). However, in Sandoval v. Reno, 166 F.3d 225,239 (3d Cir. 1999) (citing INS v. Cardoza-Fonseca, 480 U.S. 421, 446 (1987)), we noted that pure questions of statutory construction must be resolved by courts. There, we explained that Chevron deference will only apply to an inquiry "that implicates agency expertise in a meaningful way." Id. More recently, in Drakes v. Zimski, 240 F.3d at 247, we intimated that Chevron deference might not apply in the context of defining "forgery" within the meaning of 8 U.S.C. S 1101(a)(43)(R), because the BIA did not utilize any specific expertise in interpreting that provision of the INA. Federal courts regularly interpret such terms. Id. at 247. 25 Clearly, the BIA did not rely upon any expertise in interpreting the meaning of "felony" within 18 U.S.C. S 16; a general criminal statute. Moreover, Chevron instructs that we accord deference only to the BIA's "construction of the statute which it administers." Chevron, 467 U.S. at 842. The BIA is not charged with administering 18 U.S.C.S 16, and that statute is not transformed into an immigration law merely because it is incorporated into the INA by S 1101(43)(F). We therefore conclude that the BIA's interpretation of 8 U.S.C. S 16 is not entitled to deference under Chevron.8 26 Congress did not use the term "felony" in S 16(a). Rather, S 16(a) is narrowly drawn to include only crimes whose elements require the "use, attempted use, or threatened use of physical force." Although S 16(b) is specifically limited to felonies, it does not include all felonies. It is limited to those felonies that "by [their] nature involve[s] a substantial risk that... force... may be used." Clearly, Congress intended to include felonies and misdemeanors under subsection (a), but only intended certain felonies to be included under subsection (b). The Senate Report for the Comprehensive Crime Control Act of 1984 makes this clear. 27 The term `crime of violence' is defined, for purposes of all of Title 18 U.S.C. in Section 1001 of the Bill (the first section of Part A of Title X)... The term means an offense -- either a felony or a misdemeanor -- that has as an element the use, attempted use, or threatened use of physical force against the person or property of another, or any felony that, by its nature, involves the substantial risk that physical force against person or property may be used in the course of its commission. 28 S.Rep. No. 225 (1983), reprinted in 1984 U.S.C.C.A.N. 3182 (emphasis added). Congress was obviously aware that the definition of a "felony" varies from jurisdiction to jurisdiction, and it could certainly have defined an "aggravated felony" under the INA to include any state offense that would be classified as a felony under federal law. It did not do so. 29 Francis' crime is only arguably a felony because of the application of 18 U.S.C. S 3559. However, S 3559 was intended as a last resort that would be employed only if "[a]n offense that is not specifically classified... in the section defining it, [provides for a] maximum term of imprisonment [of] less than five years but more than one year." Such crimes are, by default, categorized under federal law as Class E felonies. 18 U.S.C. S 3559(a)(5) (emphasis added). In United States v. Donley, we explained that: 30 Title 18 U.S.C. S 3559 assigns letter grades to offenses that previously had none on the basis of the maximum terms of imprisonment authorized by statutes describing the offenses. One letter grade comprises offenses that carry different statutory penalties in the underlying statutes describing them. For example, first and second degree murder are both classified as Class A felonies under S 3559. 31 878 F.2d 735, 739 (3d Cir. 1989) (emphasis added). Labeling a particular offense as a misdemeanor should end the matter for the purposes of S 16(b). After all, Francis did not violate federal law, he violated state law. C.f. Doe v. Hartz, 134 F.3d 1339, 1343 (8th Cir. 1998) (explaining in the context of the Violence Against Women Act 42 U.S.C. SS 13981-14040, that a state misdemeanor is not a crime of violence within the meaning of S 16 (b) because "we cannot simply borrow the federal classification of a felony and apply it to conduct that could not constitute a crime under federal law.") 32 At oral argument, the INS contended that the adoption of the federal definition for the term "felony" provides a "federal objective standard" in treating all resident aliens alike regardless of the states classification of the crime. The INS argued that another state could charge the very same conduct as a felony, and therefore, adopting a federal classification affords equal treatment to all petitioners regardless of the place of conviction. We reject this policy argument for several reasons. First, as we have already explained, S 16(a) includes misdemeanors and felonies. Under S 16(a), similar conduct is included in the definition of "aggravated felony" regardless of the state's label. 33 Moreover, the government's argument for uniformity ignores that maximum penalties will also vary from jurisdiction to jurisdiction. See The Unconstitutionality of Non-uniform Immigration Consequences of "Aggravated Felony" Convictions, 74 N.Y.U. L.Rev. 1696,1725-29 (1999). Therefore, relying upon the maximum penalty prescribed by a given state to determine if an offense is a felony using S 3559 does not eliminate non-uniform treatment of offenders from state to state. The disparity merely shifts to the differing maximum sentences prescribed, rather than a state's classification. 34 In addition, the INS' "equality" argument fails to give effect to the language of S 1101(a)(43)(F). Section 1101(a)(43)(F) defines aggravated felony as a "crime of violence [ ] as defined in section 16 of Title 18 for which the term of imprisonment [is] at least one year." 8 U.S.C. S 1101(a)(43)(F) (emphasis added). It would create a redundancy to define "felony" in S 16(b) as an offense involving "a substantial risk of force" for which the maximum sentence is more than one year, see 18 U.S.C. S 3559(a)(5), when S 1101(a)(43)(F) already defines an aggravated felony to include "crime[s] of violence as defined in section 16 Title 18 for which the term of imprisonment [is] at least one year.9 Section 1101(a)(43)(F) has already captured those offenses. In this context, we think it is incongruous to read "felony" in S 16(b) as being defined by the applicable term of imprisonment set by the underlying state offense. The Board is already applying a "federal objective standard" to all resident aliens, one that has been expressly dictated by Congress' use of the words "for which the term of imprisonment [is] at least one year." Since this phrase already includes or excludes aliens based on the length of the sentence, we see no reason why we should read the term "felony" in Section 16(b) as contingent upon the term of imprisonment rather than a state's categorization. 35 Reading the statute without importing the default classifications in 18 U.S.C. S 3559 eliminates this redundancy. If a state has categorized an offense as a misdemeanor or a felony, subsection (a) will define the offense as an "aggravated felony" if the elements include the "use, attempted use, or threatened use of... force." 18 U.S.C. S 16(a). Certain offenses categorized as felonies under state law, having a maximum of at least one year, as required by 8 U.S.C. S 1101 (43) (F), are also "aggravated felonies." This captures those instances where a state may define felonies to include offenses that have a shorter maximum than one year imprisonment. However, where as here, the offense is categorized as a misdemeanor under state law, it is excluded unless it involves force and falls under subsection 16(a). Thus, by relying upon state law to provide the categorization, we eliminate the redundancy that would otherwise result from including both a maximum of one year imprisonment under S 1101(43)(F) and the condition precedent of "felony" in S 16(b) that is expressly incorporated into S 1101(43)(F).10 36 This interpretation is also consistent with the rule of lenity as embodied in "the longstanding principle of construing any lingering ambiguities in deportation statutes in favor of the alien." INS v. Cyr, ___U.S.___, ___, 121 S.Ct. 2271, 2290, 150 L.Ed.2d 347 (2001) (quoting INS v. Cardoza-Fonseca, 480 U.S. 421, 449 (1987)).11 This is no small consideration given the changes in immigration law effectuated by the IIRIRA. For all the reasons set forth above, we conclude that Francis' state court conviction was not an "aggravated felony" under the INA. 37 B. Whether Homicide By Vehicle Can Otherwise Fall Under S (16(b) 38 Moreover, even if we assume arguendo that Francis' misdemeanor conviction of vehicular homicide can somehow be converted into a felony for S 16(b) purposes, we would still conclude that his conviction is not an "aggravated felony." As noted above, S 16(b) also requires that he be convicted of a crime that, "by its nature, involves a substantial risk that physical force against the person or property of another may be used in the course of committing the offense." 18 U.S.C. S 16(b). Homicide by vehicle in Pennsylvania is not such an offense. 39 A brief review of the procedural history places our discussion in its proper context. Francis was convicted of two counts of homicide by vehicle following a trial, and he appealed to the Superior Court of Pennsylvania. He argued that the evidence presented at trial was insufficient to sustain a conviction. The Superior Court rejected this argument. Commonwealth v. Francis, 665 A.2d 821,823 (Pa. Super. 1995). In doing so, the court held that Francis was guilty of criminal negligence rather than recklessness. The court reasoned: 40 The Commonwealth established beyond a reasonable doubt that appellant violated S75 Pa.C.S. 4903, which prohibits any backing up on a limited access highway such as I-95. The Commonwealth also proved beyond a reasonable doubt, through expert and eyewitness testimony, that appellant's act of backing up his vehicle into traffic directly caused Mr. Rutter to lose control of his vehicle, which precipitated the multiple vehicle accident in which the Rutters were killed. Finally, we find that appellant's conduct was criminally negligent, as the backing up of a vehicle into oncoming traffic traveling 55 miles per hour is a gross deviation from the standard of care observed by a reasonable person. See Heck, 517 Pa. at 201, 535 A.2d at 580 (criminal negligence requires gross deviation from standard of care reasonable person would observe); In the Interest of Hyduke, 371 Pa.Super. 380, 388, 538 A.2d 66, 70 (1988) (criminal negligence established where appellant drove 85 miles per hour, lost control of his vehicle, and crossed the center line); Cheatham, 419 Pa.Super. at 611-12, 615 A.2d at 806-07 (epileptic was criminally negligent for driving while knowing he was subject to seizures). Accordingly, we find that appellant's sufficiency claim has no merit. 41 Id. at 823-24. 42 Under Taylor v. United States, 495 U.S. 575, 600 (1990), we use the "categorical approach" to determine if Francis' conviction for vehicular homicide comes within the meaning of the second part of S 16(b). Drakes v. Zimski, 240 F.3d 246, 249 (3d Cir. 2001) (citing Taylor v. United States, 495 U.S. 575, 600 (1990) and In re Alcantar, 20 I.&N.Dec. 801, 809 (B.I.A. 1994)). Therefore, we must look to Pennsylvania's definition of homicide by vehicle. As noted previously, 75 Pa. C.S.A. S 3732 provides: 43 Any person who unintentionally causes the death of another person while engaged in the violation of any law of this Commonwealth or municipal ordinance applying to the operation or use of a vehicle or to the regulation of traffic except section 3731 (relating to driving under influence of alcohol or controlled substance) is guilty of homicide by vehicle, a misdemeanor of the first degree, when the violation is the cause of death. 44 75 Pa. C.S.A. S 3732. On its face, homicide by vehicle is certainly not an offense that "by its nature, involves a substantial risk that physical force against the person or property of another may be used in the course of committing the offense." 18 U.S.C. S 16(b). The BIA acknowledged that S 3732 involves a range of behavior that "may or may not" fall under S 16(b). 45 The categorical approach does "permit the sentencing court to go beyond the mere fact of conviction in a narrow range of cases where a jury was actually required to find all the elements of [the relevant] generic [offense]." Taylor, 495 U.S. at 602. Here, the criminal complaint stated: 46 Southbound on Route 95 in the vicinity of Comly Street the defendant unintentionally caused the death of the decedent #1 Harry B. Rutter, Driver of vehicle #1, by operating a 1985 Chevrolet Caprice, Pa. License ADB 7268, while his operating privilege was suspended, and in such a manner as to cause a eight vehicle accident between four cars, one van, and three tractor trailers and a near miss by a tanker truck carrying 8000 gallons of gasoline, causing the deaths of two people and injuring a third. 47 AR at 110 (emphasis added). 48 Francis was therefore charged with the "unintentional" conduct, of operating an automobile in such a manner as to cause a car accident resulting in two deaths. The phrase "while his operating privilege was suspended" is the attendant circumstance that furnishes the violation of law that is the condition precedent to criminal culpability. The BIA, however, reviewed the criminal complaint and found that driving with a suspended license, could "in and of itself, present a `substantial risk' that physical force would be used against the person or property of another." Id. at 6. Relying on United States v. Galvan-Rodriguez, 169 F.3d 217, 219 (5th Cir. 1999) and Matter of Magallanes, Interim Decision 3341 at 6-7 (BIA 1998), the BIA reasoned that "a motor vehicle in the wrong hands has enormous potential to cause damage to the vehicle and other property, as well as personal injuries and death to innocent people." AR at 6. Further, the BIA reasoned that "the precise risk created by [Francis'] conduct was actually realized in the present case with devastating consequences." AR at 6-7. However, nothing on this record establishes that driving with a suspended license, in and of itself, involves a substantial risk of physical force. 49 There are undoubtedly many reasons why a state would suspend a person's driving privileges, some of which may have no relation to a person's fitness to drive or the likelihood that he or she will use physical force. See Commonwealth Dept of Transportation v. Empfield, 526 Pa. 220 (1991) (setting forth numerous infractions of the Pennsylvania Vehicle Code that justify suspension of a driver's license including the ministerial act of failing to renew a valid license). Moreover, we find both Galvan-Rodriguez and Matter of Magallanes distinguishable. 50 Galvan-Rodriguez involved the state offense of unauthorized use of an automobile; a crime that is similar to car theft with all of the attendant dangers of high speed chases, speeding, and recklessness endemic in car theft. Clearly, one who steals a car will be far more likely to operate it recklessly than the car's owner. Matter of Magallanes involved the state offense of aggravated driving under the influence. The dangers of operating an automobile while one's faculties are impaired by drugs or alcohol are all too obvious, and too common to require further elaboration. Significantly, homicide by vehicle is specifically defined to exclude the traffic violation of driving under the influence under 75 Pa. C.S.A. S 3731. Homicide by vehicle, as the Superior Court noted in affirming Francis' conviction, arises from criminally negligent behavior. 51 In Commonwealth v. Heck 517 Pa. at 201, the Pennsylvania Supreme Court held that ordinary negligence is not sufficient to sustain a conviction of homicide by vehicle under 75 Pa.C.S.A. S 3732. 535 A.2d 575,579 (Pa. 1987). The court found that the government must establish recklessness or criminal negligence. Id. In Pennsylvania, criminal negligence is defined as follows: 52 A person acts negligently with respect to a material element of an offense when he should be aware of a substantial and unjustifiable risk that the material element exists or will result from his conduct. The risk must be of such a nature and degree that the actor's failure to perceive it, considering the nature and intent of his conduct and the circumstances known to him, involves a gross deviation from the standard of care that a reasonable person would observe in the actor's situation. 53 Heck, 517 Pa. at 201 (citing 18 Pa. C.S 302(b)(4)) (emphasis added). In contrast, Pennsylvania defines reckless conduct as follows: 54 A person acts recklessly with respect to a material element of an offense when he consciously disregards a substantial and unjustifiable risk that the material element exists or will result from his conduct. The risk must be of such a nature and degree that, considering the nature and intent of the actor's conduct and the circumstances known to him, its disregard involves a gross deviation from the standard of conduct that a reasonable person would observe in the actor's situation. 55 18 Pa. C.S.A. S 302(b)(3) (emphasis added). The BIA determined that Francis' conduct was reckless. It may well have been. However, recklessness was not charged, and he was not convicted of an offense requiring that mens rea. The criminal complaint alleges only that Francis unintentionally caused the death of two persons by driving a car "while his operating privilege was suspended, and in such a manner as to cause a eight vehicle accident..." The complaint expressly uses the term "unintentional[ ]." It did not charge him with recklessness. Given the criminal complaint, and the Superior Court's opinion, it was error for the BIA to conclude that Francis was convicted of recklessness. He was convicted of criminal negligence. 56 The BIA also discussed our decision in United States v. Parson, 955 F.2d 858 (3d Cir. 1992). The BIA believed that Parson supports the conclusion that homicide by vehicle falls under 18 U.S.C. S 16(b) because Francis was willing to "engage in conduct that carries enormous potential risk that physical force will be used against persons or property." AR at 7. However, in Parsons, we interpreted a provision of the Sentencing Guidelines that is distinguished from S 16(b) despite similar wording. The relevant provision of the Guidelines at issue in Parsons was U.S.S.G. S 4B1.2(1); the Career Offender provision. In deciding that Parsons was a career offender we noted that U.S.S.G. S 4b1.2(ii) included within the definition of "crime of violence" any offense that "involves conduct that presents a serious potential risk of physical injury to another." (Emphasis added). Id. at 867. Thus, to the extent that the discussion there has any relevance to our inquiry here at all, we note our focus there was on conduct. Here, S 16(b) requires that we focus upon the nature of the underlying felony rather than the conduct that caused Francis to be convicted of the felony. Parsons had been convicted of "recklessly endangering" others under state law. We cannot conclude that Francis' crime, involving criminal negligence, so strongly implicates the use of force or risk of force as to sweep Francis' conviction within "crime of violence" here. 57 Parson's state conviction satisfied the requirement for a career offender because he pled guilty to, and was convicted of, " `conduct that presents a serious risk of physical injury to another' " under Delaware law. Id. at 872 (emphasis added). Though Francis' conduct may well have also posed such a risk, the statute he was convicted under does not, by its nature, require it.12 Any level of negligence poses a risk of some kind of injury. However, as noted above, driving while one's license is suspended simply does not bear a sufficient risk of physical injury to allow us to conclude that the nature of Francis' offense satisfies S 16(b). See United States v. Galo, 239 F.3d 572, 577 (3rd Cir. 2000) ("Under the `categorical approach' the sentencing court can look only to the fact of conviction and the statutory definition of the prior offense. The court's analysis is not controlled by the conduct giving rise to the conviction.") (citing Taylor, 495 U.S. at 600-602.). 58 After considering the text of S 3732, the criminal complaint, and Pennsylvania precedent together with our own, we find that Francis' conviction for vehicular homicide is not an offense that "by its nature, involves a substantial risk that physical force against the person or property of another may be used in the course of committing the offense." 18 U.S.C. S 16(b). 59 We do not for a moment minimize the tragic consequences of Francis' conduct nor the loss that he caused the families of the two people killed by his negligence. However, the tragic nature of the accident he caused does not mean that he was convicted for a crime that, "by its nature, involves a substantial risk that physical force" will result. See 18 Pa. C.S.A. S 302(4)(d).13 IV. Conclusion 60 For the reasons set forth above, we hold that Francis has not committed a "crime of violence" that is a predicate for "aggravated felony" status pursuant to 8 U.S.C. S 1101(a)(43)(F). Therefore, we have jurisdiction over this petition as Francis is not "removable by reason of having committed a criminal offense covered in section... 1227(a)(2)(A)(iii)," which refers to an alien who is convicted of an aggravated felony. See 8 U.S.C. 1252(a)(2)(C). Inasmuch as Francis had not been convicted of an "aggravated felony" he was not removable as charged by the INS. Accordingly, Francis' petition for review is granted and we will remand to the BIA with instructions to vacate its order of removal. NOTES: 1 In 2000, the Pennsylvania Legislature amended 75 Pa. C.S.A. &#167 3732 by substituting 'recklessly or with gross negligence' for 'unintentionally' and increased the offense from a misdemeanor of the first degree to a felony of the third degree. 2 Section 1252(a)(2)(C) provides: (C) Orders against criminal aliens Notwithstanding any other provision of law, no court shall have jurisdiction to review any final order of removal against an alien who is removable by reason of having committed a criminal offense covered in section 1182(a)(2) or 1227(a)(2)(A)(iii) [entitled "Aggravated felony"], (B), (C), or (D) of this title, or any offense covered by section 1227(a)(2)(A)(ii) of this title for which both predicate offenses are, without regard to their date of commission, otherwise covered by section 1227(a)(2)(A)(i) of this title. 3 We recognize that the Supreme Court has recently held that certain provisions of the Illegal Immigration Reform and Immigrant Responsibility Act, including 8 U.S.C.A. S 1252(a)(2)(C), do not deprive district courts of jurisdiction to review a resident alien's habeas corpus petition challenging a BIA decision. INS v. Cyr, 121 S.Ct. 2271, 150 L.Ed.2d 347 (U.S. June 25, 2001). That is in accord with our decision in Liang v. INS, 206 F.3d 308 (3d Cir. 2000). We pause here merely to note that the Supreme Court expressly decided not to address the jurisdictional question of whether a court of appeals has jurisdiction to determine whether the S 1252(a)(2)(C) jurisdictional bar applies to petitions for review of BIA decisions, i.e. whether an alien has been convicted of an aggravated felony. Calcano-Martinez v. INS, U.S. , 150 L.Ed.2d 392 (U.S. June 25, 2001) (explaining that the government conceded that courts of appeals have jurisdiction to determine the jurisdictional facts of "whether an individual is an alien and whether he or she has been convicted of an `aggravated felony' " but that the petitions there did not raise this issue). 4 8 U.S.C. S 1101(43) states that "aggravated felony" includes... (F) a crime of violence (as defined in section 16 of Title 18,...) For which the term of imprisonment [is] at least one year." 5 U.S.S.G. S 2L1.2(b)(1)(B) incorporates the aggravated felony definitions used in 8 U.S.C. S 1101(a)(43). 6 We concluded that the verb "is" was inadvertently omitted from the text of the statute. 7 S 3559 provides: (a) Classification.--An offense that is not specifically classified by a letter grade in the section defining it, is classified if the maximum term of imprisonment authorized is-- *** *** *** *** (5) less than five years but more than one year, as a Class E felony... 18 U.S.C. S 3559(a)(5) (emphasis added). 8 Moreover, for the reasons we set forth below, we would reverse the decision of the BIA even if Chevron applied because the BIA's analysis is not a reasonable interpretation of 8 U.S.C. S 1101(43)(F). 9 In 1996, Congress amended S 1101(a)(43)(F),(G),(N), and (P), by lowering the maximum penalty threshold from at least five years to at least one year. 110 Stat. 3009, 3009-627. 10 Our approach of using the state label is consistent with United States v. Villanueva-Gaxiola, 119 F. Supp.2d 1185,1190 (Dist. Kansas 2000) (finding that "[b]ecause California Penal Code S 12020 encompasses misdemeanor offenses, it cannot meet the definition of `crime of violence' in 18 U.S.C. S 16(b)."). 11 We are aware that we refused to apply the rule of lenity in Graham, however, as we note in our discussion of Graham, supra, there was no ambiguity in the text we were interpreting there. As is evident from our discussion, the same can not be said of the statutes at issue here. Moreover, we expressly allowed for the rule of lenity in Steele v. Blackman, 236 F.3d 130, (3rd Cir. 2001) ("Since the distribution of marijuana... is not inherently a felony, it seems to us that the only alternative to so regarding it consistent with the rule of lenity would be to treat any S 844 offense in this context as a misdemeanor.") (emphasis added). 12 Significantly, to the extent that his level of criminal "negligence" was so reckless as to be wanton or constitute malice, he could have been charged with third degree murder. See Commonwealth v. Marcelette Miller, 627 A.2d 741 (Pa. Super. 1993). That would have been the kind of offense that, "by its nature" involves the use or substantial risk that force will be used. 13 18 Pa. C.S.A. S 302(4)(d) provides: Prescribed culpability requirement applies to all material elements. --When the law defining an offense prescribes the kind of culpability that is sufficient for the commission of an offense, without distinguishing among the material elements thereof, such provision shall apply to all the material elements of the offense, unless a contrary purpose plainly appears.

856 F.2d 196 Unpublished DispositionNOTICE: Sixth Circuit Rule 24(c) states that citation of unpublished dispositions is disfavored except for establishing res judicata, estoppel, or the law of the case and requires service of copies of cited unpublished dispositions of the Sixth Circuit.UNITED STATES of America, Plaintiff-Appellee,v.Samuel J.M. DAVIS, Jr., Defendant-Appellant. No. 88-5789. United States Court of Appeals, Sixth Circuit. Aug. 17, 1988. 1 Before KENNEDY and WELLFORD, Circuit Judges, and HERMAN JACOB WEBER, District Judge.* ORDER 2 This matter has been referred to a panel of the court pursuant to Rule 9(a), Rules of the Sixth Circuit. 3 A review of the file shows that the criminal defendant, Davis, seeks to appeal the order of the district court entered June 27, 1988, denying his pro se pretrial motion to seal the court file and restrain the government from alleged selective and vindictive action. Appellant appealed from that order on July 6, 1988. The district court docket reflects that Davis' criminal trial is scheduled to commence August 22, 1988. 4 This court lacks jurisdiction in this appeal. An order denying a motion to dismiss on the basis of vindictive prosecution is not appealable. United States v. Hollywood Motor Car Co., 458 U.S. 263, 268 (1982). Moreover, the order from which Davis seeks to appeal does not fall within the narrow class of situations in criminal prosecutions which are permitted interlocutory review under the collateral order exception of Cohen v. Beneficial Indus. Loan Corp., 337 U.S. 541 (1949). See United States v. Bratcher, 833 F.2d 69, 72 (6th Cir.1987), cert. denied, 108 S.Ct. 760 (1988). 5 It is ORDERED that the appeal be and is hereby dismissed. Rule 9(b)(1), Rules of the Sixth Circuit. * The Honorable Herman Jacob Weber, U.S. District Judge for the Southern District of Ohio, sitting by designation

643 So.2d 112 (1994) Anthony R. MARTIN, Appellant, v. TOWN OF PALM BEACH, County of Palm Beach, et al., Appellees. No. 94-1150. District Court of Appeal of Florida, Fourth District. October 7, 1994. Anthony R. Martin, Palm Beach, pro se. John C. Randolph of Jones, Foster, Johnston & Stubbs, P.A., West Palm Beach, for appellee Town of Palm Beach. *113 No appearance, for appellee County of Palm Beach. G.N. DIAMANTIS, Associate Judge. Anthony R. Martin appeals the final judgment entered in favor of the Town of Palm Beach which denied Martin's request for an injunction to prevent the Town from constructing a fire station on property originally conveyed for public recreational use. We affirm. The facts of this case are not in dispute. In 1948 the Phipps family devised real property to Palm Beach County. The deed provided in part that the conveyed premises were to be used only as a "public park and public bathing beach and recreational area... and for no other purpose." Although the 1948 deed did not contain a reverter clause, it did provide that this recreational use restriction "runs with the land in perpetuity and upon any breach or threatened breach thereof, the Grantor, its successors or assigns, or any person being a resident of Palm Beach County, Florida, may bring any appropriate action therefor." Nine years later, in October 1957, Palm Beach County conveyed the property to the Town of Palm Beach. This 1957 deed did not reiterate the specific restrictive public recreation language of the 1948 deed, but instead provided that the conveyance was "subject to easements, covenants, limitations, reservations and restrictions of record." At the time of the 1948 conveyance, a caretaker's shack existed on the property. In 1964, the shack was expanded to a fire station complex and then expanded again in 1979. The Town now seeks to replace the old fire station with a new one on a different site within the same property. The new proposed fire station will constitute approximately 1.7 percent of the approximately 714,000 square feet of the property. In an effort to prevent construction of this new fire station, Martin, a resident of Palm Beach County, sued the Town seeking enforcement of the 1948 deed restriction. The trial court denied injunctive relief relying upon section 712.04 of the Marketable Record Titles to Real Property Act (MRTA). See § 712.04, Fla. Stat. (1993).[1] Although we agree with the trial court's conclusion that application of MRTA effectively extinguishes the 1948 deed restrictions, we base our decision to affirm the final judgment upon sections 712.02 and 712.03 of MRTA.[2] Before discussing the MRTA issues, we address an issue which the Town raised for the first time at oral argument; namely, that Martin does not have the requisite standing to seek enforcement of the 1948 deed restrictions because he has not shown that he will suffer a special injury or that he has a special interest in the outcome of this action. See Askew v. Hold the Bulkhead-Save Our Bays, Inc., 269 So.2d 696 (Fla. 2d DCA 1972).[3] Although the Town raised the *114 defense that Martin lacked standing in its answer, the record reflects that the Town failed to pursue this defense any further, and the Town did not raise this matter in a cross-appeal or in its appellate brief. Accordingly, the Town failed to properly preserve this issue for appellate review and, therefore, we decline to issue a ruling on the claim that Martin lacks standing to pursue this action. See Krivanek v. Take Back Tampa Political Committee, 625 So.2d 840, 842 (Fla. 1993) (defense of lack of standing can be waived), cert. denied, ___ U.S. ___, 114 S.Ct. 1538, 128 L.Ed.2d 191 (1994). MRTA was enacted to simplify and facilitate land title transactions "by allowing persons to rely on a record title as described in s. 712.02 [Florida Statutes (1993)] subject only to such limitations as appear in s. 712.03 [Florida Statutes (1993)]." MRTA must "be liberally construed to effect [this] legislative purpose." § 712.10, Fla. Stat. (1993). Section 712.02[4] provides that, when a record owner, alone or with its predecessors in title, has been vested with an estate in land of record for 30 years or more, such owner has marketable title free and clear of all claims except matters preserved by section 712.03. Section 712.03 provides in pertinent part: 712.03 Exceptions to marketability. — Such marketable record title shall not affect or extinguish the following rights: (1) Estates or interests, easements and use restrictions disclosed by and defects inherent in the muniments of title on which said estate is based beginning with the root of title; provided, however, that a general reference in any of such muniments to easements, use restrictions or other interests created prior to the root of title shall not be sufficient to preserve them unless specific identification by reference to book and page of record or by name of recorded plat be made therein to a recorded title transaction which imposed, transferred or continued such easement, use restrictions or other interests... . § 712.03(1), Fla. Stat. (1993). Thus, pursuant to section 712.03(1), the use restrictions created prior to the 1957 deed (the Town's root of title)[5] are extinguished by section 712.02 unless the use restrictions are disclosed and specifically identified in any muniment of title.[6]See Cunningham v. Haley, 501 So.2d 649, 652 (Fla. 5th DCA 1986). Here, the 1957 deed is the *115 root of title, as well as the only muniment of title, because there have been no further conveyances of the subject property since 1957. Importantly, the 1957 deed does not contain the use restriction set forth in the 1948 deed, but instead only generally states that the conveyance is subject to easements, covenants, limitations, reservations, and restrictions of record. Because this language fails to comport with the requirements of section 712.03(1), the use restriction contained in the 1948 deed has not been preserved.[7] Our conclusion in this case is consistent with the court's rationale in Sunshine Vistas Homeowners Ass'n v. Caruana, 623 So.2d 490 (Fla. 1993). In that case, the court held that a restriction is preserved if the root of title or a subsequent muniment of title contains a "specific identification" to a recorded title transaction that imposed, transferred, or continued the restriction. Caruana, 623 So.2d at 491. The court noted that a specific identification to the title transaction can be made in one of two ways: "(1) by reference to the book and page in the public records where the title transaction that imposed the restriction can be found, or (2) by reference to the name of a recorded plat that imposed the restriction." Id. at 491-92. In that case, because each of the relevant muniments of title made reference to the recorded plat that imposed the restriction, the court held that the restrictions had been properly preserved. In contrast, here Martin does not contend that the plat referenced in the 1957 deed imposed the use restrictions contained in the 1948 deed. Accordingly, we affirm the trial court's final judgment denying Martin's claim for injunctive relief.[8] AFFIRMED. HARRIS, C.M. and GRIFFIN, J.R., Associate Judges, concur. NOTES [1] The trial court also denied the injunctive relief on other grounds, including a finding that the Town's use of the property for a fire station and paramedic facility is not contrary to the terms of the 1948 deed. [2] If the result reached by the trial court is proper on any theory, this court must affirm. See Rivello v. Cooper City, 322 So.2d 602, 608 n. 3 (Fla. 4th DCA 1975). [3] In Askew, Oscar Scherer State Park was donated to the state under the will of Elsa Scherer Burrows, who devised the land "for public recreation and as a wild life sanctuary." The state had begun construction of various improvements designed to develop camping and restaurant facilities in the park when appellees sought to enjoin the construction, alleging that it would substantially destroy the park as a wildlife sanctuary. Appellees argued that standing was conferred on them by the express provision of the will that "my executors, administrators, residuary devisees and my and their heirs, successors and assigns as well as any resident taxpayer of Florida and the Attorney General of Florida shall always have the right to enforce said conditions or enjoin their violation by appropriate proceedings." Askew, 269 So.2d at 697-98 (emphasis in original). The trial judge permitted an individual appellee, Payne, to remain in the action, but dismissed Hold the Bulkhead-Save Our Bays for lack of standing. On appeal, the second district affirmed the ruling as to Hold the Bulkhead-Save Our Bays, but reversed the trial court's failure to dismiss Payne: Neither of appellees has alleged or shown that one or the other of them will suffer a special injury or that either has a special interest in the outcome of this action. In order to maintain this kind of action, absent a sufficient predicate to a proper class suit (and there is no such predicate here), it is well settled that a plaintiff must allege that his injury would be different in degree and kind from that suffered by the community at large. If it were otherwise there would be no end to potential litigation against a given defendant, whether he be a public official or otherwise, brought by individuals or residents, all possessed of the same general interest, since none of them would be bound by res judicata as a result of prior suits; and as against public authorities, they may be intolerably hampered in the performance of their duties and have little time for anything but the interminable litigation. Askew, 269 So.2d at 697 (emphasis in original; footnotes omitted). See also United States Steel Corp. v. Save Sand Key, Inc., 303 So.2d 9 (Fla. 1974); Town of Flagler Beach v. Green, 83 So.2d 598 (Fla. 1955); White v. Metropolitan Dade County, 563 So.2d 117 (Fla. 3d DCA 1990); Smith v. Bolte, 172 So.2d 624 (Fla. 2d DCA 1965); Guernsey v. Haley, 107 So.2d 184 (Fla. 2d DCA 1958). [4] Section 712.02 provides: 712.02 Marketable record title; suspension of applicability. — Any person having the legal capacity to own land in this state, who, alone or together with his predecessors in title, has been vested with any estate in land of record for 30 years or more, shall have a marketable record title to such estate in said land, which shall be free and clear of all claims except the matters set forth as exceptions to marketability in s. 712.03... . § 712.02, Fla. Stat. (1993). [5] Section 712.01(2), Florida Statutes (1993), defines "root of title" as "any title transaction purporting to create or transfer the estate claimed by any person and which is the last title transaction to have been recorded at least 30 years prior to the time when marketability is being determined." [6] "Muniments of title" are "instruments of writing and written evidences which the owner of lands, possessions, or inheritances has, by which [one] is entitled to defend the title." Sunshine Vistas Homeowners Ass'n v. Caruana, 623 So.2d 490, 491 n. 2 (Fla. 1993) (quoting Black's Law Dictionary 1019 (6th ed. 1990)). Muniments of title include "deeds, wills, and court judgments through which a particular land title passes and upon which its validity depends." Cunningham v. Haley, 501 So.2d 649, 652 (Fla. 5th DCA 1986) (emphasis omitted). [7] We must decline Martin's invitation to create an exception to sections 712.02 and 712.03 for charitable donations created by deed because appellate courts do not possess the authority to rewrite a statute. To create such an exception when one does not clearly exist would constitute impermissible judicial legislation. See State v. Globe Communications Corp., 622 So.2d 1066, 1080 (Fla. 4th DCA 1993). The wisdom of creating such an exception should be addressed to the legislature. See Pfeiffer v. City of Tampa, 470 So.2d 10, 17 (Fla. 2d DCA), rev. denied, 478 So.2d 53 (Fla. 1985). [8] Based upon the record before us, Martin also has failed to persuade us that the trial court erred in finding that the Town's use of the property for a fire station and paramedic facility is not contrary to the terms of the 1948 deed. Martin's reliance on White v. Metropolitan Dade County, 563 So.2d 117 (Fla. 3d DCA 1990), is misplaced because, in that case, the court held that the banning of county residents from a commercial tennis tournament on a park's tennis complex violated deed restrictions that the property be used "for public park purposes." We note that White did not involve a subsequent conveyance which triggered MRTA to extinguish the earlier deed's restrictions.

84 Wn.2d 498 (1974) 527 P.2d 674 THE STATE OF WASHINGTON, Petitioner, v. DAVID TERRON SMITH, Respondent. RONALD G. FORSYTH, Petitioner, v. THE STATE OF WASHINGTON, Respondent. Nos. 43196, 43204. The Supreme Court of Washington, En Banc. October 31, 1974. *499 Christopher T. Bayley, Prosecuting Attorney, by Michael P. Ruark, Senior Deputy, and Marco J. Magnano, Jr., Deputy, and Wesley G. Hohlbein, for petitioners. Lanning, Mahoney & Bryan, by Bill Lanning and Robert S. Bryan, Donald C. Brockett, Prosecuting Attorney, and Fred J. Caruso, Deputy, for respondents. FINLEY, J. The two cases here on certiorari have been consolidated for consideration and disposition by the Supreme Court because of common issues of law. The first question to be resolved is whether the right to bail and release from custody after conviction and pending appeal is limited or subject to specific provisions of the state constitution. A related, second question is double headed: Is the right to bail and release from custody after conviction and pending appeal procedural and therefore subject to and governed by court rules or is it substantive and therefore subject to and governed by legislatively enacted limitations, requirements, and standards? The question of the right to bail and release from custody prior to conviction is not involved in any manner in either of the two consolidated cases. [1] Our Washington State Constitution, article 1, section 20 provides as follows: "All persons charged with crime shall be bailable by sufficient sureties, except for capital offenses when the proof is evident, or the presumption great." (Italics ours.) The crystal clear, literal meaning of the quoted provision of our state constitution makes it applicable solely to all persons charged with crime. There is certainly no reference or implication in this particular constitutional provision or elsewhere in the constitution that this provision and limitation is or should be applicable to bail and release of criminal defendants after conviction and pending appeal. We have therefore previously held that the constitution confers no right to bail pending appeal. In re Berry, 198 Wash. 317, 88 P.2d 427 (1939). See also State v. Haga, 81 Wn.2d 704, 504 P.2d 787 (1972). *500 Other jurisdictions have similarly construed their constitutions. See State v. Helton, 72 Wyo. 105, 261 P.2d 46 (1953); Braden v. Lady, 276 S.W.2d 664 (Ky. Ct. App. 1955); In re Scaggs, 47 Cal.2d 416, 303 P.2d 1009 (1956). By correlative analysis, it is equally clear that the constitution places no limitation on the conferral of bail pending appeal. We see no need for resorting to interpretation to change the crystal clear, literal meaning of the above constitutional provision, and we refrain from interposing any judicial engrafting to alter or amend the literal meaning of the constitutional language involved. In short, the constitution is not apposite to these cases.[1] However, the legislature has provided in RCW 10.73.040 that: In all criminal actions, except capital cases in which the proof of guilt is clear or the presumption great, upon an appeal being taken from a judgment of conviction, the court in which the judgment was rendered, or a judge thereof, must, by an order entered in the journal or filed with the clerk, fix and determine the amount of bail to be required of the appellant; ... (Italics ours.) This legislative enactment is clearly inconsistent with the provisions of CrR 3.2(h) as promulgated by the Supreme Court: Release After Verdict. A defendant (1) who is charged with a capital offense, or (2) who has been found guilty of a felony and is either awaiting sentence or has filed an appeal, shall be released pursuant to this rule, unless the court finds that the defendant may flee the state or pose a *501 substantial danger to another or to the community. If such a risk of flight or danger exists, the defendant may be ordered detained. [2, 3] This conflict can be resolved by either of two modes of analysis. First, courts have certain limited inherent powers; among these is the power to prescribe rules for procedure and practice. See R.E.W. Constr. Co. v. District Court, 88 Idaho 426, 400 P.2d 390 (1965); Appeal of Dattilo, 136 Conn. 488, 72 A.2d 50 (1950); State v. Roy, 40 N.M. 397, 60 P.2d 646, 110 A.L.R. 1 (1936); In re Sparrow, 338 Mo. 203, 90 S.W.2d 401 (1933). Although a clear line of demarcation cannot always be delineated between what is substantive and what is procedural, the following general guidelines provide a useful framework for analysis. Substantive law prescribes norms for societal conduct and punishments for violations thereof. It thus creates, defines, and regulates primary rights. In contrast, practice and procedure pertain to the essentially mechanical operations of the courts by which substantive law, rights, and remedies are effectuated. See State v. Pavelich, 153 Wash. 379, 279 P. 1102 (1929); In re Florida Rules of Criminal Procedure, 272 So.2d 65 (Fla. 1972). These guidelines, however, are expressive of the common law and should be applied in consonance therewith whenever possible. Apropos of this, the fixing of bail and the release from custody traditionally has been, and we think is, a function of the judicial branch of government, unless otherwise directed and mandated by unequivocal constitutional provisions to the contrary. The power of the courts at common law is very well paraphrased in 8 Am.Jur.2d Bail & Recognizance § 8 (1963), at pages 787-88. Authority to grant bail generally is incidental either to the power to hold a defendant to answer, or to the power to hear and determine the matter in which the defendant is held. At common law courts had inherent power to grant bail to prisoners before them and over whom they had jurisdiction. Granting bail and fixing its amount is generally a judicial or quasi-judicial function; ... *502 (Footnotes omitted.) Since the inherent power to fix bail is grounded in the power to hold a defendant, and thus relates to the manner of ensuring that the alleged offense will be heard by the court, we believe it to be implicit that the right to bail is essentially procedural in nature. Therefore, we hold that CrR 3.2(h) was validly promulgated by the Supreme Court pursuant to its inherent rule-making authority to prescribe rules of procedure. [4] Since the promulgation of rules of procedure is an inherent attribute of the Supreme Court and an integral part of the judicial process, such rules cannot be abridged or modified by the legislature. See Bernhardt v. State, 288 So.2d 490 (Fla. 1974); Burton v. Mayer, 274 Ky. 263, 118 S.W.2d 547 (1938); Parkison v. Thompson, 164 Ind. 609, 73 N.E. 109 (1905). Thus, the right to bail (and release) after verdict and pending appeal in the two cases consolidated and considered in this opinion is governed solely by the provisions of CrR 3.2(h). As a second and alternative rationale, but not the principal or basic one, for our holding today, it is clear that in any event the legislature has delegated to this court the power to prescribe rules for bail pending appeal. This was accomplished in RCW 2.04.190 and RCW 2.04.200. RCW 2.04.190 enunciates the following: The supreme court shall have the power to prescribe, from time to time, the forms of writs and all other process, the mode and manner of framing and filing proceedings and pleadings; of giving notice and serving writs and process of all kinds; of taking and obtaining evidence; of drawing up, entering and enrolling orders and judgments; and generally to regulate and prescribe by rule the forms for and the kind and character of the entire pleading, practice and procedure to be used in all suits, actions, appeals and proceedings of whatever nature by the supreme court, superior courts and justices of the peace of the state. In prescribing such rules the supreme court shall have regard to the simplification of the system of pleading, practice and procedure in said courts *503 to promote the speedy determination of litigation on the merits. (Italics ours.) [5, 6] RCW 2.04.200 provides: When and as the rules of courts herein authorized shall be promulgated all laws in conflict therewith shall be and become of no further force or effect. (Italics ours.) Since we have concluded in the preceding discussion that the granting or denial of bail is essentially a procedural matter, it follows that the right to prescribe regulatory rules falls within the ambit of RCW 2.04.190. Further, pursuant to RCW 2.04.200, supra, and the subsequent adoption of CrR 3.2(h), no statutory rights to bail or statutory limitations or provisions concerning the right to bail pending appeal are presently viable and extant. Rather, the right to bail pending appeal or any limitations thereon are solely within the jurisdiction of this court in the exercise of its rulemaking power as now promulgated in CrR 3.2(h). As such, the trial court in the instant cases proceeded within its authority under CrR 3.2(h) in exercising its discretion in granting bail to the defendant Smith pending appeal, and in revoking bail pending appeal of the defendant Forsyth. It is argued, however, in each of the consolidated cases that the trial court abused its discretion. In State v. Smith, No. 43196, David Terron Smith was charged with murder in the first degree for the premeditated killing of Nicholas Kyreacos on November 20, 1973, in an alley in Seattle, Washington. On the date that he was charged with the crime in question, November 26, 1973, the defendant was incarcerated in the King County jail with no bail. On February 27, 1974, the defendant presented a motion to the court asking that he be released on his personal recognizance or on bail since there existed the likelihood that his mother would not live longer than 2 or 3 days following an operation. The State objected to the release of the defendant, and the court took the defendant's motion under advisement. *504 The following day the court heard testimony and the arguments of counsel and denied the defendant's motion for release. Subsequently, but prior to trial, the defendant made further motions for release on his personal recognizance or on bail which the trial court repeatedly denied. On March 16, 1974, a jury returned a verdict of guilty of murder in the first degree, with a special verdict that the defendant was armed with a deadly weapon and a firearm at the time of the commission of the offense. The defendant was thereafter returned to the King County jail. On March 19, 1974, the defendant again renewed his motion for release on his personal recognizance or on bail. After hearing testimony and arguments of counsel, the trial court entered an order releasing the defendant from the King County jail on the conditions that an appearance bond in the amount of $50,000 be executed; that the defendant deposit in court $50,000 in cash or other approved security; that the defendant not leave the state of Washington; and that certain other special conditions be satisfied. The court reasoned and concluded that under the definitive guidelines or provisions of CrR 3.2, effective July 1, 1973, the defendant was entitled to be released on bail while he was awaiting sentence or pending an appeal. In so ruling the court stated: The new Rules of Criminal Procedure set forth certain criteria that the Court is to follow in attempting to determine whether or not a defendant should be released on bail and, if so, how much. And, among the things is: the length and character of the defendant's residence in the community, employment status and history and financial condition, family ties and relationships, character and mental condition, history of response to legal process, prior criminal record, willingness of responsible members of the community to vouch for the defendant's reliability, the nature of the charge, and other factors indicating the defendant's ties to the community. And it seems to me that on most all of those, except, of course, the nature of *505 the charge, Mr. Smith would come out as warranting bail. ... Now, I have been impressed with Mr. Smith's demeanor throughout this trial, in circumstances which would certainly be very trying. He has certainly always been very orderly and very respectful, and I can't think of a case where I would find myself more certain that he would abide the Court's orders. Now, there is a possibility that I could be wrong, I know that, but I do think that, pending appeal or pending awaiting sentence, he should be released on bail. I intend, however, to make the exact same findings that Judge Niemi found in the Haga case. I will find that the defendant would not be likely to flee the State, nor pose a substantial danger to another, or to the community. Also, I will make a specific finding that proof of guilt is clear, and the presumption of guilt is great, following the defendant's conviction by a jury of the crime of murder in the first degree. [7] The above statement and fact findings of the trial court are clearly within the ambit of the rule justifying the fixing of bail for the defendant. Upon this record, we cannot say as a matter of law that the trial court was in error. The determination of whether the defendant is likely to flee the state or pose a substantial danger to the community is a factual determination involving the exercise of sound discretion of the trial judge. We have repeatedly stated that we will not substitute our judgment for that of the trial judge when there is substantial evidence to support his findings. Thorndike v. Hesperian Orchards, Inc., 54 Wn.2d 570, 343 P.2d 183 (1959); Dodd v. Polack, 63 Wn.2d 828, 389 P.2d 289 (1964); Sigman v. Stevens-Norton, Inc., 70 Wn.2d 915, 425 P.2d 891 (1967); Mayo v. Mayo, 75 Wn.2d 36, 448 P.2d 926 (1968); Noah v. Montford, 77 Wn.2d 459, 463 P.2d 129 (1969); Sylvester v. Imhoff, 81 Wn.2d 637, 503 P.2d 734 (1972); Stender v. Twin City Foods, Inc., 82 Wn.2d 250, 510 P.2d 221 (1973). In State v. Forsyth, No. 43204, the defendant, Ronald G. *506 Forsyth, was found guilty by a jury on October 16, 1973, of the crime of carnal knowledge. On December 21, 1973, the defendant was sentenced by the Superior Court for Spokane County. He immediately filed a notice of an appeal and was released pending appeal after posting a $7,500 bond. In early February 1974, the defendant was indicted and arraigned in Portland, Oregon, for the crime of first-degree rape, and was released pending trial only after posting a $50,000 appearance bond. Significantly, the Portland rape charged allegedly occurred on December 15, 1973, approximately 1 week before the sentencing of the defendant on the Spokane carnal knowledge conviction. After learning of the possibility that the defendant would be indicted in Portland, Oregon, on the rape charge, the State of Washington on February 1, 1974, filed a motion and affidavit to revoke the defendant's appeal bond pursuant to CrR 3.2(h) on the grounds that the defendant was a substantial danger to the community. A hearing upon the State's motion was held on March 20, 1974, before the Superior Court for Spokane County, where that court considered evidence of the defendant's conduct prior to the carnal knowledge conviction and the events relating to the rape charge in Portland. The court then entered a finding of fact pursuant to CrR 3.2(h) that the defendant constituted a "substantial danger to others" and ordered that the defendant's bond pending appeal should be revoked and that he be incarcerated pursuant to the sentence previously imposed on December 21, 1973. In so ruling, the trial judge made the following comments interspersed with pertinent findings:[2] On October 29, 1970, a young woman named Jean *507 Windshift was offered a ride and then was taken to the Indian Canyon area near where the instant offense took place, and defendant attempted to persuade her to have sexual intercourse. She apparently refused, and although Mr. Forsyth pursued it, he ended up taking her home. He took her out there without her consent and over her protest. And he admitted as much, although he didn't place any importance on the event. He felt, I guess, this was an activity that was understandable between men and women. Then in January, 1972, the Stickelmeyer incident. I notice Mr. Forsyth does bear a few bruises, but nothing compared to the way Miss Stickelmeyer looks. She got quite a beating. It is hard to understand how a man would do that unless he did have some dangerous propensities. ... I am not ruling how that one happened, but it concerns the court, especially the number of these incidents. And the incident a month later involving Alice Wood or Mr. McCarthy, whatever the name was, where guns were involved. And there again, there may be two sides to that story, but Mr. Forsyth's part in it was something that concerned the court. He apparently shot one man in the shoulder and did shoot in the car. I didn't realize there was some sort of weapon displayed by people in the car. The reports didn't reveal that, and perhaps that is the case, I don't know. Then about a year later the incident in question, which *508 was a terrible trauma for this young girl, and I am convinced from hearing the case that it did happen. If that were the only matter before me I would say that that, even alone, indicated dangerousness, but I still released him on bail because there was an appeal, and there are appeal questions which are legitimate. I felt, that being the case, and in view of what I felt the law was in relation to defendants during appeal, that he ought to have bond set. But then on December 15, which I believe was either right before or right after the sentencing, I think a few weeks before — wasn't it, counsel? MR. CARUSO: Yes, your honor. THE COURT: The incident in Portland involving Nancy Wood took place. I realize he has not been convicted there. But the evidence I see here indicates a very strong case against him. ... Right now I think I am compelled from the state of this record to make a finding that Mr. Forsyth is a substantial danger to the community. This record quite adequately supports the determination of the trial court to revoke the defendant's bail pending his appeal pursuant to CrR 3.2(h), on the basis of the court's finding that the defendant posed a danger to the community in the event of his release. In conclusion, the trial court in the Smith case and the trial court in the Forsyth case appropriately applied the provisions of CrR 3.2(h). Accordingly, we affirm the trial court in both cases. HAMILTON, STAFFORD, WRIGHT, UTTER, and BRACHTENBACH, JJ., concur. ROSELLINI, J. (concurring in part; dissenting in part) Const. art. 1, § 20, provides: All persons charged with crime shall be bailable by sufficient sureties, except for capital offenses when the proof is evident, or the presumption great. While taking the view that the granting or denying of bail is a procedural and not a substantive matter, the majority does not go so far as to state that the constitutional *509 limitation upon the right to bail, pending trial, is not binding on the courts. Such a conclusion would be intolerable, since the power which enacted this provision respecting bail also created this court and gave it its jurisdiction and authority. That power is, of course, the people. It would appear that we have attempted to abrogate this constitutional provision in CrR 3.2, governing pretrial release, insofar as it provides that capital offenses shall not be bailable. In that rule, we have lodged in the trial courts the discretion to grant or deny bail in all cases. While the question is avoided in the majority opinion, there appears to be an implicit recognition that, in extending this discretion to capital cases, we have exceeded our constitutional authority. The controlling question in the case before us, as I see it, involves the interpretation of this constitutional provision. Was it the intent of the framers that a person charged with a capital offense, who is presumed innocent, should be denied bail before trial but that after conviction, when he is no longer presumed innocent, he should be allowed bail at the discretion of the court? I think such an intent cannot be reasonably attributed to the framers. Constitutional provisions should be construed so as to give effect to the manifest purpose for which they were adopted. The language of the constitution is to be taken in its general and ordinary sense; and when the words are used which have both a general and a restricted meaning, the general must prevail over the restricted unless the nature of the subject matter or the context indicates that a restricted sense was intended. State ex rel. Linn v. Superior Court, 20 Wn.2d 138, 146 P.2d 543 (1944). Giving the words used in article 1, section 20, their ordinary meaning, it appears to me that the framers intended to grant the right to bail to persons charged with crimes generally, before conviction, but to withhold that right from persons charged with crimes so serious that the death *510 penalty was prescribed as a possible penalty, and where the proof of guilt was evident or the presumption great. In the case of In re Berry, 198 Wash. 317, 320, 88 P.2d 427 (1939), this court held that the constitution does not guaranty the right to bail pending appeal from conviction but leaves this matter to the sound discretion of the court, unless otherwise determined by statute, indicating by dictum that discretion is allowed to grant bail in capital cases. The statute under consideration there, Rem. Rev. Stat. § 1747 (P.C. § 7331), prohibited the granting of bail in capital cases (where the above circumstances were present) pending appeal, and this court held that the statute forbade the granting of bail, even where the death penalty was not imposed. Upon the subject which concerns us here, it was said: While the major principle declared by the authorities is that the constitution does not guarantee the right to bail pending an appeal from conviction, they also indicate that the matter of bail under such circumstances rests in the discretion of the court unless otherwise determined by statute. We are in accord with that view, and are of the opinion that the constitution neither confers the right to bail nor prohibits its allowance, pending an appeal from conviction. I think this statement is in accord with the expressed intent of the constitution, insofar as it applies to the right to bail in noncapital cases. Insofar as it suggests that the constitution confers upon the courts the right to grant bail in the case of persons convicted of capital offenses, I think it is questionable, for it seems clear to me, reading the words of the constitutional provision and ascribing to them the meaning which an ordinary person would be expected to find there, that the framers contemplated that a person charged with a capital offense, who has been found guilty, should not be granted bail thereafter. I am of course aware that we cited and quoted the Berry case in State v. Haga, 81 Wn.2d 704, 504 P.2d 787 (1972), upon the proposition that the limitation on the right to bail *511 under article 1, section 20, does not apply to cases on appeal. Here again, the statement was admittedly dictum. The issue in that case was whether RCW 10.73.040, limiting a defendant's right to bail pending appeal in capital cases, was affected by abolishment of the death penalty. We held there that the restriction on bail was due to the seriousness of the offense, and not the seriousness of the penalty. In neither of these cases was the court confronted with the question whether the constitution prohibits the granting of bail in capital cases (or cases where the offense would have been punishable by death prior to the abolishment of that penalty), pending appeal. In each of them, the legislative provision under consideration adopted the constitutional restriction. I think the legislature correctly interpreted the intent of the framers when it carried this restriction over into the act regulating the granting of bail pending appeal. It recognized that the people did not approve the granting of bail where the offense was so grave that the liberty of the offender posed a threat to human life, and where the guilt of the defendant was clearly establishable or had been established before a jury. I construe the constitutional provision as the legislature evidently construed it. It was the intent of the people to grant the right of bail to persons who have merely been charged with a crime, unless that crime is so serious as to be made a capital offense by the legislature and it is evident that the defendant will be convicted; it was their intent not to grant the right to persons convicted but to leave the question of whether bail should be granted to the discretion of the legislature or the courts, and it was their intent that those persons who were evidently guilty of capital offenses should not have bail, either before or after conviction. It would be absurd to suppose that the framers thought that a person charged with a capital offense would be likely to pose a grave threat to the community if he were set free pending trial; but that if he were released after conviction, but before the *512 punishment was imposed, no such threat would be present. After conviction, the impetus to commit desperate acts would be even greater. Assuming that the constitutional provision is not in accordance with some views on the efficacy of criminal sanctions, it is nonetheless the duty of this court to interpret it according to the manifest intent of the framers and to give it effect. I understand the attitude of the courts that flexibility is needed; however, the fact that such flexibility is desirable does not automatically render it constitutional. The constitution of this state should be modified by the people and not by this court. That constitution manifests a clear intent that persons in the position of the petitioner Smith should not be admitted to bail. I would affirm in the case of Forsyth v. State, and reverse in the case of State v. Smith. HALE, C.J., concurs with ROSELLINI, J. HUNTER, J. (concurring in part; dissenting in part) I agree with Justice Rosellini, with these further observations. The majority primarily premises its opinion on In re Berry, 198 Wash. 317, 88 P.2d 427 (1939), wherein we recognized that the constitution is silent as to the limitation or right of a defendant to bail after conviction in a capital case on appeal. It concludes therefore that this court has the inherent power to make any provision it sees fit as to a defendant's right to bail after his conviction pending appeal in a capital case. With this I cannot agree. The mere silence of the constitution as to the right to bail pending appeal does not permit a court to enunciate a rule that is inconsistent with and contradictory to a limitation by the constitution placed on a defendant's right to bail prior to conviction. That the majority has done just this is clearly evident, whereas in this case the conditions were *513 the same after the defendant's conviction as prior thereto. Const. art. 1, § 20, provides: All persons charged with crime shall be bailable by sufficient sureties, except for capital offenses, when the proof is evident, or the presumption great. In the instant case the trial court made a finding that in the case of this defendant (Smith) proof of guilt is clear and the presumption of guilt is great following the defendant's conviction by a jury of the crime of Murder in the First Degree. The trial court then granted bail to the defendant under our rule, CrR 3.2, effective July 1, 1973, which provides for bail in a capital case after conviction pending appeal, where it is determined the defendant would not be likely to flee the state, nor poses a substantial danger to another or to the community. In my opinion this rule can be operative only where its application does not result in its being inconsistent with and contradictory to the constitutional limitation on a defendant's right to bail prior to his conviction in a capital case; otherwise, the implicit purpose and intent of Const. art. 1, § 20, is violated. I would therefore reverse the trial court as to the defendant Smith and affirm as to the defendant Forsyth. HALE, C.J., concurs with HUNTER, J. NOTES [1] In CrR 1.1, we said: These rules govern the procedure in the courts of general jurisdiction of the State of Washington in all criminal proceedings and supersede all procedural statutes and rules that may be in conflict and shall be interpreted and supplemented in light of the common law and the decisional law of this State. These rules shall not be construed to affect or derogate from the constitutional rights of any defendant. (Italics ours.) Since we find no rights of the defendants to bail pending appeal, or limitation of those rights provided in the constitution, it is clear that no constitutional rights of the defendants are derogated by CrR 3.2(h). [2] The comments and findings by the trial judge may not be a model of clarity to the critical reader. However, examination of the record before the trial judge fills in some missing details, and supplies answers to some questions possibly raised by the more abbreviated comments of the trial judge. First, the judge takes notice at the hearing in March 1974, of bruises incurred in an incident in 1972. The record before this court discloses that photographs of Beverly Ann Stickelmeyer were taken in connection with the sheriff's report of the incident and were presented to the trial court. They were also attached to the transcript presented to this court. Since the trial court also made reference to defendant Forsyth, presumably it also had available a photograph of him before it at the hearing in March 1974, depicting his condition immediately after the incident; however, this is unclear to us since the sheriff's report makes no mention of photographing Forsyth, and no photographs of Forsyth are included in the record presented to this court. Second, reference is made to an incident occurring 1 month subsequent to the Stickelmeyer incident and involving Alice Wood or Mr. McCarthy. The statement should have been made in the conjunctive. The sheriff's report discloses that Alice Wood was allegedly struck by a pistol over her left eye by the defendant and McCarthy was allegedly shot in the right shoulder by the defendant. Finally, the Alice Wood incident is separate and distinct from the alleged Portland rape of Nancy Wood. The similarity of surnames is coincidental.

Slip Op. 09-110 UNITED STATES COURT OF INTERNATIONAL TRADE ____________________________________ : HORIZON LINES, LLC, : : Plaintiff, : : Before: WALLACH, Judge v. : Court No.: 07-00039 : UNITED STATES, : : Defendant. : ____________________________________: ORDER Wallach, Judge: I INTRODUCTION On June 3, 2009, Defendant United States (“Defendant”) made an oral Motion for Judgment as a Matter of Law Dismissing Plaintiff Horizon Lines, LLC’s (“Plaintiff”) Cause of Action Contesting the Partial Dutiability of Tug Charges (“Defendant’s Motion”) pursuant to USCIT Rule 52(c). Based upon the following findings of fact and conclusions of law, Defendant’s Motion is GRANTED. II FINDINGS OF FACT 1. On July 7, 2006, U.S. Customs and Border Protection (“Customs”) in Headquarters Ruling No. W116467 rejected Plaintiff’s argument made in the underlying protest that the tug expenses associated with the dry docking of the CSX HAWAII, a U.S.-flag C6 Class steam vessel, now named HORIZON HAWAII (“HAWAII”) in Lisnave, Mitrena Yard in Setubal, Portugal (“Lisnave”) in 2002 were a single purpose expense incurred for non-dutiable inspections. Customs instead found that the tug towage costs at issue appeared clearly to be a dual purpose expense, in part undertaken due to dutiable vessel repairs and, as such, were dutiable on a pro-rated basis. 2. Plaintiff paid duty in the amount of $11,374.30 on the pro-rated portion of the tug charges set forth in Invoice No. 220-1495/Barwil, Owner’s Ref. No. 1507 for towage related to the HAWAII at Lisnave. 3. Plaintiff’s dry docking specifications for the HAWAII required in addition to the inspections, repair items be dealt with while the vessel was in dry dock. 4. The testimony of Mark Cianci and the uncontested facts showed that the repair work performed pursuant to owner’s reference number “3.1-1” of Lisnave Invoice No. 00174/2002/LISN, for the charge titled “PAINTING PREPARATION” is the type of work customarily performed only when a vessel is in a dry dock and was required to be done during the dry docking according to Plaintiff’s dry dock specifications. 5. The testimony of Mr. Cianci and the uncontested facts showed that the repair work performed pursuant to owner’s reference number “3.1-4a” of Lisnave Invoice No. 00174/2002/LISN, for the charge titled “FLAT BOTTOM” is the type of work customarily performed only when a vessel is in a dry dock and was required to be done during the dry docking according to Plaintiff’s dry dock specifications. 6. The testimony of Mr. Cianci and the uncontested facts showed that the repair work performed pursuant to owner’s reference number “3.1-4b” of Lisnave Invoice No. 00174/2002/LISN, for the charge titled “VERTICAL SIDES” is the type of work customarily performed only when a vessel is in a dry dock and was required to be done during the dry docking according to Plaintiff’s dry dock specifications. 7. The testimony of Mr. Cianci and the uncontested facts showed that the repair work performed pursuant to owner’s reference number “3.1-7” of Lisnave Invoice No. 00174/2002/LISN, for the charge titled “MISCELLANEOUS DRYDOCK PAINTING” is the type of work customarily performed only when a vessel is in a dry dock and was required to be done during the dry docking according to Plaintiff’s dry dock specifications. 8. The testimony of Mr. Cianci and the uncontested facts showed that the repair work performed pursuant to owner’s reference number “3.1-8” of Lisnave Invoice No. 00174/2002/LISN, for the charge titled “CATHODIC PROTECTION SYSTEM ALTERNATIVE A” is the type of work customarily performed only when a vessel is in a dry dock and was required to be done during the dry docking according to Plaintiff’s dry dock specifications. 9. The testimony of Mr. Cianci and the uncontested facts showed that the repair work performed pursuant to owner’s reference number “3.1-11” of Lisnave Invoice No. 00174/2002/LISN, for the charge titled “RUDDER. RUDDER HORN” is the type of work customarily performed only when a vessel is in a dry dock and was required to be done during the dry docking according to Plaintiff’s dry dock specifications. 10. The testimony of Mr. Cianci and the uncontested facts showed that the repair 2 work performed pursuant to owner’s reference number “3.1-13” of Lisnave Invoice No. 00174/2002/LISN, for the charge titled “MAIN SCOOP TO CONDENSER” is the type of work customarily performed only when a vessel is in a dry dock and was required to be done during the dry docking according to Plaintiff’s dry dock specifications. 11. The testimony of Mr. Cianci and the uncontested facts showed that the repair work performed pursuant to owner’s reference number “3.1-14” of Lisnave Invoice No. 00174/2002/LISN, for the charge titled “ROPE GUARD” is the type of work customarily performed only when a vessel is in a dry dock and was required to be done during the dry docking according to Plaintiff's dry dock specifications. 12. The testimony of Mr. Cianci and the uncontested facts showed that the repair work performed pursuant to owner’s reference number “3.1-16” of Lisnave Invoice No. 00174/2002/LISN, for the charge titled “RUDDER POST GLAND PACKING” is the type of work customarily performed only when a vessel is in a dry dock and was required to be done during the dry docking according to Plaintiff’s dry dock specifications. 13. The testimony of Mr. Cianci and the uncontested facts showed that the repair work performed pursuant to owner’s reference number “3.2-8” of Lisnave Invoice No. 00174/2002/LISN, for the charge titled “STERN TUBE SHAFT SEAL RENEWAL” is the type of work customarily performed only when a vessel is in a dry dock and was required to be done during the dry docking according to Plaintiff’s dry dock specifications. 14. The testimony of Mr. Cianci and the uncontested facts showed that the repair work performed pursuant to owner's reference number “3.2-33” of Lisnave Invoice No. 00174/2002/LISN, for the charge titled “S.W. SERVICE OVBD HULL PENETRATION RENEWALS” is the type of work customarily performed only when a vessel is in a dry dock and was required to be done during the dry docking according to Plaintiff’s dry dock specifications. 15. The testimony of Mr. Cianci showed that the work performed pursuant to owner’s reference numbers “3.1-1, 3.1-4a, 3.1-4b, 3.1-7, 3.1-8, 3.1-11, 3.1-13, 3.1-14, 3.1-16, 3.2-8, and 3.2-33” of Lisnave Invoice No. 00174/2002/LISN consisted of repair work. 16. Plaintiff conceded in response to a question from the court during argument on Defendant’s USCIT Rule 52(c) motion, that in fact, certain repair work was performed in dry dock which could only have been done in dry dock, while the HAWAII was at Lisnave in 2002. 17. The testimony of Mr. Cianci showed that the tug expenses used to push the HAWAII both on and off the dry dock at Lisnave in 2002 were necessarily incurred to accomplish dutiable repairs. 18. Should any Finding of Fact designated herein, be more properly deemed a Conclusion of Law, it is so designated. 3  III CONCLUSIONS OF LAW 1. Under 28 U.S.C. § 2639(a)(1), Customs’ decision is “presumed to be correct” and the “burden of proving otherwise shall rest upon the party challenging such decision.” 2. Plaintiff argued at trial that Customs improperly applied and impermissibly expanded the ruling in SL Serv., Inc. v. United States, 357 F.3d 1358 (Fed. Cir. 2004) (“SL Serv. II”), by pro-rating duties on the costs of tugs for inspections in contravention of Am. Ship Mgmt., LLC v. United States, 25 CIT 1033, 1036, 162 F. Supp. 2d 671 (2001) (“ASM”). See Pre-Trial Order, Schedule D-1 ¶ 3. 3. The case upon which Plaintiff relies, ASM, was effectively reversed by SL Serv. II (which also reversed SL Serv., Inc. v. United States, 26 CIT 1210, 244 F. Supp. 2d 1358 (2002) (“SL Serv. I”)). Further, ASM found that tug charges which were part of the dual (mixed) purpose dry dock charges could not be apportioned because mixed charges were not pro-rateable. See ASM, 25 CIT 1033. SL Serv. II reversed ASM’s findings and held that in the context of dual-purpose expenses, it is rational to apportion expense on the portion that is attributable to the dutiable repairs. SL Serv. II, 357 F.3d at 1362. Therefore, to the extent that ASM provides any support for the concept that mixed charges such as tug charges are duty-free, that finding was reversed. 4. The Federal Circuit’s opinion in SL Serv. II interpreted the language “expenses of repairs” in 19 U.S.C. § 1466(a) as applying to dual purpose expenses, such as the tug expenses at issue here, which are expenses integral and necessary for both the dutiable repair work and non- dutiable operations and are dutiable on a pro-rated basis. See Horizon Lines, LLC v. United States, No. 2009-1075, 2009 WL 2372112, at *3 (Fed. Cir. August 4, 2009) citing SL Serv. II, 357 F.3d at 1362. 5. The court’s grant of Defendant’s oral motion for a directed verdict pursuant to USCIT R. 52(c) dismissed Plaintiff’s claim number 3 contained in Schedules D-1 and E-1 of the Joint Pre-Trial Order (alleging that, Customs wrongly applied and impermissibly expanded the decision in SL Serv. II, 357 F.3d 1358 rev’g SL Serv. I, 26 CIT 1210, cert. denied 543 U.S. 1034, 125 S. Ct. 809, 160 L. Ed. 2d 598 (2004), by pro-rating duties on the cost of tugs (towage), which Plaintiff maintained were single-purpose expenses related to mandatory inspections). The court’s grant of Defendant’s oral motion for a directed verdict pursuant to USCIT R. 52(c) was appropriate as, Plaintiff had been fully heard on the issue, and given the testimony of its witnesses, Plaintiff’s claims related to the tug expense issue could not be maintained as a matter of law. 6. Should any Conclusion of Law designated herein, be more properly deemed a Finding of Fact, it is so designated. 4  IV CONCLUSION Based upon the above-stated Findings of Fact and Conclusions of Law, it is hereby ORDERED, ADJUDGED and DECREED that Defendant’s oral USCIT Rule 52(c) Motion for Judgment as a Matter of Law Dismissing Plaintiff Horizon Lines, LLC’s Cause of Action Contesting the Partial Dutiability of Tug Charges be, and hereby is, GRANTED. __/s/ Evan J. Wallach____ Evan J. Wallach, Judge Dated: October 7, 2009 New York, New York 5 

252 Md. 265 (1969) 249 A.2d 721 ANTIETAM-SHARPSBURG MUSEUM, INC. v. WILLIAM H. MARSH, INC. [No. 94, September Term, 1968.] Court of Appeals of Maryland. Decided February 4, 1969. The cause was argued before HAMMOND, C.J., and McWILLIAMS, FINAN, SINGLEY and SMITH, JJ. William J. Dwyer for appellant. No brief filed for appellee. McWILLIAMS, J., delivered the opinion of the Court. We shall be concerned here with an erstwhile landlord's right to collect from his former tenant unpaid rent which accrued prior to the transfer of title to the purchaser. It may all seem somewhat frivolous when one reflects that 106 years ago the possession of the demised premises was disputed by over 100,000 men, 20,000 of whom enriched its soil with their blood. In 1962 appellant (the Museum) was the owner of the 200 acre "Piper Farm" which lies within the Antietam-Sharpsburg battlefield and through a part of which runs the "Sunken Road," sometimes called "Bloody Lane." In January 1962 the Museum leased the farm to appellee (Marsh) on a month to month basis. In September of 1963 the Museum entered into some kind of an arrangement with the United States. In the testimony it was said, in one place, to be a 60 day option to purchase. In another place it was said to be a contract of sale. Although a copy of the document was admitted in evidence it is not in the transcript *267 of the record. Whatever it may have been, Marsh, for reasons undisclosed, thereafter stopped paying the monthly rent. On 30 June 1964 the Museum executed and delivered to the United States a deed to the "Piper Farm." Marsh at that time owed 8 months rent which he refused to pay and to recover which the Museum, on 14 March 1966, filed suit in the Circuit Court for Washington County. The case was tried before Rutledge, J., without a jury, on 9 February 1968. At the conclusion of the Museum's case Marsh's "motion for a directed verdict" was granted. Once again[1] we remind both bench and bar that the motion for a directed verdict, in these circumstances, is improper. Maryland Rule 535. Judge Rutledge did not give his reasons for directing the verdict nor did the Museum move to require him to do so. Rule 18 c. There was no appearance for Marsh in this Court. It seems to us to be beyond dispute that rent belongs to the person who owns the property on the day it becomes due. Wise v. Pfaff, 98 Md. 576, 56 A. 815 (1904); Outtoun v. Dulin, 72 Md. 536, 20 A. 134 (1890); Martin v. Martin, 7 Md. 368 (1855); II American Law of Property §§ 9.44 and 9.45 (1952); 52 C.J.S. Landlord and Tenant § 516 (1968). When there is a transfer of title unpaid accrued rent, unless otherwise provided for, belongs to the person who was the landlord at the time of accrual. Likewise current rent is not apportionable, unless by agreement, when the transfer occurs during the rent period. Fahrenbraker v. E. Clemens Horst Co., 209 Cal. 7, 284 P. 905 (1930); Velishka v. Laurendeau, 100 N.H. 46, 118 A.2d 600 (1955); 52 C.J.S. Landlord and Tenant § 516, supra. There was, we think, evidence sufficient to support a finding that Marsh was a month to month tenant of the Museum during all of 1963 and up to and including June 1964. Since the "option — contract of sale" is not in the transcript of the record there is no occasion for us to consider what effect, if any, it may have had upon the Museum's right to the accrued rent. In any case there is nothing in the surprisingly scanty testimony to suggest that the United States claims any part of it. *268 In view of the familiar requirement that the evidence, together with all proper and legitimate inferences to be drawn therefrom, must be considered in a light most favorable to the Museum we cannot understand why, on this record, the learned trial judge directed a verdict for Marsh. Remanded for further proceedings without affirmance or reversal. Costs to abide the final result. NOTES [1] Lewis v. Germantown Ins. Co., 251 Md. 535, 248 A.2d 468 (1968) and cases cited therein.

13 So.3d 339 (2009) Elliott Allen YOUNG a/k/a Duke, Appellant, v. STATE of Mississippi, Appellee. No. 2007-KA-02026-COA. Court of Appeals of Mississippi. March 10, 2009. Rehearing Denied July 28, 2009. *340 Leslie S. Lee, Jackson, attorney for appellant. Office of the Attorney General by W. Glenn Watts, attorney for appellee. EN BANC. CARLTON, J., for the Court. ¶ 1. Elliot Allen Young was convicted by a Walthall County jury of two counts of unlawful sale of cocaine to an undercover informant. The circuit court sentenced him as a habitual offender to life in the custody of the Mississippi Department of Corrections without eligibility for parole or probation along with a fine of $5,000 for each count, $300 in restitution to the Mississippi Crime Laboratory, and $300 in restitution to the Southwest Mississippi Inter-Jurisdictional Narcotics Enforcement Unit (SMINEU). He now appeals his conviction and resulting sentence, alleging the following errors: (1) the circuit court erred in finding that Young's prior conviction for possession of cocaine was more probative than prejudicial, and (2) the verdict was against the overwhelming weight of the evidence. Finding no error, this Court affirms his conviction and sentence. FACTS ¶ 2. Agent Dan Hawn of the Walthall County Sheriff's Department employed Dexter Cook to go into a known drug area of Walthall County and attempt to buy drugs. On both May 16, 2006, and May 24, 2006, Agent Hawn and another officer met Cook at a pre-buy location where Cook was searched and equipped with audio and video recording equipment. He was given money with documented serial numbers with which to buy the drugs. ¶ 3. On May 16, Agent Hawn dropped Cook off at Martin Luther King Road with instructions to travel to the area of Magee Badon Road and attempt to purchase drugs. The officers did not specify from whom Cook was supposed to buy the drugs. The officers could hear him through his audio transmitter attempting to make drug buys from several different people. Then, officers heard a drug transaction taking place with an unidentified person who was later determined to be Young. When Cook returned, he turned over the drugs that were placed in evidence bags and given to the Mississippi Crime Laboratory. The agents reviewed the audio and videotape evidence from the buy and identified Young as the individual who sold the drugs to Cook. The videotape shows Cook and Young together in a trailer. Young is heard telling Cook to let him go get his "dope and stuff." Young is then shown coming back into the part of the trailer where the transaction is made. The videotape does not show the exact object that is exchanged for the money. ¶ 4. On May 24, 2006, Cook was again used as a confidential informant by Agent Hawn. Cook was informed to go and attempt to buy crack cocaine. He was given the same video and audio equipment as well as more money with documented serial numbers with which to buy the drugs. Cook again traveled to Magee Badon Road where he made contact with Young. Young is heard saying, "I don't think I've got that much." Cook responds, "Well, can you do fifty?" Young then leaves the view of the camera, returns, and the videotape shows him holding something in his hand and saying something to the effect of "give me forty." At that time, Cook returned to meet Agent Hawn. He returned all but forty dollars, which had been issued *341 to him, along with crack cocaine. The drugs were placed in an evidence bag and transported to the crime lab. ¶ 5. Young was arrested on May 27, 2006. Officers recovered two ten dollar bills from Young that had previously been documented and given to Cook to buy drugs on May 16, 2006. ¶ 6. Young was tried by a jury in Walthall County. Prior to his case-in-chief, Young informed the trial judge that he was going to testify. Defense counsel indicated to the trial judge that Young had been informed that he would be subject to cross-examination by the State if he testified. At that time, the prosecution notified the trial judge that the State would seek to impeach Young with his prior convictions of robbery and unlawful possession of cocaine. ¶ 7. The trial judge held the robbery conviction to be inadmissible, but the judge allowed the prior possession charge to come in for impeachment purposes. After going through a Peterson analysis, the trial judge found that there was more probative value in admitting the evidence than prejudicial effect with regard to the prior conviction of cocaine possession in light of the posture of the case. The judge stated that the crime had impeachment value given the posture of the current case and defense counsel's remarks during his opening statement. During his opening statement, defense counsel made the remark that "these charges are preposterous, and it's a set-up situation and [Young] certainly did not sell cocaine to the confidential informant." The defense's theory during trial was that Young had never sold cocaine to the informant, Cook instead, he had only sold him twenty Viagra pills. Young also attempted to prove during trial that his arrest had been part of a conspiracy by the police to force Young to reveal information about an unrelated murder case. ¶ 8. After his jury trial, Young was convicted of two counts of unlawful sale of cocaine to an undercover informant. He was sentenced as a habitual offender to life imprisonment without the eligibility for parole or probation on both counts. ANALYSIS I. WHETHER THE TRIAL COURT ERRED IN FINDING THAT THE PROBATIVE VALUE OF THE PRIOR CONVICTION FOR POSSESSION OF COCAINE OUTWEIGHED THE PREJUDICIAL EFFECT. ¶ 9. Mississippi Rule of Evidence 609(a)(1)(B) states that evidence that a party has been convicted of a crime shall be admitted if the court determines that the probative value of admitting the evidence outweighs its prejudicial effect to the party. The standard of review for admission or exclusion of evidence is the abuse of discretion standard. Herring v. Poirrier, 797 So.2d 797, 804(¶ 18) (Miss. 2000). "Where such error is found, this Court `will not reverse unless the error adversely affects a substantial right of a party.'" Tate v. State, 912 So.2d 919, 924(¶ 9) (Miss.2005) (quoting Ladnier v. State, 878 So.2d 926, 933(¶ 27) (Miss.2004)). ¶ 10. Young contends that it was an abuse of discretion to admit the prior conviction of possession of cocaine because the probative value of the prior conviction was outweighed by its prejudicial effect. Young claims that the State's purpose in bringing up the prior charge was to make the jury infer present guilt from his past conviction for a similar offense. In this case, the trial judge did not abuse his discretion in admitting into evidence Young's prior conviction for possession of cocaine within 1,500 feet of the school, *342 which he concluded was probative given the posture of the case after he conducted a Peterson analysis and a Rule 403 balancing test on the record. Peterson v. State, 518 So.2d 632, 638 (Miss.1987). ¶ 11. While the defense did not use the word "entrapment" and did not assert the affirmative defense of entrapment,[1] the record indisputably reflects that both Young in his testimony and his counsel in opening statement claimed a "set-up" with "ridiculous charges." The trial judge evaluated the relevance of this claim to the impeachment of Young in light of the posture of this case. Clearly, the intent of the defendant was put into issue by the defendant's own testimony as well as by the defense's theory of the case. A prologue of the theory was provided by his counsel's opening statement. ¶ 12. Therefore, the prior conviction was admissible in accordance with Mississippi Rule of Evidence 404(b) with respect to intent as well as Mississippi Rule of Evidence 609 to impeach his claim of a set-up and law enforcement conspiracy. ¶ 13. With respect to whether the trial judge abused his discretion and displayed due consideration, the trial judge evaluated the two prior convictions of Young—a robbery conviction and the possession conviction noted above,—utilizing the Peterson analysis. The trial judge concluded that only the conviction relating to the drug possession was probative given the posture of the facts of this case. Then, the jury, after listening to the evidence and weighing the evidence, found Young guilty of selling cocaine to Cook, a confidential informant, on May 16, 2006, and selling cocaine again to the same confidential informant eight days later on May 24, 2006. ¶ 14. The testimony the jury digested included Young's own testimony. Young testified in his defense that he knew that Cook was with the police, meaning that he knew that Cook was a confidential informant. Young testified that since he knew Cook was with the police, he would only sell Viagra to him at $2 a pill. ¶ 15. Young further testified that he was targeted because he had a prior felony and because one of his friends had been killed. He explained that law enforcement had previously seen him with his friend. He alleged that the police targeted him because they wanted him to reveal who had killed his friend. He continued to explain that the law enforcement conspiracy was to pin a life sentence on him since he had been convicted of a felony before and to pressure him for his information about his murdered friend. However, he disclaimed any knowledge as to whom had killed his friend. ¶ 16. Young's prior conviction was a part of his own defense theory as to why law enforcement targeted him. Young also admitted to selling "a substance" to the confidential informant Cook on these two occasions charged in the indictment. However, he testified that he sold Viagra to Cook, even though he is heard on the audiotape of one of the two sales saying "let me get my dope, I'll be back." Young accused the confidential informant and the undercover agents of being liars and accused them of tampering with the evidence. He claimed that the confidential informant bought the cocaine from someone else and switched the cocaine for the Viagra. He also asserted that the drugs tested by the lab were powder cocaine and not the rock cocaine that law enforcement claimed that he had sold. He also claimed that his image on the videotape introduced at trial had been altered, but he admitted that the image on the videotape was him. *343 The jury considered the following evidence: the confidential informant's testimony, the agent's testimony, the pre-buy preparation and searches of the confidential informant, the chain of custody for exhibits of the evidence and the crime lab analysis, the audio and videotapes of the transactions, and the post-buy searches. In addition to being relevant to Young's defense theory as to why law enforcement targeted him, the jury was also presented evidence of Young's intent as to whether he intended to sell cocaine or Viagra. ¶ 17. Young, through his own testimony, put his intent into issue at trial. Carter v. State, 953 So.2d 224, 229(¶ 11) (Miss. 2007); Jones v. State, 904 So.2d 149, 153(¶ 10) (Miss.2005) (prior convictions admissible to show intent). ¶ 18. Young's defense theory was in the vein of entrapment, while not a classic case of entrapment defense. As previously explained, the record reflects that Young definitely claimed there had been a "set-up" and evidence tampering. Young admitted to the two sales, but he denied any intent to sell cocaine. He also admitted on direct examination to a prior criminal relationship with the confidential informant. He testified that he had assisted the confidential informant on previous occasions in knowingly selling stolen goods-lumber saws. He also claimed to have previously sold the confidential informant Viagra on numerous occasions. However, Young testified that he did not need Viagra and did not personally have a prescription for Viagra. He admitted that he was not a pharmacist. He explained that he bought Viagra from a guy in his neighborhood, and he in turn sold the Viagra to people with problems. Young further asserted that the confidential informant had a "problem" because he smoked too much crack. Young denied selling cocaine; rather he claimed that the confidential informant had tampered with the evidence and bought the cocaine from someone else and switched it with the Viagra. ¶ 19. This case is similar to Tate v. State, 912 So.2d 919 (Miss.2005). In that case, agents with the Mississippi Drug Task Force arranged for a confidential informant to make a purchase of illegal drugs from Tate. The two met in a parking lot of a tobacco store where Tate gave a quantity of marijuana to the confidential informant. The confidential informant gave a code word to the narcotics agents over a hidden wire, and numerous agents swarmed to the scene. The agents discovered three more packages of marijuana in Tate's possession—one on his person, one in the front seat of his vehicle, and one hidden in a secret compartment of his vehicle. Tate was arrested on charges of possession with intent to deliver and delivery of more than an ounce but less than a kilogram of marijuana. The State offered Tate's prior convictions for sale under Rule 404(b) to show intent and predisposition contrary to Tate's claim of entrapment. ¶ 20. Tate, like Young in the case before us, claimed that the confidential informant had planted the evidence. Tate claimed that the only marijuana belonging to him was that marijuana found on his person, and the other marijuana found in his vehicle did not belong to him. Tate asserted that the confidential informant planted the other two packages of marijuana at his home without his knowledge. Tate also claimed that the confidential informant told him that he was leaving drugs in the shed at his home. Tate's defense at trial was that when he met the confidential informant on the day of the arrest, he was not selling any marijuana; he was only trying to return the marijuana to the confidential informant. The Tate court explained that a classic case of entrapment *344 is where the law enforcement is both the supplier and the buyer of the contraband that is the subject of the defendant's arrest. Id. at 924-25(¶ 10) (citing Moore v. State, 534 So.2d 557, 558 (Miss. 1988)). Tate alleged that the confidential informant was the supplier and the buyer of the marijuana. In the case at bar, Young claims that Cook, the confidential informant, was the buyer and supplier of the cocaine in that he alleged Cook switched the Viagra for the cocaine. ¶ 21. Tate, 912 So.2d at 925(¶ 11) provides: Entrapment has been defined as "the act of inducing or leading a person to commit a crime not originally contemplated by him, for the purpose of trapping him for the offense." Hopson v. State, 625 So.2d 395, 399 (Miss.1993) (emphasis added) (citing Phillips v. State, 493 So.2d 350, 354 (Miss.1986); McLemore v. State, 241 Miss. 664, 675, 125 So.2d 86, 91 (1960)). The defense of entrapment is affirmative and must be proved by the defendant. If the defendant already possessed the criminal intent, and the request or inducement merely gave the defendant the opportunity to commit what he or she was already predisposed to do, entrapment is not a defense. Id. (citing Bush v. State, 585 So.2d 1262, 1264 (Miss.1991)). Thus, predisposition to commit the crime becomes an issue when a defendant raises an entrapment defense. ¶ 22. This Court has held, as explained in Tate, that a defendant's prior drug activity is admissible on the issue of predisposition. See Hopson, 625 So.2d at 402. Similarly in this case, since Young claimed to have been setup and that the confidential informant switched the drugs, Young's intent was placed in issue. Young's prior conviction for possession was admissible to show intent and to impeach his claim of a setup, and it constituted an important thread of his defense strategy as to why he was targeted. ¶ 23. The trial judge in this case went further than just evaluating prejudice under Mississippi Rule of Evidence 403. The trial judge conducted a Peterson analysis and found the following: The Court finds that the Peterson test is satisfied by the possession conviction March 20 of 2000, and that the Court finds that the probative value of admitting the evidence outweighs any prejudicial effect. The crime has impeachment value, given the posture of the case, and given the remarks of counsel for Defense in opening statement. It was within the last I guess seven years, around seven years ago, so the timeliness of it weighs in favor of the admissibility. There's a similarity between that and the act charged here which, as far as prejudicial effect, weighs in the Defendant's favor—the third factor in Peterson, but the importance of the Defendant's testimony and the centrality of the credibility issue I think very clearly tipped the scales in favor of admissibility, and it has great—it has probative value, and the prejudicial effort would be minimal, if any. Certainly under Rule 403[it] would not be unduly or unfairly prejudicial. ¶ 24. If the defendant wanted a limiting instruction, he could have requested that such be given. In this case, the defendant not only failed to request a limiting instruction, he evidentially objected to the State's proposed jury instruction S-8 regarding prior drug activity. Hence, the court instructed the State to withdraw that instruction. Young cannot now claim a benefit from a lack of an instruction that he failed to request and to which he objected. *345 ¶ 25. Based on the foregoing reasons, the trial judge did not abuse his discretion. He conducted a Rule 403 balancing test as well as a Peterson analysis based on the facts and posture of the case before the trial court. At the time of the motion hearing wherein the trial judge conducted the Peterson and Rule 403 analysis, the defense had already painted a picture in its brief, but pointed, opening remarks of a set-up defense based on ridiculous charges. Young put his intent into issue, and the trial judge did not abuse his discretion in admitting the prior possession charge to impeach Young with respect to his claimed set-up and to show intent. II. WHETHER THE VERDICT WAS AGAINST THE OVERWHELMING WEIGHT OF THE EVIDENCE. ¶ 26. Young also contends that the jury's guilty verdict was against the overwhelming weight of the evidence. This Court will disturb a verdict when it is so contrary to the overwhelming weight of the evidence that to allow it to stand would sanction an unconscionable injustice. Bush v. State, 895 So.2d 836, 844(¶ 18) (Miss.2005) (citing Herring v. State, 691 So.2d 948, 957 (Miss.1997)). ¶ 27. Young argues that it was just his word against that of Cook. However, as previously recounted, there was videotape evidence which strongly supported that Young sold drugs to the informant Cook. There also was additional evidence including the recovered cocaine, testimony of supervising law enforcement agents, and Young's own testimony. It is the responsibility of the jury to resolve the credibility of the witnesses. Mamon v. State, 724 So.2d 878, 881(¶ 13) (Miss.1998). ¶ 28. There was more than sufficient evidence to support the jury's verdict. All the elements of sale of cocaine were established by credible evidence. CONCLUSION ¶ 29. We affirm the judgment of the Circuit Court of Walthall County. ¶ 30. THE JUDGMENT OF THE WALTHALL COUNTY CIRCUIT COURT OF CONVICTION OF TWO COUNTS OF SALE OF COCAINE AND SENTENCE AS A HABITUAL OFFENDER OF LIFE IN THE CUSTODY OF THE MISSISSIPPI DEPARTMENT OF CORRECTIONS WITHOUT ELIGIBILITY FOR PAROLE OR PROBATION AND TO PAY A $5,000 FINE FOR EACH COUNT, $300 RESTITUTION TO THE MISSISSIPPI CRIME LAB, AND $300 RESTITUTION TO THE SOUTHWEST MISSISSIPPI INTER-JURISDICTIONAL NARCOTICS ENFORCEMENT UNIT IS AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO WALTHALL COUNTY. KING, C.J., LEE AND MYERS, P.JJ., GRIFFIS, BARNES, ISHEE AND ROBERTS, JJ., CONCUR. IRVING, J., CONCURS IN RESULT ONLY WITHOUT SEPARATE WRITTEN OPINION. MAXWELL, J., NOT PARTICIPATING. NOTES [1] The defense did not request any entrapment jury instruction.

387 A.2d 213 (1978) STATE of Maine v. Harry Anthony SAMPSON a/k/a Slim Goodie. Supreme Judicial Court of Maine. June 1, 1978. *214 Henry N. Berry, III, Dist. Atty., Peter G. Ballou (orally), Deputy Dist. Atty., Michael Messerschmidt, Law Student, Portland, for plaintiff. Homer Michal (orally), Portland, for defendant. *215 Before McKUSICK, C. J., and POMEROY, WERNICK, ARCHIBALD, DELAHANTY, GODFREY and NICHOLS, JJ. WERNICK, Justice. On July 13, 1977, defendant Harry Anthony Sampson (a/k/a Slim Goodie) was indicted in the Superior Court (Cumberland County) for the offense of aggravated promotion of prostitution, in violation of 17-A M.R.S.A. §§ 851(2)(G), 852(1)(B). At a trial, jury waived, in September 1977, defendant was found guilty as charged. He has appealed from the judgment of conviction entered against him. We deny the appeal. The evidence would support findings of fact, as follows. On May 25, 1977, defendant went to a night club in Portland. There, he met a fourteen year old girl previously unknown to him. He asked her to join him for dinner the following evening. She gave a non-committal answer and did not keep the proposed date. A day or so thereafter defendant again saw the girl at the same club. He demanded $15 from her as a reimbursement for the cost of the meal which she had missed, and he further stated: "[t]here's a $50 trick down the Westfield Inn, you only owe me $15."[1] The girl, who had previously engaged in prostitution in Portland, answered that she would pay defendant some other time. When he insisted that she go with him at that time to the Westfield Inn, the girl finally assented. The two of them proceeded to the Westfield Inn where defendant arranged for them to enter a room. It turned out to be unoccupied. Defendant ordered the girl to take off her clothes and then told her that he was charging her $500.00,[2] adding the remark: "you can work on the corner and pay me the money." The girl said that she would "work the streets" and pay him $500. Defendant and the girl then engaged in sexual intercourse and spent the rest of the night in the same room. The next morning defendant told the girl to leave $150 for him that night in an envelope at the desk of the Plaza Hotel. In her testimony the girl explained that she had said she would work the streets and pay defendant $500 of the proceeds because she was afraid of him.[3] She also testified that she had never intended to engage in prostitution for the benefit of the defendant. 1. As his first point of appeal, defendant contends that the indictment upon which he was convicted is fatally deficient for failing to allege the nature of the prostitution "agreement", the elements of prostitution or the actual commission of any acts of prostitution.[4] The indictment essentially followed the language of the statute. Under 17-A M.R. S.A. § 852(1)(B), "[a] person is guilty of aggravated promotion of prostitution if he knowingly. . . [p]romotes prostitution of a person less than 18 years old." Section 851(2)(G) defines "promotes prostitution" to mean, in one alternative, the "[a]ccepting or receiving, or agreeing to accept or receive, a pecuniary benefit pursuant to an agreement or understanding *216 with any person, other than with a patron, whereby he participates or he is to participate in the proceeds of prostitution." Article I, Section 6, of the Maine Constitution gives an accused in a criminal prosecution the right to "demand the nature and cause of the accusation." In conformity to this constitutional guarantee we have held that an indictment which charges in the language of the statute is sufficient if it adequately provides a defendant of reasonable and normal intelligence with a clear identification of the crime and conduct charged. State v. Child, 158 Me. 242, 182 A.2d 675 (1962); State v. Euart, 149 Me. 26, 98 A.2d 556 (1953). Here, in addition to charging in the language of the statute and specifying the date and general location of the offense, the indictment alleged the name of the victim and the amount of the pecuniary benefit defendant was to receive. If defendant wanted further specification of the precise nature of the "agreement" in this case, he could have asked for a bill of particulars. State v. Euart, 149 Me. 26, 98 A.2d 556 (1953). Moreover, since "prostitution" is a word of common usage having a well understood meaning and the allegations in the indictment used the word with its ordinary meaning, the indictment adequately informed defendant of the "nature and cause of the accusation." State v. Thibodeau, Me., 353 A.2d 595 (1976). It is of no legal consequence that the indictment failed to allege that any acts of prostitution had occurred. The offense here charged can be committed even though there have been no acts of prostitution since, under 17-A M.R.S.A. § 851(2)(G) a person "promotes prostitution" by "agreeing to accept . . . a pecuniary benefit pursuant to an agreement or understanding . . . whereby he participates or he is to participate in the proceeds of prostitution." (emphasis supplied) The words "is to participate" make plain that the statute is violated by agreement to accept a pecuniary benefit from the proceeds of prostitution regardless of whether the agreement is actually performed. 2. As another point of appeal, defendant says that since the presiding Justice found that the girl's act of "agreeing" was produced "by extortion" and that she had no intention to fulfill the agreement which she overtly stated, the presiding Justice applied an incorrect legal standard in concluding that the State had proved such "agreement or understanding" as is contemplated by 17-A M.R.S.A. § 851(2)(G). Defendant argues that in common usage the words "agreement and understanding" signify voluntary action and genuine intention by the parties. Whether or not defendant's assessment of common usage is correct, as legal concepts "agreement and understanding" arise by virtue of what is objectively manifested as agreement and understanding. Thus, if parties overtly state an agreement the law regards agreement as existing notwithstanding that one party may have been influenced by duress to agree and may entertain secret intention not to abide by the agreement.[5] Particularly in relation to the realities addressed by the crime here at issue, "agreement and understanding" should be given the same significance which the law generally attributes. Here, then, the correctness of the presiding Justice's conclusion that the "agreement and understanding" required by the statute had been established was not defeated by his further findings that "extortion" had produced the girl's agreement and she had no subjective intention to fulfill it. 3. As another point of appeal, defendant claims that he was denied his right to confrontation under the 6th-14th Amendments to the Constitution of the United States as *217 interpreted in Davis v. Alaska, 415 U.S. 308, 94 S.Ct. 1105, 39 L.Ed.2d 347 (1974). Defendant's contention concerns the following circumstances. The presiding Justice sustained an objection by the State to defense counsel's questioning of the State's principal witness as to whether she had been "in the Maine Youth Center" after the incident with the defendant at the Westfield Inn. Later, the Justice also sustained the State's objection to defense counsel's interrogating a Portland Police Officer in regard to whether juvenile proceedings had ever been initiated against the girl. In each instance defendant failed to make an offer of proof or to explain a limited purpose for his questions. Under the Maine Rules of Evidence adjudications of juvenile delinquency, in contrast to various types of convictions of crime, are excluded as evidence by which the credibility of a witness may be generally impeached. See Rule 609 M.R.Evid. In Davis v. Alaska, supra, the Supreme Court of the United States decided that the right of confrontation guaranteed by the United States Constitution to the defendant in a criminal prosecution prohibits any across-the-board exclusion from evidence of adjudication of juvenile delinquency. In the circumstances of Davis v. Alaska the Court held that it was constitutionally requisite that the juvenile adjudication be admitted in evidence since the particular circumstances of the case had made the issue of bias most important and the fact of a juvenile adjudication had become highly relevant on the bias question. Nothing decided in Davis v. Alaska, however, militates against the undertaking of the presiding Justice in the instant case to preserve this State's policy of protecting the anonymity of juveniles by preventing a generalized and unrestricted inquiry concerning whether the State's principal witness might have had a juvenile record. Defense counsel had not indicated that the questioning he proposed to conduct was for a particular or limited purpose, and no such limited purpose was plain from the context of the questions themselves, see Rule 103(b) M.R.Evid. We conclude, therefore, that defendant did not adequately save for appellate cognizance in ordinary course the potential issue under Davis v. Alaska that he now purports to raise on appeal. Moreover, on the record before us we cannot say, in the context of a review for "obvious error", that the rulings of the presiding Justice here in question, even if assumed to be erroneous, had the effect of depriving defendant of a fair trial. 4. Defendant also contends that he was denied the right to a fair and impartial trial by the presiding Justice's questioning of the State's principal witness. The series of 18 questions asked by the presiding Justice related primarily to the source of defendant's knowledge that the girl had been a prostitute and was known as a prostitute. Under Rule 614(b) M.R.Evid., the court may interrogate any witness at trial. In a trial before a jury the presiding Justice must exercise this prerogative with caution so as not to suggest an opinion on factual issues arising in the case or to create a prejudicial impact on the jury. See, e. g., State v. Annis, Me., 341 A.2d 11 (1975); State v. Chaplin, Me., 308 A.2d 873 (1973). In a jury waived trial as here, however, there are no such dangers and therefore the policy considerations are different. The fundamental concern in a jury-waived trial is that the presiding Justice conduct himself as a fair and impartial fact-finder. Here, the questions asked by the presiding Justice of the State's principal witness, even if taken as having a tendency to impeach her credibility, were questions fairly relating to the responsibility of the Justice, as factfinder, to evaluate credibility. 5. Lastly, defendant claims that the Court committed "obvious error" by allowing defendant to implicate himself in another similar crime not charged in the indictment. Under 15 M.R.S.A. § 1315, an accused *218 "shall not be compelled to testify on cross-examination to facts that would convict, or furnish evidence to convict him of any other crime than that for which he is on trial." After defendant admitted on cross-examination that he had another "lady" who was a "source of income", the prosecution asked whether the "lady" was turning over to defendant money that she earned at prostitution. When the defendant said: "Well, if it's not self-incrimination, you know,—" the presiding Justice stated: "he can answer if he wishes to." The prosecution then abandoned this line of questioning. Defendant failed to raise objection as to any of this questioning or the statements elicited. Plainly, defendant was not "compelled" to testify in violation of his privilege against self-incrimination. In any event, defendant can take nothing under the manifest error-serious injustice context in which our appellate review is being sought. Surely, defendant could not be said to have been deprived of a fair trial since other evidence, properly admissible, had already established that defendant was a pimp for at least one other prostitute. The entry is: Appeal denied. Judgment affirmed. NOTES [1] As the girl explained at trial, a "trick" is a customer of a prostitute. [2] The girl testified that defendant was charging her $500 for having talked to him because he was a "pimp." [3] It is clear from the testimony that the girl was to pay the defendant with the proceeds that she would earn by engaging in prostitution. [4] The indictment charged: "That on or about the twenty-sixth day of May, 1977, in the City of Portland, County of Cumberland and State of Maine, the above named defendant . . . did knowingly promote the prostitution of a person less than eighteen years of age, namely, M***** D*****, born August 16, 1962, in that he did agree to accept and receive a pecuniary benefit, namely, . . . [$150], pursuant to an agreement and understanding with said M***** D*****, she not being a patron, whereby he was to participate in the proceeds of prostitution." [5] Although in these circumstances an agreement has actually come into existence, in appropriate cases proceedings may be instituted to have it avoided or set aside.

774 A.2d 545 (2001) 340 N.J. Super. 254 Joseph LAPORTA, Plaintiff-Respondent, v. GLOUCESTER COUNTY BOARD OF CHOSEN FREEHOLDERS and County of Gloucester, Defendants-Appellants. Superior Court of New Jersey, Appellate Division. Argued April 4, 2001. Decided April 30, 2001. *546 Christopher M. Farella, Roseland, argued the cause for appellant (Genova, Burns & Vernoia, attorneys; Angelo J. Genova, Livingston and Martin Abramson, Woodbury, of counsel; Mr. Farella, on the brief). Thomas H. Ward, Woodbury, argued the cause for respondents (Albertson Ward, attorneys; Mr. Ward, on the brief). Before Judges KEEFE, STEINBERG and WEISSBARD. The opinion of the court was delivered by KEEFE, J.A.D. We granted defendants, Gloucester County Board of Chosen Freeholders and the County of Gloucester, leave to appeal from an interlocutory order entered by the *547 Law Division compelling defendants to turn over three documents that defendants contend are protected either by the work-product privilege or the attorney-client privilege. We reverse. The factual backdrop for the order under review is as follows. Plaintiff was employed by Gloucester County as a Road Supervisor. On August 30, 1994, plaintiff was appointed to his third five-year term. Shortly thereafter, he became the subject of a federal indictment for matters not related to his employment. As a result of the indictment, plaintiff was suspended without pay pending the outcome of the criminal proceedings. On October 4, 1996, plaintiff was found not guilty of all charges in the indictment. It appears from the record that, after plaintiff's acquittal, federal authorities turned over certain information relating to plaintiff's conduct to Gloucester County Counsel Bruce Hasbrouck. Hasbrouck then undertook an additional investigation into plaintiff's activities while Road Supervisor. Despite plaintiff's acquittal, he was not permitted to return to his employment. Consequently, in January 1997, plaintiff filed a complaint alleging wrongful termination and retaliation. He sought damages and reinstatement. On February 5, 1997, Hasbrouck was interviewed by Lieutenant Nadine Reese and Investigator Robert Best of the Gloucester County Prosecutor's Office (GCPO). That statement by Hasbrouck consisted of ninety-one pages. Hasbrouck also provided documents supporting the matters discussed in his statement.[1] It is undisputed that, at some point prior to the date of his interview, Hasbrouck initiated contact with the GCPO with respect to the results of his investigation into plaintiff's activities while Road Supervisor. One of the documents turned over to the GCPO by Hasbrouck was titled "MEMO TO FILE-LaPorta," which was also authored by him. Another document was a memo authored by Mike Datz, Acting Road Supervisor, and addressed to Steve Sweeney, Freeholder. A copy of the memo was sent to Hasbrouck, as well as the First Assistant County Counsel, the County Supervisor, Purchasing Agent, and another Freeholder. Datz's memo reflects that it was being sent in response to an inquiry that Hasbrouck had made of the County Administrator on January 16, 1997, seeking information with respect to the "LaPorta matter." The GCPO did not take any criminal action against plaintiff. When plaintiff subpoenaed documents in the possession of the GCPO with respect to the subject litigation, defendants claimed privilege as to the above described three documents and two others. The five disputed documents were submitted to the motion judge for an in camera review. Although not specifically stating whether Hasbrouck's interview with the GCPO contained either work-product or attorney-client material, the judge held that she did not deem the relationship between the County and the GCPO "to be of such common interest" as to afford defendants protection from disclosure. We infer from the judge's statement that whatever privilege would have attached to the interview, that privilege was waived by communicating it to a party that did not have a common interest with that of the defendants. Accordingly, the judge ordered the interview to be released to plaintiff. The judge then found that the January 16, 1997, inquiry from Hasbrouck to the County Administrator that generated the response from Datz was protected by the attorney-client privilege, but that Datz's *548 response was not. As to Datz's responding memo of January 21, the judge believed that it was not protected because it "[was] not authored apparently by the county counsel's office to his client." Finally, with respect to the "MEMO TO THE FILE-LaPorta" document, the judge found that it was neither work product nor protected by the attorney-client privilege, apparently because it was prepared by Hasbrouck and transmitted to the GCPO "in connection with the encouragement to involve itself in a criminal investigation of Mr. LaPorta." The one remaining document was found by the judge to be protected by the attorney-client privilege. At defendants' request, the judge stayed the order of turnover pending the resolution of this appeal. Plaintiff has not cross-appealed from the judge's determination that two of the documents were protected from disclosure by the attorney-client privilege. We have reviewed the three documents at issue in this appeal and conclude that all three of them contain Hasbrouck's attorney work-product. We further conclude that the privilege was not waived by communicating the work-product to the GCPO. The work-product doctrine was first recognized by the Supreme Court of the United States in Hickman v. Taylor, and protects from disclosure those documents and other tangible things that a party or a party's representative prepares in anticipation of litigation. 329 U.S. 495, 67 S.Ct. 385, 91 L.Ed. 451 (1947). The doctrine recognizes the need for a lawyer to "work with a certain degree of privacy, free from unnecessary intrusion by opposing parties and their counsel." Id. at 510-11, 67 S.Ct. 385. It is essentially a rule of procedure and has been recognized in New Jersey by court rule. R. 4:10-2(c). Like the federal rule, New Jersey recognizes for protection "documents and tangible things ... prepared in anticipation of litigation or for trial by or for another party or by or for that other party's representative...." Ibid. An attorney's work-product may not be discovered unless "the party seeking discovery has substantial need of the materials in the preparation of the case and is unable without undue hardship to obtain the substantial equivalent of the materials by other means." Ibid.[2] Even then, however, a court ordering such discovery is obligated to "protect against disclosure of the mental impressions, conclusions, opinions, or legal theories of an attorney or other representative of a party concerning the litigation." Ibid. It can fairly be said that the "MEMO TO FILE—LaPorta" and the memo from Datz to Freeholder Sweeney are documents prepared in the context of Hasbrouck's preparation for the defense of the litigation brought by plaintiff against the County for reinstatement and damages. The "MEMO TO FILE—LaPorta" contains Hasbrouck's analysis and mental impressions concerning various documents that he reviewed with respect to plaintiff's conduct. It is clearly work-product. Further, as noted earlier, a copy of the memo from Datz to Freeholder Sweeney was sent to Hasbrouck. Clearly, it was written in response to a request by Hasbrouck to the County Administrator for information concerning a certain bid document that Hasbrouck reviewed in connection with the subject litigation. Because it was material gathered by Hasbrouck in preparation for litigation or trial, it was clearly his work-product. *549 See Medford v. Duggan, 323 N.J.Super. 127, 133, 732 A.2d 533 (App.Div.1999)(holding that work-product privilege applies to documents prepared by attorney's agent, so long as it is prepared in anticipation of litigation or trial). Lastly, Hasbrouck's transcribed statement to the GCPO contained his mental impressions concerning the many documents and files reviewed by him as a part of the County's defense to plaintiff's suit for reinstatement. Thus, it also constitutes attorney work-product. Plaintiff makes no effort to prove that he "has substantial need of the materials in the preparation of the case and is unable without undue hardship to obtain the substantial equivalent of the materials by other means." R. 4:10-2(c). Rather, plaintiff's primary contention is that defendants waived the privilege when Hasbrouck communicated the information to the GCPO. The concept of waiver is not specifically addressed in the Rule. However, waiver of privileges in general is recognized in our rules of evidence. N.J.R.E. 530; see Hannan v. St. Joseph's Hospital, 318 N.J.Super. 22, 29-31, 722 A.2d 971 (App.Div.1999)(discussing whether the work-product privilege was waived when the client used notes prepared in anticipation of litigation to answer interrogatories). The Evidence Rule provides in relevant part that a privilege is waived if "without coercion and with knowledge of his right or privilege, [a person] made disclosure of any part of the privileged matter or consented to such a disclosure made by anyone." N.J.R.E. 530. It has been recognized, however, that not every disclosure constitutes a waiver of privilege. Rather, "courts have interpreted [the waiver] principle in a commonsensical way, fashioning a `common interest' doctrine which protects communications made to a non-party who shares the client's interests." In re State Com'n of Investigation, 226 N.J.Super. 461, 466, 544 A.2d 893 (App.Div.), certif. denied, 113 N.J. 382, 550 A.2d 484 (1988)(quoting United States v. Zolin, 809 F.2d 1411, 1417 (9th Cir.1987)). The boundaries of the common interest exception are not perfectly defined. Id. at 467, 544 A.2d 893 (discussing the problem, however, in the context of the attorney-client privilege). New Jersey case law on the subject is non-existent in the context of work-product privilege. Federal case law on the subject, however, gives us guidance in resolving the issue before us. The common interest exception may be asserted with respect to communications among counsel for different parties if "(1) the disclosure is made due to actual or anticipated litigation; (2) for the purposes of furthering a common interest; and (3) the disclosure is made in a manner not inconsistent with maintaining confidentiality against adverse parties." Holland v. Island Creek Corp., 885 F.Supp. 4, 6 (D.D.C.1995); see also In re Bevill, Bresler & Schulman, 805 F.2d 120, 126 (3d Cir. 1986). It is not necessary for actual litigation to have commenced at the time of the transmittal of information for the privilege to be applicable. U.S. v. Schwimmer, 892 F.2d 237, 244 (2d Cir.1989), cert. denied, 502 U.S. 810, 112 S.Ct. 55, 116 L.Ed.2d 31 (1991). Indeed, communications need not only be among counsel for the clients. Communications between counsel for a party and an individual representative of a party with a common interest are also protected. Ibid. Importantly, it is not necessary for every party's interest to be identical for the common interest privilege to apply. Rather, the parties must simply have a "common purpose." U.S. v. McPartlin, 595 F.2d 1321, 1336 (7th Cir.1979), cert. denied, 444 U.S. 833, 100 S.Ct. 65, 62 L.Ed.2d 43 (1979); see also, United States *550 v. American Telephone & Telegraph Co., 642 F.2d 1285, 1298 (D.C.Cir.1980)(criticizing earlier opinions that employed a narrow definition of "common interests" and restricted the concept to situations in which the relationship of the parties was similar to that between co-parties in a suit). Thus, as one court put it: Whether an action is ongoing or contemplated, whether the jointly interested persons are defendants or plaintiffs, and whether the litigation or potential litigation is civil or criminal, the rationale for the joint defense rule remains unchanged: persons who share a common interest in litigation should be able to communicate with their respective attorneys and with each other to more effectively prosecute or defend their claims. [In re Grand Jury Subpoenas, 89-3 and 89-4, John Doe 89-129, 902 F.2d 244, 249 (4th Cir.1990).] Applying the foregoing principles to this case, we conclude that although the interest of defendants and the GCPO may not have been identical, it is clear that they shared a common purpose. That is, defendants' purpose is to bar plaintiff's reinstatement and ancillary remedies because of his perceived illegal conduct while he was the Road Supervisor. The GCPO's purpose in this context is to investigate alleged criminal activity by persons holding public office and to prosecute such individuals with a view toward barring convicted public officers from employment in that capacity. See N.J.S.A. 2C:51-2. It is of no moment that the GCPO decided not to proceed criminally against plaintiff. The question as to whether the parties share a common interest "must be evaluated as of the time that the confidential information is disclosed." Holland, supra, 885 F.Supp. at 6. Nor is it significant that defendants were involved in civil litigation while the information transmitted by Hasbrouck was for the purpose of criminal prosecution, or that it was communicated to an agent of the prosecutor rather than to the prosecutor himself. In re Grand Jury Subpoenas, supra, 902 F.2d at 249; Schwimmer, supra, 892 F.2d at 244. We agree with defendants that a party should feel free to turn over evidence of crimes to the government without fearing that to do so will result in privileged and confidential information falling into the hands of one's adversary in a related or contemplated civil proceeding. Generally, when such privileged information is turned over to a non-adversary who has a legitimate interest in the information, such as the GCPO here, there is no waiver unless it can be shown that there was a "conscious disregard" of the possibility that an adversary would gain access to the material. In re John Doe, 662 F.2d 1073, 1081 (4th Cir.1981), cert. denied, 455 U.S. 1000, 102 S.Ct. 1632, 71 L.Ed.2d 867 (1982); see also Shields v. Sturm, Ruger & Co., 864 F.2d 379, 381-82 (5th Cir.1989)(holding that disclosure simply to another person who has an interest in the information but who is not reasonably viewed as a conduit to a potential adversary will not be deemed a waiver of the protection of the rule). There was no showing here that Hasbrouck consciously disregarded the possibility that the material might be transmitted to plaintiff. He had every reason to believe that his mental impressions of the evidence that he gathered would remain protected under New Jersey Court Rules, even if plaintiff could gain access to other privileged material by using the work-product rule exception contained in R. 4:10-2(c). That is so because mental impressions and strategy of counsel remain inviolate. See Jenkins v. Rainner, 69 N.J. 50, 350 A.2d 473 (1976). *551 The judgment under review is reversed to the extent that it requires defendants to turn over the three documents in question. NOTES [1] These documents apparently have been released to plaintiff without objection. [2] Another exception, not relevant here, is found in R. 4:10-2(d), concerning "facts known and opinions held by experts."

UNITED STATES ARMY COURT OF CRIMINAL APPEALS Before CONN, HOFFMAN, and GIFFORD Appellate Military Judges UNITED STATES, Appellee v. Private E1 TIMOTHY R. HOWARD United States Army, Appellant ARMY 20080807 3rd Infantry Division and Fort Stewart Kirsten Brunson, Military Judge Colonel Jonathan C. Guden, Staff Judge Advocate For Appellant: Colonel Mark Tellitocci, JA; Lieutenant Colonel Matthew M. Miller, JA; Major Grace Gallagher, JA; Captain Elizabeth Turner, JA (on brief). For Appellee: Colonel Norman F. J. Allen, III, JA; Lieutenant Colonel Martha L. Foss, JA; Major Sara M. Root, JA; Captain Kevin F. Sweeney, JA (on brief). 23 December 2009 ----------------------------------------- SUMMARY DISPOSITION ----------------------------------------- Per Curiam: A military judge sitting as a general court-martial convicted appellant, pursuant to his pleas, of six specifications of absence without leave and two specifications of escape from confinement, in violation of Articles 86 and 95, Uniform Code of Military Justice, 10 U.S.C. §§ 886 and 895 [hereinafter UCMJ]. The military judge sentenced appellant to a bad- conduct discharge, confinement for nine months, and reduction to Private E1. The convening authority approved the adjudged sentence. This case is before the court for review pursuant to Article 66, UCMJ. Though unsupported by a sworn or even a signed statement from appellant, appellate defense counsel assert trial defense counsel was ineffective for failing to consult with appellant regarding his clemency submission. In support of this assignment of error, on 30 April 2009, appellate defense counsel submitted a motion to attach a document purportedly from the accused supporting the allegation of ineffective assistance of counsel, entitled “AFFIDAVIT.” The document was unsigned and unsworn; however, appellant’s motion noted, “While DAE A [appellant’s affidavit] is unsigned, the signed copy is en route and a motion to substitute will be filed immediately upon receipt of the signed affidavit.” On 20 November 2009, the government responded[1] to appellant’s brief and noted that the affidavit was unsworn. This court waited an additional month after the government’s submission to decide the case, in order to provide appellant an opportunity to file a signed copy of his affidavit. To date, no signed declaration or affidavit has been submitted on appellant’s behalf. A signed affidavit or declaration made under penalty of perjury is necessary when such a document advances essential factual evidence of ineffective assistance of counsel not otherwise contained in the record of trial. United States v. Gunderman, 67 M.J. 683, 688 (Army Ct. Crim. App. 2009), (citing United States v. Melson, 66 M.J. 346 (C.A.A.F. 2008); United States v. Ginn, 47 M.J. 236 (C.A.A.F. 1997); United States v. Reardon, 15 C.M.R. 894 (A.F.C.M.R. 1954)). Appellant has the burden of establishing a factual foundation for a claim of ineffective representation. United States v. Moulton, 47 M.J. 227, 229-30 (C.A.A.F. 1997). Appellant, in failing to submit a signed affidavit or declaration, has failed to meet his burden. Thus, appellant has not made a colorable showing of possible prejudice. United States v. Wheelus, 49 M.J. 283, 289 (C.A.A.F. 1998) DECISION We have considered the matters personally raised by appellant under United States v. Grostefon, 12 M.J. 431 (C.M.A. 1982), and find them without merit. The findings of guilty and the sentence are affirmed. FOR THE COURT: MALCOLM H. SQUIRES, JR. Clerk of Court ----------------------- [1] The government subsequently, with leave of the court, filed a corrected copy of its brief on 25 November 2009.

[Cite as State v. Gaver, 2016-Ohio-4621.] COURT OF APPEALS RICHLAND COUNTY, OHIO FIFTH APPELLATE DISTRICT STATE OF OHIO : JUDGES: : : Hon. William B. Hoffman, P.J. Plaintiff-Appellee : Hon. Patricia A. Delaney, J. : Hon. Craig R. Baldwin, J. -vs- : : Case No. 15CA61 : ADRIAN L. GAVER : : : Defendant-Appellant : OPINION CHARACTER OF PROCEEDING: Appeal from the Richland County Court of Common Pleas, Case No. 2015 CR 0318 D JUDGMENT: AFFIRMED DATE OF JUDGMENT ENTRY: June 20, 2016 APPEARANCES: For Plaintiff-Appellee: For Defendant-Appellant: BAMBI COUCH PAGE ROBERT GOLDBERGER RICHLAND CO. PROSECUTOR 10 West Newlon Place DANIEL M. ROGERS Mansfield, OH 44902 38 S. Park St. Mansfield, OH 44902 Richland County, Case No. 15CA61 2 Delaney, J. {¶1} Appellant Adrian L. Gaver appeals from the June 23, 2015 Sentencing Entry of the Richland County Court of Common Pleas. Appellee is the state of Ohio. FACTS AND PROCEDURAL HISTORY {¶2} On April 3, 2015, Billy and Gerald Watson lived together in a house trailer on Spayde Road in Bellville, Richland County, which is within sight of the home of their relatives James and Peggy Watson, also on Spayde Road. Around 3:00 p.m., someone came to the door of the house trailer and asked Billy for directions to I-71. Gerald Watson overheard the conversation and found it strange because the trailer was within a very short distance of I-71. {¶3} Gerald watched the person return to a dark-colored Pontiac minivan. The minivan proceeded down Spayde Road and pulled in behind James Watson’s house. Gerald walked outside and then he heard a loud pounding noise. He ran back to the trailer and called 911. While Gerald was on the phone with 911, he saw the minivan leave the property. {¶4} The call was dispatched as a possible burglary in progress and law enforcement was on the scene within ten to fifteen minutes. {¶5} Bellville officer Matthew Corwin observed the dark-colored minivan traveling on Spayde Road approaching State Route 97, about 100 yards from the Watson residence. Corwin stopped the minivan in a restaurant parking lot and apprehended three passengers: driver Adrian Gaver (appellant), Anthony Queen, and Damon Lensman. Officers noted the minivan was “packed from top to bottom” with stolen items, to the extent Richland County, Case No. 15CA61 3 there was nowhere to sit in the back seat and the van had to be towed to the Richland County Sheriff’s Department to be inventoried. {¶6} James and Peggy Watson, the homeowners, discovered their back door had been kicked in. In the kitchen, someone had gone through containers of prescription medication and taken Percocet (oxycodone) prescribed for their son’s wisdom-tooth extraction. The master bedroom was “ransacked.” Drawers were pulled out, clothing was scattered everywhere, and dressers and jewelry boxes were missing. The Watsons noted they were missing a .38 Rossi revolver, two television sets, the Percocet, miscellaneous jewelry, and personal documents including utility bills and bank deposit slips. {¶7} All of these missing items were discovered in the Pontiac minivan driven by appellant and were identified as items belonging to the Watsons. {¶8} Appellant’s accomplices, Anthony Queen and Damon Lensman, testified for appellee at trial. The two said they asked appellant to drive them around to look for “random nice-looking” houses to burglarize where no one was home. They intended to steal items to exchange for drugs in Columbus. On Spayde Road, someone was home at the first target so they proceeded to the James Watson residence. Lensman kicked in the door and he and Queen went back and forth to the residence several times to carry out anything of value they could grab. Appellant remained in the minivan as the driver with instructions to honk if he saw anyone coming. {¶9} Appellant did not call any witnesses or present any evidence on his own behalf. Richland County, Case No. 15CA61 4 {¶10} Appellant was charged by indictment with one count of burglary pursuant to 2911.12(A)(2), a felony of the second degree; one count of theft of a dangerous drug pursuant to R.C. 2913.02(A)(1) and (B)(6), a felony of the fourth degree; one count of grand theft of a firearm pursuant to R.C. 2913.02(A)(1) and (B)(4), a felony of the third degree; and one count of aggravated possession of drugs pursuant to R.C. 2925.11(A) and (C)(1)(a), a felony of the fifth degree. {¶11} Appellant entered pleas of not guilty and the case proceeded to trial by jury. Appellant was found guilty as charged. The trial court found the allied offenses merged for purposes of sentencing and appellee elected to sentence upon the count of burglary. The trial court imposed a prison term of seven years. {¶12} Appellant now appeals from the judgment entry of his conviction and sentence. {¶13} Appellant raises one assignment of error: ASSIGNMENT OF ERROR {¶14} “I. APPELLANT RECEIVED INEFFECTIVE ASSISTANCE OF COUNSEL REQUIRING REVERSAL OF HIS CONVICTION.” ANALYSIS {¶15} In his sole assignment of error, appellant argues he received ineffective assistance of trial counsel because counsel failed to question the chain of custody of the oxycodone pills and failed to object to leading questions by appellee. We disagree. {¶16} To succeed on a claim of ineffectiveness, a defendant must satisfy a two- prong test. Initially, a defendant must show that trial counsel acted incompetently. See, Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052 (1984). In assessing such claims, Richland County, Case No. 15CA61 5 “a court must indulge a strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance; that is, the defendant must overcome the presumption that, under the circumstances, the challenged action ‘might be considered sound trial strategy.’” Id. at 689, citing Michel v. Louisiana, 350 U.S. 91, 101, 76 S.Ct. 158 (1955). {¶17} “There are countless ways to provide effective assistance in any given case. Even the best criminal defense attorneys would not defend a particular client in the same way.” Strickland, 466 U.S. at 689. The question is whether counsel acted “outside the wide range of professionally competent assistance.” Id. at 690. {¶18} Even if a defendant shows that counsel was incompetent, the defendant must then satisfy the second prong of the Strickland test. Under this “actual prejudice” prong, the defendant must show that “there is 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. {¶19} Appellant first argues he received ineffective assistance of trial counsel because counsel did not question the chain of custody of appellee’s Exhibit 27, which contained three oxycodone pills and a metal spoon with morphine residue on it. We note appellant fails to specify any evidence that trial counsel should have presented that would have undermined the chain of custody. See, State v. Davis, 116 Ohio St.3d 404, 2008- Ohio-2, 880 N.E.2d 31, ¶ 345. In establishing the chain of custody of physical evidence, the state is not required to negate all possibilities of substitution or tampering but need only establish that it is reasonably certain that substitutions, alterations or tampering did not occur. State v. Williams, 5th Dist. Richland No. CA-2900, 1992 WL 100382, *1 (May Richland County, Case No. 15CA61 6 4, 1992), citing City of Avon Lake v. Anderson, 10 Ohio App.3d 297, 462 N.E.2d 188 (9th Dist.1983), paragraph one of the syllabus. {¶20} Appellant contends appellee failed to establish the chain of custody for the pills between the time they were seized and when they were taken to the lab. See, State v. Lang, 129 Ohio St.3d 512, 2011-Ohio-4215, 954 N.E.2d 596, ¶ 212. In support of his argument, appellant highlights portions of two officers’ testimony purportedly demonstrating appellee didn’t establish the pills came from the Watson house. In light of the context of the entire case, however, appellee demonstrated Percocet was taken from the Watson residence; Percocet is another name for oxycodone; Queen admittedly took prescription pills from the house; and pills were found in the minivan. Appellant’s argument at trial was that he remained ignorant of the accomplices’ plan to burglarize homes and played no part therein, so any issue of chain of custody of the pills would have been irrelevant. Counsel's action appears to have been a tactical decision because nothing in the record indicates any problem with the chain of custody and given the strong presumption that counsel's performance constituted reasonable assistance, this claim is rejected. Lang, supra, 2011-Ohio-4215 at ¶ 213, citing Bradley, supra, 42 Ohio St.3d at 144. {¶21} Finally, appellant argues defense trial counsel was ineffective in failing to object to leading questions asked of accomplice Anthony Queen. Appellant points to only one such question [“So [appellant] told you he wanted to go with you and do this at the houses?”] which he describes as “fatal” to the defense because Lensman later testified he didn’t know if appellant was aware of the plan to burglarize houses or not. We disagree with appellant’s characterization because of the overwhelming evidence that appellant Richland County, Case No. 15CA61 7 aided and abetted the burglary regardless of whether the jury believed the accomplices’ testimony. Appellant initially attempted to evade Corwin during the traffic stop of the van; he waited outside while the accomplices kicked in the door and made repeated trips to the van with stolen items from the house; and several witnesses testified the minivan was so stuffed with stolen items that there was only room to sit in the front seat. {¶22} Moreover, we cannot say that trial counsel's failure to object to the question fell below an objective standard of reasonable representation. State v. Ward, 5th Dist. Richland No. 2011-CA-100, 2012-Ohio-4807, ¶ 30; see also, State v. McCoy, 5th Dist. Richland No. 2005-CA-0025, 2006-Ohio-1320; State v. Rogers, 5th Dist. Licking No. 07- CA-152, 2009-Ohio-1956. Evid.R. 611(C) provides, “[l]eading questions should not be used on the direct examination of a witness except as may be necessary to develop the witness' testimony.” The failure to object to leading questions does not usually constitute ineffective assistance of counsel. State v. Jackson, 92 Ohio St.3d 436, 449, 2001–Ohio– 1266, 751 N.E.2d 946. The failure to object is not a per se indicator of ineffective assistance of counsel because sound trial strategy might well have been not to interrupt. State v. Gumm, 73 Ohio St.3d 413, 428, 653 N.E.2d 253 (1995). {¶23} Appellant has not demonstrated that any claimed deficiencies of trial counsel created “a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different.” Jackson, supra, 92 Ohio St.3d at 449, citing Strickland, 466 U.S. at 694. Appellant’s sole assignment of error is overruled. Richland County, Case No. 15CA61 8 CONCLUSION {¶24} Appellant’s sole assignment of error is overruled and the judgment of the Richland County Court of Common Pleas is affirmed. By: Delaney, J. and Hoffman, P.J. Baldwin, J., concur. 

727 N.W.2d 611 (2007) In re ESTATE OF Shirley BERG, Deceased. Marilyn Silverstein, Petitioner-Appellant, v. Sue Thomas, Respondent-Appellee. Docket No. 132551. COA No. 268584. Supreme Court of Michigan. February 27, 2007. On order of the Court, the application for leave to appeal the August 29, 2006 judgment of the Court of Appeals is considered, and it is DENIED, because we are not persuaded that the questions presented should be reviewed by this Court.

IN THE COURT OF CRIMINAL APPEALS OF TEXAS NOS. WR-83,185-07, -08, -09, -10, -11 & -12 EX PARTE ORIAN LEE SCOTT, Applicant ON APPLICATIONS FOR WRITS OF HABEAS CORPUS CAUSE NOS. 20462 HC-3, 20462 HC-4, 20463 HC-3, 20463 HC-4, 20464 HC-3 & 20464 HC-4 IN THE 6TH DISTRICT COURT LAMAR COUNTY H ERVEY, J., delivered the opinion of the Court in which K ELLER, P.J., K EASLER, A LCALA, R ICHARDSON, Y EARY, N EWELL, and W ALKER, JJ., joined. K EEL, J., concurred. OPINION Orian Lee Scott was convicted of nine offenses in three separate indictments and was sentenced to a total of 100 years’ confinement.1 We filed and set these writ applications to decide whether his counsel was ineffective at the punishment stage of 1 Each indictment was identical except that they named different victims. In each indictment, Scott was charged with one count of possession of child pornography, one count of inducing a sexual performance by a minor, and one count of producing or promoting a sexual performance by a child.  Scott–2 trial. We will deny relief. I. BACKGROUND A. Facts In August 2003, Applicant, Orian Lee Scott, moved to Maxey, outside of Paris, Texas, and he started asking around town for a few boys to help him move and unpack boxes. A mother of twin teenage boys heard about Scott’s inquiries and got in touch with him.2 He told her that he was looking to hire some teenage kids to help out around his house. He also told her that he would pay her boys ten dollars an hour each. The mother thought that was an exceptionally high wage, and she agreed to let her kids work for Scott the rest of the summer.3 The boys worked Monday through Friday. Once school began, however, the job was supposed to end, but Scott said that he still needed help around the house maintaining his yard, painting his barn, and bathing his dogs. The boys’ mother agreed to let her kids work on Saturdays during the school year. They worked about six hours each Saturday. Around Thanksgiving, Scott asked them whether they had a friend that could also help around the house. They said that they did, and their friend started 2 The mother learned about Scott’s offer through her husband. Although the family lived in Fort Towson, Oklahoma, her husband worked in Paris for about 9 years. 3 One of the victims testified that, after he worked for Scott, he worked at Sonic and got paid the minimum wage of about five dollars per hour, and that he has never again been paid ten dollars per hour to work since then. Another boy testified that the work was not worth what they were getting paid and that there was not enough work to justify hiring three boys. The record also shows that the boys were “on the clock” even when they were not working, such as when they were sitting around playing on Scott’s computer or showering.  Scott–3 working for Scott too. When the kids first started bathing Scott’s dogs in the summer, they would do it outside and usually did not wear shirts. On one occasion, Scott videotaped them washing his dogs, allegedly because he needed to “test” an old camera. As the days got colder, however, Scott told the boys to bathe the dogs in his guest bathroom. He even suggested to one of them that the dogs would not mind if the kids bathed them in the nude. The boy refused. Later, Scott provided each of them with swim trunks to use so that their clothes would not get dirty when they washed the dogs.4 After awhile, Scott encouraged the kids to take a shower after bathing the dogs and doing yard work. The shower in Scott’s guest bathroom had no curtain, and Scott never installed one, even though the boys took showers there almost every week for over six months.5 Scott told them that, if they cleaned up (i.e., showered at his house), he would treat them to dinner and a movie.6 One of the twins testified that he and his brother thought that the bathroom was a little creepy and that they even looked for a camera at one point but never found one. Unfortunately, there was a camera. The clock radio in the 4 There was testimony that this was unnecessary because the boys could bathe the dogs without getting their clothes dirty. There was also testimony questioning why Scott had four pairs of swim trunks that fit the kids he hired. 5 One boy testified that when he asked Scott why he did not have a shower curtain, Scott replied that he did not need one. Another boy testified that Scott evaded the question when asked. 6 Scott took the boys to a movie and dinner almost every weekend that they worked for him after school started, and he paid for everyone’s dinner and movie tickets even though the boys earned about $60 per day working for Scott.  Scott–4 bathroom had a hidden camera in it, which was pointed directly at the bathtub. It was later discovered that the hidden camera was hooked up to a VCR system and that Scott had filmed almost every shower the boys had taken. The videos that Scott recorded showed that the boys would often masturbate while they showered. They also showed that Scott adjusted the hidden camera numerous times to get a better angle, and one of the videos even showed Scott in the bathroom simulating masturbation to check the angle of the camera. Scott also installed a light in the bathroom that was above the shower so that he could see better. After he was arrested, police discovered a newly drilled hole in the bathroom opposite the hidden camera that would have given a camera operator a full- frontal view of the children while showering and masturbating. Scott would occasionally allow the boys to use his computer to play games, and one day while on the computer, the twins found pornographic images of young boys. They told their mother, who later called the police. The police searched Scott’s home and seized recordings of the kids masturbating in the shower, thousands of digital images of child pornography on Scott’s computer, thousands of images of child pornography Scott kept on physical media at his house (e.g., DVDs, CDs, over 400 floppy disks, etc.), and photographs in a shoe box of underage teenage boys in swimsuits at what appeared to be a pool party. It looked like the photographs were taken through a window or sliding glass door. Police also noticed that Scott was almost finished building a swimming pool at his house.  Scott–5 B. Procedural Posture In three separate indictments, Scott was charged with three counts of inducing a sexual performance by a child, three counts of producing or promoting a sexual performance by a child, and three counts of possession of child pornography. Each indictment referred to a different victim. Scott pled guilty to the child-pornography charges but went to trial on the other counts. The jury found him guilty of all six of the remaining charges. For each of the inducing-a-sexual-performance convictions, the jury sentenced Scott to twenty years’ confinement (for a total of sixty years); for each of the producing-or-promoting convictions, the jury sentenced Scott to ten years’ imprisonment (for a total of thirty years); and for each of the possession-of-child-pornography convictions, the jury sentenced Scott to ten years’ confinement (for a total of thirty years). The trial judge ordered the inducing-a-sexual-performance convictions and the producing-or-promoting convictions to run consecutively and for Scott’s child- pornography convictions to run concurrent to his stacked sentences. In all, Scott was sentenced to 100 years’ confinement. On appeal, Scott raised various arguments, including that the evidence was legally insufficient to support his convictions for inducing a sexual performance by a child. Scott v. State, 173 S.W.3d 856, 869 (Tex. App.—Texarkana 2005). The court of appeals agreed, and it rendered acquittals on those counts. Id. On discretionary review, this Court left in place the court of appeals’ judgments entering acquittals. Scott v. State, 235  Scott–6 S.W.3d 255, 261 (Tex. Crim. App. 2007). Scott later filed a post-conviction writ application alleging ineffective assistance of counsel. We remanded the application to the habeas court because the record was insufficiently developed. In particular, we instructed the habeas judge to respond to Scott’s ineffective-assistance claim and to determine if any of his sentences had been discharged. Ex parte Scott, Nos. WR-83,185-07, -08, -09, -10, - 11, & -12, 2015 WL 4594085 (Tex. Crim. App. July 29, 2015) (not designated for publication) (per curiam order). Although the judge noted which sentences Scott had discharged, he did not make a recommendation regarding whether Scott should get relief on the basis of ineffective assistance of counsel at the punishment phase. Ex parte Scott, Nos. WR-83,185-07, -08, -09, -10, -11, & -12, 2015 WL 8954906 (Tex. Crim. App. Dec. 16, 2015) (not designated for publication) (per curiam order). We remanded the application again, and the habeas court entered findings of fact and conclusions of law recommending that we deny relief on the ineffective-assistance issue. We filed and set Scott’s application to determine whether his counsel was ineffective at the punishment phase. Id. II. HABEAS CORPUS A. Claims Scott argues that his counsel performed deficiently in a number of respects: • by failing to produce any mitigating evidence at the punishment stage to support a lesser sentence, namely eliciting good character evidence from family members and calling Dr. JoAnn Ondrovick to testify that Scott would be a good candidate for her rehabilitation program;  Scott–7 • by failing to object to Scott being sentenced to 100 years in prison as a violation of the Eighth Amendment prohibition on cruel and unusual punishment; • by failing to object to the stacking of Scott’s sentences; • by making a deficient argument during closing; • by not objecting to various instances of improper argument by the State during its closing; and • by not objecting to a comment on the weight of the evidence made by the trial judge. B. Findings and Conclusions The habeas court did not hold a hearing, but numerous affidavits were submitted, including two from Quannah Dixon (Scott’s sister), two from Michael Scott (one of Scott’s brothers), two from Orian Scott (Applicant), and two from trial counsel. The habeas court found trial counsel’s affidavits credible, but not those of Dixon, Michael, or Applicant, and it entered a number of relevant findings and conclusions: • [Defense counsel]’s failure to call witnesses to testify on behalf of [Scott] . . . was reasonable in that family witnesses refused to attend trial and the expert witness [Ondrovick] consulted by [defense counsel] was hostile to [Scott] and her testimony would have been harmful to [Scott]. • [Scott] was not prejudiced[.] [T]he very type of evidence [Scott] would solicit from [his brother and sister] -- that [he] was a successful, career educator, had serious medical problems and a family that loved him -- was presented to the jury by [defense counsel] during his closing argument without objection from the prosecutor.  Scott–8 • [Defense counsel]’s decision not to call Ondrovick was reasonable and appropriate in that she would have testified that [Scott] was not a suitable candidate for her treatment program and that she was angry about having to come to court during the holiday season. • [Scott]’s sentence was not violative of the 8th Amendment prohibition against cruel and unusual punishment in that each sentence was within the statutory range of punishment for the offenses of conviction as provided by the Texas Penal Code. • [Defense counsel]’s failure to object to the trial court’s sua sponte stacking of sentences would have been futile because the stacking of sentences was either mandatory or within the sole discretion of the trial judge. • [Defense counsel]’s failure to object to certain portions of the prosecution’s closing argument regarding character and other potential victims in other states . . . was a reasonable trial strategy in that the objections might have drawn the jury’s particular attention to that argument. • [Scott] was not prejudiced because of the prosecutor[’]s argument and failure of [defense counsel] to object due to the overwhelming evidence of [Scott]’s guilt and the quantity and nature of the evidence presented by the prosecution at the sentencing hearing. [Scott] pled “Guilty” to possessing child pornography. He maintained a large quantity of pornographic images and disturbing photographs depicting teenage boys and young men all of which was appropriately before the jury at punishment. [Scott] demonstrated a sophisticated and premeditated pattern of luring and recording teenage boys in the shower on multiple occasions. These recordings were kept as part of a larger collection of homoerotic pornography. Furthermore, the very type of character evidence [Scott] would solicit from [his sister and brother] -- that [he] was a successful, career educator, had serious medical problems and a family that loved him -- was presented to the jury by [defense counsel] during his closing argument without objection. Finally, it was uncontroverted that [Scott] had no criminal history and all trial counsel argued accordingly.  Scott–9 • [Defense counsel]’s failure to object to the prosecutor’s characterization of [Scott] as a “pedophile” . . . was reasonable in that the [Scott] had pled “Guilty” to multiple counts of Possession of Child Pornography and the jury had found [Scott] “Guilty” of multiple counts of Inducing a Sexual Performance by a Child and Producing or Promoting a Sexual Performance by a Child. • [Scott] was not prejudiced because the evidence showed -- and the jury found beyond a reasonable doubt -- that [Scott] was guilty of offenses involving children and [Scott] had expended considerable effort and planning to procure, produce and collect these pornographic images. • The defense strategy was reasonable not to object to the trial judge’s comment that it was “a fair assumption based upon the record” . . . because it might have drawn the jury’s attention to that evidence. • [Scott] was not prejudiced by the trial judge’s single comment and [defense counsel]’s failure to object to it due to the overwhelming evidence of . . . [Scott]’s guilt, [and] the quantity and quality of the evidence presented by the prosecution at the sentencing hearing. [Scott] pled “Guilty” to possessing child pornography. He maintained a large quantity of pornographic images and disturbing photographs depicting teenage boys and young men all of which was appropriately before the jury at punishment. [Scott] demonstrated a sophisticated and premeditated pattern of luring and recording teenage boys in the shower on multiple occasions. These recordings were kept as part of a larger collection of homoerotic pornography. [defense counsel] also argued without objection that [Scott]’s family members would testify that Scott was a successful, career educator, had serious medical problems and a family that loved him (although they declined to appear at trial). The habeas court recommends that we deny relief. III. INEFFECTIVE ASSISTANCE OF COUNSEL A. The Law  Scott–10 The Sixth Amendment guarantees a criminal defendant the effective assistance of counsel. Cooks v. State, 240 S.W.3d 906, 911 (Tex. Crim. App. 2007); see U.S. C ONST. amend. VI. To prevail on an ineffective-assistance-of-counsel claim, an applicant must prove that his trial counsel’s performance was deficient and that he was prejudiced by the deficiency. Strickland v. Washington, 466 U.S. 668, 687 (1984); Ex parte Martinez, 330 S.W.3d 891, 900 (Tex. Crim. App. 2011). Under the first prong of Strickland, an applicant must prove deficient performance by showing that his counsel’s performance fell below an objective standard of reasonableness. Strickland, 466 U.S. at 688–89. An objective standard of reasonableness is defined by prevailing professional norms at the time of trial, and there is a presumption that counsel’s performance conformed to those norms. Id. To overcome the presumption, an applicant must rely on evidence firmly rooted in the record,7 unless no reasonable trial strategy could justify counsel’s conduct. Andrews v. State, 159 S.W.3d 98, 102–03 (Tex. Crim. App. 2005). When no reasonable trial strategy could justify counsel’s conduct, his conduct is deficient as a matter of law, regardless of whether the record adequately reflects counsel’s motivations for employing that strategy. Id. We review the performance of counsel by considering the totality of the circumstances as they existed at the time of trial, without the benefit of hindsight or by relying on only isolated circumstances at trial. See Ex parte Flores, 387 S.W.3d 626, 633–34 (Tex. Crim. App. 2012). 7 Strickland, 466 U.S. at 688–89; Lopez v. State, 343 S.W.3d 137, 142–43 (Tex. Crim. App. 2011).  Scott–11 To prove prejudice in this context, an applicant must prove that a reasonable probability exists that, but for counsel’s deficient conduct, the punishment jury would have returned a more favorable verdict (i.e., a lesser punishment). Ex parte Rogers, 369 S.W.3d 858, 863 (Tex. Crim. App. 2012). A reasonable probability is one that is sufficient to undermine confidence in the outcome of the proceeding. Id. at 862–63. B. Defense’s Strategy Because Scott’s ineffective-assistance claims turn on the defense’s strategy, we review that strategy now. By the time of trial, Scott was about 70 years old, and because he had no criminal history, he was probation eligible on the child-pornography and the possession-or-promotion charges.8 T EX. C ODE C RIM. P ROC. art. 42.12, § 4(d)(7). Trial counsel did not believe that the State could prove the inducing-a-sexual-performance-by- a-minor charges because Scott did not induce the children to masturbate in the shower, and because Scott was probation eligible on the other charges, the strategy was to fight the inducing charges but to ask the jury for mercy and to recommend probation for the other charges. To support his probation argument, counsel cited Scott’s advanced age and deteriorating health,9 claiming that any sentence of confinement was tantamount to a 8 Although Scott argued for probation on the child-pornography charges and possession- or-promotion charges, he was not eligible for probation on the inducing-a-sexual-performance- by-a-child charges because no defendant can be placed on jury recommended probation if they are convicted of that crime. TEX . CODE CRIM . PROC. art. 42.12, § 4(d)(7). 9 For example, the evidence showed that he has lymphoma (although it is currently in remission), neurosyphilis, gastrointestinal problems, and that he had a stroke while incarcerated pending trial.  Scott–12 death sentence, and that even though Scott admittedly was addicted to pornography and technology, his addictions could be controlled by “close supervision.” Despite this, the defense acknowledged during its closing that, based on the facts of the case alone, the jury might “max out” Scott and the judge might stack some of his sentences, but counsel implored them not to do that. The jury convicted Scott of all nine counts and sentenced him to the maximum term of confinement on each count, and the judge stacked Scott’s sentences for inducing and possession-or-promotion.10 However, on appeal, the defense’s argument regarding the inducement charges bore fruit. The court of appeals reversed those convictions and entered acquittals based on insufficient evidence because the State did not prove that Scott induced the children to masturbate. Scott, 173 S.W.3d at 864. On discretionary review, this Court let the acquittals stand. Scott, 235 S.W.3d at 257. C. Mitigating Evidence The first issues we address are Scott’s claims that his attorney was ineffective because he did not develop available mitigating evidence. According to Scott, trial counsel should have called psychologist Dr. JoAnn Ondrovik; Scott’s sister, Quannah Dixon; and one of Scott’s brothers, Michael Scott, to testify. He also asserts that, had he been given the opportunity, he would have testified on his own behalf about his mitigating circumstances. 10 The judge did not have the authority to stack the child-pornography convictions.  Scott–13 1. Dr. JoAnn Ondrovik Scott contends that his counsel should have called Dr. JoAnn Ondrovik to testify because she would have stated that Scott was remorseful for his actions. According to trial counsel, however, he chose not to call Ondrovik to testify for two reasons. First, it was her opinion that, even though Scott was remorseful, she did not think that he could be successful in her program. Second, Ondrovik was hostile once she arrived at the courthouse under order because she was exchanging Christmas presents with her family when she was summoned. While it is true that she would have testified that Scott was remorseful for his actions, her testimony would have also severely undercut the defensive strategy that Scott could be rehabilitated if he were placed on probation. Based on this, we cannot say that trial counsel employed an unreasonable strategy and was ineffective for not calling Ondrovick to testify. Because the habeas court’s conclusion is supported by the record, we adopt its conclusion. 2. Scott’s Siblings Dixon and Michael stated in their affidavits that they would have testified about Scott’s generous and giving nature,11 his troubled childhood, his longstanding health issues, and his unblemished record as an educator for 40 years. They also said that they 11 Dixon stated that Scott sold her and her husband a house he owned for $1.00 and helped pay for two of Dixon’s granddaughters to go to college. He also helped Dixon pay off the mortgage on her second home and wrote to her from prison urging her to buy herself a new car and television with money from his bank account.  Scott–14 asked trial counsel whether they should testify at the punishment phase and that counsel told them that they would not be needed. Trial counsel disagrees, however, and says that he spoke to Dixon and Michael on multiple occasions and that he did ask them to testify, but both refused to attend the trial.12 The habeas judge found trial counsel’s affidavits credible, and because that finding is supported by the record, we adopt it. Ex parte Harleston, 431 S.W.3d 67, 70–71 (Tex. Crim. App. 2014). Counsel cannot be faulted for failing to call family members to testify about Scott’s good character when they refused to appear. 3. Scott’s Proposed Testimony Finally, Scott said that he would have testified about his longstanding health issues, including his depression and suicide attempts, and that he was remorseful for what he did to the kids. According to trial counsel, it was a strategic decision not to call Scott to testify about his health issues. At least one jailer told counsel that Scott acted different in jail than he did when he was in the courtroom, which corroborated the State’s argument that Scott was malingering. The habeas court’s finding that trial counsel’s affidavits were credible is supported by the record, and we adopt the court’s conclusion that defense counsel was not deficient for failing to call Scott to testify. 12 Scott’s brother and sister claim that, but for defense counsel telling them that they did not need to testify, they would have appeared in court and testified as character witnesses. However, if Scott’s siblings would have attended the trial to testify on his behalf, it is not clear why they did not at least attend the trial to support him as observers. We do note, however, that trial counsel argued in closing that Scott had a good family that cared for him even though they could not be at trial.  Scott–15 Trial counsel did not, however, address Scott’s claim that he would have testified that he was remorseful. We address it now. On the one hand, Scott’s testimony would have provided the only evidence of remorse (given that his siblings refused to testify), and had the jury heard that evidence, it could have returned a lesser sentence. On the other hand, the jury may have found Scott’s testimony utterly incredible given that he pled guilty to possession of child pornography but pled not guilty to the inducing and the possession-or-promotion charges. It might also have believed such testimony was disingenuous based on Scott’s pattern of behavior and how long it went on. Scott sought out teenage boys as soon as he moved to Paris, and once he found a few, he immediately began grooming them. Eventually he manipulated them into showering at his house so that he could surreptitiously record them. It was later discovered that Scott had recorded almost every shower the children took over a six-month period, adjusting the camera and installing lights so that he could see the naked boys better. When trial counsel fails to provide his reasoning for taking or not taking action, we will find counsel’s performance deficient only if the conduct was so outrageous that no competent attorney would have engaged in it. Andrews, 159 S.W.3d at 101. It is the applicant’s responsibility to overcome the strong presumption that counsel made a reasonable strategic decision. Strickland, 466 U.S. at 689; Andrews, 159 S.W.3d at 101. Here, Scott has failed to rebut the presumption that his attorney employed a reasonable trial strategy because the impact of Scott’s testimony would have been difficult to gauge.  Scott–16 We cannot say that any competent attorney would have called Scott to testify under these circumstances.13 B. Failure to Object to Stacking of Sentences 14 Next, Scott alleges that his counsel was deficient because he did not object to the 13 Although not identified as a claim for relief in his writ application or memorandum of law in support of his writ application, Scott mentions in his affidavits, albeit in passing, that he would have testified at the punishment phase if he had known that he had the right to do so. In the interest of justice we will address the issue. The United States Supreme Court has held that an accused has the federal constitutional right to testify, Rock v. Arkansas, 483 U.S. 44, 49 (1987) (constitutional right to testify derives from the Fifth, Sixth, and Fourteenth amendments of the United States Constitution), and the Texas Constitution provides that the accused “shall have the right of being heard by himself or counsel, or both . . . .” TEX . CONST . art. I § 10. This Court reviews such claims under the ordinary Strickland standard. Johnson v. State, 169 S.W.3d 223, 239 (Tex. Crim. App. 2005) (federal constitutional right to remain silent); Hernandez v. State, 726 S.W.2d 53, 56–57 (Tex. Crim. App. 1986) (state constitutional right to remain silent). That is, the applicant must show that, but for his attorney’s deficient advice, there is a reasonable probability that the outcome of the proceeding would have been different. Strickland, 466 U.S. at 687. A reasonable probability is one that is sufficient to undermine confidence in the outcome of the proceeding. Rogers, 369 S.W.3d at 862–63. Here, Scott has not shown that his counsel was deficient. The habeas court believed trial counsel’s affidavit but not those of Scott or his siblings. Trial counsel asserted that, “[w]ithout [Scott’s] assistance in showing his human side, I was rather hamstrung on presenting anything other than what the evidence showed.” The habeas court was free to believe counsel’s affidavit that Scott would not help to show the jury his human side, and it was free to disbelieve Scott’s affidavits that he did not know that he had the right to testify. Furthermore, we have found no evidence in the record (other than Scott’s affidavits) that he did not know that he could testify or that he wanted to and was prevented from doing so. It does, however, contain some evidence to the contrary. During voir dire, defense counsel told the jury that Scott would be exercising his right to remain silent (i.e., he would not testify). It follows that Scott could have testified if he did not exercise his right to remain silent. Although this is not conclusive, it is some evidence that Scott did know that he could testify. 14 Scott also appears to directly challenge his sentences as violative of the Eighth Amendment prohibition on cruel and unusual punishment. To the extent that he directly attacks his convictions, his claim is not cognizable in post-conviction writ proceedings. Curry v. State, 910 S.W.2d 490, 497 (Tex. Crim. App. 1995) (failure to preserve Eight Amendment claim at trial forfeits the claim for appellate review).  Scott–17 stacking of his sentences, which forfeited any claim on appeal that his sentences were impermissibly stacked. After reviewing the record and the habeas court’s findings of fact and conclusions of law, we adopt its findings and conclusions that trial counsel was not deficient for failing to object to the stacking of Scott’s sentences because such an objection was futile.15 To prevail on an improper-stacking claim, Scott would have to show that the trial court abused its discretion, but he cannot do so on this record because the judge’s ruling was authorized by law.16 T EX. P ENAL C ODE § 3.03(b)(2)(A); Bonilla v. State, 452 S.W.3d 811, 815 (Tex. Crim. App. 2014). C. Final Argument Issues 1. Defense’s Closing Argument Next, Scott maintains that his trial counsel was deficient when he stated during closing that, I have developed a relationship with Mr. Scott, and I have developed a relationship with his family, and I do feel sorry for him. You can call me a 15 Ex parte Chandler, 182 S.W.3d 350, 356 (Tex. Crim. App. 2005). 16 Hammond v. State, 465 S.W.2d 748, 752 (Tex. Crim. App. 1971). In Beedy v. State, 194 S.W.3d 595, 597 (Tex. App.—Houston [1st Dist.] 2006), the court of appeals explained that, An abuse of discretion generally will be found only if (1) the trial court imposes consecutive sentences when the law requires concurrent sentences, (2) the trial court imposes concurrent sentences when the law requires consecutive ones, or (3) the trial court otherwise fails to observe the statutory requirements pertaining to sentencing. Id. (citation omitted).  Scott–18 fool for that, but there is reason for that. Mr. Scott is a human being just like anybody else. He deserves compassion just like anybody else. I saw what he’s got, I saw what was put before you. A lot of [the] time I would have come in here and been a lot harder on this police officer or objected during the punishment phase of ya’ll [sic] seeing that stuff. But there is no way that I can disguise his addiction. There is no way I can do that. It would be foolish for me to try to put that over on you. But what you’re seeing in these clips and what you are dealing with is a man who is mesmerized by technology and by sex. And if you think that’s an isolated incident, you are wrong. I’m going to get to that in just a second. * * * The thing that’s a problem with Orian is he has never been under any type of supervision. Nobody has ever supervised him. In this state, we have probation departments that look after these people on intensive supervision and they can see them up to three times a week. They can monitor him. That is his problem. That’s why we are here today, nobody has monitored his addiction. He can get treated. He can get sex offender treatment. The right to effective assistance of counsel encompasses closing arguments of the defense. Yarborough v. Gentry, 540 U.S. 1, 6 (2003). Closing arguments involve inherently tactical decisions that must be tailored to the strategy of the defense based on events that transpired during trial. Id. Accordingly, deference to counsel’s strategic decisions during closing arguments is particularly important because of the wealth of legitimate strategies that can be employed, and those decisions will be second-guessed only if there is no plausible basis for the attorney’s actions. Id. Scott argues that his counsel wrongfully implied that he had abused children before when he said, “if you think that’s an isolated incident, you are wrong.” We do not agree with Scott’s interpretation of the record. When counsel made the complained of  Scott–19 comment, he was referring to his client being mesmerized by technology and sex, and the fact that many people are addicted to technology and sex. According to the defense, lots of people videotape sexual acts, including people in Paris17 and possibly even people the jurors know. In making this argument, the defense sought to further its probation argument by putting Scott’s addictions into perspective as “not that bad” compared to the rest of the community and by arguing that his addiction could be controlled if he was placed on probation. Because we do not agree with Scott’s interpretation of the record, and based on our own interpretation, we conclude that trial counsel was not deficient. 2. State’s First Closing Argument Next, Scott argues that his counsel was ineffective because he failed to object to numerous allegedly improper parts of the State’s final argument. According to him, the cited arguments were not supported by the facts, were not reasonable deductions from the evidence, and were outside the record. Appropriate jury argument generally falls within only four areas: (1) summation of the evidence; (2) reasonable deductions from the evidence; (3) answer to argument of opposing counsel; and (4) a plea for law enforcement. Freeman v. State, 340 S.W.3d 717, 727 (Tex. Crim. App. 2011). a. First Claim In the first excerpt, Scott complains that the State implied that he had abused other 17 Defense counsel told a story that his doctor was discovered to be a pedophile that recorded children engaging in sexual acts. The doctor, he explained, was popular in the community and was a Tom Selleck type.  Scott–20 boys and that his counsel was deficient for not objecting to that argument. The State argued that, He has moved from state to state to state to state to state. He also worked as a teacher. You heard him tell the boys that. That ought to scare the daylights out of you. How many victims, how long of a trail of victims, has he left? He had Beta tapes of himself having sex with other men, other males. And you saw what his preference is. Here, the State suggested that, because Scott moved around a lot and worked as a teacher, he may have victimized other male children. The record supports that Scott had moved around and had worked as a teacher for 40 years, so those arguments constitute a summation of the evidence. However, the State’s implication that Scott may have left a “trail of victims” when he moved from state to state was improper.18 Even though the State’s argument was improper, that does not inexorably lead to the conclusion that trial counsel was deficient for not objecting because counsel may have had a strategic reason for not doing so. Trial counsel does not specifically address his reasons for failing to object to this portion of the State’s argument, but the habeas court concluded that counsel may have 18 Dealing with a similar issue, we characterized the question as whether, [T]he prosecutor’s reference to the ‘victims of other crimes’ and ‘the ones who never come and tell you about it’ was an appeal to the jury to consider the impact of their verdict on sexually abused children in general, or whether, the prosecutor’s argument called on the jury to consider either the existence of other adolescent victims of the appellant or to assess the appellant further punishment because other children have been victimized. Borjan v. State, 787 S.W.2d 53, 57 (Tex. Crim. App. 1990).  Scott–21 made a strategic decision not to object because that would have drawn the jury’s attention to the argument. Because we do not know the reasons counsel did not object to the State’s argument, we will examine the remainder of the record to determine whether any reasonable trial strategy could justify counsel’s conduct. Andrews, 159 S.W.3d at 102. The record shows that trial counsel chose to respond to the State’s improper argument during his closing, instead of objecting to the State’s argument during its closing. Counsel told the jury that, even though the State was “portraying [Scott] as a predator and a child molester,” “that is not what is front of you today.” He also stated that “[t]here is no evidence here that he ever touched [the victims] and there is no evidence here that he’s ever molested any children.” Scott’s trial counsel choice to respond to the State during his closing argument, instead of objecting during the State’s initial closing argument, was a reasonable trial strategy. b. Second Claim Next, Scott complains that the State improperly argued that he did not call any punishment witnesses, [Q]uite frankly, what’s most telling of all about his character is who has come here to testify and tell you what a good person he is? If he was really a saint, where are those people? Where is a former principle [sic], where is a former neighbor, where is anybody to come and tell you something about him? They are not here. That speaks volumes as to this man’s character. That speaks volumes to the trail of victims that he’s left behind, and you know that to be true. Sometimes the State may permissibly argue that a defendant failed to call  Scott–22 punishment witnesses. In McKenzie v. State, 617 S.W.2d 211 (Tex. Crim. App. [Panel Op.] 1981), the prosecution suggested that the defense could have called a number of witnesses to testify on McKenzie’s behalf, like a minister to testify that McKenzie was still welcome at church, a college classmate that would tell the jury that McKenzie is still his friend, an employer who would say that McKenzie was welcome to return to his job, or a neighbor that would testify McKenzie would be welcomed back to the neighborhood. Id. at 218–20. We held that those arguments were improper because there was no evidence that such witnesses existed or were available to testify. Id. at 221. On the other hand, in Mosley v. State, 686 S.W.2d 180, 183 (Tex. Crim. App. 1985), the State observed that Mosley did not call any witnesses to rebut its argument that he had bad character, “not a mother, not [a] father, not [a] brother, not [a] sister . . . .” We did not find that argument to be improper because the State never speculated that such witnesses actually existed or about what they would have said had they been called to testify. In this case, the State first referred to Scott’s general character and the fact that the defense called no character witnesses. It then suggested that Scott could have called a principal from one of the many schools he taught at (Scott taught at a number of schools over a 40-year period) or a former neighbor to talk about his reputation before he was arrested on child-abuse charges. It is clear from the context of the State’s entire argument that the State was not referring to actual people, vis-à-vis, a specific principal or a specific neighbor or what such people would testify to. Rather, the inference the State urged the  Scott–23 jury to draw was that, even though Scott had been a long-time educator who worked at various schools and had lived in various places, he did not call a single witness at the punishment phase to testify about his good character. Id. We also note that, unlike in McKenzie, here the State did not speculate as to what specific character testimony any potential good-character witnesses would have given had one been called; whereas, in McKenzie, the prosecutor suggested that a minister could have testified that McKenzie was still welcome at church, a college classmate could have testified that McKenzie is still his friend, an employer could testify that McKenzie was welcome to return to his job, or a neighbor could testify that McKenzie would be welcomed back to the neighborhood. Based on all of this, we conclude that counsel was not deficient because the State’s argument was permissible. c. Third Claim Scott also argues that his attorney was ineffective in failing to object to the following portion of the State’s closing argument, Ask yourself this one question, why did he come to your county, why did he come to your community? The obvious answer is victims of opportunity. There was a time here where you could open your door Saturday morning and have your boy and girl go out and have fun, be back for dinner . . . . Thanks to Mr. Scott and others like him, we can’t do that . . . you always have to be on the lookout for the Mr. Scotts of the world . . . . [W]e live in fear for what he will do to our kids. Or do you want to take a stand and send not only him a message-make no mistake about it, he certainly appears to be an elderly gentlemen. He may not have long to live on this earth, but whether it’s two minutes or twenty years, he has been here too long . . . if someone had done something 30 or 40 years ago, we wouldn’t be here. But they didn’t.  Scott–24 Considered in its entirety, we conclude that this was a permissible plea for law enforcement. It was not improper for the State to ask the jury to send a message to Scott and the community that his type of behavior, and that of other child predators, is unconscionable and will not be tolerated. Also, even if the State’s argument was improper, we cannot say that counsel’s choice not to object was part of an unreasonable trial strategy. The State had made a similar argument earlier in its closing, and defense counsel responded to both arguments in his closing. Trial counsel’s choice to respond to the State during his closing argument, instead of objecting during the State’s initial closing argument, was a reasonable trial strategy. 3. State’s Final Closing Argument Scott also directs us to various excerpts from the State’s final closing argument that he argues his counsel should have objected to. We address each contention in turn. a. First Claim Scott first complains about the following argument made by the State during final summation, Let me make this clear. If this man gets probation today, he gets up and he walks out that door and he goes home and he lives in a house and he does whatever he wants to do, other than the 30 minutes or so that he has to report to a probation officer each week. Do you want that man back in our community offending teenage boys again? Or do you want to send him to Oklahoma to see his family to offend in Oklahoma or in Indiana? He came here because the other states didn’t do anything, possibly. And look what he did here. Probation is not the appropriate punishment in this case. The State’s argument that Scott was able to abuse the victims because “the other  Scott–25 states didn’t do anything, possibly,” was allegedly improper because it went outside of the record. The question is whether trial counsel was deficient when he failed to object to that allegedly improper argument. We conclude that he was not. The State made a similar argument during its initial closing, which the defense responded to. Objecting to the State’s argument again would have only drawn the jury’s attention to that argument. It also could have undercut the defense’s strategy of Scott accepting responsibility for his behavior and pleading for mercy from the jury. b. Second Claim Next, Scott contends that the State made an improper argument when it asserted that, He’s got this sexual addiction but we haven’t heard proof of that. The man is a pedophile. He preys on young kids and takes advantage of them. He wants to blame it on the [I]nternet. I don’t believe the [I]nternet was around when Beta tapes[19] were invented, so we are not going to blame it on the [I]nternet. Scott complains that the State’s argument referring to him as a pedophile was outside of the record and not a fair deduction from the evidence. The habeas court disagreed, concluding that counsel’s failure to object was reasonable because Scott could have properly been characterized as a pedophile. We agree with the habeas court and adopt its conclusion. It is a fair deduction from the evidence that Scott is a pedophile. He pled guilty to multiple counts of possession of child pornography, which was properly 19 Betamax tapes are a type of video cassette that were developed by Sony and were released in 1975.  Scott–26 before the jury, and the jury convicted him of three counts of inducing a sexual performance by a child and promoting a sexual performance by a child.20 The State also presented evidence that Scott engaged in a pattern of grooming his victims and surreptitiously recording them masturbating and that he was in possession of a substantial amount of child pornography. Based on this, the State asked the jury to draw a reasonable deduction from the evidence that Scott is sexually attracted to children. c. Third Claim Next, Scott argues that the following closing argument made by the State was improper, How long has he been taking photographs of young kids? How long has he moved from state to state to state to lure in and throw out that net for 14 and 15 year old boys? It’s not an [I]nternet addiction, ladies and gentlemen. The evidence shows that Scott was a teacher who had lived in various places. It also showed that he had photographs in a shoe box of young children and that he lured in the young victims in this case by grooming them. From the context of the State’s argument, it appears that it was asking the jury to infer that Scott may have tried to groom other children. Even if it did, that argument was not a reasonable deduction from the evidence, and it went outside of the record because there is no evidence to support that proposition. However, we do not believe that counsel was deficient. As we have noted, 20 Scott argues that the pedophile comment was improper because pedophilia is a psychiatric disorder and that the evidence does not support such a diagnosis. However, the State was not portraying Scott as a person diagnosed with pedophilia; rather, it was arguing that Scott was sexually attracted to children based on the evidence.  Scott–27 the defense had already responded to a similar argument and repeatedly objecting to the State’s argument would have served only to draw the jury’s attention to argument. d. Fourth, Fifth, and Sixth Claims Scott’s next claims stem from the following excerpt, [PROSECUTOR]: What was Mr. Scott’s intent? Do you think it was just to get these boys in there and photograph them and do nothing else? That’s so far from the truth. As soon as he moved here, he threw out the bait, threw out the net; by the way, the teenage boys is what I need. And he got them. [Defense counsel] told you in opening statement that this was a sick old man, been going on five years. He didn’t mean that he was physically sick. He meant that he was a pervert and has been a pervert all of his life. That’s what he is. That’s what he is. I hate to be that -- use those kinds of descriptions, but that’s the fact of the matter. Now, think about what would have happened if this had continued on. There is no question that these boys would have been sexually assaulted. [DEFENSE]: Your Honor, I’m going to object. That misstates the evidence and it’s beyond the scope of the evidence. [COURT]: I think it’s a fair assumption based on the record. The objection is overruled. [PROSECUTOR]: Look at the photographs, [not] just the five that were introduced. Look what he has. Look at the thousands and consider the thousands and thousands of images. Look at the videotapes that he’s kept for himself having sex with a male for 25, 30 years. What do you think is going to happen? Look at the fact that he was in San Antonio not too long ago, hires a male prostitute to come see him, videotapes that action and then discusses [I]nternet pornography sites, child pornography sit[es] with this prostitute. What does that tell you? Now, I think we need to be thankful that none of that got that far, but what he’s facing here now is just as serious. How do we know that the tapes that he made aren’t out there? He had the capabilities in his bedroom to take one and record it. How do we know that he didn’t sell that to this sea of people that exists? Think about that.  Scott–28 i. Fourth Claim First, Scott argues that the prosecutor’s argument speculating as to his intent and whether his deviant behavior would continue to escalate was outside of the record. However, even if that argument was outside of the record, defense counsel objected to it. And, although counsel could have also asked for a curative instruction or requested a mistrial, such actions would have been futile given that the judge overruled his objection. ii. Fifth Claim Next, Scott claims that the State crossed the line when it told the jury to consider, not only the five photographs admitted into evidence, but also the “thousands and thousands of images” police seized. We disagree. The argument was a proper summation of the evidence. Five images were admitted into evidence, and it was agreed that those five images were just a representative sample of all of the images seized from Scott.21 Even though only a few pictures were admitted into evidence, the jury was allowed to consider all of the admitted evidence, including the testimony of Rhodes, who said that police seized several CDs, DVDs, and 400 floppy disks containing pornography. He also 21 The State said as much in its closing arguments, Good morning. First of all, I want to talk about the evidence that we have introduced. We brought to you what we felt was sufficient for you to have a good idea what it is. I apologize if you felt like we should have brought you every DVD and showed you the thousands of images, but I didn’t want to do that. After watching those movies yesterday, I didn’t think you did either. I think you have an idea after listening to testimony as to what was in that material, and after looking at those five photographs as being representative as to what the defendant had on his computer.  Scott–29 testified that police found thousands of pornographic images on Scott’s computer and a shoe box filled with pictures of boys swimming in a pool at what looked like a party. Defense counsel was not deficient in failing to object to proper argument by the State. iii. Sixth Claim Finally, Scott argues that the State’s suggestion that he may have released or sold the pictures or videos in his possession over the Internet was improper.22 We agree that the argument was outside of the record. Although there was evidence that Scott downloaded many of the images that were seized and that he frequented child pornography websites, there was no evidence that he bought or sold child pornography. The question then is whether defense counsel’s failure to object was a reasonable choice under the totality of the circumstances as they existed at trial. Because the record is devoid of any reasons for counsel’s failure to object, we review it to determine whether counsel’s conduct was so outrageous that no competent attorney would have engaged in it. Andrews, 159 S.W.3d at 102–03. Here, it is conceivable that counsel made a reasonable strategic decision not to object to the State’s argument. The strategy was to implore the jury to be merciful and place Scott on probation. Counsel could have reasonably believed that such objections would undercut the defense’s plea for leniency. Counsel’s failure to object was not so outrageous that no 22 The habeas court found that the State never suggested that Scott sold the videotapes of the boys showering over the Internet, but that finding is not supported by the record, and we do not adopt it.  Scott–30 competent attorney would have engaged in it.23 D. Improper Comment In Scott’s final claim, he argues that his counsel was deficient when he failed to object to the trial judge’s comment that it was “a fair assumption based on the record” that Scott would have eventually sexually assaulted the boys. He also asserts that counsel was deficient because he did not request a mistrial. The habeas court concluded that defense counsel may have made a strategic choice not to object because doing so would only draw the jury’s attention to the judge’s comment. “The trial judge shall maintain an attitude of impartiality throughout the trial.” Lagrone v. State, 209 S.W. 411, 415 (1919). The Texas Code of Criminal Procedure states that the judge shall not, “at any stage of the proceeding previous to the return of the verdict, make any remark calculated to convey to the jury his opinion of the case.” T EX. C ODE C RIM. P ROC. art. 38.05. When a trial judge does make a comment on the weight of the evidence, it constitutes reversible error only if the comment was “reasonably calculated to prejudice the defendant’s rights.” Sharpe v. State, 648 S.W.2d 705, 706 (Tex. Crim. App. 1983). Scott argues that the judge’s statement was a comment on the weight of the evidence because it showed the judge’s belief that, based on the evidence, 23 In his supplemental affidavit, defense counsel said that, During the trial, I regularly watched the jurors to gauge their emotions and reactions. It was obvious to me that hearing the teenage boys testify, watching the videos admitted into evidence of them masturbating in a curtainless shower and watching Mr. Scott simulate masturbation was repulsive to each and every juror.  Scott–31 Scott would have eventually sexually assaulted the boys. He also asserts that the comment was reasonably calculated to injure his rights because the judge’s comment bolstered the State’s argument that Scott was not deserving of a lesser sentence. According to him, this is especially evident in light of the fact that the jury assessed the maximum punishment and the judge stacked his sentences. It is a close call whether the judge made an improper comment on the weight of the evidence because the meaning of the comment is not clear. On the one hand, the judge’s response could have meant that the State’s argument was proper because it was a reasonable deduction from the evidence, which is a proper area of closing argument. On the other hand, the judge’s comment could be read to mean that he was approving of the State’s view of the evidence, which would be an improper comment. In his affidavits, trial counsel does not specifically address his reasons for not objecting, but even if we assume that the judge’s comment was improper, trial counsel was not deficient. Directly preceding the judge’s comment, the defense had just objected to the State’s argument. Counsel may have believed that it was unlikely that the judge, who had just overruled counsel’s objection, would have sustained a defense objection that he commented on the weight of the evidence. Counsel also may have believed that it was best not to draw the jury’s attention to the judge’s comment or to the State’s improper argument. At any rate, we cannot say that counsel’s conduct was so outrageous that no competent attorney would have engaged in it.  Scott–32 E. Prejudice The habeas court concluded that Scott was not prejudiced because the evidence of guilt was overwhelming. We need not address the issue, however, having already concluded that trial counsel performed effectively. IV. CONCLUSION Because Scott has not proven that he received ineffective assistance of counsel at the punishment phase of his trial, we deny relief. Delivered: October 18, 2017 Publish 

250 F.2d 569 NEW PROCESS GEAR CORPORATION, Plaintiff-Appellee,v.The NEW YORK CENTRAL RAILROAD COMPANY, Defendant-Appellant. No. 41. Docket 24532. United States Court of Appeals Second Circuit. Argued October 9 and 10, 1957. Decided November 8, 1957. Rehearing Denied January 15, 1958. Harry Teichner, Brooklyn, N. Y., for plaintiff-appellee. Gerald E. Dwyer, New York City (J. Edgar McDonald, New York City, on the brief), for defendant-appellant. Before CLARK, Chief Judge, and LUMBARD and MOORE, Circuit Judges. MOORE, Circuit Judge. 1 This is an appeal by the defendant, The New York Central Railroad Company (referred to as the "Railroad") from a final judgment of $11,502.42 in favor of the plaintiff, the New Process Gear Corporation (referred to as "New Process") in an action to enforce an order of the Interstate Commerce Commission (referred to as the "Commission") awarding reparation to New Process in the sum of $6,550.81 for alleged overpayments on freight shipments made by New Process over the Railroad's lines from Syracuse, N. Y., to Detroit, Mich., during the period April 9, 1944 to August 21, 1947 plus interest, counsel fees and costs. 2 On June 8, 1950 New Process filed a complaint with the Commission which assailed the freight rates charged on carload shipments of automobile driving gear parts as unjust and unreasonable in violation of Sections 1 and 4 of the Interstate Commerce Act (49 U.S.C.A. § 1(5) and § 4). 3 The proceeding was heard by a Commission examiner who recommended that the Commission "should find that the rates charged have not been shown to have been unreasonable" and that the complaint should be dismissed. Exceptions were filed by New Process to the examiner's report and the matter was thereafter heard by Division 3 of the Commission. This Division rejected the report of the examiner and found that the rates charged on certain of the shipments were unreasonable and that New Process was entitled to reparation "in the amount of the difference between the charges paid and those which would have accrued on the basis herein found reasonable, with interest." 4 Thereafter the Railroad filed a petition for reconsideration, pointing out the alleged errors of the report of Division 3, which petition was denied by order of the Commission, dated May 17, 1954. Subsequently the Railroad sought leave to file a further petition for reopening and reconsideration, which leave was also denied by the Commission on February 7, 1955. 5 To enforce the Commission's order awarding reparation, New Process brought this action in the district court for the Southern District of New York (49 U.S.C.A. § 16(2)). 6 The complaint that the freight rates charged were unreasonable is based upon the fact that during the period of the shipments in question there existed a Commodity rate between Syracuse, N. Y., and Detroit, Mich., for the gear parts shipped by New Process of 37¢ per 100 pounds for a minimum weight of 30,000 pounds and a Class rate of 42¢ per 100 pounds subject to a minimum weight of 24,000 pounds. Both Commodity and Class rates were subsequently increased but these increases only affect the mathematics of the reparation calculations and not the principle involved. 7 Taking the two rates in effect between April 9, 1944 and June 30, 1946 when the Commodity and Class rates were 37¢ and 42¢ respectively, the Railroad, using the Commodity rate, would have received $111 per car for a minimum weight of 30,000 pounds and 37¢ per 100 pounds for all weights above this minimum. Likewise, based upon a Class rate calculation of 42¢ per 100 pounds, the Railroad would have received $100.80 had 24,000 pounds been loaded at the 42¢ rate. A shipment of approximately 26,430 pounds at the 42¢ rate would have equaled the $111 amount at the 37¢ Commodity rate on the 30,000-pound minimum basis. Therefore, the only area in which New Process could have benefited by the application of the 42¢ Class rate would have been on shipments under 26,430 pounds. 2,355 shipments were made during the reparation period. 1,717 were over 26,430 pounds and, therefore, subject to the Commodity rate. The judgment is based upon the difference between the amount payable on the other 638 shipments at the 42¢ Class rate (whenever the amount would have been less than the 37¢ Commodity rate applied to the 30,000-pound minimum) and the amount actually charged based on the Commodity rate. 8 Division 3 of the Commission in its opinion justified its conclusion of unreasonableness by saying "A class rate based on the rating of a commodity in the governing classification is ordinarily the highest rate that may be deemed reasonable for that commodity. E. I. DuPont de Nemours & Co. v. Chicago, N. S. & M. R. Co., 258 I.C.C. 789, 794. A carload minimum weight must be considered as a part of a carload rate, and where the minimum weight in connection with a commodity rate results in higher charges than under a class rate with a lower minimum, there is a presumption of unreasonableness requiring special justification. Butte Fruit & Produce Co. v. Northern Pac. Ry. Co., 178 I.C.C. 370; Butler Bros. v. Ann Arbor R. Co., 253 I.C.C. 437." 9 The Railroad had argued that it had agreed to the 37¢, 30,000-pound minimum rate to meet motor truck competition threatened by New Process. However, Division 3 dismissed this argument peremptorily by saying "Prior agreement, however, is not determinative of the just, reasonable, and non-discriminatory character of a rate. See Ladd & Co. v. Gould Southwestern Ry. Co., 36 I.C.C. 179, 181." 10 The effect of the Commission's decision is to give the shipper, New Process, alternate rates despite the fact that in certain of its decisions it had said that the establishment of alternative bases was not generally desirable, although recognizing their reasonableness in special instances. The district court gave this effect to the Commission's decision, saying "What the Commission effectually did in this case was impose an alternate rate, something it had often protested it did not require as part of a fair rate basis. American Popcorn Company v. Atchison, T. & S. F. Ry. Co., 182 I.C.C. 230; Vacuum Cleaner Mfrs. Ass'n v. Atchison, T. & S. F. Ry. Co., 276 I.C.C. 783, 792." 11 The Railroad concedes, as it must (49 U.S.C.A. § 16(2) ), that the findings and order of the Commission shall be prima facie evidence of the facts therein stated, namely, that the rates charged were excessive and unlawful and that the Commission has primary jurisdiction over the question of reasonableness of rates. Its real dissatisfaction with the Commission's decision stems from the rejection of the Railroad's assertion that "The publication of a commodity rate automatically removes the application of a class rate, unless the tariff publishing the commodity rate specifically provides for its alternation with the class rate basis." 12 The fixing of rates and the determination of what rates are applicable are primarily functions of the Commission. Unless this Court is prepared to rule that the Commission has no power under any circumstances to recognize alternative rates in determining whether the rates charged are unreasonable, the conclusion of the Commission should be accepted (Glens Falls Portland C. Co. v. Delaware & Hudson Co., 2 Cir., 66 F.2d 490, certiorari denied 290 U.S. 697, 54 S.Ct. 132, 78 L.Ed. 599). The province of the appellate court was well defined in Virginian Ry. Co. v. United States, 272 U.S. 658, 663, 47 S.Ct. 222, 224, 71 L.Ed. 463, as follows: "To consider the weight of the evidence before the Commission, the soundness of the reasoning by which its conclusions were reached, or whether the findings are consistent with those made by it in other cases, is beyond our province." Nor can this Court say as to the Commission's conclusion "that its finding is unsupported by evidence or without rational basis, or rests on an erroneous construction of the statute," Barringer & Co. v. United States, 319 U.S. 1, 6-7, 63 S.Ct. 967, 971, 87 L.Ed. 1171. 13 The Railroad cannot complain too seriously as a matter of equity. Two rates were published, one a Class rate and the other a Commodity rate. It accepted shipments at the lower Commodity rate for 30,000 pounds and up to avoid possible loss of its traffic to motor carriers. Its Class rate was available for shipments of 24,000 pounds and up. There was nothing in the record to indicate that New Process agreed not to ship any consignments of less than 30,000 pounds or not to take advantage of the published rate for the 24,000-pound minimum. Nor is the Railroad's argument helped by its mathematical speculations as to the savings to New Process had all the shipments been made at the Class rate because the shipper never agreed to use the Railroad's services at such a rate. 14 Upon appeal the Railroad, as appellant, asserts that there was no evidence before the Commission to sustain each of its findings and that it was entitled to a trial de novo before the district court. It also alleges error in the exclusion of evidence offered in the district court which had not been before the Commission. 15 The scope of review by the district court was whether there was substantial evidence supporting the findings of fact made by the Commission and whether the conclusions of the Commission were in accordance with the standards set by Congress (United States v. I. C. C., 337 U.S. 426, 69 S.Ct. 1410, 93 L.Ed. 1451; Mitchell Coal & Coke Co. v. Pennsylvania R. R. Co., 230 U.S. 247, 33 S.Ct. 916, 57 L.Ed. 1472; Glens Falls Portland C. Co. v. Delaware & Hudson Co., 2 Cir., 66 F.2d 490, certiorari denied 290 U.S. 697, 54 S.Ct. 132). 16 There was substantial evidence before the Commission upon which its conclusion as to unreasonableness was solidly based. Nor was the action of the district court in striking the evidence offered by the Railroad prejudicial to it because damages on the Commission's theory could not have been computed on the over-all average theory advanced by the Railroad. The Commission specifically limited the range of overcharge. Hypothetical Class rate charges on the 1,717 shipments could not have served as an offset to the reparation awarded. 17 The long-and-short haul provision of Section 4 and the reverse direction shipment presumption are not sufficiently material to be considered in any way determinative by the Commission or by the district court in reaching their conclusions. The possible inconsistency of the Commission in reaching different results in different cases is no basis for holding that the Commission must adopt one policy or the other. 18 The judgment below is affirmed with an attorney's fee in favor of the appellee in the sum of $1,000 as stipulated by the parties to be taxed as part of the costs upon this appeal in the event appellee prevailed. On Petition for Rehearing 19 MOORE, Circuit Judge. 20 Defendant-appellant has petitioned for rehearing because it believe that this Court in its opinion, filed on November 8, 1957, failed to understand the applicable rate and tariff situation and that this Court assumed that a commodity rate applied to shipments of 30,000 pounds and up and a class rate applied to shipments of lesser weights. The problem before this Court was whether the district court was correct in sustaining the Commission's findings and granting judgment for reparations. The Commission had found that "the charges assailed were unreasonable to the extent that they exceeded those which would have accrued at the corresponding class-40 rates subject to the minimum of 24,000 pounds." In its petitions for modification and further hearing before the Commission appellant raised the same points now urged, namely, that the rate on the 638 carload shipments "must, in the absence of a finding of a dual or multiple basis of reasonable rates, be found equally reasonable with respect to the 1,710 other carload shipments"; that there was only one rate legally applicable, the commodity rate; and that there was no provision for the alternative application of class and commodity rates. 21 In deciding whether the rates charged on the 638 carloads were unreasonable the Commission applied as a measure for reparation the amounts which would have been payable if the class rate were in effect in contrast to the amounts payable on the commodity rate basis. This Court did not assume, as appellant states in its petition, that one rate (i. e., the commodity rate) applied to shipments of 30,000 pounds and up and another rate (i. e., the class rate) to 24,000 pounds and up. Nor did this Court decide that two rates, commodity and class, were available to New Process. The Commission, however, did find in fact that the rates were unreasonably high as to 638 carloads. As the district court pointed out, the Commission's "decision appears to be something of an innovation; it condemned a commodity rate only as it applies to low weight shipments and not its overall application." Its condemnation was merely incidental to its finding of unreasonableness which rested upon a belief that the commodity rate when applied to low weight shipments resulted in an unreasonably high per pound figure. Since such a holding was within the power and discretion of the Commission, its decision as to rates should not be disturbed unless unsupported by evidence. 22 The petition for a rehearing is denied.

304 F.2d 883 UNITED STATES of America, Appellee,v.William BENTVENA, Carlie Dipietro, Carmine Galante, AngeloLoicano, Anthony Mirra, Samuel Monastersky, John Ormento,Carmine Panico, Salvatore Panico, Salvatore Sciremammano,and William Struzzieri, Appellants. No. 400, Docket 27667. United States Court of Appeals Second Circuit. Argued July 17, 1962.Decided July 20, 1962. Albert J. Krieger, New York City, for appellants William Bentvena, Carlie Di-Pietro, Carmine Galante, Angelo Loicano, Samuel Monastersky, John Ormento, Salvatore, Sciremammano, and William Struzzieri. William R. Luney, Sullivan & Cromwell, New York City, for appellant Anthony Mirra. Jerome Lewis, New York City, for appellant Salvatore Panico. Robert M. Morgenthau, U.S. Atty., for Southern Dist. of New York (Jonathan L. Rosner, Sheldon H. Elsen, Arnold N. Enker, Asst. U.S. Atty., of counsel), for appellee. Before MOORE, FRIENDLY and SMITH, Circuit Judges. PER CURIAM. 1 In view of the early expiration of some of the sentences, we at this time dismiss the appeals of Bentvena, DiPietro, Loicano, Monastersky and Sciremammano as moot on the authority of United States v. Galante, 298 F.2d 72 (2 Cir.1962), and affirm the contempt convictions of Struzzieri, Galante, Mirra, Ormento and Carmine Panico. Decision with respect to the contempt conviction of Salvatore Panico is reserved for subsequent disposition.

438 P.2d 468 (1967) Jack BRADLEY, Plaintiff in Error, v. Paul McCABE, Estes Fern McCabe and Irl Alston, Defendants in Error. No. 41905. Supreme Court of Oklahoma. July 18, 1967. Rehearing Denied September 26, 1967. Wayne Russell, Wilburton, B.S. Null, Hartshorne, Hugh Sandlin, Holdenville, Willard M. Gotcher, McAlester, for plaintiff in error. Loren McCurtain, McAlester, Roy B. Powell, Wilburton, for defendants in error. *469 BLACKBIRD, Justice. The action involved in this appeal arose out of a controversy between the defendants in error, Paul and Fern McCabe, as the owners of a parcel of rural real estate, containing more than 270 acres, with a 6-room house on it, and plaintiff in error, as lessee of said property. Plaintiff in error, hereinafter referred to as "Plaintiff", leased the property in October, 1962, from its then owner, one Kenneth E. Smith, under a written "LEASE CONTRACT", for a term of five years ending October 31, 1967, for an annual cash rental, payable one year in advance, in *470 the sum of $1200.00 said advance rental being due on November 1st of each of said years. After plaintiff had paid the rent for the year November, 1962 to November, 1963, Smith sold the property to Paul and Fern McCabe, in January, 1963. Thereafter, and after plaintiff had paid the rent for the year November, 1963 to November, 1964, the above mentioned house on the land was destroyed by fire in March, 1964; and plaintiff did not pay any of the lease's next annual rental due on November 1st of that year. Thereafter, in April, 1965, the McCabes brought suit in the Justice of the Peace Court of one Irl Alston, Justice of the Peace in Latimore County's "Red Oak Township", to recover possession of the property. That suit was still pending when, in the latter part of the same month, plaintiff commenced the present district court action against both the McCabes and the Justice of the Peace hereinafter collectively referred to as "defendants". In his petition herein, plaintiff alleged most of the above facts, and, among other things, referred to certain of the lease's provisions (a copy of the lease was attached to the petition) which were incorporated in its paragraph "IV", in the following words: "Lessors agree that they will pay taxes and insurance upon the property as the same become due and payable at no cost to the Lessee, and that the Lessee shall have the right to quiet enjoyment of the premises, free from interruption or interference by third parties during the term of this lease contract." In his petition, plaintiff complained that, despite the McCabes' obligation under the lease to insure the premises free of cost to him, they had failed and refused to rebuild the above mentioned house on the property. Plaintiff further alleged that the house's value was $8,000.00, and its rental value was at least $60.00 per month; that on October 29, 1964, (after the house burned and before the November 1st rental-paying date that year) plaintiff notified defendant, in writing, that he was entitled to "an adjustment and proration" of the rent "by reason of the burning of said house, and further notifying said defendant that he was ready and willing to pay said rent on said adjusted and prorated basis, but that said defendant has failed and refused to accept the same; * * *". In another part of his petition, plaintiff alleged that a reasonable rent for the property (without the house) "would be $480.00 per year and the plaintiff is entitled to have the rent provided in the lease abated and prorated * * *" to that sum — which the petition recited plaintiff was tendering. Plaintiff's petition further alleged that since he went into possession of the property, he had improved it as follows: Repairs to the house $700.00; repairs to fences $300.00; cleaning well and building well house at a cost of $700.00; rebuilding a low-water bridge at a cost of approximately $100.00; and that he has further improved the premises by cutting brush and other clearing at a total cost of $300.00. Another portion of plaintiff's petition is as follows: "* * * Plaintiff further represents that he is entitled to a credit on any rents found due by the court in the sum of $1200.00 being the amount * * * (he) * * * had expended on said house destroyed by fire and for which * * * defendant recovered in insurance * * * plaintiff having lost the use or rental value of said house * * * for a period of eight months in the sum of $480.00, * * * plaintiff having at the time said house was burned paid the rent in advance in the sum of $1200.00." With reference to the McCabes' aforementioned forcible entry and detainer action pending against him in the court of the defendant justice of the peace, plaintiff's petition alleged that it was commenced without "the statutory 10 days notice in writing to pay rental or vacate * * *" and that Justice of the Peace Alston, and *471 his Court, is without jurisdiction therein, but, despite this, defendants "are now attempting by the use of judicial force to proceed in said cause * * *". Plaintiff's verified petition further alleged: "That plaintiff verily believes that unless a temporary restraining order is issued herein restraining and enjoining the said defendants from proceeding in said forceable entry and detainer case as alleged herein that the said defendants will, by judicial force, proceed in said cause to * * * (plaintiff's) * * * irreparable injury and damage * * *; that said Justice Court is without authority to hear or determine the equities existing between the parties to said contract and is without jurisdiction to proceed therein * * *; that plaintiff has no plain, complete and adequate remedy at law and an order further restraining the said defendants and each of them from interfering with the peaceable possession of said plaintiff and said described property. "WHEREFORE PLAINTIFF PRAYS judgment and decree of this court abating and prorating the rents due on said contract and that a reasonable rent therefore be fixed by the court and that the plaintiff be credited on said rent for all sums advanced and that the said defendants be restrained and enjoined from interfering with the plaintiff in the peaceable possession of said described property and restrained and enjoined from proceeding in said forceable entry and detainer cause pending in said Justice Court and for all other proper and equitable relief to which plaintiff may be entitled herein * * *". In June, the second month after the filing of the above described petition, the court issued a temporary restraining order against the defendants, upon plaintiff's written motion therefor, and the next month, July, 1965, vacated it upon defendants' motion. After defendants had filed an answer to plaintiff's petition, and plaintiff had filed a reply later that summer, the cause came on for trial in October, 1965. When the parties, and their counsel, had appeared and announced "ready to proceed", and the witnesses had been sworn, an oral demurrer to plaintiff's petition was interposed by defendants, on the grounds that plaintiff had made "no actual tender or deposit of the rental for the current lease period", and that plaintiff was not entitled to the relief he sought in his petition. Without any apparent objection to this manner of proceeding, by either counsel, the court heard their arguments on the demurrer, during which plaintiff requested leave to amend his petition to show that he tendered "an amount the court might find due, or we ask permission to amend the petition to say `the plaintiff now tenders and pays into court the sum of $1200.00, the rental due', and we are ready to pay it here and now." After further argument, the court sustained defendants' said demurrer and denied plaintiff's request to amend his petition, on the ground it came too late. After the overruling of his motion for a new trial, plaintiff lodged the present appeal. Plaintiff presents his arguments for reversal under eleven propositions. Under both the 7th and 11th of these, he takes the position that his petition alleged that, after the aforementioned house on the acreage burned, the McCabes collected the proceeds of a fire insurance policy on it in a sum equivalent to its alleged value of $8,000.00; that, under the terms of the lease, they were obligated to use this money to rebuild the house; that, when they failed and refused to do so, they breached the lease contract, and, having done so before plaintiff was ever in default of any payment of rent under the contract, they are in no position to terminate the lease on account of plaintiff's claimed breach of it. The McCabes deny that they had any duty to rebuild any improvements, or structures, on the land, and say that the lease contract contained no provision imposing *472 any such duty, or obligation, on its lessor. They further say that the lease "is essentially a grazing lease", and, as proof thereof, refer to its paragraph "III" which reads as follows: "Lessee specifically covenants and agrees that he shall in no event, lease, pasture and maintain, keep in excess of 100 head of cattle, or other animals total on this property during the term of this lease." Said defendants' position must be upheld. If there is any basis for plaintiff's position that it was the McCabes' duty to rebuild the house, it must be found in our statutes, or in the lease itself. In this connection, see Alfe v. New York Life Ins. Co., 180 Okl. 87, 67 P.2d 947. At common law, a landlord had no such duty to his tenant; and plaintiff does not claim that Tit. 41 O.S. 1961, § 31 is applicable to this case. As said in Harvey v. Weisbaum, 159 Cal. 265, 113 P. 656, 657: "The common-law rule, applicable where land is the subject of the lease, is that, where there is a covenant on the part of the lessee to pay rent for the term, and the buildings are destroyed by fire, the tenant is not relieved from the payment of rent, unless he has protected himself by a covenant in the lease. This rule was based, as stated by the common-law writers, upon the reason that, as the destruction is usually by means of an accident, for which neither lessor nor lessee is responsible, it is but equitable to divide the loss; and as the lessor must lose the property the lessee should lose the term; and upon the further reason that exemption from loss would tend to make the tenant less careful, as in many cases he would be benefited by the destruction of the premises, if the result would be to free him from the lease * * *." In this connection, notice Barker v. Findley, 136 Okl. 55, 275 P. 1054, 1055. With reference to a landlord's duty to keep leased premises in repair, see Gordon v. Reinheimer, 167 Okl. 343, 29 P.2d 596, syll. 1. The lease in the present case contains no specific mention of the house on the land, whose legal description is written into it; and contains no provision of any kind for the lessor to keep the premises in repair or good order. (The lease's only provision for maintenance of any kind names the "lessee" as the obligor.) In the early case of Hanley v. Banks, 6 Okl. 79, 51 P. 664, it was said: "Where a lease contains no stipulation or covenant on the subject, no obligation on the part of the landlord to repair is implied, nor any warranty that the premises are or will continue to be suitable for the lessee's use or business, * * *". We think a fair analysis of the present lease's wording can only lead to the conclusion that "* * * the house was only an incidental part of the transaction * * *" as was said to be the case in Vale v. Trader, 5 Kan. App. 307, 48 P. 458, in which the court further said, concerning the house: "It is impossible to say how much, if anything, it added to the rental value of the land * * *". Notice the comment on this case in the annotation at 28 A.L.R. 1535, at p. 1543. As to relieving a lessee from a part, or all, of a rental payment, where the lessor has covenanted to repair the leased premises, see 38 A.L.R.2d 690, 691. In 32 Am.Jur., "Landlord and Tenant", § 657 (p. 523) it is said: "* * * The common law has always thrown the burden of repairs upon the tenant, although he may not be obligated to make them unless he covenants to do so. If the tenant repairs the demised premises to make them habitable, he must do so at his own cost. He takes the premises for better or for worse, and cannot involve his landlord in expense for repairs without his consent. So unvarying is this doctrine that even a court of equity will not compel the landlord to expend, in making repairs, the money received by him upon fire insurance policies after the destruction of the demised premises, unless he has *473 expressly agreed so to apply the proceeds. * * *." (Emphasis added.) Since this subject lease of rural property contained no provision for the lessor to make any repairs, it specifically contemplated only the use of land for business purposes, i.e., grazing livestock, and it is not claimed that it is in the same category as a lease "* * * of a building intended for the occupation of human beings * *." covered by Tit. 41, § 31, supra, we think the principles of the common law above referred to must apply to it. Consequently, the McCabes' failure, or refusal, to rebuild the house on the leased land — with insurance money plaintiff's petition may, or may not, infer they collected — or with funds from any other source, did not constitute a breach of the lease contract. And in view of these principles, we cannot expand this lease's provisions to include any such obligation upon the landlord, or parties, referred to as the "Lessor" therein, notwithstanding plaintiff's position that paragraph "IV" (supra) thereof implies such an obligation. For the foregoing reasons, the cases cited by plaintiff, including Hooper v. Commercial Lumber Co., (Okl.) 341 P.2d 596, and McInteer v. Gillespie, 31 Okl. 644, 122 P. 184, do not apply. Nor do we think that the broad expressions used in Hanley v. Banks, 6 Okl. 79, 51 P. 644 with reference to covenants of quiet enjoyment apply to such an obligation. Nothing plaintiff's brief quotes from the case of Penny v. Fellner, 6 Okl. 386, 50 P. 123, is applicable to this case. In his "PROPOSITION NO. 3", plaintiff asserts that a demand for payment must be made before a forfeiture can operate in Oklahoma. This obviously refers back to the allegations of his petition to the effect that the Red Oak Justice of the Peace Court had no jurisdiction in the forcible entry and detainer action the McCabes filed there against him, because they had not given him ten days notice to pay the $1200.00 rental, or to vacate the property. Irrespective of whether the McCabes did, or did not, give such notice before commencing that action, and whether, or not, such failure would be a bar to said court's exercising jurisdiction, or would be a defense to plaintiff, we think such failure, if it occurred, furnished plaintiff no basis for invoking the extraordinary powers of a court of equitable cognizance in the present action, especially in view of his petition's allegations of facts indicating his disavowal to the McCabes, after the house burned, of any obligation to pay as much rent as the $1200.00 prescribed in the lease. Whether such facts, if proven in the forcible entry and detainer action, rendered useless, or unnecessary, any demand by the McCabes for plaintiff's payment of that prescribed rental, and a notice by them to him to quit (in this connection notice the discussion in Asher v. Hull, 207 Okl. 478, 250 P.2d 866, 871-872) as a prerequisite to their commencement of said action, can be determined in that action. Therefore, if plaintiff's position on that matter is correct, he has an adequate remedy at law; and his petition in this action of equitable cognizance fails to indicate the contrary. The record in this case fails to show specifically whether, or not, in sustaining defendants' demurrer to plaintiff's petition, the trial judge considered any such forcible entry and detainer action, as plaintiff represents he did, in his "PROPOSITION NO. 2", but, as plaintiff set forth in said petition allegations concerning said action, he is in no position to complain if they received the judge's attention; in other words, if the trial court erred in (consciously or unconsciously) noting those allegations, plaintiff invited such error; and he cannot complain of it in this appeal. Under his "PROPOSITION NO. 6", plaintiff argues in substance, that, in sustaining defendants' demurrer to his petition, the trial court committed error for the further reason that the plaintiff showed he had expended a total of $1500.00 in making repairs and improvements on the leased premises, and, under Tit. 15 O.S. 1961, § 235, as reflected in Great American *474 Reserve Ins. Co. of Dallas v. Strain, Okl., 377 P.2d 583 (and cases therein cited) defendants could not repudiate the lease, and also succeed to, acquire, or retain, such benefits. As pointed out by defendants, there is no agreement in the subject lease as to repairs or improvements on the leased premises, except the lessee's agreement set forth in said instrument's paragraph "II". In view of what we have hereinbefore said on this subject, and the authorities we have cited with reference to the applicability of the common law rule (32 Am.Jur., § 657, supra) we must hold (consistent with defendants' argument) that plaintiff was not entitled to recoupment of any such expenses, and, by the same token, any benefits defendants might receive therefrom, in the event they recover possession of the property, need not be regarded as a factor in the enforcement of their right to terminate the lease on account of plaintiff's default in rental payment. Under his "PROPOSITION No. 4" plaintiff refers to the well-settled principle that time is not of the essence in performing a contract, unless clearly shown, by its provisions, to have been the intention of the parties thereto; and he calls attention to the fact that the subject lease contract contains no provision for forfeiture. Plaintiff's presentation fails to demonstrate what relation such matters may have to the court's ruling he complains of, or that they support his claim of error therein. It therefore requires no further consideration, under the well-settled rule followed in Irwin v. Irwin, Okl., 416 P.2d 853 (4th syll.) and other cases. In plaintiff's "PROPOSITION NO. 8", he complains that the trial court's ruling deprives him of his constitutional rights. He advances no argument in support of this proposition, and merely cites Art. 2, §§ 6 and 7 of the Oklahoma Constitution. This presentation is also inadequate under Irwin v. Irwin, supra. Plaintiff's propositions numbered "9" and "10" deal with the matter of his proffered tender, in the trial court, of the $1200.00 rental the lease prescribed for his payment on November 1, 1964. As, in view of the proper interpretation of the subject contract, hereinbefore indicated, it was plaintiff's obligation, under its terms, to pay that rental on said date (regardless of the other matters referred to in his petition), and his discharge of said obligation was long overdue and delinquent, he, accordingly, was in violation, or breach, of said contract, at the time he tendered its payment in this case; and the trial court committed no error in denying him the opportunity of making the tender at that late date. Plaintiff's "PROPOSITION NO. I" seems to be directed at alleged error in the procedure of filing and ruling upon defendants' oral demurrer to plaintiff's petition on the day scheduled for the trial of the case. It appears to be plaintiff's position that this was irregular — and, in view of Tit. 12 O.S. 1961, § 263, unorderly, or untimely — since defendants had already filed their answer to his petition, without ever having previously demurred to it. As hereinbefore noted, the record of the trial proceedings reflects that plaintiff's counsel argued this demurrer, without any apparent objection to its filing or consideration at that particular time. We think that, under the circumstances, plaintiff had neither laid a trial court predicate, nor has he shown a substantial violation of a constitutional or statutory right (especially in view of the herein adjudicated failure of his petition to state a cause of action) as a necessary prerequisite for consideration of this claimed error in procedure. His argument therefore presents no prejudicial error for review here. See Badgwell v. Lair, Okl., 325 P.2d 968. Since, as hereinbefore indicated, plaintiff was in no position to invoke the powers of a court of equitable cognizance to grant him any relief, his propositions numbered "5" and "12", like all of his other propositions, demonstrate no ground for reversing the trial court's judgment. *475 Equity follows the law; and where the rights of parties are clearly defined and established by law, equity has no power to change or unsettle those rights, nor to create a right, where none exists. See Sautbine v. Keller, Okl., 423 P.2d 447, 451. Said judgment is therefore affirmed. JACKSON, C.J., and DAVISON, BERRY and LAVENDER, JJ., concur. IRWIN, V.C.J., and WILLIAMS and McINERNEY, JJ., dissent.

NOT FOR PUBLICATION UNITED STATES COURT OF APPEALS FILED FOR THE NINTH CIRCUIT JUN 28 2017 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS CROW ALLOTTEES ASSOCIATION, a No. 15-35679 Montana non-profit corporation; ERMA JEAN FIGHTER MOCCASIN; D.C. No. 1:14-cv-00062-SPW CLAUDIA E. FLATMOUTH; KATHLEEN L. FLATMOUTH; LEON B. FLATMOUTH; REBECCA K. MEMORANDUM* FLATMOUTH; RONALD J. FLATMOUTH; CARLSON GOES AHEAD; MICHAEL HILL; FLOYD HORN; BEVERLY GRAY BULL HUBER; STEPHEN D. HUBER; HENRY OLD HORN; SHARON S. PEREGOY; LYNNA SMITH; FRANCIS JOE WHITE CLAY, Plaintiffs-Appellants, v. UNITED STATES BUREAU OF INDIAN AFFAIRS; UNITED STATES DEPARTMENT OF THE INTERIOR; SALLY JEWELL, in her official capacity as United States Secretary of the Interior; KEVIN K. WASHBURN, Esquire, in his official capacity as Assistant Secretary of the Interior for Indian Affairs, * This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3.  Defendants-Appellees. Appeal from the United States District Court for the District of Montana Susan P. Watters, District Judge, Presiding Argued and Submitted June 14, 2017 Seattle, Washington Before: BYBEE, M. SMITH, and CHRISTEN, Circuit Judges. Crow Allottees Association and individual members of the Crow Tribe (“Plaintiffs”) appeal the district court’s dismissal of their claims on sovereign immunity grounds. “We review de novo . . . whether the United States has waived its sovereign immunity,” Harger v. Dept. of Labor, 569 F.3d 898, 903 (9th Cir. 2009), and can affirm “on any basis supported by the record,” Muniz v. United Parcel Serv., Inc., 738 F.3d 214, 219 (9th Cir. 2013). We affirm. 1. The district court held that sovereign immunity barred Plaintiffs’ claims. Plaintiffs contend that 5 U.S.C. § 702, 25 U.S.C. § 345, and 28 U.S.C. § 1353 waive the United States’ sovereign immunity for their claims. The district court correctly ruled that 25 U.S.C. § 345 and 28 U.S.C. § 1353 do not waive sovereign immunity for Plaintiffs’ claims because Plaintiffs are not seeking an initial allotment of land. See Jachetta v. United States, 653 F.3d 898, 906 (9th Cir. 2011) (explaining that 25 U.S.C. § 345 waives sovereign immunity “only with respect 2 to . . . cases . . . seeking an original allotment” (citation omitted)); id. (“We have held that ‘28 U.S.C. § 1353 is a recodification of the jurisdictional portion of [25 U.S.C.] § 345.’” (citation omitted)). The district court held that 5 U.S.C. § 702 did not waive sovereign immunity because there was no final agency action. Specifically, the district court ruled that there would be no final agency action until the waivers executed pursuant to the Crow Tribe-Montana Water Rights Compact (the “Compact”) became effective. We note that the district court’s starting premise—that § 702’s waiver of sovereign immunity requires final agency action—is the subject of an intra-circuit split in authority. See Gros Ventre Tribe v. United States, 469 F.3d 801, 808–09 (9th Cir. 2006) (explaining the divergent views this circuit has taken on whether § 702 requires final agency action). We need not resolve this tension, however, because we affirm the district court’s dismissal of Plaintiffs’ claims on alternative grounds and, in any event, the relevant waivers have gone into effect. See id. 2. We affirm the dismissal of Plaintiffs’ claims because they have failed to state a claim on which relief can be granted. Starting with Count I, Plaintiffs seek a declaration of their water rights pursuant to Winters v. United States, 207 U.S. 564 (1908). This claim is contingent on the validity of the Compact and the Crow Tribe Water Rights Act of 2010 (the “Settlement Act”), which ratified the 3 Compact. If the Compact and Settlement Act are valid, the district court cannot declare that Plaintiffs have Winters water rights because the Compact and Settlement Act expressly define Plaintiffs’ water rights as that portion of the tribal water right allocated to them by the Crow Tribe. Thus, the success of Count I depends on the success of the remaining counts. Turning to Count II, Plaintiffs claim that the United States violated fiduciary duties owed to Plaintiffs, including the duty to provide private counsel. Plaintiffs also argue that the government violated its fiduciary duties by not obtaining Plaintiffs’ participation or consent in negotiations, failing to ensure that Plaintiffs retained their Winters rights, and failing to ensure that Plaintiffs got enough water to irrigate their lands. As explained below, Plaintiffs have not pointed to any authority imposing upon the United States a duty to provide Plaintiffs with private counsel. See Gros Ventre Tribe, 469 F.3d at 809–10 (explaining that there is no “common law cause of action for breach of trust that is wholly separate from any statutorily granted right”). And though Plaintiffs’ other allegations may support a takings claim or a claim under the Federal Torts Claims Act for breach of fiduciary duties, Plaintiffs have expressly stated that they are not seeking monetary relief for a taking or other violation of their rights at this time. Here, Plaintiffs only ask us to hold that the Settlement Act (and, by extension, the Compact) is unconstitutional. 4 Though their allegations may support a claim for damages,1 they do not provide a basis for rendering the Settlement Act invalid. See United States v. Jicarilla Apache Nation, 564 U.S. 162, 175 (2011) (“Throughout the history of the Indian trust relationship, [the Supreme Court has] recognized that the organization and management of the trust is a sovereign function subject to the plenary authority of Congress.”); Winton v. Amos, 255 U.S. 373, 391 (1921) (“It is thoroughly established that Congress has plenary authority over the Indians and all their tribal relations, and full power to legislate concerning their tribal property.”). Similarly, Count III alleges that the government violated Plaintiffs’ due process rights by not consulting them during negotiations, not providing them with private counsel, and not obtaining their consent to waive their rights. This procedural due process argument fails because the legislative process was the only process to which Plaintiffs were entitled. See Minn. State Bd. for Cmty. Colls. v. Knight, 465 U.S. 271, 283 (1984) (“The Constitution does not grant to members of the public generally a right to be heard by public bodies making decisions of policy.”). 1 We express no views on the merits of any future claims for damages that Plaintiffs may bring. 5  In Count IV, Plaintiffs allege that the United States violated 25 U.S.C. § 175 by not providing them private legal counsel. Section 175, however, provides: “In all States and Territories where there are reservations or allotted Indians the United States attorney shall represent them in all suits at law and in equity.” 25 U.S.C. § 175 (emphasis added). Section 175 provides no basis for Plaintiffs’ argument that they are entitled to private legal counsel at the Government’s expense. Though Congress has occasionally enacted legislation requiring the United States to pay for private counsel to represent Indians in some matters, see United States v. Gila River Pima-Maricopa Indian Cmty., 391 F.2d 53, 56–57 (9th Cir. 1968), Plaintiffs point to no statute requiring the United States to pay for private counsel here. And to the extent Plaintiffs might seek representation by the United States attorney (which they do not claim to do), “[w]e have held that the statute (section 175) is not mandatory.” Id. at 56. Count IV thus fails as a matter of law. Count V, which seeks mandamus relief forcing the United States to provide Plaintiffs with independent counsel pursuant to § 175, also fails for the same reason. AFFIRMED. 6 

In the United States Court of Federal Claims OFFICE OF SPECIAL MASTERS No. 16-1345V (not to be published) ***************************** LINDA ADKINS GREER, as legal representative * of the ESTATE OF MICHAEL STEPHEN * Special Master Corcoran GREER, deceased, * * Petitioner, * Filed: April 27, 2017 * v. * * Decision by Stipulation; Damages; SECRETARY OF HEALTH * Influenza (“Flu”) Vaccine; AND HUMAN SERVICES, * Transverse Myelitis (“TM”); * Death. Respondent. * * ***************************** Milton C. Ragsdale, IV, Ragsdale LLC, Birmingham, AL, for Petitioner. Collen C. Hartley, U.S. Dep’t of Justice, Washington, DC, for Respondent. DECISION AWARDING DAMAGES1 On October 14, 2016, Linda Adkins Greer, as legal representative of the Estate of Michael Stephen Greer, filed a petition seeking compensation under the National Vaccine Injury Compensation Program (“Vaccine Program”).2 The petition alleges that Mr. Greer suffered from transverse myelitis (“TM”) as a result of his October 22, 2014, influenza (“flu”) vaccine. Petitioner further alleges that Mr. Greer’s death was the sequela of his alleged vaccine-related injury. 1 This Decision has been designated “not to be published,” which means I am not directing it to be posted on the Court of Federal Claims’s website. However, it will nevertheless be made public in accordance with the E-Government Act of 2002, 44 U.S.C. § 3501 (2012). As provided by 42 U.S.C. § 300aa-12(d)(4)(B), however, the parties may object to the decision’s inclusion of certain kinds of confidential information. Specifically, under Vaccine Rule 18(b), each party has fourteen days within which to request redaction “of any information furnished by that party: (1) that is a trade secret or commercial or financial in substance and is privileged or confidential; or (2) that includes medical files or similar files, the disclosure of which would constitute a clearly unwarranted invasion of privacy.” Vaccine Rule 18(b). Otherwise, the whole decision in its present form will be available. Id. 2 The Vaccine Program comprises Part 2 of the National Childhood Vaccine Injury Act of 1986, Pub. L. No. 99-660, 100 Stat. 3758, codified as amended at 42 U.S.C. §§ 300aa-10 through 34 (2012) (“Vaccine Act” or “the Act”).  Respondent denies that the flu vaccine caused Mr. Greer’s alleged TM, any other injury, or his death. Nonetheless both parties, while maintaining their above-stated positions, agreed in a stipulation (filed on April 27, 2017) that the issues before them could be settled, and that a decision should be entered awarding Petitioner compensation. I have reviewed the file, and based upon that review, I conclude that the parties’ stipulation (as attached hereto) is reasonable. I therefore adopt it as my decision in awarding damages on the terms set forth therein. The stipulation awards:  A lump sum of $405,000.00 in the form of a check payable to Petitioner as legal representative of the Estate of Michael Stephen Greer. Stipulation ¶ 8. This amount represents compensation for all damages that would be available under Section 15(a) of the Act. I approve a Vaccine Program award in the requested amount set forth above to be made to Petitioner as legal representative of the Estate of Michael Stephen Greer. In the absence of a motion for review filed pursuant to RCFC Appendix B, the clerk of the Court is directed to enter judgment herewith.3 IT IS SO ORDERED. /s/ Brian H. Corcoran Brian H. Corcoran Special Master 3 Pursuant to Vaccine Rule 11(a), the parties may expedite entry of judgment by each filing (either jointly or separately) a notice renouncing their right to seek review. 2 

218 Md. 1 (1958) 144 A.2d 694 HILL ET AL. v. COLEMAN ET AL. [No. 6, September Term, 1958.] Court of Appeals of Maryland. Decided September 18, 1958. The cause was argued before BRUNE, C.J., and HENDERSON, HAMMOND, PRESCOTT and HORNEY, JJ. *2 Frederic Orr Louden, with whom was Ewing C. Whitaker on the brief, for the appellants. Hal C.B. Clagett, with whom were Joseph Bernstein and Sasscer, Clagett & Powers on the brief, for Mrs. Coleman, appellee. Edward C. Bell for Mr. Honaker, appellee. PER CURIAM: The appeal from the judgment in favor of Charles S. Honaker, Jr., against the appellants for costs is affirmed and the appeal from the refusal to grant a new trial in the case of the appellants against Helen Coleman on the ground that the damages awarded by the jury were inadequate is dismissed. All costs shall be paid by the appellants. If, as the appellants claim, the trial court in its instructions to the jury did not fairly cover the substance of the instruction requested by them in the case against Charles S. Honaker, Jr., one of the appellees, it was incumbent upon the appellants to object and state the grounds for such objection. Since they did not object to the instructions there is nothing for us to consider on this appeal with respect to the alleged impropriety of the court's instruction. Maryland Rule 554 d and e. See also Rephann v. Armstrong, 217 Md. 90, 93, 141 A.2d 525 (1958). The refusal of the motion for a new trial in the case against Helen Coleman was within the sound discretion of the trial court. Ordinarily there is no appeal from the action of the court in granting or refusing such a motion. Wash., B. & A.R. Co. v. Kimmey, 141 Md. 243, 250, 118 A. 648 (1922). See also Chiswell v. Nichols, 139 Md. 442, 443, 115 A. 790 (1921), and the cases therein cited, and Snyder v. Cearfoss, 186 Md. 360, 367, 46 A.2d 607 (1946).

NOT DESIGNATED FOR PUBLICATION No. 121,141 IN THE COURT OF APPEALS OF THE STATE OF KANSAS STATE OF KANSAS, Appellee, v. TRENT L. ROBINSON, Appellant. MEMORANDUM OPINION Appeal from Jackson District Court; NORBERT C. MAREK, JR., judge. Opinion filed July 31, 2020. Affirmed in part and vacated in part. Kai Tate Mann, of Kansas Appellate Defender Office, for appellant. Michael J. Duenes, assistant solicitor general, and Derek Schmidt, attorney general, for appellee. Before ARNOLD-BURGER, C.J., STANDRIDGE and POWELL, JJ. PER CURIAM: Trent L. Robinson moved to withdraw his plea of guilty to rape of a minor under the age of 14, arguing, in part, that he was not informed of the maximum possible sentence he could receive as a result of his plea. The district court denied Robinson's motion and sentenced him to life in prison with the possibility of parole in 25 years. Additionally, the court ordered lifetime postrelease supervision and lifetime electronic monitoring on Robinson. Robinson timely appealed. We find that the district court did not err in denying Robinson's motion to withdraw his guilty plea, but it did err in ordering lifetime postrelease supervision and lifetime electronic monitoring. Accordingly, we affirm in part and vacate the lifetime postrelease supervision portion of 1 Robinson's sentence, as well as the district court's order for lifetime electronic monitoring. FACTUAL AND PROCEDURAL HISTORY In April 2012, the State charged Trent L. Robinson with rape of a child under 14 years of age while Robinson was over the age of 18. Because the alleged crime occurred on tribal land, Robinson's appointed counsel sought a plea deal which would ensure that the federal government did not prosecute Robinson for the same crime. A prosecutor with the United States Attorney's Office in the District of Kansas sent Robinson's counsel a letter indicating that the federal government would not prosecute Robinson if he met certain conditions. In part, Robinson had to plead guilty as charged and agree to a "sentence of incarceration for a 'hard' twenty-five years." At the plea hearing, Robinson agreed that he and his counsel discussed the letter from the United States Attorney's Office. Robinson also acknowledged that his counsel advised him that as a result of his plea he "could be confined . . . for a minimum of 25 years up to a maximum of life." Before accepting Robinson's plea, the district court reiterated that his crime was "punishable by a 25—minimum 25 up to life imprisonment." Robinson also recognized that he was agreeing to "the hard 25 years." Robinson then pleaded no contest. The State provided a factual basis for Robinson's plea stating, in part, that a child under the age of 14 was pregnant and indicated that Robinson was the father. The court accepted Robinson's plea. 2  Before being sentenced, Robinson expressed dissatisfaction with his counsel. Robinson believed that his counsel did not adequately explain the consequences of his plea. Robinson indicated that he wanted another attorney, but the district court denied his request. The district court sentenced Robinson to "25 years to life without the possibility of parole." Robinson appealed his sentence, arguing that the sentence was illegal. This court agreed, holding that the district court "failed to sentence Robinson to a term of imprisonment for life with a mandatory minimum term of imprisonment of not less than 25 years, followed by the possibility of parole, as required by K.S.A. 2017 Supp. 21- 6627(a)(1)." State v. Robinson, No. 117,173, 2018 WL 1545677, at *2 (Kan. App. 2018) (unpublished opinion). This court remanded the case for resentencing. Before resentencing, Robinson's new defense counsel filed a motion to withdraw plea. Robinson argued: (1) the district court explained his potential sentence using the same language that led to the illegality of his original sentence, (2) he had issues with his defense counsel at the time of the plea, (3) he did not understand the plea agreement, and (4) he and his counsel at the time of the plea had not spoken much about the case. Robinson later filed his own pro se motion for new counsel and a pro se motion to withdraw plea. Robinson's pro se motion to withdraw his plea essentially argued that he did not understand the consequences of his plea at the time he made it. At a hearing on Robinson's motions, Robinson again asserted that his first attorney did not explain things to his satisfaction. He also explained that, due to his age, there was little difference between being convicted at trial and his sentence after his plea deal. The district court granted Robinson's request for a new attorney and continued the hearing. Robinson filed a second motion to withdraw his plea. He reiterated that he did not understand the consequences of his plea and his likely sentence. 3  Robinson declined to present evidence at the hearing on his motions. The district court noted that it was required to determine whether: (1) Robinson was represented by competent counsel; (2) Robinson was misled, coerced, mistreated, or unfairly taken advantage of; and (3) the plea was fairly and understandingly made. After considering the factors, the district court denied Robinson's motion to withdraw his plea. Robinson's counsel filed a motion for a dispositional departure. Before sentencing, Robinson requested that his counsel withdraw because he was not doing what Robinson asked him to do. The district court denied his request. The district court also denied Robinson's motion for a dispositional departure and sentenced him to life imprisonment with the possibility of parole in 25 years. The court also ordered lifetime postrelease supervision and lifetime electronic monitoring. Robinson timely appeals. ANALYSIS Robinson raises three issues on appeal. First, he argues that the district court erred by denying his motion to withdraw his plea. Second, he argues the district court erred by ordering him to serve a lifetime term of postrelease supervision. Finally, he argues the district court had no authority to order lifetime electronic monitoring. The district court did not err by denying Robinson's motion to withdraw his plea. For his first issue on appeal, Robinson argues the district court erred in denying his motion to withdraw his plea because he was not accurately informed of the potential sentence he faced. 4  We review the district court's actions for an abuse of discretion. "A plea of guilty or nolo contendere, for good cause shown and within the discretion of the court, may be withdrawn at any time before sentence is adjudged." K.S.A. 2019 Supp. 22-3210(d)(1). On appeal, the defendant must establish that the trial court abused its discretion in denying a presentence motion to withdraw plea. State v. DeAnda, 307 Kan. 500, 503, 411 P.3d 330 (2018). A judicial action constitutes an abuse of discretion if (1) it is arbitrary, fanciful, or unreasonable; (2) it is based on an error of law; or (3) it is based on an error of fact. State v. Ingham, 308 Kan. 1466, 1469, 430 P.3d 931 (2018). The district court did not abuse its discretion. Under K.S.A. 2019 Supp. 22-3210(d)(1), a defendant may withdraw his or her plea of guilty or no contest before sentencing "for good cause shown and within the discretion of the court." The same standard applies when a defendant has been sentenced, the sentence is vacated on appeal, and the appellate court remands the case for resentencing. See DeAnda, 307 Kan. at 501, 503. Three factors (often referred to as the Edgar factors) generally guide a district court's consideration of whether a defendant has demonstrated the good cause required by K.S.A. 2019 Supp. 22-3210(d)(1) to withdraw a plea prior to sentencing: (1) whether the defendant was represented by competent counsel; (2) whether the defendant was misled, coerced, mistreated, or unfairly taken advantage of; and (3) whether the plea was fairly and understandingly made. State v. Edgar, 281 Kan. 30, 36, 127 P.3d 986 (2006). These factors should not be applied mechanically and to the exclusion of other factors. State v. Fritz, 299 Kan. 153, 154, 321 P.3d 763 (2014). These factors establish "'viable benchmarks'" for the district court when exercising its discretion, but the court should not 5 ignore other facts that might exist in a particular case. State v. Schaefer, 305 Kan. 581, 588, 385 P.3d 918 (2016). On appeal, Robinson does not argue that he was not represented by competent counsel or that he was misled, coerced, mistreated, or unfairly taken advantage of. Instead, his only argument is that the plea was not fairly and understandingly made because the district court did not inform him of the potential sentence he faced. The district court may accept a defendants plea after, among other requirements, the court has "informed the defendant of the consequences of the plea, including the specific sentencing guidelines level of any crime . . . and of the maximum penalty provided by law which may be imposed upon acceptance of such plea." K.S.A. 2019 Supp. 22-3210(a)(2). While the district court is required to inform the defendant of the maximum penalty, the failure to do so can be deemed harmless if the record shows that the defendant was advised of the maximum penalty through some other means. See State v. Johnson, 307 Kan. 436, 445-46, 410 P.3d 913 (2018). As a result of his plea, the maximum possible conviction Robinson faced was life imprisonment. See K.S.A. 2017 Supp. 21-6627(a)(1)(B). The question facing this court is whether the district court informed Robinson that he was facing life imprisonment as a result of his plea. It did. At his plea hearing, the district court informed Robinson that his crime was "punishable by a 25—minimum 25 up to life imprisonment." This was a correct statement of the law and complied with the requirement that the district court inform the defendant of the maximum penalty that could result as a consequence of his plea. See K.S.A. 2019 Supp. 22-3210(a)(2). The district court's statement was not the most artful way of informing Robinson of the consequences of his plea, but the court was correct because it informed Robinson that the penalty could be "life imprisonment." Moreover, at 6 his plea hearing, Robinson acknowledged that he "could be confined . . . for a minimum of 25 years up to a maximum of life." Kansas law requires no more than that the district court inform a defendant of the maximum possible penalty the defendant faces as a result of their plea. Here, the district court informed Robinson that he could face life in prison as a result of his plea. And Robinson was obviously aware that he could face life in prison. Robinson argues that none of the statements made by the court, his counsel, or the prosecutor "accurately reflected" his potential sentence because the statements were not clear that he would receive a life sentence with a possibility of parole after 25 years. But Robinson offers no case law supporting his argument. Under K.S.A. 2019 Supp. 22- 3210(a)(2), the district court is only required to inform the defendant of the maximum possible penalty, which the court did in this case. Robinson fails to meet his burden to prove that the district court abused its discretion in denying his presentence motion to withdraw plea. The district court's decision was not based on an error of law or an error of fact. Nor was the district court's decision unreasonable under the circumstances. The district court erred by ordering Robinson to serve a lifetime term of postrelease supervision. For his second issue on appeal, Robinson argues that the district court erred by ordering him to serve a lifetime term of postrelease supervision. The State agrees with Robinson. Whether a sentence is illegal within the meaning of K.S.A. 2019 Supp. 22- 3504 is a question of law over which the appellate court has unlimited review. See State v. Lee, 304 Kan. 416, 417, 372 P.3d 415 (2016). 7  While sentencing Robinson, the district court ordered lifetime postrelease supervision. However, the district court had "'no authority to order a term of postrelease supervision in conjunction with an off-grid indeterminate life sentence.'" State v. Newman, 311 Kan. 155, 160, 457 P.3d 923 (2020). Robinson received an off-grid indeterminate life sentence for his rape conviction. See K.S.A. 2017 Supp. 21- 6627(a)(1)(B). Therefore, the district court erred when it imposed lifetime postrelease supervision and that portion of Robinson's sentence must be vacated. The district court did err by including lifetime electronic monitoring as part of Robinson's sentence. For his final issue, Robinson argues the district court erred when it imposed lifetime electronic monitoring as part of his sentence. Again, whether a sentence is illegal within the meaning of K.S.A. 2019 Supp. 22-3504 is a question of law over which the appellate court has unlimited review. See Lee, 304 Kan. at 417. Likewise, interpretation of a sentencing statute is a question of law, and the standard of review is unlimited. State v. Warren, 307 Kan. 609, 612, 412 P.3d 993 (2018). Robinson argues that the district court does not have the authority to impose lifetime electronic monitoring on a defendant because Kansas statute gives the parole board that power. Under K.S.A. 2019 Supp. 22-3717(u), an inmate "sentenced to imprisonment pursuant to . . . K.S.A. 2019 Supp. 21-6627, and amendments thereto . . . shall be placed on parole for life." If the board orders "the parole of an inmate pursuant to this subsection, the board shall order as a condition of parole that the inmate be electronically monitored for the duration of the inmate's natural life." K.S.A. 2019 Supp. 22-3717(u). 8  Robinson relies on this statute, and the Kansas Supreme Court's statements in State v. Beaman, 295 Kan. 853, 869-70, 286 P.3d 876 (2012), to argue that only the parole board can impose lifetime electronic monitoring in situations such as this. In Beaman, the Kansas Supreme Court was tasked with determining whether the sentence imposed by the district court included lifetime electronic monitoring. The court noted that if it did, the district court's sentence was illegal because "the sentencing court does not have authority to impose such parole conditions." 295 Kan. at 869. But the Kansas Supreme Court did not reach the issue because it accepted the State's argument that the district court was merely informing Beaman that if he were paroled he would be required to undergo lifetime electronic monitoring. 295 Kan. at 869-70. While discussing Beaman's arguments the court referred to its prior decision in State v. Mason, 294 Kan. 675, 677, 279 P.3d 707 (2012), where the court held "the sentencing court does not have the authority to impose parole conditions." Beaman, 295 Kan. at 869. The State argues the Kansas Supreme Court opinions are inapplicable here because those opinions did not discuss K.S.A. 21-6604(r)—which was not adopted until 2012—requiring the court to order that the defendant be electronically monitored upon release from imprisonment for the defendant's natural life; or amendments to K.S.A. 22- 3717(v)—again, not adopted until 2012—which limited a district court's authority to order electronic monitoring of a defendant. L. 2012, ch. 32, § 1; L. 2012, ch. 150, § 43. Beaman and Mason both involved crimes that occurred in 2009, well before the adoption of K.S.A. 2012 Supp. 21-6604(r) and amendments to K.S.A. 2012 Supp. 22- 3717(v). Likewise, here, Robinson's crimes were committed in April 2012, before the July 1, 2012 effective date of K.S.A. 2012 Supp. 21-6604(r) and amendments to K.S.A. 2012 Supp. 22-3717(v). While those statutes clearly require a district judge to order a defendant in Robinson's situation to be released onto electronic monitoring upon release from imprisonment, "[c]riminal statutes and penalties in effect at the time of the criminal 9 act are controlling." State v. Rice, 308 Kan. 1510, 1512, 430 P.3d 430 (2018). Moreover, the general rule is that statutes operate only prospectively unless there is clear legislative language to the contrary. State v. Todd, 299 Kan. 263, 274, 323 P.3d 829 (2014). An exception to this rule has been employed when the statutory change is merely procedural or remedial in nature and does not prejudicially affect the substantive rights of the parties. The prescription of a punishment for a criminal act is substantive, not procedural, law. State v. Hutchison, 228 Kan. 279, 287, 615 P.2d 138 (1980). There is no indication in K.S.A. 2012 Supp. 21-6604(r) and the amendments to K.S.A. 2012 Supp. 22-3717(v) that they were intended to apply retroactively. And the State does not argue that they were. It merely assumes that because Robinson was sentenced in March 2019, the amendments apply. But the State, also through counsel with the Attorney General's office, conceded in State v. Peterman, No. 111,159, 2015 WL 8587505, at *15 (Kan. App. 2015) (unpublished opinion), that a district court does not have authority to impose lifetime electronic monitoring under K.S.A. 2012 Supp. 21- 6604(r) for crimes committed before July 1, 2012. The Attorney General's office provides no explanation or argument as to why or if its position has changed. As noted, our Supreme Court has held that the prescription of punishment for a criminal act is substantive, not procedural. When Robinson committed his crime, the statutory punishment provisions did not allow the district court to order lifetime electronic monitoring, only the parole board. So, the district court erred in making such an order. Affirmed in part. The lifetime postrelease supervision portion of Robinson's sentence, as well as the district court's order for lifetime electronic monitoring, are vacated. 10 

6 F.Supp.2d 650 (1998) LOGISTICS PERSONNEL CORP., Plaintiff, v. TRUCK DRIVERS LOCAL UNION NO. 299, affiliated with the International Brotherhood of Teamsters, Defendant. No. Civ. Action 97-40366. United States District Court, E.D. Michigan, Southern Division. May 22, 1998. *651 Mark A. Hypnar, Hayduk, Andrews, Detroit, MI, for Plaintiff. Matthew S. Broderick, Wayne County Neighborhood Legal Services, Highland Park, MI, for Defendant. MEMORANDUM OPINION AND ORDER GRANTING PLAINTIFFS MOTION FOR SUMMARY JUDGMENT AND DENYING DEFENDANT'S MOTION FOR SUMMARY JUDGMENT GADOLA, District Judge. Plaintiff, Logistics Personnel Corp., brought the instant action seeking to vacate a July 25, 1997 Arbitrator's Opinion and Award. Defendant has also filed a counterclaim seeking to enforce the arbitrator's award. Before the court are cross-motions for summary judgment pursuant to Fed. R.Civ.P. 56. For the reasons set forth below, this court will grant plaintiff's motion and deny defendant's motion. Factual Background Plaintiff leases truck drivers to a variety of customers throughout the country. Defendant, Truck Drivers Local Union No. 299, represents a number of truck drivers, including Timothy Lieckfelt, an employee of plaintiff. At all times relevant to this case, Lieckfelt was assigned to haul steel products in multi-ton tractor-trailers for Ryerson Steel, a customer of plaintiff. Plaintiff and defendant are also parties to a collective bargaining agreement which provides, in part, that "[i]t shall be grounds for immediate termination of employment pursuant to any substance abuse test, if an employee in a safety critical position tests positive." On May 4, 1994, Lieckfelt tested positive for cocaine pursuant to a random drug screen. He was discharged from his employment, but reinstated after he completed a rehabilitation program. On August 26, 1996, Lieckfelt was again selected for a random drug screen. He again tested positive for cocaine, and plaintiff again terminated his employment. On September 6, 1996, Lieckfelt filed a grievance over his discharge. Lieckfelt's primary contention was that plaintiff did not observe the required procedures in conducting the August 26, 1996 drug test. On May 1, 1997, the parties submitted the grievance to arbitration pursuant to the collective bargaining agreement. The arbitrator rendered his decision on July 25, 1997. The arbitrator concluded that, despite some irregularities, a valid sample of Lieckfelt's urine was taken at the drug testing site. The arbitrator also concluded that it was clear under the labor agreements in this case that Lieckfelt was employed in a safety critical position. However, the arbitrator also found that plaintiff had not met its burden to provide evidence to establish that the positive result was properly obtained. Specifically, the arbitrator noted that plaintiff produced no evidence regarding the chain of custody of the urine sample at the laboratory and no specific report detailing the quantity of the drugs found *652 in Lieckfelt's sample. The arbitrator interpreted the labor agreements in this case as requiring the employer to submit specific reports from the laboratory in the event that an employee files a grievance in order to allow the employee to adequately contest any findings. In this case, plaintiff submitted only a one page form with a single notation indicating that Lieckfelt had tested positive for cocaine. Accordingly, the arbitrator ordered that Lieckfelt be reinstated in his position, along with full back pay, seniority and benefits. Plaintiff refused to reinstate Lieckfelt. On September 12, 1997, plaintiff filed the instant action seeking to vacate the arbitrator's award. Subsequently, defendant filed a counterclaim asking this court to enforce the arbitrator's award. Plaintiff filed its motion for summary judgment on January 20, 1998. Defendant filed its motion for summary judgment on March 5, 1998. Discussion 1. Motion for summary judgment pursuant to Rule 56 Rule 56(c) of the Federal Rules of Civil Procedure provides that summary judgment "shall be rendered forthwith if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law." Summary judgment is appropriate where the moving party demonstrates that there is no genuine issue of material fact as to the existence of an essential element of the non-moving party's case on which the non-moving party would bear the burden of proof at trial. Martin v. Ohio Turnpike Commission, 968 F.2d 606, 608 (6th Cir.1992); Celotex Corp. v. Catrett, 477 U.S. 317, 322, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). In considering a motion for summary judgment, the court must view the facts and draw all reasonable inferences therefrom in a light most favorable to the non-moving party. 60 Ivy Street Corporation v. Alexander, 822 F.2d 1432, 1435 (6th Cir.1987). The court is not required or permitted, however, to judge the evidence or make findings of fact. Id. 822 F.2d at 1435-36. The moving party has the burden of showing conclusively that no genuine issue of material fact exists. Id. at 1435. A fact is "material" for purposes of summary judgment where proof of that fact would have the effect of establishing or refuting an essential element of the cause of action or a defense advanced by the parties. Kendall v. Hoover Co., 751 F.2d 171, 174 (6th Cir.1984). In other words, the disputed fact must be one which might affect outcome of the suit under the substantive law controlling the issue. Henson v. National Aeronautics and Space Administration, 14 F.3d 1143, 1148 (6th Cir.1994). A dispute over a material fact is genuine "if the evidence is such that a reasonable jury could return a verdict for the non-moving party." Id. Accordingly, where a reasonable jury could not find that the non-moving party is entitled to a verdict, there is no genuine issue for trial and summary judgment is appropriate. Feliciano v. City of Cleveland, 988 F.2d 649 (6th Cir. 1993). Once the moving party carries its initial burden of demonstrating that no genuine issues of material fact are in dispute, the burden shifts to the non-moving party to present specific facts to prove that there is a genuine issue for trial. To create a genuine issue of material fact, the non-moving party must present more than just some evidence of a disputed issue. As the United States Supreme Court stated in Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249-50, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986): There is no issue for trial unless there is sufficient evidence favoring the non-moving party for a jury to return a verdict for that party. If the [non-moving party's] evidence is merely colorable, or is not significantly probative, summary judgment may be granted. (Citations omitted); see also Celotex, 477 U.S. at 322-23, 106 S.Ct. 2548; Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586-87, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986). Consequently, the non-moving party must do more than raise some doubt as to the existence of a fact; the non-moving party must produce evidence that would be *653 sufficient to require submission of the issue to the jury. Lucas v. Leaseway Multi Transp. Serv., Inc., 738 F.Supp. 214, 217 (E.D.Mich.1990), aff'd, 929 F.2d 701, 1991 WL 49687 (6th Cir.1991). 2. Scope of review of an arbitrator's award The parties agree that this court's role in reviewing the arbitration award in this case is extremely limited. As the United States Supreme Court has explained: Because the parties have contracted to have disputes settled by an arbitrator chosen by them rather than a judge, it is the arbitrator's view of the facts and of the meaning of the contract that they have agreed to accept. ... [A]s long as the arbitrator is even arguably construing or applying the contract and acting within the scope of his authority, that a court is convinced he committed serious error does not suffice to overturn his decision. United Paperworkers Int'l Union v. Misco, Inc., 484 U.S. 29, 37-38, 108 S.Ct. 364, 98 L.Ed.2d 286 (1987); see also Monroe Auto Equip. Co. v. International Union, 981 F.2d 261, 266 (6th Cir.1992). Therefore, a reviewing court's task is "limited to determining whether the arbitrator's construction of the collective bargaining agreement is to any extent plausible." Exxon Corp. v. Esso Workers' Union, Inc., 118 F.3d 841, 844 (1st Cir. 1997) (citing Misco, 484 U.S. at 36-38, 108 S.Ct. 364). However, the Supreme Court has also held that an arbitration award "is legitimate only so long as it draws its essence from the collective bargaining agreement. When the arbitrator's words manifest an infidelity to this obligation, courts have no choice but to refuse enforcement of the award." United Steelworkers v. Enterprise Corp., 363 U.S. 593, 597, 80 S.Ct. 1358, 4 L.Ed.2d 1424 (1960). An arbitrator's decision flouts this standard when: 1. It conflicts with express terms of the collective bargaining agreement. 2. It imposes additional requirements that are not expressly provided in the agreement; 3. It is without rational support or cannot be rationally derived from the terms of the agreement; or 4. It is based on considerations of fairness and equity instead of the precise terms of the agreement. Cement Divisions, National Gypsum Co. v. United Steelworkers, 793 F.2d 759, 766 (6th Cir.1986) (citations omitted). One additional factor this court must consider is public policy. Collective bargaining agreements are merely a form of contract, and it is well-settled that courts must refrain from enforcing contracts that are contrary to public policy. Accordingly, if enforcing an arbitration award would violate some public policy, a court must refrain from doing so. See W.R. Grace & Co. v. Local Union 759, Int'l Union of United Rubber Workers, 461 U.S. 757, 766, 103 S.Ct. 2177, 76 L.Ed.2d 298 (1983); Exxon, 118 F.3d at 844-45. 3. Analysis a. Plaintiff's motion for summary judgment In its motion for summary judgment, plaintiff makes essentially two arguments. First, plaintiff contends that enforcing the arbitrator's award and reinstating Lieckfelt in this case would violate the public policy of prohibiting persons under the influence of drugs from performing safety critical jobs. As the First Circuit held in Exxon, "[j]udicial decisions, agency regulations, and legislative enactments combine to form a solid phalanx of positive law evidencing a well defined and dominant public policy against the performance of safety-sensitive tasks while under the influence of drugs." Exxon, 118 F.3d at 849. It is also clear on the record before this court that Lieckfelt's tasks, namely hauling multiple tons of steel through densely populated urban areas, were safety-sensitive. Plaintiff asserts that it is undisputed that Lieckfelt's drug test result was positive for cocaine. Plaintiff argues that reinstating Lieckfelt, a proven drug user, in a safety-sensitive job, would be contrary to an established public policy. Accordingly, plaintiff urges this court to vacate the arbitrator's award. *654 Second, plaintiff contends that the arbitrator exceeded his authority. The collective bargaining agreement provides that a positive drug test is grounds for immediate termination of an employee in a safety critical position. Again, plaintiff contends that it is undisputed that the result of the drug test was positive. Accordingly, plaintiff argues that when the arbitrator reinstated Lieckfelt, he violated a specific provision of the collective bargaining agreement. Moreover, plaintiff contends that the arbitrator imposed additional requirements not a part of the collective bargaining agreement when he required plaintiff to introduce laboratory chain of custody evidence as well as the evidence of the quantity of cocaine found in Lieckfelt's system. Accordingly, plaintiff contends that the arbitrator's award exceeds the bounds of the arbitrator's authority under the collective bargaining agreement. In response, defendant asserts that both arguments submitted by plaintiff in support of its motion for summary judgment presuppose that the positive drug test result was valid. If the test result was invalid, then Lieckfelt is not necessarily a person who operates in a safety sensitive job under the influence of drugs. As result, plaintiff would be unable to rely on the public policy rationale in arguing that this court should vacate the arbitrator's award. Moreover, without the assumption that the test result is valid, plaintiff is unable to establish that the arbitrator exceeded his authority under the collective bargaining agreement. Defendant points out that the arbitrator specifically took issue with the proposition that the test results were valid in this case. The arbitrator indicated that plaintiff had not carried its burden of proving that the results were properly obtained. Specifically, the arbitrator determined that there was not sufficient proof that Lieckfelt's urine sample was handled properly at the testing laboratory, and there was not sufficient evidence of the quantity of drugs found in his system. The arbitrator's decision was based primarily on the specific language of the National Master Freight Agreement ("NMFA"), which is incorporated into the collective bargaining agreement. The NMFA discusses the proper procedures for drug testing, and provides: "If each container is received undamaged at the laboratory, properly sealed, labeled and initialed, consistent with DOT regulations as certified by the laboratory, the employer may take disciplinary action based upon properly obtained laboratory results." (Pl. comp., Exh. F at 31(emphasis added).) The arbitrator interpreted this language as requiring plaintiff to produce evidence that the laboratory results were properly obtained even though plaintiff proved that the sample was properly sealed, labeled and initialed. Specifically, the arbitrator pointed to the following language in the NMFA: "`When a grievance is filed as a result of a positive drug test, the Employer shall obtain the test results from the laboratory relating to the drug test, and shall provide a copy to the Union.'" (Pl. comp., Exh. F at 32.) The arbitrator went on to note that, "[i]n that regard, the phrase `test results from the laboratory' appears to include the full chain of custody, including laboratory chain of custody, and reports of quantitation from the laboratory ...." Id. However, because this court finds that these additional requirements are not consistent with the terms of the collective bargaining agreement or the applicable Department of Transportation regulations in this case, this court finds that the arbitrator has exceeded his authority. First, to require plaintiff to produce evidence regarding the chain of custody for the time subsequent to the point at which the specimen reached the laboratory is inconsistent with the terms of the NMFA. The NMFA includes a detailed section concerning "Chain of Custody Procedures," and the arbitrator cited the relevant portions of that section at page 13 of the award. (See Pl. comp., Exh. F at 13.) The provisions of that section deal exclusively with procedures at the testing site in the presence of the employee being tested. The last portion of that section cited by the arbitrator, upon which the arbitrator relied so heavily in reaching his decision in this case, provides: The parties recognize that the key to chain of custody integrity is the immediate sealing *655 and labeling of the specimen in the presence of the tested employee. If each container is received undamaged at the laboratory, properly sealed, labeled and initialed, consistent with DOT regulations as certified by the laboratory, the employer may take disciplinary action based upon properly obtained laboratory results. Id. (emphasis added). The NMFA then goes on to discuss the "Laboratory Requirements" and "Laboratory Testing Methodology," neither of which are concerned with chain of custody issues. It is clear to this court that the language requiring laboratory results to be "properly obtained" refers to the "Laboratory Requirements" and "Laboratory Testing Methodology" and not to "Chain of Custody" requirements. Pursuant to the NMFA, the Medical Review Officer ("MRO") is vested with the authority to review and interpret all drug test results in accordance with DOT regulations to ensure compliance with the laboratory testing requirements set forth under the NMFA. Under the terms of the DOT regulations, the MRO has the responsibility to certify that the laboratory results were properly obtained and processed. See 49 C.F.R. § 40.33(a)(3). The MRO in this case, Dr. Kagan, did so certify. Accordingly, it was error for the arbitrator to impose the additional requirement that plaintiff submit proofs regarding the laboratory chain of custody based on the language requiring laboratory results to be "properly obtained." In addition, this court finds that the arbitrator also erred in requiring the plaintiff to submit reports of quantitation. Article 42 of the collective bargaining agreement clearly provides that "[i]t shall be grounds for immediate termination of employment pursuant to any substance abuse test, if an employee in a safety critical position tests positive." (Pl. comp., Exh. A at 48.) There is no mention of quantity anywhere in this provision. Accordingly, the only relevant question, under the collective bargaining agreement, is whether the employee in the safety critical position tested positive. If so, regardless of the quantity, the employer has grounds to terminate that employee. Therefore, contrary to the position taken by the arbitrator, there is no reason to believe that the phrase "test results from the laboratory" specifically requires a report of quantitation. Moreover, the DOT regulations provide that "the MRO may reveal the quantitation of a positive test result to the employer, the employee, or the decision maker in a lawsuit, grievance or other proceeding initiated by or on behalf of the employee and arising from a verified positive test result." 49 C.F.R. § 40.29(g)(3). This permissive language suggests that specific reports of quantitation are not mandatory. Accordingly, because this court finds that the arbitrator imposed additional requirements on the parties and contradicted the specific terms of the collective bargaining agreement, this court finds that the award of the arbitrator should be overturned. Therefore, this court will grant plaintiff's motion for summary judgment. b. Defendant's motion for summary judgment Defendant's motion for summary judgment essentially reiterates the arguments raised in defendant's response to plaintiff's motion for summary judgment. Defendant asks this court to dismiss plaintiff's complaint, and further, to grant summary judgment in favor of defendant on its counterclaim and enter an order confirming the award of the arbitrator. For the reasons set forth above, this court will deny defendant's motion. Conclusion Accordingly, this court having reviewed the submissions of the parties, and being fully advised in the premises, IT IS HEREBY ORDERED that plaintiff's motion for summary judgment pursuant to Fed.R.Civ.P. 56 is GRANTED. IT IS FURTHER ORDERED that the July 25, 1997 Arbitrator's Opinion and Award of Arbitrator Stanley T. Dobry is VACATED. IT IS FURTHER ORDERED that defendant's motion for summary judgment pursuant to Fed.R.Civ.P. 56 is DENIED. IT IS FURTHER ORDERED that defendant's counterclaim is DISMISSED with prejudice. SO ORDERED.

222 F.2d 180 Joseph M. BAKER, Plaintiff-Appellant,v.George F. MUELLER et al., Defendants-Appellees. No. 11348. United States Court of Appeals Seventh Circuit. May 4, 1955. Joseph M. Baker, Chicago, Ill., for appellant. Lawrence G. Wickert, Harold H. Fuhrman, Milwaukee, Wis., for appellee. Before FINNEGAN, SWAIM and SCHNACKENBERG, Circuit Judges. SCHNACKENBERG, Circuit Judge. 1 From a summary judgment for the defendants, plaintiff appeals. 127 F.Supp. 722. 2 Plaintiff, as a citizen of the state of Illinois, filed a complaint in the district court against the defendants, citizens of Wisconsin. In substance the complaint charges that the defendants, Mueller, Goecks and Grover, were, at the times mentioned in the complaint, members of the town board of Milwaukee, Wisconsin, and that defendant Pfeifer was then building inspector, defendant Borman was health officer, defendant Dineen was attorney, and defendant Tellier was plumbing inspector, for said town of Milwaukee. It further alleges that plaintiff owned a certain two-family residence and the lot upon which it was built, all located in Milwaukee, and that on September 30, 1950, plaintiff received by registered mail a notice that the town of Milwaukee and the building inspector thereof did determine, pursuant to Section 66.05 of the Wisconsin statutes, that said building was: 3 'so old, dilapidated, out of repair, unsafe, unsanitary and otherwise unfit for human occupation or use that it is unreasonable to repair the same and further notifying the plaintiff that due to these conditions, the plaintiff, Joseph M. Baker, is required and hereby ordered to raise'(sic) 'and remove such building within 20 days from the date of the service of such notice upon him for the reason that in the judgment of the Town Board and the Building Inspector, said building cannot be made safe by repair and it is not suitable to be made usable for living purposes because proper sanitary facilities cannot be installed therein; * * *' 4 The notice further informed plaintiff that, in the event of his failure or refusal to comply with the order, the building inspector would proceed to cause the building to be razed or removed. The complaint further alleges that a copy of said notice was attached to the front of said house 'in full view of the public and of passers-by.' 5 The complaint charges upon information and belief that the issuing of the order by the members of the town board and the building inspector was malicious, wanton, unreasonable and wrong, and that their judgment was faulty; that they were totally and utterly wrong in declaring said building unfit for human occupancy and ordering it to be razed, demolished and removed; that the nailing of the order upon the house caused it to become 'a badge of inferiority', the value of the building was 'smeared' and all prospective buyers were warned to beware, the value of the house was depreciated, plaintiff suffered pecuniary loss and his private rights were jeopardized. It is charged that he was deprived of his property rights under the 14th amendment to the Constitution of the United States, and the conduct of the defendants constituted malfeasance. 6 The complaint further alleges that plaintiff secured an injunction or restraining order restraining the members of the town board and the building inspector or others designated by the town board, from demolishing, razing or removing said building. 7 The complaint alleges that the building was not unsafe or old and dilapidated and out of repair, or unfit for human occupancy, that prospective buyers refused to purchase said premises and real estate men refused to list it. It further alleges that, due to the posting of said notice, plaintiff was forced to sell at a lower price than he could have otherwise obtained. It charges that Borman's neglect to use his authority as health officer to control the actions of plaintiff's tenants constituted nonfeasance. It charges that, by virtue of the foregoing, plaintiff suffered damages in the amount of $5,500, for which he prayed judgment. 8 Before us plaintiff also contends that § 66.05 is void because it violates the Wisconsin Declaration of Rights in depriving plaintiff of the right of trial by jury. 9 Defendants contend that they are immune from liability in the instant case because they acted in their official governmental capacity when they caused the demolition notice involved to be posted, and that the pleadings upon their face show that the action is barred by the express provisions of § 66.05, Wisconsin Statutes. They likewise contend that said § 66.05 is a clear exercise of the police power of the state government and it is not therefore repugnant to the 14th amendment to the Constitution of the United States or the Declaration of Rights of the State of Wisconsin. 10 1. In Wisconsin it is the law that the inhabitants of a municipal corporation hold their property subject to a reasonable exercise of police power, and that property may be destroyed to protect the public welfare when such property becomes a nuisance or dangerous to public safety. Miller v. Foster, 244 Wis. 99, at page 103, 11 N.W.2d 674, at page 676, 153 A.L.R. 845, announces this rule. The court there said: 11 'In Mugler v. (State of) Kansas, 123 U.S. 623 (669), 8 S.Ct. 273, 301, 31 L.Ed. 205, the court said: '* * * The exercise of the police power by the destruction of property which is itself a public nuisance, or the prohibition of its use in a particular way, whereby its value becomes depreciated, is very different from taking property for public use, or from depriving a person of his property without due process of law. * * *' And in State v. Laabs * * * (171 Wis. 557 (559), 177 N.W. (916) 917), this court said: '* * * The state may, in its power of police regulation, adopt such measures as are reasonable for the protection of the people's health, and remove the causes that menace it". 12 In Miller v. Foster, supra, it appeared that the plaintiff owned a two-family dwelling and, without previously obtaining a building permit, altered it to a five-family dwelling. The construction of the building was below the minimum requirements of the ordinance controlling construction of dwellings in the particular fire zone in which the building was located. The defendant, building inspector of West Allis, gave notice to the tenants of the violation and directed them to cease occupancy. The plaintiff sued the building inspector to recover damages for what was alleged to be wilful, malicious conduct. The Supreme Court, in examining the lower court's judgment dismissing the plaintiff's complaint stated: 13 'It is undisputed that the defendant was the building inspector of the city of West Allis and that his acts were within the scope of his official authority and in the line of his official duty, which relieves him from personal liability.' 14 It is significant that in that case plaintiff alleged that notices delivered by the defendant to plaintiff's tenants were so given 'willfully, maliciously, without lawful authority and with intent to wrongfully injure the plaintiff'. Similar charges are made in the complaint in the case at bar. 15 To the same effect is Wasserman v. City of Kenosha, 217 Wis. 223, 258 N.W. 857. 16 In the case at bar, the defendants acted pursuant to the provisions of § 66.05, Wisconsin Statutes and, since they acted within the scope of their official duty, they are relieved from any personal liability to the plaintiff. This would be true even if the defendants had erroneously determined the plaintiff's house to be a nuisance and had erroneously caused the condemnation notice to be posted. 17 2. Section 66.05 of the Wisconsin Statutes, under which the defendants proceeded, provides in part as follows: 18 'Anyone affected by any such order shall within 30 days after service of such order apply to the circuit court for an order restraining the inspector of buildings or other designated officer from razing and removing such building or part thereof or forever be barred. * * * The court shall determine whether the order of the inspector of buildings is reasonable, and if found reasonable the court shall dissolve the restraining order, and if found not reasonable the court shall continue the restraining order or modify it as the circumstances require. * * * The remedies herein provided shall be exclusive remedies and anyone affected by such an order of the inspector shall not be entitled to recover any damages for the razing and removal of any such building.' 19 Plaintiff pursued his remedy under that act. He procured a temporary injunction, which has had the effect of temporarily preventing the razing or removal of his building. Until the court in that proceeding determines whether the order of the inspector of buildings is reasonable as it pertains to plaintiff's property, it is not judicially known whether the posting of the notice theron was justified. On oral argument before this court, plaintiff admitted that that case has never been disposed of. It does appear from the complaint that he has sold the property to others since the notice was posted. The court issuing the temporary injunction still has jurisdiction to determine the reasonableness of the action of the defendants in posting the notice, and that proceeding, being a prior action pending, takes precedence over the instant case. It is a bar to this proceeding. 20 3. The statute above quoted is a clear exercise of the police power of the state. Moreover, it provides for a judicial review of the acts of the public officials involved. It does not violate the 14th amendment to the Constitution of the United States. 21 4. Also contending that § 66.05 is invalid, plaintiff charges that it deprives him of a right to trial by jury on the cause of action set forth in his complaint, in violation of section 5 of article I of the Wisconsin Declaration of Rights, which reads as follows: 22 'The right of trial by jury shall remain inviolate, and shall extend to all cases at law without regard to the amount in controversy'. 23 Having held that defendants, as public officials, are immune from suit based upon acts performed in their governmental capacities, it is apparent that plaintiff was not deprived of a jury trial in the case at bar because the case is not maintainable in any event. Actually § 66.05 grants a remedy in the present situation where none otherwise would have existed. The remedy granted is one equitable in its nature. In equity there is no right to trial by jury. Plaintiff's right to a jury trial, as required by the Wisconsin Declaration of Rights, was not, therefore, infringed. 24 5. In his brief in this court plaintiff contends that the district judge should have disqualified himself to sit in this case. This point was not raised before the district court and comes too late in this court. 25 For the reasons herein set forth, the Judgment of the district court is 26 Affirmed.

471 F.2d 647 U. S.v.King 72-1352 UNITED STATES COURT OF APPEALS Second Circuit Jan. 8, 1973 1 S.D.N.Y.

4 So.3d 1238 (2009) BARR v. STATE. No. 4D08-4704. District Court of Appeal Florida, Fourth District. March 4, 2009. Decision without published opinion. Affirmed.

People v Turner (2019 NY Slip Op 03088) People v Turner 2019 NY Slip Op 03088 Decided on April 24, 2019 Appellate Division, Second Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and subject to revision before publication in the Official Reports. Decided on April 24, 2019 SUPREME COURT OF THE STATE OF NEW YORK Appellate Division, Second Judicial Department WILLIAM F. MASTRO, J.P. ROBERT J. MILLER COLLEEN D. DUFFY HECTOR D. LASALLE, JJ. 2012-09704 [*1]The People of the State of New York, respondent, vDuval Turner, appellant. (S.C.I. No. 2245/12) Paul Skip Laisure, New York, NY (Lynn W. L. Fahey of counsel), for appellant. Richard A. Brown, District Attorney, Kew Gardens, NY (John M. Castellano and Johnnette Traill of counsel; Kristin Rainis on the brief), for respondent. DECISION & ORDER Appeal by the defendant from a judgment of the Supreme Court, Queens County (Dorothy Chin-Brandt, J.), rendered October 1, 2012, convicting him of attempted criminal possession of a weapon in the second degree, upon his plea of guilty, and imposing sentence. Assigned counsel has submitted a brief in accordance with Anders v California (386 US 738), in which he moves for leave to withdraw as counsel for the appellant. ORDERED that the judgment is affirmed. Under the circumstances of this case, the brief filed by the defendant's assigned counsel pursuant to Anders v California (386 US 738) was sufficient because it addressed the essential issues in the case and, although the brief did not analyze the defendant's waiver of the right to appeal or the enforceability of the waiver, the enforceability or unenforceability of the defendant's waiver of the right to appeal makes no practical difference to the eventual Anders outcome (see People v Murray, 169 AD3d 227). Moreover, upon an independent review of the record, we conclude that there are no nonfrivolous issues which could be raised on appeal (see id.). Counsel's application for leave to withdraw as counsel is, therefore, granted (see Anders v California, 386 US at 744; People v Murray, 169 AD3d 227; People v Walker, 157 AD3d 726, 726-727). MASTRO, J.P., MILLER, DUFFY and LASALLE, JJ., concur. ENTER: Aprilanne Agostino Clerk of the Court

Filed 9/10/15; pub. order 10/9/15 (see end of opn.) COURT OF APPEAL, FOURTH APPELLATE DISTRICT DIVISION ONE STATE OF CALIFORNIA NORTH COUNTY ADVOCATES, D066488 Plaintiff and Appellant, v. (Super. Ct. No. 37-2013-00061990- CU-WM-NC) CITY OF CARLSBAD, Defendant and Respondent, PLAZA CAMINO REAL, LP, et al., Real Parties in Interest. APPEAL from a judgment of the Superior Court of San Diego County, Robert P. Dahlquist, Judge. Affirmed in part, reversed in part with directions. DeLano & DeLano, Everett L. DeLano III and M. Dare DeLano, for Plaintiff and Appellant. Celia A. Brewer and Jane Mobaldi for Defendant and Respondent City of Carlsbad. Alston & Bird, Edward J. Casey and Andrea S. Warren, for Real Parties in Interest.  Real Parties in Interest Plaza Camino Real, LP and CMF PCR, LLC (collectively, "Westfield") proposed to renovate a shopping center originally built in the City of Carlsbad (City) over 40 years ago.1 The City approved Westfield's request to renovate a former Robinsons-May store and other small portions of the shopping center (the project). North County Advocates (Advocates) challenged the City's approval under the California Environmental Quality Act (CEQA; Pub. Resources Code,2 § 21000 et seq.), arguing the project's environmental impact report (EIR) used an improper baseline in its traffic analysis because it treated the Robinsons-May store as fully occupied, even though it was vacated in 2006 and had been only periodically occupied since. Advocates also argued the City violated CEQA by failing to consider as a mitigation measure that it require Westfield to make a fair share contribution to the future widening of the El Camino Real bridge over State Route 78 (the bridge) and by failing to respond adequately to public comments regarding traffic mitigation. The trial court rejected Advocates's CEQA challenges and awarded the City costs for staff time spent reviewing and certifying the administrative record Advocates prepared. Advocates appeals the trial court's CEQA and costs determinations. We affirm the trial court's CEQA determinations. Substantial evidence supports the City's determination of the traffic baseline because it was based on recent historical 1 We refer to Westfield and the City collectively as Respondents. 2 All further statutory references are to the Public Resources Code unless otherwise indicated. 2 use and was consistent with Westfield's right to fully occupy the Robinsons-May space without further discretionary approvals. Substantial evidence also shows the City's consideration of traffic mitigation measures and responses to comments were adequate. However, we conclude the trial court erred by awarding certain subcategories of costs to the City. Accordingly, we reverse the judgment as to three of the four subcategories, and remand for further proceedings in connection with one of them. In all other respects, we affirm. FACTUAL AND PROCEDURAL BACKGROUND The Original Project Site Westfield proposed to renovate a portion of a shopping center located in the City. Originally built in 1969, the project site was developed "as a two- and three-story indoor shopping center with five main anchor department store buildings (i.e., Sears, Macy's, Macy's Men, JC Penney, and the vacant former Robinsons-May) and numerous smaller retail specialty shops." The site contains over 6,400 surface parking spaces as well as several outbuildings within the main mall parking lots and across a street to the south of the main mall. While Westfield owns the developed parcels within the shopping center, the City owns the surface parking lots. Under a "Precise Plan" the City first approved in 1977, Westfield was entitled to renovate the interior of the former Robinsons-May tenant building and fully occupy it without obtaining any further discretionary approvals from the City. 3 The Specific Plan and Site Development Plan for the Project The City approved two entitlements for the project: (1) a "Specific Plan" to facilitate future development at the shopping center area beyond the project; and (2) a "Site Development Plan," which allowed for the immediate project. The Specific Plan area included all of the shopping center buildings and the majority of the shopping center's surface parking areas. The Site Development Plan allowed for the immediate removal, renovation, and/or redevelopment of portions of the east end of the existing mall structure and associated outbuildings. As described in the "Draft EIR," the Site Development Plan would have allowed for a net increase of approximately 35,000 square feet of gross leasable area. The project initially proposed to build additional retail space west of the Robinsons-May building on three pads built as outparcels within the City-owned surface parking lots to accommodate future restaurant and/or retail space. The Final Approved Project Because Westfield and the City were unable to agree on lease terms for development of the City-owned outparcels, Westfield reduced the scope of the project as described in the Draft EIR and revised the Site Development Plan. The reduced project still included demolition and reconstruction of the former Robinsons-May store. As revised, the project would result in a net loss of 636 square feet of total gross leasable area in the shopping center. 4  The project was under construction at the time of the June 2014 hearing on Advocates's petition for writ of mandate and was completed before the 2014 holiday season. The City's Environmental Review and Project Approvals The City released the Draft EIR on August 31, 2012, with nine technical reports and studies attached as appendices. Those technical studies included a 194-page (excluding supporting appendices) "Transportation Study." The Draft EIR evaluated three alternatives to the project. With implementation of a number of mitigation measures, the Draft EIR concluded the project would not cause any significant environmental impacts. The City received 10 comment letters on the Draft EIR. The City responded to all of them, and included its responses in the December 2012 final EIR. The City also issued a 37-page "Mitigation Monitoring and Reporting Program" with the final EIR. On June 5, 2013, the City's planning commission conducted a public hearing and approved the Site Development Plan and recommended approval to the city council of the Specific Plan for the project. On July 9, 2013, the city council conducted its public hearing on the project. Two members of the public—including Advocates's counsel—expressed concern about the project; three others expressed support. The city council unanimously approved the project, adopted the Specific Plan, approved the Site Development Plan, and certified the final EIR. On July 10, 2013, the City filed a "Notice of Determination" under CEQA. 5 Advocates's Petition for Writ of Mandate On August 7, 2013, Advocates filed a petition for writ of mandate challenging the City's approvals of the project. As relevant here, the petition challenged the City's determination of the baseline for traffic trips, the EIR's mitigation measures for traffic impacts, and the City's response to comment letters concerning those mitigation measures. The trial court heard the petition on June 6, 2014; issued an order denying the petition on June 24; and entered a final judgment on July 2. The Costs Award Westfield filed a memorandum of costs in the amount of $5,490.24, and the City filed one seeking $6,237. Advocates filed motions to tax costs targeting each. The trial court denied Advocates's motions and awarded costs to Westfield and the City according to their memoranda of costs. Advocates's Appeal Advocates timely appealed the judgment upholding the project approvals and awarding the City its costs. Advocates does not challenge the award of costs to Westfield. DISCUSSION Advocates contends the trial court erred by rejecting Advocates's challenges to the City's (1) use of an incorrect and misleading baseline in the EIR's traffic analysis, (2) failure to adequately analyze traffic impacts, and (3) failure to adequately respond to comments it received regarding the EIR. Advocates also contends the trial court erred by 6 awarding the City costs for time its staff spent reviewing and certifying the administrative record that Advocates prepared. I. GENERAL CEQA PRINCIPLES AND STANDARD OF REVIEW "CEQA embodies our state's policy that 'the long-term protection of the environment . . . shall be the guiding criterion in public decisions.' " (Architectural Heritage Assn. v. County of Monterey (2004) 122 Cal.App.4th 1095, 1100; § 21001, subd. (d).) The EIR is the " 'heart of CEQA.' " (Laurel Heights Improvement Assn. v. Regents of University of California (1988) 47 Cal.3d 376, 392.) Its "function is to ensure that government officials who decide to build or approve a project do so with a full understanding of the environmental consequences and, equally important, that the public is assured those consequences have been taken into account." (Vineyard Area Citizens for Responsible Growth, Inc. v. City of Rancho Cordova (2007) 40 Cal.4th 412, 449 (Vineyard Area Citizens).) "The EIR process protects not only the environment but also informed self-government." (Laurel Heights, supra, 47 Cal.3d at p. 392.) An EIR is presumed adequate; the challenger in a CEQA action bears the burden of proving otherwise. (Preserve Wild Santee v. City of Santee (2012) 210 Cal.App.4th 260, 275 (Preserve Wild Santee).) "In reviewing an agency's compliance with CEQA in the course of its legislative or quasi-legislative actions, the courts' inquiry 'shall extend only to whether there was a prejudicial abuse of discretion.' [Citation.] Such an abuse is established 'if the agency has not proceeded in a manner required by law or if the determination or decision is not supported by substantial evidence.' " (Vineyard Area Citizens, supra, 40 Cal.4th at p. 426, fn. omitted.) " 'Judicial review of these two types of 7 error differs significantly: While we determine de novo whether the agency has employed the correct procedures, "scrupulously enforc[ing] all legislatively mandated CEQA requirements" [citation], we accord greater deference to the agency's substantive factual conclusions.' " (Preserve Wild Santee, supra, 210 Cal.App.4th at p. 275.) "An appellate court's review of the administrative record for legal error and substantial evidence in a CEQA case, as in other mandamus cases, is the same as the trial court's: The appellate court reviews the agency's action, not the trial court's decision . . . ." (Vineyard Area Citizens, supra, 40 Cal.4th at p. 427.) II. SUBSTANTIAL EVIDENCE SUPPORTS THE CITY'S TRAFFIC BASELINE DETERMINATION "To decide whether a given project's environmental effects are likely to be significant, the agency must use some measure of the environment's state absent the project, a measure sometimes referred to as the 'baseline' for environmental analysis." (Communities for a Better Environment v. South Coast Air Quality Management Dist. (2010) 48 Cal.4th 310, 315 (Communities for a Better Environment).) Under the Guidelines for Implementation of CEQA (Cal. Code Regs., tit. 14, § 15000 et seq.) (Guidelines),3 "the baseline 'normally' consists of 'the physical environmental conditions in the vicinity of the project, as they exist at the time . . . environmental analysis is 3 The Guidelines are regulations "prescribed by the Secretary for Resources to be followed by all state and local agencies in California in the implementation of" CEQA. (Guidelines, § 15000; § 21083.) "In interpreting CEQA, we accord the Guidelines great weight except where they are clearly unauthorized or erroneous." (Vineyard Area Citizens, supra, 40 Cal.4th at p. 428, fn. 5.) 8 commenced . . . .' " (Communities for a Better Environment, supra, 48 Cal.4th at p. 315, citing Guidelines, § 15125, subd. (a).)4 Advocates contends the EIR's traffic baseline is "incorrect and misleading" because it did not follow the " 'normally' " applicable rule of measuring conditions as they actually existed when environmental review began. (Capitalization and bold typeface omitted.) Advocates contends the City instead "falsely inflated the existing traffic conditions" by "imputing over 5,000 daily trips" to the baseline premised on a fully occupied Robinsons-May building when, in fact, Robinsons-May vacated the space in 2006. Advocates contends that by falsely inflating the existing traffic conditions, the baseline understates the project's true impact on the environment. We review for substantial evidence an agency's decision to deviate from the normal rule for determining a baseline. (Neighbors for Smart Rail v. Exposition Metro Line Construction Authority (2013) 57 Cal.4th 439, 457 (Smart Rail) ["If substantial evidence supports an agency's determination that an existing conditions impacts analysis would provide little or no relevant information or would be misleading as to the project's true impacts, a reviewing court may not substitute its own judgment on this point for that of the agency."].) 4 Guidelines section 15125, subdivision (a) states: "An EIR must include a description of the physical environmental conditions in the vicinity of the project, as they exist at the time the notice of preparation is published, or if no notice of preparation is published, at the time environmental analysis is commenced, from both a local and regional perspective. This environmental setting will normally constitute the baseline physical conditions by which a lead agency determines whether an impact is significant. The description of the environmental setting shall be no longer than is necessary to an understanding of the significant effects of the proposed project and its alternatives." 9  The EIR provides the following explanation of how and why the City deviated from the normal rule in selecting the baseline: "Westfield Carlsbad currently has vacant leasable space beyond the regular amount expected in super regional shopping centers, mainly the 148,159-square foot Robinson's-May building. Since this space is currently vacant, traffic from this space is not included in the traffic counts conducted at the analyzed intersections and street segments. However, for purposes of determining the Existing Baseline conditions pursuant to CEQA Guidelines Section 15125, trips attributable to that currently unoccupied space were added to the baseline conditions counted in the project area as noted below. "Trip generation rates and estimates for the vacant Robinson's-May building were estimated using those identified in the San Diego Association of Government's (SANDAG's) Brief Guide of Vehicular Traffic Generation Rates for the San Diego Region (SANDAG 2002) for a 'Super Regional Shopping Center' land use. These estimates are conservative in that they do not account for trip reductions from pass-by trips. Based on the rate, the vacant Robinson's-May building could generate a total of 5,186 daily trips on a typical weekday . . . . These modified traffic volumes were added to the existing traffic counts collected in the project area and represent the Existing Baseline conditions for the purposes of this study. [The Transportation Study attached as] Appendix F provides a detailed description of the methodology used to establish the Existing Baseline condition." The Transportation Study elaborates on the City's determination of the traffic baseline: "Existing Baseline Conditions – Westfield Plaza Camino Real is an existing super regional shopping [center] which is entitled for 1,151,092 [square feet] of retail commercial space. All of the currently entitled square footage is completely constructed. However, the nature of a shopping center is that tenants change and the amount of occupied space constantly fluctuates. "Plaza Camino Real currently has unoccupied leasable space beyond the normal amount, mainly the 148,159 [square foot] Robinsons- May building. Since this space is currently vacant, traffic from this 10  space is not included in the actual traffic counts conducted at the analyzed intersections and street segments. However, for the purposes of determining the Existing Baseline Conditions pursuant to California Environmental Quality Act (CEQA) Guidelines Section 15125, trips attributable to that currently unoccupied space are imputed. A full occupancy assumption is consistent with SANDAG's regional traffic modeling methodology which assumes full occupancy of all entitled square footage. It is also consistent with the City of Carlsbad and City of Oceanside's determination of existing baseline because the currently vacant space could be occupied at anytime without discretionary action. In fact, portions of that space are periodically occupied with temporary uses such as a Halloween store which leases the space in the month of October. For these reasons, full occupancy of all entitled square footage is assumed in determining the Existing Baseline Conditions." Using the baseline with the imputed Robinsons-May traffic, the Transportation Study concludes the "Project will not result in a significant impact at any of the analyzed intersections during either peak hour, or any of the analyzed street segments during either peak hour or daily conditions." Advocates contends the California Supreme Court rejected the practice of imputing use levels in Communities for a Better Environment, supra, 48 Cal.4th 310. Respondents counter that Cherry Valley Pass Acres & Neighbors v. City of Beaumont (2010) 190 Cal.App.4th 316 (Cherry Valley), a case decided by Division Two of this Court, permits an agency to base an existing-conditions baseline on recent historical use levels if those levels are permitted to continue. (Id. at p. 337.) We conclude Respondents have the better argument—Communities for a Better Environment is distinguishable and Cherry Valley is on point and persuasive. In Communities for a Better Environment, the Supreme Court reversed a regional air quality management district's approval of ConocoPhillips's application to modify a 11 petroleum refinery in a way that would increase operation of four boilers that produced steam for refinery operations, but also emitted nitrogen oxide (a major contributor to smog). (Communities for a Better Environment, supra, 48 Cal.4th at p. 317.) The district selected as the project's baseline for nitrogen oxide emissions the amount the boilers would emit if they operated at the maximum level allowed under ConocoPhillips's existing permits, even though ConocoPhillips had never operated them at that level. (Id. at pp. 318, 322.) Using this baseline, the district concluded the project would not have a significant impact on the environment, even though it was undisputed that the as- modified refinery's emissions would exceed the district's "significance threshold." (Id. at pp. 317-318.) The Supreme Court concluded this was error. The Supreme Court approved a line of Court of Appeal decisions that "concluded the baseline for CEQA analysis must be the 'existing physical conditions in the affected area' [citation], that is, the 'real conditions on the ground' [citations], rather than the level of development or activity that could or should have been present according to a plan or regulation." (Communities for a Better Environment, supra, 48 Cal.4th at p. 321.) Applying this general rule, the court concluded the district's selected baseline was impermissibly "hypothetical" because it was based on maximum permitted operating conditions that were "not the norm." (Id. at p. 322.) But while the Supreme Court recognized public agencies should " 'normally' " use "existing conditions" as the baseline (Communities for a Better Environment, supra, 48 Cal.4th at pp. 327-328), the court also recognized that "[n]either CEQA nor the CEQA Guidelines mandates a uniform, inflexible rule" (id. at p. 328). Citing as an example 12 ConocoPhillips's concern that refinery operations "vary greatly with the season, crude oil supplies, market conditions, and other factors" (id. at p. 327), the court explained that agencies may exercise discretion to accommodate a "temporary lull or spike in operations that happens to occur at the time of environmental review" (id. at p. 328; Save Our Peninsula Committee v. Monterey County Board of Supervisors (2001) 87 Cal.App.4th 99, 125 ["Environmental conditions may vary from year to year and in some cases it is necessary to consider conditions over a range of time periods."]). As long as that exercise of discretion is supported by substantial evidence, the courts will not disturb it. (Communities for a Better Environment, supra, at p. 328.) Applying Communities for a Better Environment, the Cherry Valley court upheld a city's "quintessentially . . . discretionary" baseline determination of a project site's water use levels where the site's historical water use fluctuated. (Cherry Valley, supra, 190 Cal.App.4th at p. 337.) Sunny-Cal operated an egg farm on the site from the 1960's through 2005, when the site transitioned to cattle ranching and feed crop operations. (Id. at pp. 324, 329.) The record showed the egg farm used an average of 1,340 acre-feet annually of groundwater between 1997 and 2001, but the cattle ranch used only 50 acre- feet annually beginning in 2005.5 (Id. at pp. 329.) In a 2006 revised draft EIR, the city selected as the groundwater use baseline 1,484 acre-feet annually, which was the amount the developer was entitled to extract under a 2004 water-rights adjudication. (Id. at pp. 325, 331.) The petitioners contended the baseline should have been the then-existing 50 5 The opinion is silent regarding the site's water use between 2001 and 2005. (Cherry Valley, supra, 190 Cal.App.4th at pp. 329-335.) 13 acre-feet annually level. (Id. at p. 336.) The Court of Appeal upheld the city's determination. The court distinguished Communities for a Better Environment and other cases cited by the petitioner on the ground that the baseline in each of those cases was hypothetical because it was based on "conditions that were permissible pursuant to an existing plan or regulation but that were not being employed or that did not exist 'on the ground' at the time environmental review commenced." (Cherry Valley, supra, 190 Cal.App.4th at p. 338, italics added; id. at pp. 339-340, citing Woodward Park Homeowners Assn., Inc. v. City of Fresno (2007) 150 Cal.App.4th 683, 693, 697 [baseline for 477,000 square-foot office park to be built on vacant lot was apparently based on 694,000 square-foot maximum allowed under applicable zoning] and Environmental Planning & Information Council v. County of El Dorado (1982) 131 Cal.App.3d 350, 357-358 [EIR's for two general plan amendments were deficient because they compared the impacts of the amendments with the existing general plan, which projected populations far larger than ever actually materialized].) By contrast, the Cherry Valley court concluded substantial evidence showed the baseline was not hypothetical because it was based not only on Sunny-Cal's entitlement to extract 1,484 acre-feet annually of groundwater, but also on Sunny-Cal's recent history of actually extracting substantially the same amount. (Cherry Valley, supra, 190 Cal.App.4th at p. 340.)6 6 The Supreme Court recently cited this aspect of Cherry Valley with approval. (See Smart Rail, supra, 57 Cal.4th at p. 450 [Cherry Valley "applied Communities for a 14  Like Cherry Valley and unlike Communities for a Better Environment, the City's selection of a traffic baseline that assumed full occupancy of the Robinsons-May space was not merely hypothetical because it was not based solely on Westfield's entitlement to reoccupy the Robinsons-May building "at anytime without discretionary action," but was also based on the actual historical operation of the space at full occupancy for more than 30 years up until 2006. And like the period when Sunny-Cal used less water on its land for cattle ranching and feed crops, the Robinsons-May space was less occupied from 2007 through 2009 (two retail users occupied part of it from August 2006 through December 2007, and two others occupied part of it from August through November in 2008 and in 2009).7 We view this fluctuating occupancy—which is "the nature of a shopping center"—as akin to the varying oil refinery operations in Communities for a Better Environment that led the Supreme Court to recognize that agencies have discretion Better Environment" to demonstrate that "recent historical use [can] constitute[] a realistic measure of existing conditions."].) 7 Advocates attempts to distinguish this similarity by arguing that environmental review in Cherry Valley began in 2004 when Sunny-Cal was still using the project site as an egg farm and extracting 1,340 acre-feet annually of groundwater, whereas environmental review did not begin here until 2009, when the Robinsons-May space had already been vacant for approximately three years. This argument fails. First, the Cherry Valley court did not state (as Advocates asserts) that Sunny-Cal "had actually used that much groundwater 'since February 2004 . . . .' " (Italics added.) Instead, the court was referring to the fact that "Sunny-Cal's 1,484 [acre-feet annually] entitlement to Beaumont Basin groundwater" existed since 2004. (Cherry Valley, supra, 190 Cal.App.4th at pp. 338-339, italics added.) Similarly, Westfield's right to fully reoccupy the Robinsons-May space "at anytime without discretionary action" existed since 1977. Second, even though Sunny-Cal was using the project site as an egg farm when environmental review began in 2004, the only evidence of Sunny Cal's actual egg-farm-related water use level discussed in the opinion was from 1997 through 2001—a period that ended, as here, three years before environmental review began. (Id. at pp. 329-335.) 15 " 'to consider conditions over a range of time periods' " to account for a "temporary lull or spike in operations . . . ." (Communities for a Better Environment, supra, 48 Cal.4th at pp. 327-328.) The City's decision to base the traffic baseline on historical occupancy rates is further supported by substantial evidence consisting of SANDAG data on such use levels. Therefore, we conclude substantial evidence supports the City's exercise of discretion in selecting a traffic baseline that assumed a fully occupied Robinsons-May building. III. SUBSTANTIAL EVIDENCE SUPPORTS THE SELECTED TRAFFIC MITIGATION MEASURE Advocates contends the City violated CEQA by failing to adequately analyze traffic impacts. The final EIR discloses the project would have no direct impact on traffic, but would have indirect cumulative impacts on three street segments in the neighboring City of Oceanside (Oceanside). The City's transportation consultant opined the project's indirect impacts could be mitigated to less-than-significant levels by requiring Westfield to contribute its fair share—approximately $6,000—toward "adaptive-response signals" that adjust to address real-time traffic conditions. The City adopted this mitigation measure. Advocates contends the City should also have considered the mitigation measure suggested by Oceanside: that Westfield be required to contribute its fair share—approximately $85,000—toward widening of the bridge. Respondents contend the City was not required to consider this alternative because the project had no significant impact on the bridge and the adaptive-response signals 16 otherwise adequately mitigated the project's impacts. Under these circumstances, substantial evidence supports the City's consideration and selection of traffic mitigation measures. "[I]t is the policy of the state that public agencies should not approve projects as proposed if there are . . . feasible mitigation measures available which would substantially lessen the significant environmental effects of such projects . . . ." (§ 21002.) An EIR must identify and analyze the significant environmental effects that may result from the project. (§ 21100, subds. (a), (b); Guidelines, §§ 15126.2, subd. (a), 15143.) For each significant effect, the EIR must describe and discuss feasible mitigation measures that could minimize the effect. (§ 21100, subd. (b)(3); Guidelines, § 15126.4, subd. (a); In re Bay-Delta etc. (2008) 43 Cal.4th 1143, 1162 ["The EIR is the heart of CEQA, and the mitigation and alternatives discussion forms the core of the EIR."].) We review "a factual dispute over 'whether adverse effects have been mitigated or could be better mitigated' . . . for substantial evidence." (Vineyard Area Citizens, supra, 40 Cal.4th at p. 435.) Substantial evidence supports the City's consideration and selection of traffic mitigation measures. Before the City released the Draft EIR, it commissioned traffic experts to evaluate the project's potential impacts on traffic in the City and in Oceanside. The City provided Oceanside with an opportunity to comment on the consultant's draft transportation study. Oceanside responded in December 2009 with an eight-page letter containing 57 comments on the draft. Comment 56 states, "The project will be required to contribute a fair share contribution toward the Traffic Management Center (TMC for 17 adaptive signals on El Camino Real) and toward the future widening of the bridge at El Camino Real at SR78." The City's traffic consultant conferred with the City and Oceanside to select 18 intersections and street segments (10 of each in Carlsbad and eight of each in Oceanside) at which to study the project's potential traffic impacts. The bridge was one of the studied street segments. The consultant analyzed impacts to the intersections and segments using the guidelines set forth by both cities. The consultant's Transportation Study concluded "the project is not expected to result in a direct significant impact at any of the analyzed intersections or street segments" and, therefore, "[n]o mitigation for direct project impacts is required." However, the Transportation Study also concluded that "indirect cumulative impacts" to three street segments in Oceanside would be considered significant under Oceanside's standards. (Italics added.) The bridge was not one of the three impacted street segments. The study recommended mitigating the indirect impacts by requiring Westfield to contribute its "fair[ ]share" toward adaptive-response signals along the three affected segments. The City's Draft EIR attached the Transportation Study, devoted a 55-page chapter to a discussion of the project's traffic impacts, and adopted the study's recommended adaptive-response-signal mitigation measure. The Draft EIR concluded this mitigation measure would mitigate the project's indirect cumulative impacts on traffic to "less than significant levels." In October 2012, Oceanside sent the City a one-page letter commenting on the Draft EIR. The letter, which enclosed for reference Oceanside's previous 57-item letter, makes only the following single comment on the Draft EIR: 18  "The City of Oceanside does not support the current recommendation specified in the [Draft EIR] for the project to contribute a fair share toward future adaptive signals on El Camino Real. The project must contribute its fair share toward the future widening of the El Camino Real Bridge over SR78. The recommended mitigation measure in the Final EIR must be changed to reflect the appropriate fair share based on the project's proportion to the growth of future traffic volumes along the bridge." The "Comments and Responses" section of the final EIR contains the following response by the City to Oceanside's October 2012 letter: "Comment noted. The City of Carlsbad recognizes the City of Oceanside's prior consultation with Carlsbad's traffic consultant concerning the potential traffic impacts of the proposed project. The Draft EIR traffic analysis demonstrates that the proposed project would not cause a significant direct impact to any segments of El Camino Real, including the segment containing the bridge over SR- 78. Therefore, there is no requirement in the Draft EIR for the applicant to contribute a fair share payment toward the future widening of the El Camino Real Bridge over SR-78. The applicable comments from the December 2009 letter attached to this comment were integrated into the Transportation Study that was circulated with the Draft EIR." The final EIR did not change substantively with respect to traffic mitigation. It conditioned the project's approval on Westfield providing proof that it contributed its fair share toward the adaptive-response signals for the three street segments affected by the project. Advocates's challenge to the City's consideration of traffic impacts is narrow. Advocates does not (1) contend the City's traffic consultant selected the wrong intersections or street segments to study; (2) challenge the Transportation Study's finding that the project will not lead to any direct significant impacts to any intersections or street segments, or that the project will lead to indirect cumulative impacts on only the three 19 identified street segments; (3) dispute the final EIR's conclusion that the project will not lead to any significant impacts to the bridge; or (4) challenge the final EIR's conclusion that requiring Westfield to contribute its fair share toward adaptive-response signals will mitigate the indirect cumulative impacts to the three relevant street segments to less-than- significant levels. Instead, Advocates's only challenge is to the City's selection of the adaptive-response-signal mitigation measure instead of the measure that would have required Westfield to contribute its fair share toward future expansion of the bridge. In light of the substantial evidence supporting the City's uncontested findings, Advocates's challenge fails. Advocates's primary legal argument is that the final "EIR fails as an informational document," citing Lotus v. Dept. of Transportation (2014) 223 Cal.App.4th 645, 653 (Lotus) for the proposition that "where several potential mitigation measures are available, each should be discussed separately, and the reasons for choosing one over the others should be stated." (Ibid., quoting Sacramento Old City Assn. v. City Council (1991) 229 Cal.App.3d 1011, 1027 (SOCA).) Neither Lotus nor SOCA are analogous. In Lotus, the appellate court addressed the failure of an EIR for a freeway-widening project through a redwood forest to "identify any standard of significance" against which to measure the project's impact on redwood trees. (Lotus, supra, 223 Cal.App.4th at pp. 647, 655.) The court addressed mitigation measures only to the extent the EIR improperly incorporated them—masked as " 'special construction techniques' " (id. at p. 651)—into "its description of the project and then conclud[ed] that any potential impacts 20 from the project will be less than significant." (Id. at pp. 655-656.) Lotus contains no discussion of competing mitigation measures. The petitioner in SOCA challenged an EIR for a downtown redevelopment project because the "EIR provides no specific mitigation measures for the parking impacts, but instead offers a list of 'seven general measures of the sort that might be included in [the City's] unformulated "Transportation Management Plan." ' " (SOCA, supra, 229 Cal.App.3d at p. 1026.) In other words, the petitioner attacked the EIR for failing to actually adopt any mitigation measure. That is not the case here. As discussed above, the final EIR extensively discussed the project's impacts on traffic and incorporated the Transportation Study's recommended mitigation measure of requiring Westfield to contribute its fair share toward adaptive-response signals on the three affected street segments. Because it is undisputed that this measure will mitigate the indirect cumulative impacts to the three relevant street segments to less-than- significant levels and that the project will have no direct or indirect significant impacts on the bridge, substantial evidence supports the City's selection of this mitigation measure. IV. THE CITY ADEQUATELY RESPONDED TO COMMENTS ON THE DRAFT EIR Advocates contends the City failed to respond adequately to comments it received on the Draft EIR from Advocates, the California Department of Transportation (Caltrans) and Oceanside. Largely for reasons we have already discussed, we disagree. "After issuance of a draft EIR, '[t]he lead agency shall evaluate comments on environmental issues received from persons who reviewed the draft EIR and shall prepare 21 a written response.' " (Paulek v. Department of Water Resources (2014) 231 Cal.App.4th 35, 48, quoting Guidelines, § 15088, subd. (a).) "Responses to comments need not be exhaustive; they need only demonstrate a 'good faith, reasoned analysis.' " (Gilroy Citizens for Responsible Planning v. City of Gilroy (2006) 140 Cal.App.4th 911, 937; Guidelines, § 15088, subd. (c).) " ' "[T]he determination of the sufficiency of the agency's responses to comments on the draft EIR turns upon the detail required in the responses. [Citation.] Where a general comment is made, a general response is sufficient." ' " (Gilroy Citizens, supra, 140 Cal.App.4th at p. 937.) "Satisfactory responses to comments ' "may be provided by reference to the EIR itself." ' " (Ibid.) Through its counsel, Advocates raised 16 questions regarding the Draft EIR. On appeal, Advocates challenges only the sufficiency of the City's response to the comment that "the EIR adopts an incorrect baseline for much of its discussion, reasoning that the 'existing' environment includes occupancy of the vacant Robinsons-May store." The City's response cited Communities for a Better Environment, supra, 48 Cal.4th at pp. 327-328 for the need "to consider conditions over a range of time periods" based on conditions that " 'vary from year to year,' " discussed the historical occupancy of the Robinsons-May space, noted Westfield's vested right to fully occupy the space, and concluded that "given that the current vacancy of the Robinson's-May space is part of a temporary vacancy, the Draft EIR appropriately presumes an occupied store is part of the environmental baseline condition for the purposes of the EIR's analysis of the proposed project." The City's response adequately—and, as discussed in section II, ante, accurately—addressed Advocates's comment regarding the traffic baseline. 22  Advocates contends the City's response to Caltrans's comments regarding baseline conditions mischaracterized the City's baseline analysis. Caltrans's comment stated, "Volumes used for Existing Baseline Conditions appear too low," then compared data in the Transportation Study with historical Caltrans study data. The City responded: "The traffic counts used in the traffic analysis and reported in the Draft EIR represent the physical environment at the study intersections as it existed at the time the Notice of Preparation (NOP) was issued for the Draft EIR, consistent with Section 12125 of the CEQA Guidelines. Specifically, the traffic analysis evaluated potential project impacts on the existing environment based on the traffic count data collected at the identified study locations in September 2009 and March 2010. With the recent economic downturn, traffic volumes on many of the main commercial corridors in Southern California have decreased below 2006-2008 levels, which may explain the lower volumes cited in the comment from other studies by Caltrans and Rick Engineering. No modifications to the Transportation Study are warranted since the data were collected consistent with the CEQA Guidelines." Advocates contends this response was "incorrect, or at least misleading," because although the response claimed the study data was based on actual existing conditions, the City's baseline added trips attributable to a fully occupied Robinsons-May building. Advocates misreads Caltrans's comment—it was focused on apparent discrepancies in the actual study data, not imputation of trips to a temporarily vacant store. Accordingly, the City's response to Caltrans was adequate and was not misleading. Finally, Advocates contends the "City summarily dismissed Oceanside's concerns about traffic mitigation." On the contrary, the City's response to Oceanside's October 2012 comment (both of which are quoted in full in section III, ante) is more comprehensive than the comment itself. (Gilroy Citizens, supra, 140 Cal.App.4th at p. 23 937 [" ' "Where a general comment is made, a general response is sufficient." ' "].) Advocates's remaining contention—that "the City failed entirely to respond specifically to any of the other comments provided by Oceanside"—is misleading because it confuses Oceanside's December 2009 preliminary comments on the Transportation Study with Oceanside's October 2012 comments on the Draft EIR, the latter of which raised only the single issue regarding bridge-widening, but reattached the former for reference. Therefore, we conclude the City's response to Oceanside's comment on the Draft EIR was adequate. V. THE TRIAL COURT ERRED BY AWARDING THE CITY ALL OF ITS REQUESTED COSTS In litigation challenging a CEQA determination, the petitioner may either request that "the respondent public agency prepare the record of proceedings relating to the subject of the action or proceeding" at the petitioner's expense, or the petitioner may prepare the record itself and then have the public agency certify it for accuracy. (§ 21167.6, subds. (a), (b)(2).) If the petitioner elects to prepare the record, the public agency cannot recover its costs incurred in reviewing the record for accuracy—"[t]his sort of review is a chore public agencies face in every case in which the petitioner elects to prepare the record . . . ." (Coalition for Adequate Review v. City and County of San Francisco (2014) 229 Cal.App.4th 1043, 1059 (Coalition for Adequate Review).) But if a petitioner-prepared record is incomplete, "and an agency is put to the task of supplementation to ensure completeness," then the agency may recoup the costs it incurred in preparing the supplemental record." (Id. at pp. 1055-1056.) 24  Advocates contends that because it elected to prepare the administrative record, the trial court erred by awarding the City "$5,802 for [s]taff time to review, correct and certify' " it. The City counters that the trial court properly awarded the costs because the City's work on the administrative record "went far beyond simply reviewing the record for completeness." Although the City's cost memorandum provides no description of its work beyond "[s]taff time to review, correct and certify the administrative record," the City's submission in opposition to Advocates's motion to tax costs identifies four subcategories of work: (1) "[r]eviewing and correcting the draft record"; (2) locating attachments that were " 'missing' " from the documents the City originally made available to Advocates; (3) obtaining additional files from the City's consultant; and (4) responding to Advocates's motion to augment the record with the "missing attachments." "Whether a particular cost to prepare an administrative record was necessary and reasonable is an issue for the sound discretion of the trial court. [Citations.] Discretion is abused only when, in its exercise, the court 'exceeds the bounds of reason, all of the circumstances being considered.' [Citation.] The appellant has the burden of establishing an abuse of discretion." (River Valley Preservation Project v. Metropolitan Transit Development Bd. (1995) 37 Cal.App.4th 154, 181.) We conclude the trial court erred with respect to all but one of the City's subcategories of costs. We begin by discussing two cases in which appellate courts addressed costs awarded to agencies in connection with petitioner-prepared administrative records. In Coalition for Adequate Review, supra, 229 Cal.App.4th 1043, the city approved the petitioner-prepared administrative record, "but only in part, stating it was incomplete." 25 (Id. at p. 1048.) The city had made nearly 30,000 pages of documents available, yet the petitioner presented for certification a 30-volume record totaling only approximately 8,300 pages. (Ibid.) The city tried to convince the petitioner to add approximately 4,800 pages of documents the city contended were statutorily required to be included in the administrative record, but the petitioner declined. (Ibid.) The city then filed a motion for leave to augment the record, which the trial court granted (with the exception of approximately 250 duplicative pages). (Id. at pp. 1048-1049.) After it prevailed on the merits of the petition, the city filed a memorandum of costs seeking over $64,000 for " 'administrative record, professional messenger, and services.' " (Id. at p. 1050.) The trial court granted the petitioner's motion to tax those costs, but the Court of Appeal reversed. (Id. at pp. 1050, 1062.) The Coalition for Adequate Review court observed that "the fact a petitioner elects to prepare the record . . . does not ipso facto bar the recovery of record preparation costs by a public agency." (Coalition for Adequate Review, supra, 229 Cal.App.4th at p. 1055.) For while "[t]here is no question the alternative record preparation procedures . . . are intended to reduce record preparation costs," a petitioner-prepared record must still be complete. (Ibid.) Therefore, the court held: "When a record prepared [by a petitioner] under [section 21167.6,] subdivision (b)(2) is incomplete, and an agency is put to the task of supplementation to ensure completeness, the language of the statute allows, and the purpose of the record-preparation cost provision to protect public monies counsels, that the agency recoup the costs of preparing the supplemental record." (Id. at pp. 1055- 1056.) On the record before it, the court had "no trouble concluding the City was 26 effectively put to the task of preparing a statutorily complete record and, therefore, may recover its reasonable costs of preparing the supplemental record." (Id. at p. 1057.) But the record also revealed a problem: the city's request for approximately $50,000 for over 300 hours of paralegal time did not distinguish between costs related to preparing a supplemental record—which are recoverable—and those related to reviewing the record for accuracy or completeness—which are not. (Coalition for Adequate Review, supra, 229 Cal.App.4th at p. 1059.) The court observed that reviewing for accuracy "is a chore public agencies face in every case in which the petitioner elects to prepare the record under section 21167.6, subdivision (b)(2), and if an agency could always claim a sizeable amount for review 'for completeness' or 'certification,' that would defeat the Legislature's aim of providing for lower-cost record preparation alternatives." (Ibid.) The court also warned that "record review 'for completeness' can easily blur into review for strategy, implicating the kind of attorney fee award neither authorized nor sought here." (Ibid.) The court concluded: "Because the trial court denied record preparation costs entirely, it did not review the City's claimed paralegal costs to determine which of these costs were for work reasonably required to prepare the supplemental record (e.g., locating, copying, indexing, and assembling documents) and are recoverable, and which were for review of the record petitioners prepared 'for completeness' and are not recoverable. On remand, the trial court will need to make this determination." (Id. at pp. 1059-1060.) In St. Vincent's School for Boys, Catholic Charities CYO v. City of San Rafael (2008) 161 Cal.App.4th 989 (St. Vincent's School), the petitioner elected to prepare the 27 administrative record in connection with its CEQA challenge. The city made available 20 boxes that contained 2,208 documents totaling more than 58,000 pages. (Id. at p. 1017.) When the petitioner noticed that the boxes contained "only a few e-mails," the petitioner submitted to the city a Public Record Act request for " 'all writings evidencing or reflecting communications, stored on [any city] computer hard drive or server' " relating to the subject property. (Ibid.) The city reviewed over nine boxes' worth of e- mails and produced the responsive ones to the petitioner. (Ibid.) Unsatisfied with the city's response, the petitioner served a demand for inspection listing 15 further demands for documents. (Id. at p. 1018.) Before the document requests were resolved and the administrative record certified, the petitioner filed its opening brief on its petition for writ of mandate. (Ibid.) The city prevailed on the petition and was awarded over $26,000 for " 'time spent in the email search and production efforts.' " (Id. at p. 1013.) The Court of Appeal affirmed the award, rejecting the notion that the petitioner's election to prepare the record precluded the city "from recovering any costs whatsoever in connection with preparation of the record, even when the City is the prevailing party, and even when the City incurred certain extraordinary costs at St. Vincent's behest." (St. Vincent's School, supra, 161 Cal.App.4th at p. 1014.) The court found that the "record reflects a total disregard for cost containment on St. Vincent's part, and a complete abandonment of its statutory duty to 'strive to [prepare the record] at reasonable cost.' " (Id. at p. 1018, quoting § 21167.6, subd. (f) ["In preparing the record of proceedings, the party preparing the record shall strive to do so at reasonable cost in light of the scope of the record."].) The court found it "telling" that the petitioner did not cite a single 28 document requested by the petitioner's "additional, broad, unrestricted, and, apparently nonessential, discovery demands." (Id. at p. 1019, italics omitted.) Accordingly, the court held "that where necessary to preserve the statutory purposes of cost containment and expediting CEQA litigation, the prevailing party in a CEQA action may recover 'reasonable costs or fees imposed for the preparation' [citation] of the record, even if the nonprevailing party elected to prepare the record pursuant to section 21167.6, subdivision (b)(2). To hold otherwise would only reward litigants who . . . elect to prepare the record but then ignore the concomitant statutory duty to restrain costs in doing so." (Ibid., fn. omitted.) Applying these principles to the City's subcategories of claimed record-preparation costs, we conclude the trial court erred with respect to all but one subcategory (the third). The first seeks to recover $3,132.66 for 39.8 hours of paralegal time spent "[r]eviewing and correcting the draft record." Some of the paralegal's time in this subcategory must have been devoted to reviewing the administrative record for completeness and accuracy—that "chore public agencies face in every case in which the petitioner elects to prepare the record" and for which they are not entitled to recover costs. (Coalition for Adequate Review, supra, 229 Cal.App.4th at p. 1059.) However, the paralegal informed the trial court that Advocates's first draft of the administrative record contained "numerous errors and omissions," some of which were "particularly time consuming." On remand, the trial court will need to determine the extent to which (if at all) Advocates's errors and omissions were severe enough that (1) the paralegal's work in addressing them was tantamount to preparing a supplemental record (see id. at p. 1057), 29 or (2) they revealed "a total disregard for cost containment on [Advocates's] part" (St. Vincent's School, supra, 161 Cal.App.4th at p. 1018). The City may only recover costs that satisfy either of these criteria. In its second subcategory, the City seeks $1,071.13 for time spent by a paralegal and an associate city planner "[l]ocating Petitioner's 'missing attachments.' " After the City certified the administrative record, Advocates submitted to the City a 26-item "list of documents that are referred to as attachments to items in the record but that are missing from the record." The appellate record does not establish this was anything other than a reasonable request by Advocates that the City perform its expected chore of making all of its project files available so that Advocates could contain costs by preparing the administrative record itself. The City's suggestion that "many" of the attachments were not actually missing and could have been found using Advocates's own index is not well taken. While that may be true for some of the attachments (seven out of 26), the City acknowledged it had "not retained" the vast majority (16 out of 26) and others either never existed or were not actual attachments. On this record, we conclude it was error to award the City this subcategory of costs. The City's third subcategory seeks $1,101.94 for 14 hours of paralegal time spent "[o]btaining consultant's documents." After the City stated it had "not retained" many of its consultant's draft reports, Advocates requested that the City obtain them from the consultant. The City replied (and the trial court later ruled) that CEQA did not require that the administrative record include the requested documents because the City had not retained them and its decisionmakers did not rely on them in approving the project. 30 (§ 21167.6, subd. (e)(10).) Advocates persisted and unsuccessfully sought ex parte relief compelling the City to comply. The City nevertheless collected certain of the requested materials, sent some electronically to Advocates, and made the rest (those that could not be transmitted electronically) available for inspection at the City's offices. Advocates never attempted to review the documents at the City's offices, and the City asserts in its respondent's brief (albeit without citation to the appellate record) that Advocates "never attempted to cite to any of those additional documents in any of its briefs." Although this record is less egregious than that in St. Vincent's School, we cannot say the trial court abused its discretion in finding Advocates displayed "a total disregard for cost containment" in connection with this subcategory. (St. Vincent's School, supra, 161 Cal.App.4th at p. 1018). In its final subcategory, the City seeks $495.87 for 6.3 hours of paralegal time spent responding to Advocates's motion to augment the administrative record with certain of the " 'missing attachments.' " The trial court erred by awarding these costs. They do not fall within Coalition for Adequate Review because the City opposed—not sought— supplementation of the record. (Coalition for Adequate Review, supra, 229 Cal.App.4th at p. 1059.) Moreover, awarding expenses incurred in this motion practice "blur[s]" the line between record preparation and litigation strategy that Coalition for Adequate Review warned against. (Ibid.) Nor, in light of the fact that the trial court granted (and the City did not oppose) Advocates's motion to augment with respect to eight of the 17 documents, did these costs result from the kind of "total disregard for cost containment" at issue in St. Vincent's School, supra, 161 Cal.App.4th at page 1018. 31  DISPOSITION The judgment is reversed with respect to the first, second, and fourth subcategories of the City's costs award. On remand, the superior court is directed to determine how much of the costs in the first subcategory were incurred (1) reviewing the administrative record for completeness or accuracy (for which the City may not recover costs); (2) supplementing the administrative record (for which the City may recover costs); and (3) as a result of a total disregard for cost containment on Advocates's part (for which the City may recover its costs). The judgment is affirmed in all other respects. Real parties in interest are entitled to their costs on appeal; all other parties are to bear their own costs. HALLER, Acting P. J. WE CONCUR: AARON, J. IRION, J. 32 Filed 10/9/15 COURT OF APPEAL, FOURTH APPELLATE DISTRICT DIVISION ONE STATE OF CALIFORNIA NORTH COUNTY ADVOCATES, D066488 Plaintiff and Appellant, v. (Super. Ct. No. 37-2013-00061990- CU-WM-NC) CITY OF CARLSBAD, Defendant and Respondent, PLAZA CAMINO REAL, LP, et al., Real Parties in Interest. The opinion in this case filed September 10, 2015 was not certified for publication. It appearing the opinion meets the standards for publication specified in California Rules of Court, rule 8.1105(c), the request pursuant to California Rules of Court, rule 8.1120(a), for publication is GRANTED, with the exception of Parts III, IV and V. IT IS HEREBY CERTIFIED that the opinion meets the standards for publication specified in California Rules of Court, rule 8.1105(c); and ORDERED that the words "Not to Be Published in the Official Reports" appearing on page 1 of said opinion be deleted and the opinion herein be published in the Official Reports, with the exception of Parts III, IV and V. HALLER, Acting P. J. cc: All Parties 33 

91 P.3d 1142 (2004) 140 Idaho 238 STATE of Idaho, Plaintiff-Respondent, v. Marcel James DIGGIE, Defendant-Appellant. No. 29198. Court of Appeals of Idaho. May 24, 2004. *1143 Molly J. Huskey, State Appellate Public Defender; Julie Dawn Reading, Deputy Appellate Public Defender, Boise, for appellant. Hon. Lawrence G. Wasden, Attorney General; Lori A. Fleming, Deputy Attorney General, Boise, for respondent. WALTERS, Judge Pro Tem. Marcel James Diggie pled guilty to burglary of a vehicle. The district court retained jurisdiction for 180 days, and eventually placed Diggie on probation. Subsequently, the court revoked Diggie's probation and ordered his full sentence into execution. Diggie appealed. We affirm the district court's order revoking Diggie's probation because the district court did not have jurisdiction to remove Diggie from the custody of the Department of Correction and to grant him probation in the first instance. I. FACTUAL AND PROCEDURAL BACKGROUND In May 2001, Diggie entered a vehicle belonging to another person and took several items. The owner confronted Diggie, who fled the scene of the burglary. The owner called the police and Diggie was apprehended shortly thereafter. In July, Diggie pled guilty to burglary, a felony violation of Idaho Code § 18-1401, in exchange for dismissal of a persistent violator allegation. In late August, the district court sentenced Diggie to a unified sentence of ten years, with five years determinate. The court retained jurisdiction for 180 days, pursuant to I.C. § 19-2601(4). Diggie next appeared in court in October 2002, fourteen months after sentence was imposed upon him. The Department of Correction had submitted no recommendation with regard to placing Diggie on probation. The district court suspended the unified sentence and placed Diggie on probation for ten years. As a term of this probation, Diggie was required to reside in the Bannock County jail while waiting for a bed in an inpatient substance abuse program. In early November, a probation officer gave a progress report to the court indicating that Diggie was uncooperative, having refused to initial twelve of the sixteen terms of probation which were expressly stated in the order imposing probation. A hearing was held in late November. At this hearing, the district court warned Diggie to cooperate with the probation office and improve his attitude. However, after the hearing, in the hallway outside the courtroom, a verbal altercation of some kind took place between Diggie and either his former defense counsel, his probation officer or an Idaho State trooper. A hearing was held two days following this altercation. At this hearing, the district court revoked probation and imposed the unified sentence of ten years, with five years determinate, and gave credit for all time served during the retained jurisdiction and probation. Diggie appeals. II. ANALYSIS Diggie appeals from the order revoking probation and executing the original *1144 sentence, asserting: (1) the district court's findings of fact are incomplete and clearly erroneous; (2) the district court failed to demonstrate that he violated any term or condition of his probation, or committed any other act which justified revoking his probation; and (3) the district court deprived him of due process by the procedure through which his probation was revoked. In reply, the state argues that the district court was without jurisdiction to suspend Diggie's sentence because of the passage of time. The state's argument was not raised below. Generally, issues not raised below may not be considered for the first time on appeal. State v. Fodge, 121 Idaho 192, 195, 824 P.2d 123, 126 (1992). However, the question of jurisdiction is fundamental, and may be brought to the court's attention at any time. State v. Lundquist, 134 Idaho 831, 835, 11 P.3d 27, 31 (2000); see also I.C.R 12(b)(2). Sentence was imposed against Diggie in late August 2001. The care, custody and control of persons convicted of crimes and sentenced to imprisonment is given to the executive branch of the Idaho state government, specifically to the State Board of Correction. See Idaho Const. art. X, § 5; Idaho Code §§ 19-2513; 20-101, -219, -223. This power is subject to legislative law-making authority. Idaho Const. art. X, § 5. Section 19-2601(4) allows the court and the Board to exercise concurrent authority over an offender for a limited period of time. State v. Williams, 126 Idaho 39, 878 P.2d 213 (Ct.App.1994). Accordingly, the district court retained jurisdiction over Diggie pursuant to I.C. § 19-2601(4), which states in relevant part that a court has discretion to: Suspend the execution of the judgment at any time during the first one hundred eighty (180) days of a sentence to the custody of the state board of correction. The court shall retain jurisdiction over the prisoner for the first one hundred eighty (180) days or, if the prisoner is a juvenile, until the juvenile reaches twenty-one (21) years of age. The prisoner will remain committed to the board of correction if not affirmatively placed on probation by the court. The statute expressly provides that the court may retain jurisdiction for 180 days and that the prisoner will remain committed to the Board of Correction unless affirmatively placed on probation by the court. It has been long recognized that passage of the 180 days causes the retained jurisdiction to expire. See State v. Ditmars, 98 Idaho 472, 567 P.2d 17 (1977); Belknap v. State, 98 Idaho 690, 571 P.2d 336 (1977). Nevertheless, Diggie argues that although the 180 days did expire, the purpose of the retained jurisdiction program should be considered by this Court. The principal purpose of retained jurisdiction is to provide a period for evaluation of the offender's potential for rehabilitation and suitability for probation. Thorgaard v. State, 125 Idaho 901, 904, 876 P.2d 599, 602 (Ct.App.1994). By the terms of the statute, the district court's retained jurisdiction would have expired in late February 2002. According to a finding made in the district court's December 6, 2002, order revoking Diggie's probation, "On the 10th day of July, 2002, the Court received a letter from the Idaho Department of Corrections advising that during the [Reception and Diagnostic Unit] process, it was determined that the Defendant's placement at NICI was not appropriate. He was therefore classified as a close custody inmate and housed at the Idaho Maximum Security Institution, and no recommendation was made." Notwithstanding this notification from the Department, in October 2002, the district court suspended Diggie's sentence and placed Diggie on probation. Diggie argues that Section 19-2601(4) and Idaho Criminal Rule 35 are similar, both giving the court additional time to determine a proper sentence for a defendant. Under Rule 35, a defendant has 120 days to move the court for reduction of a sentence. Idaho case law has interpreted this Rule to incorporate a reasonable period after the 120 days during which the court has jurisdiction to rule on the motion for reduction of sentence. We distinguish I.C. § 19-2601(4) from Rule 35. Rule 35 does not expressly extend the district court's jurisdiction to a specific number of days. Instead, Rule 35 allows the defendant 120 days to file a motion for relief. To give effect to the Rule, it is necessary that *1145 a court have jurisdiction to rule on the motion on days past the filing period. Therefore, jurisdiction to rule on a Rule 35 motion exists for a reasonable period of time. Unreasonable delay causes the district court to lose jurisdiction. The time limit in Rule 35 is a limit on the period in which a defendant may file his motion. It is not an express limitation on jurisdiction. We deem it unnecessary to hold in this case that a sentencing court may never make a decision to place a defendant on probation within a reasonable time after the 180-day period of retained jurisdiction has expired where extraordinary circumstances exist that may explain or justify court action beyond the statutorily established period. In this case, there is no apparent extraordinary circumstance to consider. It is clear from the record that the district court was aware by at least July 2002 that the Department of Correction had decided not to place Diggie in the rider program at NICI for evaluation but rather to retain him at the maximum security facility in the SICI and not to render a recommendation to the district court, which ordinarily would be done in accordance with I.C. § 19-2601(4). It is further clear that a recommendation from the Department of Correction is not a condition precedent to the exercise by the court of its retained authority to place a defendant on probation. Under these circumstances, we hold that by October 8, 2002, when the district court entered its order suspending Diggie's sentence and releasing him on probation, the district court's jurisdiction under I.C. § 19-2601(4) had already expired. Furthermore, when a lower court revokes probation after releasing a defendant on probation without having jurisdiction to place the defendant on probation, the order revoking probation will be affirmed. State v. Heyrend, 129 Idaho 568, 929 P.2d 744 (Ct.App.1996). III. CONCLUSION The district court retained jurisdiction pursuant to Idaho Code § 19-2601(4) during late August 2001. The retained jurisdiction period had expired by October 2002, and divested the district court of jurisdiction to enter orders relating to Diggie's sentence. Because the district court lacked jurisdiction to remove Diggie from the custody of the Board of Correction and to place Diggie on probation in the first instance, we affirm the order revoking probation and ordering into execution the previously imposed sentence. Chief Judge LANSING and Judge PERRY concur.

827 F.2d 935 Michael R. MONKELIS, Appellant,v.MOBAY CHEMICAL, Appellee. No. 87-3244. United States Court of Appeals,Third Circuit. Submitted United Third Circuit Rule 12(6)Aug. 18, 1987.Decided Sept. 2, 1987. Michael R. Monkelis, pro se. John J. Myers, Peter J. Ennis, Eckert, Seamans, Cherin & Mellott, Pittsburgh, Pa., for appellee, Mobay Corp. Before GIBBONS, Chief Judge, and WEIS and SLOVITER, Circuit Judges. OPINION OF THE COURT GIBBONS, Chief Judge: 1 Michael R. Monkelis appeals from an award of attorney's fees to the prevailing defendant in an ERISA case. Monkelis brought suit against his former employer, Mobay Chemical, seeking damages under 29 U.S.C. Sec. 1140 and under Pennsylvania common law. The district court applied a borrowed six-year state law statute of limitations and concluded that Monkelis' ERISA claim was time barred. Having dismissed the ERISA action, the remaining state law claims were also dismissed for lack of jurisdiction. Mobay Chemical requested attorney's fees, and the district court, finding that Monkelis' claims were "frivolous and without legal merit or foundation in fact," awarded $5,167.75. Monkelis appealed contending that the district court erred both in its determination on the merits and on its award of an attorney's fee. In a companion appeal, 827 F.2d 937 (3rd Cir.1987) docketed at No. 87-3095, we held that the district court did not err in granting summary judgment in favor of Mobay Chemical on statute of limitations grounds. In this appeal, we conclude that the district court did not abuse its discretion in awarding attorney's fees and expenses. 2 Section 502(g)(1) of ERISA, 29 U.S.C. Sec. 1132(g)(1), provides that "the court in its discretion may allow a reasonable attorney's fee and costs of action to either party," but does not automatically mandate an award to a prevailing party. See Iron Workers' Local No. 272 v. Bowen, 624 F.2d 1255, 1265 (5th Cir.1980). In determining whether to make an award of fees under ERISA, this court has considered the following five policy factors: 3 (1) the offending parties' culpability or bad faith; 4 (2) the ability of the offending parties to satisfy an award of attorneys' fees; 5 (3) the deterrent effect of an award of attorneys' fees against the offending parties; 6 (4) the benefit conferred on members of the pension plan as a whole; and 7 (5) the relative merits of the parties' position. 8 Ursic v. Bethlehem Mines, 719 F.2d 670, 673 (3d Cir.1983). Monkelis contends that Mobay Chemical failed to establish its right to attorney's fees under the factors set forth in Ursic. 9 First, we consider the first and fifth factors listed above, Monkelis' "culpability or bad faith" and the relative merits of the parties' positions." These factors do support an award of fees to Mobay Chemical. The evidence demonstrates that Monkelis' ERISA claim was time barred and substantively without merit. Monkelis has failed to set forth any specific factors to support his claim that he was terminated to prevent his pension from vesting. This failure is particularly egregious since it was established that, at the time of his termination, Monkelis had only been employed by Mobay Chemical for approximately four years and had five years remaining before his pension would vest. 10 Moreover the facts in this case had been developed in extensive litigation in the state courts brought by Monkelis against Mobay. That law suit was also based on allegations of wrongful discharge and resulted in a jury verdict in favor of the defendant. Although brought under a different legal theory, the ERISA suit was basically a rehash of the same facts that had been found against Monkelis in the state proceeding. While the time bar issue presents a close question, Monkelis' ERISA claim is clearly frivolous on the merits. 11 The next factor we consider is the parties' ability to pay. We cannot conclude that Monkelis lacks the ability to satisfy the fee award since Monkelis has never argued that he is unable to satisfy Mobay Chemical's claim for $5,167.75. 12 The remaining factors to consider in determining whether the district court abused its discretion in awarding attorney's fees and costs are the deterrent effect of such an award and the benefit conferred on members of the pension plan. The third factor, deterrence, supports an award of fees because we believe that the deterrent effect will be beneficial upon those who contemplate speculative and duplicative litigation on thinly based grounds. The fourth factor, the benefit conferred on the ERISA beneficiaries, is not relevant because Monkelis did not bring an action against the pension fund itself. 13 Since we find that the district court did not abuse its discretion in awarding attorney's fees and costs to Mobay Chemical pursuant to 29 U.S.C. Sec. 1132(g)(1), there is no need to consider whether such an award would be proper pursuant to Fed.R.Civ.P. 11. Lastly, we need not address Monkelis' alternate ground for reversal, that an erroneously entered judgment requires reversal of the associated attorney's fee award, since we have upheld the district court's grant of summary judgment in docketed appeal No. 87-3095. 14 For the foregoing reasons, the order of the district court awarding attorney's fees and costs to Mobay Chemical is affirmed.

62 Cal.Rptr.3d 383 (2007) 152 Cal.App.4th 1470 COMMUNITY DEVELOPMENT COMMISSION OF the CITY OF OXNARD, Plaintiff and Appellant, v. COUNTY OF VENTURA et al. Defendants and Respondents. No. F050180. Court of Appeal of California, Fifth District. July 5, 2007. *384 Kane, Ballmer & Berkman, Murray O. Kane, Stephanie R. Scher, Los Angeles, Donald P. Johnson; Gary L. Gillig, Oxnard, for Plaintiff and Appellant. Nordman Cormany Hair & Compton and Meghan B. Clark, Oxnard, for California State University Channel Islands Site Authority as Amicus Curiae on behalf of Plaintiff and Appellant. Noel A. Klebaum, County Counsel, and Lori A. Nemiroff, Assistant County Counsel, for Defendants and Respondents. *385 OPINION CORNELL, J. We must decide whether escape assessments, an assessment that is made because the property in question was not assessed during the initial assessment period, should be included in computing the tax increment used to determine the funding for redevelopment agencies. This is an issue of first impression. The California Redevelopment Law (CRL) (Health & Saf.Code, § 33000 et seq.) provides for the formation of redevelopment agencies to help eradicate blight. Typically, a redevelopment agency prepares a redevelopment plan and then borrows money to complete the plan. A redevelopment agency repays its debt using tax increment. Tax increment is based on the theory that property values will increase as a redevelopment occurs. The increase in property values will cause an increase in tax revenue. The tax increment is the tax revenue attributable to the increased property values. Defendants County of Ventura and Christine L. Cohen (collectively, the County) argue that escape assessments should not be included in computing the tax increment. Plaintiff Community Development Commission of the City of Oxnard (CDC) and amicus curiae California State University Channel Islands Site Authority disagree. We conclude the controlling statutes require inclusion of all tax revenue, including escape assessments, in computing the tax increment. THE FUNDING PROCESS We begin with a review of the role of redevelopment agencies in California and their funding. We do so to give meaning to the factual basis of the dispute. Property Taxation "All property in this State, not exempt under the laws of the United States or of this State, is subject to taxation under" the Revenue and Taxation Code. (Rev. & Tax. Code, § 201.) The county assessor must assess all property subject to general property taxation at its full value on January 1 of each year. (Id., §§ 117, 128, 401, 401.3, 2192.) The county assessor assesses all real property within the county, while the initial valuation of business personal property is made from a business property statement prepared by the taxpayer. (Cal. Const., art. XIII, § 2; Rev. & Tax.Code, §§ 110, 110.1, 441; Heavenly Valley v. El Dorado County Bd. of Equalization (2000) 84 Cal.App.4th 1323, 1328, 101 Cal.Rptr.2d 591.) A lien for the yearly assessment attaches to the property "annually as of 12:01 a.m. on the first day of January preceding the fiscal year for which the taxes are levied." (Rev. & Tax.Code, § 2192.) "The subsequent assessment and levy are necessary in order to fix the amount of the tax but they do not result in the creation of a new obligation; they are simply administrative steps necessary to the enforcement of the right which accrued on the lien date. [Citations.] When the amount is ascertained, it relates back to the time the lien became fixed." (California Computer Products, Inc. v. County of Orange (1980) 107 Cal.App.3d 731, 736-737, 166 Cal.Rptr. 68 (California Computer Products).) Once property is assessed, it is listed on the assessment roll, which must be made available for inspection by the public. (Rev. & Tax.Code, §§ 601, 1602.) A property owner may dispute the assessment of his or her property by appealing to the *386 county board of equalization.[1] (Cal. Const., art. XIII, § 16; Rev. & Tax.Code, §§ 1601, 1603.) An application for equalization (reduction) of an assessment must be filed before September 15.[2] (Rev. & Tax.Code, § 1603, subd. (b)(1).) The county board of equalization meets to decide the issues raised in the various equalization applications (Rev. & Tax.Code, § 1604, subds. (a), (b)) and has the authority to "equalize the values of all property on the local assessment roll by adjusting individual assessments." (Cal. Const., art. XIII, § 16.) "Equalization" has been defined as "adjusting the value of property assessed to conform to its real value." (County of Sacramento v. Assessment Appeals Bd. No. 2 (1973) 32 Cal. App.3d 654, 663, 108 Cal.Rptr. 434.) After the completion of the equalization hearing process, required changes are made to the assessment roll, which becomes the equalized assessment roll. (Rev. & Tax.Code, §§ 1614,1646.1.) Reference is made in various statutes to the phrase "last equalized assessment roll." This phrase, or similar words, "means the entire assessment roll" on August 20, which shall include "any changes made by the county board during the month of July, together with" changes made pursuant to Revenue and Taxation Code sections 755 and 756. (Id., §§ 2051, 2052.) The above provisions, including the right to file an application for equalization of an assessment up to September 14, establish that the last equalized assessment roll may not reflect all changes to initial assessments during any tax year. Escape Assessments Another type of assessment that probably will not be reflected in the equalized assessment roll is an escape assessment. If property has been either under-assessed or unassessed, "the assessor shall assess the property ... at its value on the lien date for the year for which it escaped assessment. It shall be subject to the tax rate in effect in the year of its escape." (Rev. & Tax.Code, § 531; see also American Airlines, Inc. v. County of San Mateo (1996) 12 Cal.4th 1110, 1127, 51 Cal. Rptr.2d 251, 912 P.2d 1198.) Section 531 of the Revenue and Taxation Code "simply extends the power and duty of the assessor, enabling and requiring him ... to list and assess property which he had failed to assess, notwithstanding the time for assessment had passed.... And the exercise of this power is directly in accord with the policy and express provisions of the constitution, which requires all property not exempt from taxation to be taxed." (Farmers' etc. Bank v. Board (1893) 97 Cal. 318, 323, 32 P. 312 [discussing former Political Code section 3681].) Escape assessments are to be treated the same as "property regularly assessed on the roll on which it is entered." (Rev. & Tax.Code, § 534, subd. (a).) "The statutory scheme for escaped assessments thus embodies the principle that the right to the taxes on escaped property accrues on the lien date, not on the date of entry on the tax roll." (California Computer Products, supra, 107 Cal. App.3d at p. 737, 166 Cal.Rptr. 68.) The CRL The CRL authorizes the formation of redevelopment agencies and empowers *387 them to adopt redevelopment plans. (Health & Saf.Code, § 33000 et seq.; Community Redevelopment Agency v. County of Los Angeles (2001) 89 Cal.App.4th 719, 722, 107 Cal.Rptr.2d 693.) The purpose of the CRL is to "promote the sound development and redevelopment of blighted areas and the general welfare of the inhabitants of the communities in which they exist by remedying such injurious conditions." (Health & Saf.Code, § 33037, subd. (a); see also Community Redevelopment Agency v. Bloodgood (1986) 182 Cal.App.3d 342, 344, 226 Cal.Rptr. 924.) The redevelopment agency is "primarily responsible for implementing the Community Redevelopment Law and ... is empowered to prepare and effectuate a redevelopment plan for the elimination of blighted areas in the community. [Citations.]" (Marek v. Napa Community Redevelopment Agency (1988) 46 Cal.3d 1070, 1082, 251 Cal.Rptr. 778, 761 P.2d 701.) To accomplish this goal, "[redevelopment agencies are endowed with broad powers to acquire property through purchase and condemnations ([Health & Saf.Code,] § 33391) and to `[m]ake and execute contracts and other instruments necessary' to complete redevelopment projects ([Health & Saf.Code,] § 33125, subd. (c))." (Ibid.) Redevelopment agencies, however, do not have the power to assess taxes. (Community Redevelopment Agency v. Bloodgood, supra, 182 Cal.App.3d at p. 344, 226 Cal.Rptr. 924.) Redevelopment agencies have the authority to acquire debt by either borrowing money through loans or the sale of bonds to finance its projects. major source of funds to repay its debts is its share of property taxes levied by other government agencies on property within a redevelopment project area." (Community Redevelopment Agency, at p. 344, 226 Cal.Rptr. 924; see also Health & Saf.Code, § 33670.) The system devised to divide the tax revenue between the redevelopment agency and other government entities that otherwise would receive the funds, is known as tax increment. Tax increment is based on the theory that the assessed value of the property in the redevelopment district will increase as a result of the redevelopment projects. This increase in assessed value will lead to an increase in tax revenue. The increase in tax revenue is known as the tax increment and is used to pay for the cost of redevelopment. (Rev. & Tax. Code, § 96.1, subd. (a)(2).) This division of tax revenue is described in Redevelopment Agency v. County of San Bernardino (1978) 21 Cal.3d 255, 259, 145 Cal.Rptr. 886, 578 P.2d 133: "[I]f, after a redevelopment project has been approved, the assessed valuation of taxable property in the project increases, the taxes levied on such property in the project area are divided between the taxing agency and the redevelopment agency. The taxing agency receives the same amount of money it would have realized under the assessed valuation existing at the time the project was approved, while the additional money resulting from the rise in assessed valuation is placed in a special fund for repayment of indebtedness incurred in financing the project." (See also Cal. Const., art. XVI, § 16; Health & Saf.Code, § 33670.) The first step in determining the tax increment is to establish a base year assessed value of all of the taxable property within the redevelopment project area. Health and Safety Code section 33670, subdivision (a) defines the base year as "the assessed value of the taxable property in the redevelopment project as shown upon the assessment roll used in connection with the taxation of that property by *388 the taxing agency, last equalized prior to the effective date of the ordinance" that approved the redevelopment plan.[3] (See also Cal. Const., art. XVI, § 16.) All taxes attributable to the base year assessed value of the property are distributed as they would have been had a redevelopment plan not been adopted. (Health & Saf.Code, § 33670, subd. (a).) The tax revenue from the increase in the value of the property above the base year assessed value (the tax increment), if any, "shall be allocated to and when collected shall be paid into a special fund of the redevelopment agency to pay" for the indebtedness incurred in financing the redevelopment project. (Cal. Const., art. XVI, § 16; Health & Saf.Code, § 33670, subd. (b).) FACTUAL SUMMARY The dispute in this case arises from a mistake made by the Ventura County Assessor's Office (assessor's office). The parties stipulated to all relevant facts. CDC is the governing body for the Oxnard Redevelopment Agency, which is duly organized pursuant to the CRL. All of the redevelopment areas under CDC's control are within the County of Ventura. Christine L. Cohen was the auditor-controller for the County of Ventura at all relevant times. The City of Oxnard adopted several redevelopment plans pursuant to the applicable provisions of the CRL, including the Historic Enhancement and Revitalization of Oxnard Redevelopment Plan (HERO Plan). An electrical cogeneration power plant (power plant) was located within the area subject to the HERO Plan for several years before the fiscal year beginning July 1, 2000, and ending June 30, 2001. The assessor's office was responsible for assessing the value of the real property, improvements, and fixtures at the power plant. The assessor's office failed to assign any value to the fixtures located at the power plant by July 1, 2000, despite having done so in previous years. The parties agree the omission was inadvertent. The certified assessor's roll sent to the county auditor, therefore, included assessments only for the land and improvements. The total assessment included in the certified assessor's roll for the power plant was $704,128 and the total tax was computed to be $9,203.10. Various adjustments were made to the certified assessor's roll after it was submitted to the county auditor, and on August 20, 2000, it became the equalized assessment roll. It appears the failure to assess the value of the fixtures at the power plant was discovered sometime after the assessment roll was equalized on August 20, 2000. On February 14, 2001, the assessor's office transmitted an assessment roll change to correct the omission. This escape assessment placed the value of the fixtures for the power plant at $43,074,200, causing a tax increase of $509,763.27.[4] When the error was discovered, CDC requested the county auditor adjust CDC's tax increment to include the missing assessment. The auditor refused, citing a long-standing practice to base tax increments on the equalized assessment roll without adjustments for changes to the assessment roll that would affect the tax increment either positively or negatively. *389 PROCEDURAL SUMMARY CDC combined a petition for writ of mandate, complaint for damages, and a request for declaratory relief in a single document filed in Ventura County Superior Court (the complaint). The complaint sought (1) a writ of mandate directing the County to distribute all tax increment pursuant to the provisions of Health and Safety Code section 33670; (2) damages according to proof; and (3) a declaration that the computation of the tax increment must include escape assessments. The County filed an answer denying all the allegations of the complaint and asserting various affirmative defenses. CDC's motion for change of venue was granted, and the matter was transferred to Kern County Superior Court. (Code Civ. Proc., § 394, subd. (a).) Four witnesses testified at the trial. The two primary witnesses were David Schey and Christine L. Cohen. Schey testified as both a percipient witness and an expert witness for CDC. Schey is a fiscal consultant who works for various cities and redevelopment agencies throughout California. He discussed the escape assessment and the evolution of the current dispute. He also determined that CDC would have been entitled to an additional $1,121,825.74 for fiscal years 2000-2001 through 2004-2005 if all changes not reflected in the equalized assessment roll had been included in the tax increment calculation.[5] From his experience, Schey knew other counties also base the tax increment calculation on the equalized assessment roll, but many also make periodic corrections to the computation.[6] In his experience, some counties base the tax increment on actual taxes collected. Cohen, the auditor-controller for Ventura County, testified that she declined to include the escape assessment in the tax increment calculation because CDC was unable to provide an interpretation of the code that would convince her that the County's approach was incorrect. She was not aware of any resolutions adopted by the Ventura County Board of Supervisors relating to the calculation of tax increment. If the tax increment were calculated on the actual tax receipts, it could be onerous for her office because it is easier to compute the tax increment on the equalized roll. No one in her office examined the data to determine the net effect on the tax increment as a result of all the changes to the equalized roll. The tax revenue generated from the power plant escape assessment was distributed to those entities that would otherwise receive tax proceeds if there were no redevelopment occurring. She did not know how many roll corrections occur in redevelopment areas, although the total roll corrections for the entire county for one year was approximately 10,000. The trial court entered judgment in favor of the County, concluding the term "levied taxes" in Health and Safety Code section 33670, subdivision (b) referred to taxes generated from the equalized assessment roll. ANALYSIS Resolution of this dispute requires us to apply Health and Safety Code section 33670 (hereafter section 33670) to the undisputed facts in this case. Since we are interpreting statutory and constitutional *390 provisions, we review the matter de novo. (Redevelopment Agency v. County of Los Angeles (1999) 75 Cal.App.4th 68, 74, 89 Cal.Rptr.2d 10.) Our interpretation of section 33670 is guided by well-established principles. First, we look to the plain meaning of the words of the statute to ascertain the intent of the lawmakers so that the purpose of the statute may be fulfilled. (Day v. City of Fontana (2001) 25 Cal.4th 268, 273, 105 Cal.Rptr.2d 457, 19 P.3d 1196; DaFonte v. Up-Right, Inc. (1992) 2 Cal.4th 593, 601, 7 Cal.Rptr.2d 238, 828 P.2d 140.) We may not look to extrinsic sources if the statute is clear and unambiguous on its face. (People v. Otto (1992) 2 Cal.4th 1088, 1100, 9 Cal.Rptr.2d 596, 831 P.2d 1178.) Nor may we add to or alter the words of a statute to accomplish a purpose that does not appear on the face of the statute. (DaFonte, at p. 601, 7 Cal.Rptr.2d 238, 828 P.2d 140.) The parties agree that the base year assessment required by section 33670, subdivision (a) is the assessment as reflected on the last equalized assessment roll before the effective date of the ordinance establishing the redevelopment district. The parties also agree that any escape assessments that occurred after the assessment roll was equalized, but before the effective date of the ordinance, are not part of the base year assessment calculations. (Redevelopment Agency v. County of Los Angeles, supra, 75 Cal.App.4th at pp. 78-79, 89 Cal.Rptr.2d 10.) The relevant portion of section 33670, subdivision (b) provides that the "portion of the levied taxes each year in excess of [the taxes levied on the base year assessment] shall be allocated to and when collected shall be paid into a special fund of the redevelopment agency to pay the principal of and interest on loans." CDC argues section 33670, subdivision (b) requires the tax increment be based on the taxes assessed and collected for the property within the redevelopment district, including any escape assessments or other changes to the equalized assessment roll. The County, on the other hand, argues that subdivision (b) requires the tax increment be calculated on the equalized assessment roll without adjustment for any changes, either positive or negative, that may occur after August 20 (the date on which the assessor's roll is equalized). We disagree with the approach of the County. Unlike section 33670, subdivision (a), subdivision (b) of this section does not refer to the equalized assessment roll. Instead, subdivision (b) states the redevelopment agency is to receive the benefit of "that portion of the levied taxes" in excess of the taxes attributable to the base year assessments. It is apparent from the plain meaning of these words that the Legislature intended to include in the tax increment calculation all tax revenue generated from the property in the redevelopment area. The lack of any words to limit the application of the phrase "levied taxes" in subdivision (b) precludes any other conclusion. The County's approach would require us to modify section 33670, subdivision (b) by replacing the phrase "levied taxes" with the phrase "taxes levied on the equalized assessment roll." We reject this request for three reasons. First, we are not permitted to add words to a statute to accomplish a purpose that is not apparent from the face of the statute. (DaFonte v. Up-Right, Inc., supra, 2 Gal.4th at p. 601, 7 Cal.Rptr.2d 238, 828 P.2d 140.) Second, the Legislature clearly knew how to refer to the last equalized assessment roll when it wanted to do so. (See, e.g., § 33670, subd. (a).) Indeed, the Legislature *391 provided a comprehensive definition of the term in Revenue and Taxation Code sections 2050 et seq. Since section 33670, subdivision (a) refers to the equalized assessment roll in the calculation for base year assessments, it is clear the Legislature would have inserted language to limit the revenue calculation in subdivision (b) of section 33670 to revenue generated from the equalized assessment roll if that were its intention. The failure to mention the equalized roll in subdivision (b) is compelling evidence that the tax revenue to which the redevelopment agency is entitled is not restricted to the revenue based on the equalized assessment roll. Third, our resolution minimizes the possibility of mischief. There can be hostility between counties and redevelopment agencies over revenue. While the parties agree the mistake in this case was innocent, one easily can imagine a situation where an auditor's mistake is not so perceived by an agency or the public. This is especially so when a mistake would minimize the tax revenue due to the redevelopment agency and increase the revenue to be paid to other jurisdictions. Another factor compels our conclusion that such mistakes, no matter how innocent, should not accrue to the detriment of the redevelopment agency. Redevelopment agencies frequently issue bonds to pay for the cost of redevelopment. (Bell Community Redevelopment Agency v. Woosley (1985) 169 Cal.App.3d 24, 28, 214 Cal.Rptr. 788.) The marketability of those bonds is based in part on the redevelopment agency's ability to pay the principal and interest due on the bonds. (See generally In re Nathan's Estate (9th Cir.1948) 166 F.2d 422, 424-425, fn. 1; Davis v. United States (D.C.Cal.1969) 306 F.Supp. 949, 954.) An investor must be able to estimate the tax revenue that the redevelopment agency will receive. It would be difficult for investors to evaluate the bond issue if the redevelopment agency's revenue were dependent upon the efficiency of the assessor's office. The Legislature could not have intended such instability. Each of these reasons leads us to reject the County's position and conclude that escape assessments must be included in the tax increment calculation.[7] The County's Contentions The County offers numerous arguments why their approach is correct. We will discuss the main points. Revenue and Taxation Code section 96.6 The County contends that Revenue and Taxation Code section 96.6, subdivision (a) requires the tax increment to be calculated on the equalized roll. This section explains how redevelopment tax increment is to be allocated to the taxing jurisdictions when the area included in the redevelopment plan involves more than one taxing jurisdiction. The county auditor first is instructed to withdraw the revenue determined to be due to the redevelopment agency "pursuant to Section 33670 of the Health and Safety Code." (Rev. & Tax.Code, § 96.6, subd. (a).) Next, the auditor is to refer to *392 the tax rates set pursuant to Revenue and Taxation Code section 96.5 to determine how much of that revenue should be charged to each taxing agency within the area included in the redevelopment plan. Finally, the statute states, "In order to determine each jurisdiction's share of that redevelopment increment, the factors or rates for all tax rate areas that are part of a redevelopment project shall be applied to the current assessed value of the taxable property within the redevelopment project area, less the assessed valuation on the" base year assessment. (Id., § 96.6, subd. (a), italics added.) Citing Revenue and Taxation Code section 2050, the County asserts that the reference to "current assessed value of the taxable property" refers to the assessments on the last equalized roll. Revenue and Taxation Code section 2050 provides no authority for this argument. That statute provides that the phrase "`last equalized county assessment roll,' in those words or in similar words, or in any words intended to refer to the latest or current assessment roll of the county," is defined pursuant to the rules provided in that chapter. (Ibid.) The phrase is defined in the subsequent statutes to include the entire assessment roll (id., § 2051) as amended by the county board of equalization as it exists on August 20 (id., § 2052). The County's error is that the phrase "current assessed value of the taxable property," as used in Revenue and Taxation Code section 96.6, subdivision (a), is not the equivalent of the phrase "last equalized county assessment roll." Instead, current assessed value of the taxable property, like section 33670, subdivision (b)'s requirement that all levied taxes are to be included in the tax increment, reflects the intent to include all property at its current assessed value. This phrase is inconsistent with the County's argument that errors in the equalized assessment roll may not be corrected. Unnecessary to refer to the last equalized roll We also reject the suggestion that the Legislature concluded it was unnecessary to refer to the last equalized assessment roll in section 33670, subdivision (b). The County makes various arguments to support this contention. First, it claims the Legislature reached this conclusion because each year the levied taxes are based on the equalized roll. The facts in this case prove this assertion wrong. The levied taxes in the 2000-2001 fiscal year included over $500,000 in taxes that were based on an assessment that was not included in the equalized assessment roll.[8] Second, the County argues the reference to the last equalized assessment roll in section 33670, subdivision (a) necessarily included the phrase in subdivision (b) of that section. We think the opposite is true. As explained above, the reference to the last equalized assessment roll in subdivision (a) establishes that the Legislature knew how to refer to that document when it intended to do so. The decision to refer to all levied taxes, instead of the taxes levied on the equalized assessment roll, demonstrates that the legislative intent was to ensure that the redevelopment agencies received all incremental tax revenue, not just that revenue generated from the equalized assessment roll. Nor does the Legislature's use of the word "levied" in both subdivisions (a) and (b) of section 33670 support the County's position. Subdivision (a) refers to "the rate upon which the tax is levied each *393 year." Subdivision (b) refers to the "portion of the levied taxes each year." This portion of each subdivision refers to the taxes levied, or imposed, in a specific year using the current assessment and the current tax rate. The Legislature's choice of these words does not provide any support for the County's position that the phrase "that portion of the levied taxes each year" is restricted to those taxes imposed on the equalized assessment roll. Escape assessments are not levied The County takes its argument one step further, suggesting that the tax imposed as a result of an escape assessment is not "levied" as that term is used in section 33670, subdivision (b). Thus, according to the County, the taxes resulting from an escape assessment are not to be included in calculating the tax increment. The basis for this argument, it appears to us, is the assertion that because Revenue and Taxation Code section 531, which authorizes imposition of escape assessments (and other changes to assessments on the equalized roll), does not state that the resulting tax is levied, then the resulting tax falls outside the scope of section 33670. The relevant portion of Revenue and Taxation Code section 531 states, "If any property belonging on the local roll has escaped assessment, the assessor shall assess the property on discovery at its value on the lien date for the year for which it escaped assessment. It shall be subject to the tax rate in effect in the year of its escape except as provided in Section 2905 of this code." In other words, tax is imposed as if the assessment were performed timely and accurately. (See also California Computer Products, supra, 107 Cal. App.3d at pp. 737-738, 166 Cal.Rptr. 68.) We fail to see any significance in the Legislature's choice of words. The County is attempting to create ambiguity where none exists by citing numerous cases that discuss the different meanings of the word "levy" as the context changes. (See, e.g., Hayne v. San Francisco (1917) 174 Cal. 185, 195-196, 162 P. 625; Alpha Beta Acme Markets, Inc. v. City of Whittier (1968) 262 Cal.App.2d 16, 21-22, 68 Cal. Rptr. 327; Crow v. Board of Supervisors (1933) 135 Cal.App. 451, 459, 27 P.2d 655.) In the statutes pertinent to this issue, it is clear to us the Legislature has used the word "levy" in the sense of imposing a tax after the value of the property and the tax rate have been determined. This same procedure is undertaken regardless of whether the property is timely and accurately assessed or is subject to tax after an escape assessment. The County attempts to distinguish the two situations (tax based on the equalized assessment roll and tax based on an escape assessment) by arguing the statute authorizing an escape assessment authorizes only "ministerial administrative procedures to process additional charges or refunds resulting from changes in assessed value after the roll is equalized." This, of course, is not a distinction at all. Once the tax rate is determined by the governing body, the determination of the taxes to be imposed (levied) is nothing more than a "ministerial administrative procedure" performed by multiplying the tax rate by the assessed value of the property. (California Computer Products, supra, 107 Cal. App.3d at pp. 736-737, 166 Cal.Rptr. 68; City of Long Beach v. Aistrup (1958) 164 Cal.App.2d 41, 51-52, 330 P.2d 282.) This is the same calculation made after an escape assessment. The change in value of the property is multiplied by the tax rate to determine the amount of refund to be paid to the taxpayer, or the amount of additional taxes due from the taxpayer. This is the same calculation made when the tax increment is determined. The full *394 assessed value of the property and the base year assessed value of the property are both multiplied by the tax rate. The tax collected pursuant to the base year assessment is forwarded to the taxing agency, and the difference (tax on current assessed value minus tax on base year assessed value) is the tax increment to be held for the redevelopment agency. There is no difference in the calculations. This argument by the County is not persuasive. Escape assessments are distributed differently The County also contends that the tax revenue from the escaped assessment is somehow distributed differently than other assessments. It may be true, as the County asserts, that property tax revenue is allocated to local agencies and schools "using complex formulas and methods defined in the Revenue and Taxation Code." All tax revenue, however, is distributed according to the complex formulas and methods found in the Revenue and Taxation Code. Moreover, the authority cited by the County, Revenue and Taxation Code section 95 et seq., refutes the County's contention. Revenue and Taxation Code section 96.1, subdivision (a) provides that property tax revenues must be apportioned to each jurisdiction pursuant to the provisions in that section and in Revenue and Taxation Code section 96.2, "subject to allocation and payment of funds as provided for in subdivision (b) of Section 33670 of the Health and Safety Code." (Id., § 96.1, subd. (a), italics added.) Since the complex formulas and methods cited by the County require the tax increment to be paid to the redevelopment agencies, it is clear that the taxes generated as a result of escape assessments are not treated differently than other tax revenue. The de minimis effect of escape assessments The County next argues that it should not be required to comply with the law because the net effect of escape assessments is minimal. The County begins by pointing out that while escape assessments may increase tax revenue, they also can decrease tax revenue if an assessment is decreased. The County asserts that it does not decrease a redevelopment agency's tax increment if an escape assessment lowers tax revenue within the redevelopment area. Over time, the County claims, the net effect of increases and decreases in assessments will offset each other. This net effect excuses compliance with the law. First, there was no substantial evidence supporting these factual assertions. Next, the simple answer to this contention is that the County may not choose to ignore a law simply because it decides that over time there will not be any injury. We also reject the County's related argument that it should not be required to comply with section 33670, subdivision (b) because it will be too burdensome. If that is the case, and there was no substantial evidence to support this assertion, the County should seek a modification of the statute through the Legislature. We have no authority to excuse compliance with the statute. There was testimony, however, that some of the state's largest counties interpret the statute as we do, and they do not claim the task is too onerous. The Teeter Plan The County refers to the Teeter Plan (Rev. & Tax.Code, § 4701 et seq.), which provides an alternative method for distribution of certain tax revenues. The parties agree, however, that the prerequisites for adoption of a Teeter Plan were not met *395 here. Teeter Plans, therefore, are irrelevant to our analysis. The Accounting Standards and Procedures manual The County also relies on the California State Controller's Office manual, which provides uniform accounting procedures for counties. (Gov.Code, § 30200.) This manual, entitled "Accounting Standards and Procedures for Counties," addresses accounting for redevelopment agencies in chapter 18, section 18.07. This section does not address the issue of escape assessments within a redevelopment area. The County argues, however, that the following sentence from this section supports its position: "The method by which the annual tax increment due [a redevelopment agency] is computed is governed by Health and Safety Code section 33670 et seq. and specific resolutions or policies adopted by the county (if any)." (State Controller's Off. Manual of Accounting Standards and Procedures for Counties (May 2003) ch. 18, § 18.07, p. 18.27.) The County claims that its "longstanding and consistent interpretation" of section 33670 to preclude consideration of escape assessments in computing the tax increment is a policy of the County's. We reject this argument for two reasons. First, there is no evidence of a specific resolution or policy adopted by the County. The evidence clearly indicates that the County's "policy" was merely a way of doing things for many years. Second, even if the County adopted such a policy, it would not be enforceable if it violated section 33670. Nor does the remainder of chapter 18, section 18.07 of the Accounting Standards and Procedures for Counties manual assist the County. An example of how a tax increment should be calculated is included in the manual. The demonstrated procedure appears to be consistent with section 33670. This example, however, does not address escape assessments. We will not find authority in a manual that does not address the issue we are considering. Accordingly, the Accounting Standards and Procedures for Counties manual is irrelevant, as are the cases cited by the County that suggest courts should give deference to an administrative agency's interpretations of statutes within its area of "expertise." (See, e.g., Chevron U.S.A. v. Natural Res. Def. Council (1984) 467 U.S. 837, 842-845, 104 S.Ct. 2778, 81 L.Ed.2d 694; Marek v. Napa Community Redevelopment Agency, supra 46 Cal.3d at pp. 1085-1086, 251 Cal.Rptr. 778, 761 P.2d 701.) Acceptable state audits Similarly, we are not persuaded by audits conducted by the State Controller's Office. These audits have not found any deficiency in the method used by the County to compute the tax increment due redevelopment agencies. But the County has not cited any portion of the audits that suggest the issue of escape assessments was considered. Nor was there any testimony by the preparer of these audits to establish this topic was considered by the auditors. Simply stated, the audits are good as far as they go, but they do not go far enough to assist the County. Again, we will not find authority in a document that does not address the issue we are considering. CONCLUSION The trial court erred in interpreting section 33670. We will remand the matter to the trial court to enter a new judgment and consider other unresolved issues raised by the pleadings. DISPOSITION The judgment is reversed and remanded to the trial court, which is instructed to *396 enter a new and different judgment requiring the County to include escape assessments in its calculation of the tax increment due to redevelopment agencies. Community Development Commission of the City of Oxnard is awarded its costs on appeal. WE CONCUR: WISEMAN, Acting P.J, and DAWSON, J. NOTES [1] The "county board" of equalization is defined as a county board of supervisors meeting as a county board of equalization. (Rev. & Tax.Code, § 1601, subd. (a).) [2] In theory, a property owner may file an application for equalization to increase the assessment of his or her property, but this seems to be a rare occurrence. [3] In other words, the equalized assessment roll as it existed on the August 20 that preceded the ordinance. [4] The property owner disputed the assessment on the fixtures and it was reduced by stipulation to $42,501,500, a change that is insignificant to the issues before us. [5] This figure is for all of CDC's redevelopment projects, not just the HERO Plan. [6] Another witness, Roxanne Koutzoukis, testified that the majority of counties calculate tax increment based on the equalized roll. She also testified that the Ventura County auditor has calculated the tax increment in this manner for approximately 40 years. [7] The County requests us to take judicial notice of the staff analysis of Senate Bill No. 1877 (2003-2004 Reg. Sess.), which never was enacted. Senate Bill No. 1880, passed in 2004, deleted the requirement found in Revenue and Taxation Code section 533 that escape assessments must be written onto the equalized assessment roll and permitted the information to be maintained in an electronic data base. (Sen. Bill No. 1880 (2003-2004 Reg. Sess.) § 6.) We deny the request for judicial notice because Senate Bill No. 1877 was not enacted. [8] We also reject the argument that only the taxes calculated using the equalized roll are "levied." There is no authority for this assertion.

UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT UNITED STATES OF AMERICA,  Plaintiff-Appellee, v.  No. 03-4070 AMIR SALES, Defendant-Appellant.  Appeal from the United States District Court for the Eastern District of Virginia, at Alexandria. James C. Cacheris, Senior District Judge. (CR-02-4-A) Submitted: September 30, 2003 Decided: December 15, 2003 Before NIEMEYER, MOTZ, and GREGORY, Circuit Judges. Affirmed by unpublished per curiam opinion. COUNSEL Christopher B. Amolsch, LAW OFFICE OF CHRISTOPHER AMOLSCH, Alexandria, Virginia, for Appellant. Paul J. McNulty, United States Attorney, Michael J. Elston, Assistant United States Attorney, Alexandria, Virginia, for Appellee. Unpublished opinions are not binding precedent in this circuit. See Local Rule 36(c). 2 UNITED STATES v. SALES OPINION PER CURIAM: Amir Sales pled guilty to one count of distributing a quantity of opium in violation of 21 U.S.C. § 841(a) (2000), and was sentenced to a term of forty-six months’ imprisonment.1 After the ten-day appeal period had expired, he mailed a pro se motion for reconsideration of his sentence to the district court. The envelope was postmarked December 19, 2002, and the motion was filed on December 23, 2002. Sales challenged the quantity of opium for which he was held accountable and stated that his attorney’s representation had been "completely inadequate." The district court denied the motion on December 30, 2002. On January 10, 2003, with new counsel, Sales appealed from the order denying his motion for reconsideration of his sentence. Because Sales did not file a timely appeal from the judgment order, we lack jurisdiction to review issues relating to his sentencing. In criminal cases, a defendant must file his notice of appeal within ten days of the entry of judgment. Fed. R. App. P. 4(b)(1)(A). With or without a motion, the district court may grant an extension of time to file of up to thirty days upon a showing of excusable neglect or good cause. Fed. R. App. P. 4(b)(4). These time periods are mandatory and jurisdictional. United States v. Raynor, 939 F.2d 191, 196 (4th Cir. 1991). Judgment was entered in Sales’ case on November 25, 2002. He did not file a notice of appeal from the judgment and he does not assert that he informed his attorney that he wished to note an appeal. A timely motion for reconsideration may extend the time for filing a notice of appeal, but Sales does not benefit from this principle. 1 Under the terms of his plea agreement, Sales waived the right to appeal his sentence. However, because the joint appendix does not con- tain a transcript of the guilty plea colloquy, we are unable to determine whether the waiver was knowing and voluntary. See United States v. Wessells, 936 F.2d 165, 168 (4th Cir. 1991) (waiver is ineffective where district court fails to question defendant about it at Fed. R. Crim. P. 11 hearing). The government mentions the waiver in its brief, but does not request dismissal of the appeal.  UNITED STATES v. SALES 3 Although "the Federal Rules of Criminal Procedure do not specifi- cally provide for motions for reconsideration and prescribe the time in which they must be filed," Nilson Van & Storage Co. v. Marsh, 755 F.2d 362, 364 (4th Cir. 1985), the Supreme Court has held that a motion for rehearing or reconsideration extends the time for filing a notice of appeal in a criminal case if the motion is filed before the order sought to be reconsidered becomes final. See United States v. Ibarra, 502 U.S. 1, 4 n.2 (1991) (holding that would-be appellants who file a timely motion for reconsideration from a criminal judg- ment are entitled to the full time period for noticing the appeal after the motion to reconsider has been decided). For Sales’ motion for reconsideration to have been timely filed under Houston v. Lack, 487 U.S. 266 (1988), he would have had to deliver it to prison officials for mailing by December 10, 2002, nine days before the postmark date. See Fed. R. App. P. 26(a) (providing that "intermediate Saturdays, Sundays, and legal holidays" are excluded only when time period is less than eleven days). Sales does not claim to have delivered the motion to prison officials by Decem- ber 10, 2002. We conclude that Sales has forfeited his right to contest the district court’s determination at the sentencing hearing of the quantity of opium attributable to him and his eligibility for the safety valve reduction. Sales’ appeal from the order denying his motion for reconsidera- tion was timely. Under Rule 35(a) of the Federal Rules of Criminal Procedure, the district court may, within seven days after sentencing, correct a sentence for arithmetical, technical, or other clear error. Oth- erwise, the court may not alter a sentence once it is imposed unless the government files a motion for a substantial assistance departure under Rule 35(b), the case is remanded for resentencing under 18 U.S.C. § 3742 (2000), or when circumstances not present here permit sentence modification under 18 U.S.C. § 3582(c) (2000). See United States v. Fraley, 988 F.2d 4, 67 (4th Cir. 1993) (construing former Rule 35(c), which has not been substantively amended since). Because it lacked authority to alter Sales’ sentence, the district court properly denied his motion for reconsideration.2 2 The government suggests that the motion for reconsideration might be treated as a motion to vacate under 28 U.S.C. § 2255 (2000). Because Sales is represented in this appeal and his counsel does not characterize the motion as a § 2255 motion, we will not consider it a § 2255 motion. 4 UNITED STATES v. SALES We therefore affirm the district court’s denial of the motion for reconsideration. 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 

Abatement Order filed June 15, 2012. In The Fourteenth Court of Appeals ____________ NO. 14-12-00162-CR ____________ SHANEQUA TERRY, Appellant V. THE STATE OF TEXAS, Appellee On Appeal from the 228th District Court Harris County, Texas Trial Court Cause No. 1288605 ABATEMENT ORDER Appellant is represented by appointed counsel, Franklin Gordon Bynum. On May 14, 2012, time to file appellant=s brief expired without a brief and no motion for extension of time was filed. See Tex. R. App. P. 38.6(a). Counsel and the trial court were notified on May 15, 2012, that no brief had been received. No response from appellant has been received. Pursuant to Tex. R. App. P. 38.8(b) (a copy of which is attached) the judge of the 228th District Court shall (1) immediately conduct a hearing, at which appellant, appellant=s counsel, and state=s counsel shall participate, either in person or by video teleconference, to determine (a) whether appellant desires to prosecute his appeal; (b) whether appellant is indigent; (c) if not indigent, whether appellant has abandoned the appeal or whether appellant has failed to make necessary arrangements for filing a brief; (d) the reason for the failure to file a brief; (e) if appellant desires to continue the appeal, a date certain when appellant=s brief will be filed; and (2) prepare a record, in the form of a reporter=s record, of the hearing. If appellant is indigent, the judge shall take such measures as may be necessary to assure effective representation of counsel, which may include the appointment of new counsel. The judge shall see that a record of the hearing is made, shall make findings of fact and conclusions of law, and shall order the trial clerk to forward a transcribed record of the hearing, a videotape or compact disc, if any, containing a recording of the video teleconference, and a supplemental clerk=s record containing the findings and conclusions. Those records shall be filed with the clerk of this court on or before July 16, 2011. The appeal is abated, treated as a closed case, and removed from this Court=s active docket. The appeal will be reinstated on this Court=s active docket when the trial court=s findings and recommendations are filed in this Court. The Court will also consider an appropriate motion to reinstate the appeal filed by either party, or the Court may reinstate the appeal on its own motion. It is the responsibility of any party seeking reinstatement to request a hearing date from the trial court and to schedule a hearing in compliance with this Court=s order. If the parties do not request a hearing, the court coordinator of the trial court shall set a hearing date and notify the parties of such date. PER CURIAM 2  RULE 38. REQUISITES OF BRIEFS Tex. R. App. P. 38.8. Failure of Appellant to File Brief. (b) Criminal Cases. (1) Effect. An appellant=s failure to timely file a brief does not authorize either dismissal of the appeal or, except as provided in (4), consideration of the appeal without briefs. (2) Notice. If the appellant=s brief is not timely filed, the appellate clerk must notify counsel for the parties and the trial court of that fact. If the appellate court does not receive a satisfactory response within ten days, the court must order the trial court to immediately conduct a hearing to determine whether the appellant desires to prosecute his appeal, whether the appellant is indigent, or, if not indigent, whether retained counsel has abandoned the appeal, and to make appropriate findings and recommendations. (3) Hearing. In accordance with (2), the trial court must conduct any necessary hearings, make appropriate findings and recommendations, and have a record of the proceedings prepared, which recordCincluding any order and findingsCmust be sent to the appellate court. (4) Appellate Court Action. Based on the trial court=s record, the appellate court may act appropriately to ensure that the appellant=s rights are protected, including initiating contempt proceedings against appellant=s counsel. If the trial court has found that the appellant no longer desires to prosecute the appeal, or that the appellant is not indigent but has not made the necessary arrangements for filing a brief, the appellate court may consider the appeal without briefs, as justice may require. 3 

378 So.2d 1268 (1979) UNION FIDELITY LIFE INSURANCE COMPANY, Petitioner, v. James H. SEAY, Sr., As Personal Representative of the Estate of Anne F. Seay, Respondent. No. 79-1613. District Court of Appeal of Florida, Second District. December 28, 1979. *1269 David P. Montgomery, of Mann & Fay, Bradenton, for petitioner. J.B. Donnelly, of Grimes, Goebel, Parry, Blue, Boylston & McGuire, Bradenton, for respondent. OTT, Judge. Petitioner requests review by certiorari of an order denying a motion for a protective order. The Notice of Taking of Deposition and Request for Production filed by respondent seeks to take the deposition of Union Fidelity Life Insurance Company and seeks production of all records concerning the denial of coverage for claims filed under a particular policy language, without limitation as to time or as to the number of claims for which records must be produced. We grant certiorari. The request for a deposition was proper under Florida Rules of Civil Procedure 1.310(b)(6). Petitioner must determine who would best be able to answer questions about the matters specified by respondent and present him for deposition. We believe that the trial court abused its discretion and departed from the essential requirements of law in denying a protective order as to the production of records, and there would be no adequate remedy by appeal. This is a question which must be considered on a case by case basis according to the facts. Schering Corporation v. Thornton, 280 So.2d 493 (Fla. 4th DCA 1973). In this case the records requested are 45,000 policies which are stored on computer software in Trevose, Pennsylvania. We find the production of these records to be unduly oppressive and burdensome to petitioner unless further discovery establishes such to be necessary. Petitioner should select an appropriate representative or representatives to be deposed in Florida pursuant to Florida Rules of Civil Procedure 1.310(b)(6). Further discovery, including the production of those records that appear necessary or appropriate, may thereafter be secured at such place and on such terms as may be reasonable. Accordingly, we quash the trial court's order and remand for proceedings in accordance with this opinion. HOBSON, Acting C.J., and SCHEB, J., concur.

741 F.2d 1381 U.S.v.Lane 83-1742 United States Court of Appeals,Fifth Circuit. 8/22/84 N.D.Tex., 735 F.2d 799

55 F.Supp.2d 416 (1999) Linda Joy BRACEY, Plaintiff, v. Ernest BUCHANAN, individually and in his official capacity as the Provost of the Virginia Beach campus of Tide-water Community College, Defendant. No. Civ.A. 2:98cv1178. United States District Court, E.D. Virginia, Norfolk Division. June 24, 1999. *417 Linda Joy Bracey, pro se. Alton Andrew Martin, Mark Lawrence Earley, William Eugene Thro, Office of the Attorney General, Richmond, VA, for defendant. *418 ORDER CLARKE, District Judge. This matter is before the Court on motion of Dr. Ernest Buchanan (Defendant) to dismiss the claims against him filed on October 15, 1998, by Linda Joy Bracey (Plaintiff), acting pro se. For the following reasons, the Court GRANTS the motion. I. Procedural Background Plaintiff is, or at least was at the time her cause of action arose, a student at the Virginia Beach campus of Tidewater Community College (TCC). Defendant is the Provost of the Virginia Beach campus of TCC. Plaintiff filed suit in this Court on October 15, 1998, against Defendant in both his individual and official capacities, apparently alleging violations of her rights under 20 U.S.C. § 1681(a) (Title IX), Title II of the Americans with Disabilities Act (ADA), and § 504 of the Rehabilitation Act (§ 504).[1] On February 17, 1999, the Defendant moved for a more definite statement, and by Order of February 24, 1999, this Court granted that motion, ordering the Plaintiff to file a more definite statement within eleven (11) days of the date of the February 24th Order. On March 15, 1999, after the expiration of the eleven (11) days, the Plaintiff submitted to the Court a more definite statement of her claims. In light of the Plaintiff's pro se status, however, the Court ordered the statement filed notwithstanding the fact that it was submitted late. The Court further ordered the Defendant to file an answer within twenty (20) days of the March 23rd Order. On April 15, 1999, the Defendant filed his Motion to Dismiss and Answer. On May 14, 1999, the Plaintiff requested an extension of time for filing her reply, and the Court granted that request by Order of May 18, 1999, extending the Plaintiff's time by ten (10) days. The Plaintiff replied to the Defendant's motion on May 24, 1999. II. Law and Analysis A. Standard for Motion to Dismiss The Defendant brings this motion to dismiss for failure to state a claim upon which relief could be granted pursuant to Federal Rule of Civil Procedure 12(b)(6). The Court notes first that as a general proposition, the Plaintiff's pleadings fail to meet the mandates of Federal Rule of Civil Procedure 8, which requires a short and plain statement of a claim giving the defendant fair notice of the claim and the grounds upon which it rests. Conley v. Gibson, 355 U.S. 41, 47, 78 S.Ct. 99, 2 L.Ed.2d 80 (1957). The Plaintiff never alleges exactly what the Defendant did to violate her rights. Instead, the Plaintiff merely alleges abstractly that the Defendant somehow, at some undisclosed time, violated the Plaintiff's rights under the above named statutes. The purpose of pleadings in the federal system is to put the Defendant on notice as to the nature of the claims against him so that he may adequately prepare a defense. See Bolding v. Holshouser, 575 F.2d 461, 464 (4th Cir.1978). While the pleadings need not be minutely detailed, they must provide enough factual details to allow the Defendant to discern exactly what act he has committed that the Plaintiff alleges is illegal. Overall, the Plaintiff's pleadings in this case fail to provide the Defendant with adequate notice of the claims against him. While Rule 8 provides the standard for pleadings in federal court, Rule 12(b)(6) "must be given a construction consonant with that basic concept...." See Bolding, 575 F.2d at 464 (4th Cir.1978). As such, in *419 ruling on a Rule 12(b)(6) motion to dismiss, the Court construes the complaint in the light most favorable to the plaintiff, and the allegations are taken as true. Scheuer v. Rhodes, 416 U.S. 232, 94 S.Ct. 1683, 40 L.Ed.2d 90 (1974). The complaint should not be dismissed unless it appears beyond doubt that the plaintiff can prove no set of facts in support of his or her claim which would entitle him or her to relief. Conley v. Gibson, 355 U.S. 41, 45-46, 78 S.Ct. 99, 2 L.Ed.2d 80 (1957); Bruce v. Riddle, 631 F.2d 272, 273-74 (4th Cir.1980). A court should not dismiss a complaint even if it appears on the face of the pleadings that the chance of recovery is very remote. Scheuer, 416 U.S. at 236, 94 S.Ct. 1683. Under that standard, the Court FINDS that, viewed in the light most favorable to the Plaintiff, the Complaint specifically fails to state a claim with respect to each claim in the Complaint. The Court will address each claim in turn. B. Individual Capacity Claims Against Defendant For the following reasons, all of the Plaintiffs claims against the Defendant in his individual capacity shall be dismissed as a matter of law for failure to state a claim. i. Title IX claims It is impossible to bring a Title IX action against an individual. See Kinman v. Omaha Public School District, 171 F.3d 607 (8th Cir.1999); Smith v. Metropolitan School District, 128 F.3d 1014 (7th Cir.1997). Title IX operates to condition "an offer of federal funding on a promise by the recipient not to discriminate, in what amounts essentially to a contract between the Government and the recipient of funds." Kinman, 171 F.3d at 610-11 (quoting Gebser v. Lago Vista Ind. School Dist., 524 U.S. 274, 118 S.Ct. 1989, 1997, 141 L.Ed.2d 277 (1998)). This Court agrees with the many Courts of Appeals that have held that "because they are not grant recipients, school officials may not be sued in their individual capacity under Title IX." Id. at 610; see also Floyd v. Waiters, 133 F.3d 786, 789 (11th Cir.), vacated and remanded, ___ U.S. ___, 119 S.Ct. 33, 142 L.Ed.2d 25 (1998); Lipsett v. University of Puerto Rico, 864 F.2d 881, 901 (1st Cir.1988); Lillard v. Shelby County Bd. of Educ., 76 F.3d 716, 730 (6th Cir.1996) (Nelson, J., concurring); National Collegiate Athletic Ass'n v. Smith, ___ U.S. ___, 119 S.Ct. 924, 142 L.Ed.2d 929 (1999). As such, the Plaintiff in this case may not maintain a Title IX action against the Defendant, Provost of the Virginia Beach campus of TCC, in his individual capacity. Because the Plaintiff cannot, as a matter of law, state a claim against the Defendant in his individual capacity under Title IX, the Court DISMISSES all Title IX claims against the Defendant individually. ii. ADA and Rehabilitation Act claims Title II of the ADA provides, in pertinent part: Subject to the provisions of this subchapter, no qualified individual with a disability shall, by reason of such disability, be excluded from participation in or be denied the benefits of the services, programs, or activities of a public entity, or be subjected to discrimination by any such entity. 42 U.S.C.A. § 12132 (West Supp.1994). § 504 of the Rehabilitation Act provides, in pertinent part: No otherwise qualified individual with a disability ... shall, solely by reason of her or his disability, be excluded from the participation in, be denied the benefits of, or be subjected to discrimination under any program or activity receiving Federal financial assistance. 29 U.S.C.A. § 794(a) (West Supp.1994). These two statutes are to be analyzed identically. See Doe v. University of Md. Med. Sys. Corp., 50 F.3d 1261, 1264 n. 9 (4th Cir.1995) (combining analysis of plaintiff's claims under ADA and Rehabilitation Act and stating that because the language *420 of the statutes "is substantially the same, we apply the same analysis to both."). While the Fourth Circuit has not squarely addressed the issue of individual liability with respect to the ADA, this District Court has declared, based on the Fourth Circuit's jurisprudence with respect to Title VII and the Age Discrimination in Employment Act (statutes analogous to the ADA), as well as the ADA law in most of the federal circuits, that "individuals who do not independently meet the ADA's definition of `employer' cannot be held liable under the ADA in the making of employment decisions of a plainly delegable nature." Stephens v. Kay Management Co., Inc., 907 F.Supp. 169, 174 (E.D.Va.1995). See also Mason v. Stallings, 82 F.3d 1007, 1009 (11th Cir.1996) (ADA); EEOC v. AIC Sec. Investigations, 55 F.3d 1276, 1279-82 (7th Cir.1995) (ADA). Although the facts of this case do not specifically raise employment issues, as in the Stephens case, the logic and reasoning of the Stephens court in rejecting individual liability under the ADA applies with equal force to the factual scenario in this case. Therefore, the Court holds that the Defendant is not subject to individual liability under the ADA. Since § 504 of the Rehabilitation Act is interpreted consistently with the ADA, the Defendant is not subject to individual liability under § 504 either. Because the Plaintiff cannot, as a matter of law, state a claim against the Defendant in his individual capacity under either the ADA or the Rehabilitation Act, the Court DISMISSES those claims. C. Official Capacity Claims For the following reasons, all of the Plaintiff's claims against the Defendant in his official capacity shall be DISMISSED as a matter of law for failure to state a claim. First, a suit against the Defendant in his official capacity as Provost of the Virginia Beach campus of TCC is considered by the Court to be a suit against TCC itself because suits against officers of an entity generally represent only another way of pleading a suit against the entity of which the officer is an agent. See Kentucky v. Graham, 473 U.S. 159, 105 S.Ct. 3099, 3105, 87 L.Ed.2d 114 (1985). i. Title IX claims In a Title IX case against a school, a plaintiff must allege that the response to his or her complaint constituted a deliberate indifference to the allegations of discrimination. In other words, "a plaintiff ... may not recover against a school district without first showing that a district official with the authority to address the complained-of conduct and take corrective action had actual notice of the harassing behavior and failed adequately to respond." Kinman, 171 F.3d at 610 (citing Gebser, 118 S.Ct. at 1999 (1998)). In order to state a claim in this case, the Plaintiff must allege that once TCC was put on actual notice of the alleged discriminatory actions, the school either made an official decision not to remedy the violation or the school's response to the allegations of harassment amounted to "deliberate indifference to discrimination." Gebser, 118 S.Ct. at 1999 (1998). In this case, the Plaintiff has failed to allege that TCC was deliberately indifferent to her complaints of gender discrimination. In fact, the Plaintiff alleges to the contrary that TCC did in fact launch an investigation into her allegations. That the Plaintiff is dissatisfied with the outcome of the investigation has no bearing on this Title IX claim, absent an allegation that TCC showed a deliberate indifference. The Plaintiff has therefore failed as a matter of law to state a claim under Title IX against the Defendant in his official capacity, and the Court DISMISSES this claim. *421 ii. ADA and Rehabilitation Act claims To establish a violation of either Title II of the ADA or § 504 of the Rehabilitation Act, the Plaintiff must prove (or allege, at this point in the proceedings) that she: (1) has a disability; (2) is otherwise qualified for the ... benefit in question; and (3) was excluded from the ... benefit in question solely on the basis of the disability. See Shafer v. Preston Memorial Hospital, Corp., 107 F.3d 274, 276 (4th Cir.1997); see also Doe, 50 F.3d at 1264-65 (4th Cir. 1995). In this case, the Plaintiff has alleged that she has a disability. The Court notes that while not absolutely necessary to survive a motion to dismiss, the Plaintiff has failed to notify the Court as to the exact nature of her disability. More importantly, however, Plaintiff has failed to allege exactly how she was excluded from the benefit of an education based solely on her disability. The Plaintiff merely makes conclusory allegations that the Defendant refused to accommodate her. She fails to state exactly when she requested and was denied an accommodation, and more importantly, she fails to state exactly what accommodations she requested. Without such allegations in the Complaint, the Defendant cannot possibly attempt to formulate a defense, which might very well include reasonable, non-discriminatory explanations for the Defendant's alleged denial of the requested accommodations. Although the Court is mindful of its duty to this pro se Plaintiff to construe her Complaint liberally, the Court cannot be expected to make the Plaintiff's case for her. The District Court for Maryland has said it best: Generally speaking, pro se litigants are held to a less stringent standard than trained attorneys; the Court must afford a pro se complaint generous construction. Haines v. Kerner, 404 U.S. 519, 92 S.Ct. 594, 30 L.Ed.2d 652 (1972). Such litigants with otherwise meritorious claims are not to be defeated by failure to observe technical niceties. Gordon v. Leeke, 574 F.2d 1147 (4th Cir.), cert. denied, 439 U.S. 970, 99 S.Ct. 464, 58 L.Ed.2d 431 (1978). Nevertheless, the United States Court of Appeals for the Fourth Circuit has acknowledged limits on this principle. Beaudett v. City of Hampton, 775 F.2d 1274 (4th Cir.1985), cert. denied, 475 U.S. 1088, 106 S.Ct. 1475, 89 L.Ed.2d 729 (1986). A pro se plaintiff still must allege facts that state a cause of action. Id. Sado v. Leland Memorial Hospital, 933 F.Supp. 490, 493 (D.Md. 1996) (emphasis added). The direction to district courts to construe pro se complaints liberally "does not require those courts to conjure up questions never squarely presented to them. District judges are not mind readers." Beaudett v. City of Hampton, 775 F.2d 1274 (4th Cir.1985), cert. denied, 475 U.S. 1088, 106 S.Ct. 1475, 89 L.Ed.2d 729 (1986). In this case, the Court has already given the Plaintiff a chance to further specify her claims by filing a more definite statement to accompany the Complaint. In fact, the Court allowed the Plaintiff extra time to complete her more definite statement. The Court is of the opinion that it has given the Plaintiff ample opportunity to state her claims clearly and succinctly, with supporting facts in order to avoid disposition on a motion to dismiss. The Plaintiff has simply failed to state a claim under either the ADA or the Rehabilitation Act as a matter of law. Therefore, the Court DISMISSES these claims and all remaining claims in the Complaint. III. For the above stated reasons, the Court hereby GRANTS the Defendant's Motion to Dismiss, and DISMISSES all of the claims brought by Plaintiff in the Complaint, as clarified in the More Definite Statement. Plaintiff is ADVISED that she may appeal the rulings in this Order by filing a *422 WRITTEN Notice of Appeal with the Clerk of this Court, 600 Granby Street, Norfolk, Virginia 23510 within thirty (30) days of the date of this Order. The Clerk is DIRECTED to mail a copy of this Order to the Plaintiff and to counsel for the Defendant. IT IS SO ORDERED. NOTES [1] The Court agrees with the Defendant concerning the difficulty of discerning the exact nature of the claims as stated in the Complaint. Even when the Court reads the Complaint in conjunction with the Plaintiff's attempt at a more definite statement, the Court finds only conclusory allegations that the Defendant has somehow violated the law. After reading both of Plaintiff's filings, the Court agrees with the Defendant's characterization of the claims and will proceed on the basis that the Plaintiff is alleging violations of her rights under Title IX, Title II of the ADA, and § 504 of the Rehabilitation Act.

822 F.2d 862 56 USLW 2104 UNITED STATES of America, Plaintiff-Appellee,v.Rickie Lee BOATWRIGHT, Defendant-Appellant. No. 85-1361. United States Court of Appeals,Ninth Circuit. Argued and Submitted May 11, 1987.Decided July 20, 1987. Nancy L. Simpson, Sacramento, Cal., for plaintiff-appellee. Sandra Gillies, Sacramento, Cal., and J. Toney, Woodland, Cal., for defendant-appellant. Appeal from the United States District Court for the Eastern District of California. Before KOELSCH, WALLACE and KENNEDY, Circuit Judges. KENNEDY, Circuit Judge: 1 The sole issue in the appeal from a firearms conviction under 26 U.S.C. Sec. 5861(d) is whether two shotguns seized in an illegal search are admissible under the inevitable discovery doctrine, an exception to the exclusionary rule. 2 In an early stage of the appeal, the government deemed the case controlled by a footnote in United States v. Echegoyen, 799 F.2d 1271 (9th Cir.1986), and joined appellant in seeking summary reversal of his conviction. A motions panel of the court decided, however, that oral argument was necessary and ordered supplemental briefing on the inevitable discovery issue. We now conclude that the evidence is not admissible, though for reasons somewhat different from those advanced by the government in support of its earlier motion for summary reversal. 3 The appellant, Rickie Boatwright, whose guilt would be conclusive if the shotguns were admissible evidence, was something of a bystander in what began as a routine probation investigation of his brother, Rocky Boatwright. Rocky was on probation for the manufacture of methamphetamines and was subject to involuntary search by terms of his probation agreement. Learning that Rocky had moved to Paradise, California, a probation officer from Rocky's home county requested Paradise police to accompany him to Rocky's residence at 1024 Maple Drive to interview him, conduct a search, and learn of his activities. 4 When the officers arrived, they saw that close by the residence was a detached, smaller structure that was once a garage, with the address 1024A Maple Drive. Also present was a trailer, attached neither to the main residence at 1024 nor to the converted garage at 1024A. The record does not establish precise distances between the three structures, but indicates they were in close proximity. 5 When the officers called for Rocky, he emerged from the converted garage at 1024A and began to lead them toward the main residence. A strong chemical odor surrounded Rocky, but none of the officers had the expertise or training to identify the odor as one associated with the manufacture of drugs. 6 Before proceeding to the main residence, the officers decided to enter 1024A because the same odor surrounding Rocky was also emanating from the converted garage. Upon entering, the officers saw a partial laboratory on a bench and behind it a closed door. They went outside, asked Rocky if anyone else was in 1024A, reentered, opened the rear door, and discovered a small room with a bed where Rickie Boatwright was stacking items on top of two sawed-off shotguns. They seized the guns and arrested Rickie on the weapons charges now before us. 7 Immediately after the seizure and the arrest, there ensued a lawful probation search of the main house occupied by Rocky, a search which disclosed documents relating to the purchase of chemicals, pamphlets and notebooks on drug formulas, and ammunition. A search of the trailer followed, revealing an operating methamphetamine lab. On discovering the lab, the officers notified officials of the Drug Enforcement Administration. Special agent Gregory, an expert in drug manufacture, responded to their call. 8 It is Gregory's testimony that is the foundation for the inevitable discovery theory. His affidavit states that, based on what the officers discovered in the house and the trailer next door, he would have secured a search warrant for 1024A. On the basis of this affidavit, the government argues that the shotguns would have been discovered as soon as the search warrant was executed; in other words, what in fact was discovered first would have been discovered last, in a more ordered scheme of things, and inevitably so. We cannot accept this argument. 9 At the outset, however, we reject the restriction on the inevitable discovery doctrine offered by the appellant. He asserts that the doctrine applies only if two independent investigations or searches were in progress, one of which was lawful and would have uncovered the information. In support of this proposition, he cites a footnote in United States v. Echegoyen, 799 F.2d 1271 (9th Cir.1986), which states in relevant part: 10 Although [the inevitable discovery] exception to the exclusionary rule has been recognized in this circuit, [citations omitted], it has no application to the facts of this case. In Nix, police officers discovered the location and condition of the victim's body through an unlawful interrogation of the defendant. The Nix court, nonetheless, upheld the admissibility of this evidence because it concluded that an independent ground search simultaneously conducted by the police would have inevitably discovered the evidence. Nix [v. Williams ], 467 U.S. at 449-50, 104 S.Ct. [2501] at 2512-13 [81 L.Ed.2d 377]. In this case, however, there were not two independent investigations or searches in progress; there was but one continuous investigation. The Nix holding is, therefore, inapplicable to this case. Moreover, to excuse the failure to obtain a warrant merely because the officers had probable cause and could have inevitably obtained a warrant would completely obviate the warrant requirement of the fourth amendment. 11 Id. at 1280 n. 7. 12 The requirement that two independent searches be in progress is dictum, as the case admits the challenged evidence. More importantly, the requirement is inconsistent with the teachings of cases before and after Echegoyen. See United States v. Merriweather, 777 F.2d 503 (9th Cir.1985), cert. denied, --- U.S. ----, 106 S.Ct. 1497, 89 L.Ed.2d 898 (1986) (evidence admissible because later search lawful); United States v. Andrade, 784 F.2d 1431 (9th Cir.1986) (evidence admissible because lawful inventory search likely); United States v. Martinez-Gallegos, 807 F.2d 868 (9th Cir.1987) (evidence admissible because lawful examination of files likely). And, though the existence of two independent inquiries in progress comports with the facts of Nix v. Williams, 467 U.S. 431, 104 S.Ct. 2501, 81 L.Ed.2d 377 (1984), the rationale of Nix is not so limited. 13 There will be instances where, based on the historical facts, inevitability is demonstrated in such a compelling way that operation of the exclusionary rule is a mechanical and entirely unrealistic bar, preventing the trier of fact from learning what would have come to light in any case. In such cases, the inevitable discovery doctrine will permit introduction of the evidence, whether or not two independent investigations were in progress. The existence of two independent investigations at the time of discovery is not, therefore, a necessary predicate to the inevitable discovery exception. 14 The facts of this case do not justify a comprehensive definition of inevitable discovery. The doctrine is best developed on a case by case basis. We do discern, however, an element that should be shown in most, if not every, case to which the doctrine pertains. Absent some overriding considerations not now apparent to us, the doctrine requires that the fact or likelihood that makes the discovery inevitable arise from circumstances other than those disclosed by the illegal search itself. 15 Here the guns were unlawfully seized and no independent basis for discovery was established. Unlike cases in which an independent search was underway, as in Nix, or in which a search would have occurred as a matter of routine procedure, as in Andrade and Martinez-Gallegos, in this case no independent search occurred or was likely to occur at any point. There is nothing outside the unlawful search itself that points to the inevitable discovery of weapons in control of this defendant. Applying the inevitable discovery doctrine here would, therefore, permit the government to ignore search requirements at any convenient point in the investigation, and would go well beyond the present scope of the doctrine. This we decline to do. 16 We note also that, as a factual matter, the assumption that the officers would have found Rickie with the shotguns after searching the principal residence, detaining the probationer Rocky, and waiting for a hypothetical warrant, is most unrealistic. Rickie would not have waited patiently beside his weapons for an agent to arrive with a warrant. As a factual matter, then, as well as a theoretical one, the evidence cannot be admitted under the doctrine of inevitable discovery. 17 Before we leave Paradise, it may be useful to explain why the evidence is not admissible under some other theory. It might seem that the probationer, Rocky, had sufficient custody and control over 1024A so that search was permitted under terms of the probation agreement. The trial court's findings, however, were that the structures were separate, and are fairly interpreted to show that Rickie, who paid rent for the detached structure, exercised control exclusive of any control by Rocky. The government, accordingly, did not advance this as a ground for admitting the evidence. Nor did the government argue that entry was lawful because a crime was in progress or because the officers needed to protect themselves while searching the main residence. As the only theory relied upon by the government at trial or on appeal was inevitable discovery, a doctrine not applicable in the circumstances of this case, the conviction must be REVERSED.

752 N.W.2d 453 (2008) IN RE S.W. No. 08-0441. Court of Appeals of Iowa. May 14, 2008. Decision without published opinion. Affirmed.

543 U.S. 1021 ENEWALLY ET UX.v.WASHINGTON MUTUAL BANK. No. 04-481. Supreme Court of United States. December 6, 2004. 1 C. A. 9th Cir. Certiorari denied. Reported below: 368 F. 3d 1165.

157 F.Supp. 871 (1958) In the Matter of Dallas O. WILLIAMS. No. 6-58. United States District Court District of Columbia. January 14, 1958. *872 Oliver Gasch, U. S. Atty., Edward P. Troxell, Principal Asst. U. S. Atty., Washington, D. C., for respondent. George Rublee, II, Nestor S. Foley, Washington, D. C., for petitioner. KEECH, District Judge. This matter is before the court on a writ of habeas corpus seeking the discharge of the petitioner, Dallas O. Williams, from the custody of the Superintendent of Saint Elizabeths Hospital, to which he was committed by order of this Court in Mental Health No. 34-58, "pending the outcome of proceedings to be forthwith instituted by the Mental Health Commission." At the time of the signing of the order of commitment, the petitioner was before the court for presentation of the certified copy of the judgment and opinion of the United States Court of Appeals for the District of Columbia Circuit, reversing his conviction in Criminal No. 1572-49 for lack of due process. Williams v. United States, D.C.Cir., 250 F.2d 19. The government requested that the court, before receiving the mandate of the Court of Appeals in the criminal case, consider the petition of the United States Attorney, on behalf of the Superintendent of the District of Columbia Jail, that the Mental Health Commission examine Williams and report its findings to the Court. The petition, sworn to by the United States Attorney, recited: "1. Dallas O. Williams, colored, male and about 43 years old, was charged with assault with a dangerous weapon in November, 1949. He has had five trials, two resulting in mistrials and three in convictions. Defendant was adjudicated incompetent and committed to St. Elizabeth's Hospital three times during the period of these trials. Now, after the fifth trial, which resulted in conviction, the United States Court of Appeals for the District of Columbia Circuit has reversed and remanded with instructions to dismiss the indictment. "2. The staff of St. Elizabeth's Hospital advised that Dallas O. Williams at the present time shows no evidence of active mental illness but that he is potentially dangerous to others and if released is likely to repeat his patterns of criminal behavior, and might commit homicide. "3. This petition is filed pursuant to the opinion of the United States Court of Appeals in Williams v. United States [D.C.Cir., 250 F.2d 19], decided November 1, 1957, wherein that Court stated: `It is open to the Government, however, to proceed for a civil commitment under D.C.Code 21-326, if it considers that, with Williams at large in his present state, "the rights of persons and of property will be jeopardized or the preservation of public peace imperiled and the commission of crime rendered probable."'" (Emphasis supplied.) The petition then prayed that the Commission on Mental Health be directed to examine petitioner and report its findings to the Court and that he be committed to Saint Elizabeths Hospital pending determination of the need for his continued confinement in a mental institution. Attached to the petition were the unsworn statements of Doctors Cody and Platkin, two psychiatrists who had examined the petitioner on December 28, 1957, at the jail.[1] *873 The court granted this petition for commitment, "sitting as a court of equity." The order did not provide any definite term of temporary commitment. Thereafter a supplemental order was signed by the court, directing the Mental Health Commission to include certain specific findings in its report.[2] The petition for a writ of habeas corpus followed. Issuance of the writ was granted, and a full hearing has now been had before this court upon the return to the writ. The sole issue in this proceeding is whether the petitioner is lawfully restrained by the respondent. At the outset, it should be pointed out that, inasmuch as there is no criminal charge now pending against petitioner, there is no contention that any provision of the criminal code authorized his commitment. The legality of his confinement must therefore be tested solely upon the civil authority of this Court. The respondent relies upon §§ 21-301 and 21-326 of the District of Columbia Code and the concluding suggestion of the Court of Appeals in its opinion reversing petitioner's criminal conviction. Section 21-301 does not purport to provide any procedure for the commitment of insane persons. It merely deals with the court's power to superintend and direct the affairs of persons who have been adjudged non compos mentis, providing for appointment of committees or trustees for the management and preservation of insane persons' estates.[3] Section 21-326, captioned "Apprehension and detention by police, without warrant, of insane persons found in public places," deals with just that subject.[4] Although it provides an emergency procedure for apprehension of persons thought to be insane, which *874 should not be defeated by an over-technical construction,[5] it does require that the arresting officer reasonably believe the person apprehended to be insane and incapable of managing his own affairs or a menace to the public peace, and authorizes only the initial arrest and detention. The two sections of the Code which prescribe the basic procedure for preliminary commitment of insane persons are §§ 21-310 and 21-311. Section 21-310 provides in part:[6] "Any person with whom an alleged insane person may reside, or at whose house he may be, or the father or mother, husband or wife, brother or sister, or the child of lawful age of any such person, or the nearest relative or friend available, or the committee of such person, or an officer of any charitable institution, home, or hospital in which such person may be, or any duly accredited officer or agent of the Board of Public Welfare, or any officer authorized to make arrests in the District of Columbia who has arrested any alleged insane person under the provisions of sections 21-326 to 21-331, may apply for a writ de lunatico inquirendo and an order of commitment, or either thereof, for any alleged insane person in the District of Columbia, by filing in the District Court of the United States for the District of Columbia a verified petition therefore, containing a statement of facts upon which the allegation of insanity is based." (Emphasis supplied.) Section 21-311, which authorizes commitment of alleged insane persons for psychiatric examination, provides that upon filing of the petition under § 21-310— "accompanied by the affidavits of two or more responsible residents of the District of Columbia setting forth that they believe the person therein named to be insane or of unsound mind, the length of time they have known such person, that they believe such person to be incapable of managing his own affairs, and that such person is not fit to be at large or go unrestrained, and that if such person be permitted to remain at liberty the rights of persons and property will be jeopardized or the preservation of public peace imperiled or the commission of crime rendered probable, and that such person is a fit subject for treatment by reason of his or her mental condition, the court, or any judge thereof in vacation, may, in its or his discretion, issue an attachment for the immediate apprehension and detention, for preliminary examination, of such person in Saint Elizabeths Hospital and, unless found by the staff of Saint Elizabeths Hospital to be of sound *875 mind, therein for a period of not exceeding thirty days. * * *" This section further provides: "Persons arrested under the provisions of sections 21-326 to 21-331 shall be detained in Gallinger Municipal Hospital[7]pending the filing of a petition as provided in section 21-310. Such petition shall be filed within forty-eight hours after such person shall have been admitted into Gallinger Municipal Hospital, or, if such forty-eight-hour period shall expire on a Sunday or legal holiday, then not later than noon of the next succeeding day which is not a Sunday or legal holiday. The court, or any judge thereof in vacation, may, upon being satisfied of the sufficiency of the petition, sign an order authorizing the continued detention of said person in Gallinger Municipal Hospital and, unless found by the staff of Gallinger Municipal Hospital to be of sound mind, in Saint Elizabeths Hospital for a period not exceeding thirty days from the time of his apprehension and detention. If such petition be not filed, and such order of court obtained within the aforementioned period, the person shall be discharged forthwith. * * *" (Emphasis supplied.) Under no statute is the court authorized to commit any person for mental examination on a petition which fails to state facts upon which an allegation of present insanity is based. If it be considered that the Superintendent of the Jail was a "person with whom the alleged insane person may reside, or at whose house he may be," within the terms of § 21-310, obviously the statements attached to his petition did not fulfill the requirements of § 21-311, hence furnished no basis for the order of commitment. Aside from the fact that the psychiatrists' statements were unsworn, they contained no allegation of present insanity. Although both doctors indicated that they anticipated further antisocial behavior by the petitioner upon his release to society and believed him to be a potential danger to others, neither stated that he believed, or that there was ground to believe, that petitioner is presently suffering from a mental illness or mental defect which requires treatment or restraint in a mental institution.[8] Conceding that there is a rebuttable presumption of continuing insanity where one has been adjudged insane,[9] the last judicial determination of this petitioner's mental state was a finding of competency to stand trial[10] by order filed December 5, 1955; and even without such judicial determination, any presumption of continuing insanity would be rebutted by the statements of the psychiatrists upon which respondent relies. If § 21-326 be loosely interpreted so as to include the Superintendent of the Jail, the United States Attorney, or the court within the term an "officer in said District authorized to make arrests", as previously noted that section authorizes only the arrest and detention of the alleged insane person, to be followed up within forty-eight hours by a petition under § 21-310 alleging insanity and a thirty-day order of commitment under § 21-311. More than forty-eight hours have passed since petitioner's original commitment without the filing of such a petition or signing of such order. While the closing statement in the Court of Appeals' opinion may be interpreted as giving color to the right to commit a person merely because he is a potential danger to the community, *876 the quotation from § 21-326 is a mere fragment and must be read in context with the balance of the section. Further, § 21-326 must be read together with the other sections of the civil insanity statute, particularly §§ 21-310 and 21-311, which implement the procedure initiated under § 21-326. The transcript of the hearing preceding the signing of the order of commitment indicates that the court purported to act under an inherent equity jurisdiction to deal with insane persons. In the District of Columbia, § 21-311 of the Code lays down the conditions upon which the court may exercise its equity jurisdiction to commit persons for psychiatric examination. Even if one concedes that there is a margin of authority remaining to the court which has not been restricted by the Code provisions, it is apparent from the recitations of the petition for commitment, the very terms of the court's supplemental order, and the transcript of the proceedings before the court on that petition, that there has been no finding or allegation of belief that the petitioner is presently insane. However commendable was the court's purpose to protect the public from the release to society of a man "potentially dangerous to others," there is no District of Columbia statute or inherent equity power permitting commitment to any institution upon that showing alone. Many persons who are released to society upon completing the service of sentences in criminal cases are just as surely potential menaces to society as is this petitioner, having a similar pattern of anti-social behavior, lack of occupational adjustment, and absence of remorse or anxiety; yet the courts have no legal basis of ordering their continued confinement on mere apprehension of future unlawful acts, and must wait until another crime against society is committed or they are found insane in proper mental health proceedings before confinement may again be ordered. The Court of Appeals, which by reversing petitioner's conviction necessitated his release from custody on criminal charges, without any finding as to his present mental state, did not, and could not, suggest that petitioner be committed to a mental institution, temporarily or permanently, via civil proceedings without compliance with the insanity statute and on a mere showing that he may reasonably be expected to commit further criminal offenses. The procedural provisions of § 21-301 et seq. were enacted by the Congress for the protection of all persons alleged to be insane in civil proceedings, and the statutory safeguards were not withheld from those with criminal records. It would indeed be anomalous if a person who, after arrest, indictment, plea of not guilty, defense of insanity, and conviction by jury of a felony, is ordered by the Court of Appeals to be released because of a lack of due process in his trial, could thereafter be incarcerated in civil insanity proceedings without due process. This court is conscious, as was the United States Attorney, of the need for protection not only of the community but also of individuals in need of psychiatric care and treatment. But these laudable purposes, under our form of government, must be accomplished by procedures which are legal and not at the cost of disregarding constitutional safeguards by deprivation of liberty without due process of law. The mere fact that a commitment without due process is temporary and for the purpose of psychiatric examination renders it no less unlawful. As broad as the general equity jurisdiction of the judicial system is, it cannot be said to override specific statutory provisions or constitutional guarantees of personal liberty. For the foregoing reasons, I am constrained to grant the petition of Dallas O. Williams for release from the custody of the respondent. NOTES [1] Dr. Platkin's report concluded with the following paragraph: "Summarizing the present examination: Mr. Williams appears to be a man of grossly average intelligence, who at the present time shows no evidence of active mental illness. However, in view of his history, as provided by himself, and the long-standing pattern of drinking, gambling, and fighting, with frequent arrests for carrying, possession of, and assault with dangerous weapons; the absence of any regular occupational adjustment, and persistent difficulties with the law; it would not seem realistic to expect that this man could reenter the community without being a danger to it. His attitude of suspiciousness and resentment toward authority; his refusal to admit or accept responsibility for the numerous crimes of which he has been convicted; and his apparent lack of anxiety or remorse over his past pattern of antisocial behavior, would tend to emphasize the potential danger that this man might offer the community." Dr. Cody's report contained the following opinion: "Summary: This is a middle-aged Negro male with a long antisocial history including several charges of assault. Alcohol appears to be an important precipitating factor in his criminal behavior. While he shows no evidence of psychotic thinking today, it is probable that he was mentally ill a few years ago. At present there are no symptoms, singly or in the aggregate, which would justify a hospital commitment for this man. However, it should be kept in mind that he is potentially definitely dangerous to others, and once released is likely to repeat his patterns of criminal behavoir, including homicide." (Emphasis supplied.) [2] "Ordered that in the report by the Mental Health Commission findings of fact will be made as follows: "1. Is Dallas O. Williams presently suffering from any mental disease, defect or any type of insanity? If the answer is `No', state whether he previously has had any mental disease, defect or any type of insanity, and if so, state the extent of his recovery and whether the illness is likely to recur in the event of his release from hospitalization. "2. In the event said Dallas O. Williams is permitted to be at large, will he likely be dangerous to himself or will the rights of persons or of property be jeopardized or the preservation of public peace imperiled and the commission of crime rendered probable? If your answer to the foregoing question is `Yes', state whether this is by reason of any present or likely future mental disease, defect, or form of insanity?" [3] Cooper v. Burton, 1942, 75 U.S.App.D.C. 298, 127 F.2d 741. [4] Section 21-326, D.C.Code: "Any member of the Metropolitan police of the District of Columbia or any other officer in said District authorized to make arrests is authorized and empowered to apprehend and detain, without warrant, any insane person or person of unsound mind found on any street, avenue, alley, or other public highway, or found in any public building or other public place within the District of Columbia; and it shall be the duty of the policeman or officer so apprehending or detaining any such person to immediately file his affidavit with the major and superintendent of said Metropolitan police that he believes said person to be insane or of unsound mind, incapable of taking care of himself or herself or his or her property, and if permitted to remain at large or to go unrestrained in the District of Columbia the rights of persons and of property will be jeopardized or the preservation of public peace imperiled and the commission of crime rendered probable: Provided, however, That it shall be the duty of the major and superintendent of the said Metropolitan police to forthwith notify the husband or wife or some near relative or friend of the person so apprehended and detained whose address may be known to the said major and superintendent or whose address can by reasonable inquiry be ascertained by him." (Emphasis supplied.) Arrest by the major and superintendent of the Metropolitan Police Department of "any indigent person alleged to be insane or of unsound mind or any alleged insane person of homicidal or otherwise dangerous tendencies found elsewhere in the District of Columbia than in the places mentioned in section 21-326" is authorized by § 21-327, D.C.Code, upon the affidavits of two or more responsible residents of the District that they believe the person to be insane and not fit to be at large. [5] Orvis v. Brickman, 1952, 90 U.S.App. D.C. 266, 196 F.2d 762. [6] The remainder of the section provides for voluntary commitment. [7] Now District of Columbia General Hospital. [8] See footnote 1. [9] Life Ins. Co. of Virginia v. Herrmann, D.C.Mun.App.1944, 35 A.2d 828. [10] This was based upon a certification by the Superintendent of Saint Elizabeths Hospital advising that defendant had recovered his reason, was of sound mind, and had been discharged from treatment in the Hospital November 22, 1955.

UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 98-7449 RAYMOND HOUSDEN, Petitioner - Appellant, versus WILLIAM HAINES, Warden, Huttonsville Correc- tional Center, Respondent - Appellee. Appeal from the United States District Court for the Northern District of West Virginia, at Elkins. Robert Earl Maxwell, Senior District Judge. (CA-96-184-2) Submitted: January 26, 1999 Decided: March 4, 1999 Before WIDENER, LUTTIG, and TRAXLER, Circuit Judges. Dismissed by unpublished per curiam opinion. Raymond Housden, Appellant Pro Se. Rory Lee Perry, II, OFFICE OF THE ATTORNEY GENERAL OF WEST VIRGINIA, Charleston, West Virginia, for Appellee. Unpublished opinions are not binding precedent in this circuit. See Local Rule 36(c). PER CURIAM: Raymond Housden appeals the district court’s order denying relief on his petition filed under 28 U.S.C.A. § 2254 (West 1994 & Supp. 1998). We have reviewed the record and the district court’s opinion and find no reversible error. Accordingly, we deny a cer- tificate of appealability and dismiss the appeal on the reasoning of the district court. See Housden v. Haines, No. CA-96-184-2 (N.D.W. Va. Sept 4, 1998). We dispense with oral argument because the facts and legal contentions are adequately presented in the ma- terials before the court and argument would not aid the decisional process. DISMISSED 2 

266 B.R. 621 (2001) In re the GRAND UNION COMPANY, et al., Debtors. Nos. 00-39613 through 00-39616(NLW). United States Bankruptcy Court, D. New Jersey. August 30, 2001. *622 Jonathan I. Rabinowitz, Henry Karwowski, Rabinowitz, Trenk, Lubetkin & Tully, PC, West Orange, NJ, for Plaintiff CS Integrated, LLC. Howard S. Greenberg, Morris S. Bauer, Ravin Greenberg, PC, Roseland, NJ, Co-counsel for Defendant The Grand Union Company. OPINION NOVALYN L. WINFIELD, Bankruptcy Judge. INTRODUCTION This matter comes before the Court on a motion filed by CS Integrated, LLC ("CSI") to obtain an administrative expense priority and payment for certain of its claims against the Debtor. The Debtor opposes this relief on the ground that all of the CSI claims constitute rejection damages pursuant to 11 U.S.C. § 502(g) and thus are not entitled to priority under 11 U.S.C. § 503(b). The Court has jurisdiction over this matter pursuant to 28 U.S.C. §§ 157 and 1334 and the Standing Order of Reference issued by the United States District Court for the District of New Jersey on July 23, 1984. This is a core proceeding under 28 U.S.C. § 157(b)(2)(A) & (B). The following constitutes this Court's findings of fact and conclusions of law made in accordance with Bankruptcy Rule 7052. FACTS On October 3, 2000 ("Petition Date") The Grand Union Company, Grand Union Stores, Inc. of Vermont, Grand Union Stores of New Hampshire, Inc. and Specialty Merchandising Services, Inc. (the "Debtors" or "Grand Union") filed petitions for relief under Chapter 11 of Title 11, United States Code ("Bankruptcy *623 Code") and were continued in possession of their assets and management of their affairs. As of the Petition Date, CSI was providing warehousing, ice manufacturing, supply and transportation services to Grand Union. CSI continued to provide these services post-petition until January 13, 2001, when the contract between the parties was rejected. The contractual relationship between the parties began on June 13, 1989. On that date, Grand Union & CSI entered into an agreement which was periodically amended and modified over a period of about ten years ("the Agreement"). Among the initial services provided by CSI was the warehousing and distribution of frozen foods. In connection with the provisions of these services CSI built a warehouse in accordance with specifications set forth in the Agreement. For its warehousing services, CSI charged the Debtors an agreed upon rate per case of frozen food & ice cream ("Case Rate"). This rate was periodically modified by amendment to the Agreement. Grand Union was required to pay the effective Case Rate for a minimum annual volume of cases of inventory received at the warehouse regardless of the actual number of cases received by CSI ("Minimum Volume Threshold"). CSI asserts that both the Case Rate and the Minimum Volume Threshold were set primarily to reflect CSI's costs associated with the warehouse. If, in any given year, the actual number of cases received at the warehouse was less than the Minimum Volume Threshold, the Debtors were required to pay the Case Rate for the difference ("Shortfall"). The contract year ran from April 1 through March 31. Any Shortfall owed by the Debtors for failure to achieve the Minimum Volume Threshold of cases was invoiced and paid at the end of the contract year. Under the Agreement, CSI also provided supply and distribution services to Grand Union. Pursuant to its arrangement with CSI, Grand Union would purchase frozen foods and ice cream from third party vendors. The cases of frozen foods and ice cream were then shipped to the warehouse and CSI purchased the frozen foods and ice cream from Grand Union. On an "as needed" basis, individual Grand Union stores would then make purchases from CSI who would also deliver the frozen foods and ice cream to the individual stores. Reconciliation of the purchases and sales were performed on a regular basis and payments were transmitted by wire transfer. The Agreement also provided: upon termination of the Agreement (for any reason whatsoever), [Grand Union] shall pay to CSI on the date of such termination an amount equal to the consideration previously paid by CSI to [Grand Union] with respect to any remaining Inventory or other products stored by CSI at any of its facilities, in accordance with the Agreement (which amount shall not be subject to adjustment, setoff or recoupment) ... ("Repurchase Obligation"). On March 30, 2000, Grand Union notified CSI that it was terminating all agreements with CSI, effective March 31, 2001 ("Termination Date"). Approximately two weeks after the Petition Date, on October 16, 2000, the Debtor filed a motion to sell substantially all of its assets. An auction was thereafter conducted on November 16, 2000 and C & S Wholesale Grocers, Inc. ("C & S") was the successful bidder. On November 20, 2000 the Debtor filed a supplement to its sale motion in which it disclosed C & S as the winning bidder to all holders of executory contracts and unexpired leases with Grand Union, and further advised that certain of *624 the executory contracts might be assumed as part of the sale. CSI was among the parties who were so notified. On November 30, 2000 and December 8, 2000, the Court conducted a hearing to consider whether the sale to C & S should be approved and to consider the assumption and assignment of certain executory contracts. On November 21, 2000, CSI filed a limited an objection to approval of the sale and cross moved for order fixing the date by which the Debtors must assume or reject the CSI agreements. Additionally, on December 11, 2000, CSI filed a motion seeking relief from the automatic stay or to compel the Debtors to provide adequate protection. These motions were heard by this Court on December 15, 2000 and December 18, 2000. At the conclusion of the hearings, the Court gave Grand Union until January 15, 2001 to decide whether to assume or reject the CSI Agreements. The Court denied CSI's motion for relief from stay and ordered the Grand Union and CSI to reconcile their respective inventory and service accounts by the close of business on December 22, 2000. The Court also directed the parties to perform under the Agreement on a going forward basis. To meet its concern that the warehouse inventory would rise to unacceptable levels as a result of continued shipments of frozen foods and ice cream to the warehouse, CSI was granted the right to renew its request for stay relief on not less than seventy-two hours notice if the inventory levels did not decline as anticipated over the holiday season. The Court also provided in an order that it would conduct a further hearing on January 9, 2001 to consider, inter alia, CSI's right to recoupment and/or offset, to reconcile any outstanding disputes relating to the accounts, and to determine whether CSI was entitled to a § 507(d) super priority administrative claim. The Court received a letter request from CSI for an expedited hearing to address the Debtor's request for additional inventory to be placed with CSI. The Court conducted a hearing on January 5, 2001, and authorized the Debtors to place additional inventory with CSI at a level of no more than $3,800,000. On January 9, 2001, Grand Union advised the Court that it would reject the Agreement at the close of business on January 13, 2001 ("Rejection Date"). During the hearing, the Debtors represented that the only incoming inventory to the CSI warehouse would be six truckloads scheduled for delivery on January 10, 2001. Grand Union explained to the Court that these deliveries to the warehouse were essential to fulfill individual store requirements, particularly with respect to product mix, and that the inventory balance as of the Rejection Date would be approximately $3,300,000. On January 10, 2001, the CSI warehouse received inventory totaling $183,187.60. For the next 3 days, only $33,222.90 of inventory was shipped out to individual Grand Union stores. A total of $149,814.72 of the inventory delivered on January 10th remained at the CSI warehouse after the Rejection Date. ("Excess Inventory"). CSI argues that all of its claims which arise from the Agreement are subject to administrative priority pursuant to 11 U.S.C. § 503(b). The first claim CSI asserts is for the $891,364.34 Shortfall. The second claim for which it seeks recovery is for the Debtor's Repurchase Obligation of $3,400,837.80. The third claim is for the $149.814.72 of Excess Inventory which had been delivered on January 10, 2001. CSI claims that the Shortfall and the Repurchase Obligation arose on January 13, 2001, the date the Agreement was rejected. *625 CSI argues that the rejection constituted a termination which triggered the Debtor's obligation to pay the Repurchase Obligation and the Shortfall for the contract year ending March 31, 2001. As to the Excess Inventory, CSI observes that the inventory was placed in CSI's warehouse postpetition, at the specific request of the Debtor. Grand Union objects to administrative expense priority for any of the three claims. As set forth at greater length below, the Court grants CSI's claim for administrative priority with respect to the Excess Inventory and denies CSI's claim for administrative priority with respect to the Shortfall and the Repurchase Obligation. DISCUSSION Section 503(b)(1)(A) of the Code defines an administrative expense as including, "the actual necessary costs and expenses of preserving the estate, including wages, salaries, or commissions for services rendered after the commencement of the case ..." Administrative expenses are categorized as a first priority claim in a bankruptcy case. 11 U.S.C. § 507(a)(1). The purpose of granting administration expenses a priority for payment is to encourage creditors to cooperate with a debtor's reorganization efforts so that the debtor can effectively reorganize and continue its business, thereby maximizing the value of the estate for the benefit of all creditors. In re Baldwin Rental Centers, Inc., 228 B.R. 504, 511 (Bankr.S.D.Ga. 1998) (citing Alabama Surface Mining Comm'n v. N.P. Mining Co. (In re N.P. Mining Co.), 963 F.2d 1449, 1452 (11th Cir.1992)). Additionally, by granting administrative expense priority under section 503(b)(1)(A) to those expenses actual and necessary to preserve the debtor's estate unjust enrichment of the debtor's estate is prevented. Id. However, "[b]ecause the presumption in bankruptcy is that the debtor's limited resources will be equally distributed among his creditors, statutory priorities are narrowly construed." Trustees of Amalgamated Ins. Fund v. McFarlin's, Inc., 789 F.2d 98, 100-101 (2d Cir. 1986) (citing Joint Industry Board v. U.S., 391 U.S. 224, 228, 88 S.Ct. 1491, 20 L.Ed.2d 546 (1968); In re United Merchants and Mfrs., Inc., 597 F.2d 348, 349 (2d Cir.1979); In re Mammoth Mart, Inc., 536 F.2d 950, 953 (1st Cir.1976)). "If one claimant is to be preferred over others, the purpose should be clear from the statute." Id. (citing Nathanson v. N.L.R.B., 344 U.S. 25, 29, 73 S.Ct. 80, 97 L.Ed. 23 (1952); Matter of Jartran, Inc., 732 F.2d 584, 586 (7th Cir.1984)). As such, courts have established demanding criteria for determining whether a claim should be afforded an administrative priority. In re Lease-A-Fleet, Inc., 140 B.R. 840, 844-845 (Bankr.E.D.Pa.1992). Courts generally follow a 2-part test to determine whether a claim is entitled to first priority administrative status. This test was set forth in the seminal case of In re Mammoth Mart, Inc., 536 F.2d at 954, and has been relied on by CSI in its motion. First, the claim must arise from a transaction with the debtor-in-possession. Second, when the claim is based on a contract between the debtor and the claimant, a creditor's right to payment will be afforded first priority only to the extent that the consideration supporting the claimant's right to payment was both supplied to and beneficial to the debtor-in-possession in the operation of the business. Id. See also, In re Molnar Bros., 200 B.R. 555, 559 (Bankr.D.N.J.1996) (citations omitted). I. Excess Inventory As set forth above, under the Mammoth Mart criteria, when third parties *626 are induced to supply goods or services to the debtor-in-possession pursuant to a contract that has not been rejected, their claims must be afforded priority. The CSI claim based on Excess Inventory qualifies as an administrative expense under Mammoth Mart. First, the transaction which resulted in the Excess Inventory occurred post-petition between CSI and Grand Union prior to rejection of the Agreement. Second, CSI's acceptance of the inventory was beneficial to the Debtor's estate since it was acquired in order to fulfill store requirements. Thus, the inventory was obtained in furtherance of the Debtor's post-petition operations. In determining whether an expense is "beneficial" to a debtor's estate, courts have focused on the "necessity" of the expense to the estate. Lease-A-Fleet, 140 B.R. at 845 (citing In re Zagata Fabricators, Inc. v. Superior Air Products, 893 F.2d 624, 627 (3d Cir.1990); In re F.A. Potts & Co., 137 B.R. 13, 16 (E.D.Pa.1992); In re Leedy Mortgage, Co., 111 B.R. 488, 491 (Bankr.E.D.Pa.1990); In re Grant Broadcasting of Philadelphia, Inc., 71 B.R. 891, 897 (Bankr.E.D.Pa.1987); In re Patch Graphics, 58 B.R. 743, 746 (Bankr. W.D.Wis.1986)). The court is unpersuaded by the Debtor's argument that because it subsequently used only $33,222.90 of the January 10th inventory to satisfy the individual store requests until the January 13th rejection date, the inventory delivered to the warehouse on January 10th was not beneficial to the estate. The Debtor explained to the Court during the January 9, 2001 hearing that the additional inventory was necessary to stock appropriate products on the shelves of its stores. Plainly, Grand Union believed that the inventory was necessary for optimally meeting its ongoing operational needs. The fact that the actual use of inventory did not match Grand Union's projected needs does not mean that the warehousing of the inventory was not beneficial. After all, Grand Union was able to make decisions about individual store operations based on the certitude that it had a sufficient quantity and type of inventory on hand. The Court finds that under these circumstances, the Excess Inventory claim qualifies as an administrative priority expense. II. Shortfall and Repurchase Obligations CSI equates the debtor's rejection of the Agreement on January 13, 2001 to termination of the agreement. Accordingly, CSI contends that the debtor's rejection triggered the Repurchase Obligation set forth in the Agreement. CSI rests its contention on language in the Agreement that provides that the termination may occur "for any reason whatsoever." CSI also contends that because payment of the Shortfall would have come due on March 31, 2001, the end of the contract year, the rejection accelerated the Shortfall payment date to January 13, 2001. Therefore, CSI concludes, its right to payment for both the Shortfall and the Repurchase Obligation arose post-petition as of the Rejection Date. In support of its argument, CSI cites to the Avellino & Bienes v. M. Frenville Co. (In re Frenville), 744 F.2d 332, 335 (3rd Cir.1984) for the proposition that the threshold requirement of a claim is a "right to payment." Accordingly, CSI asserts that because its right to receive payment for the Repurchase Obligation and the Shortfall came due post-petition as of the Rejection Date, these claims must be afforded administrative priority status. In response, Grand Union contends that CSI incorrectly equates the Termination Date under the Agreement with the Rejection Date. Grand Union points out that the Rejection Date occurred prior to the scheduled Termination Date of the Agreement. *627 Thus, Grand Union argues that pursuant to 11 U.S.C. §§ 365(g) and 502(g), the Repurchase Obligation and the Shortfall can only be classified as pre-petition claims under the Bankruptcy Code. This Court agrees with Grand Union that both the Repurchase Obligation and the Shortfall are part of CSI's rejection damages and are only entitled to be treated as pre-petition unsecured claims. Application of the Frenville holding does not elevate CSI's claim to administration expense status. In Frenville, the Third Circuit necessarily had to decide when a third party's claim for indemnity arose for purposes of determining the applicability of the automatic stay. The Third Circuit determined that the critical inquiry was whether the claimant had a right to payment and when that right to payment arose. Id., at 336. The Third Circuit found that in the absence of a contractual provision a third party's indemnification or contribution claim against the debtor did not arise pre-petition because under applicable state common law a third party does not have any such rights until the contracting parties established a primary obligation to pay. Id. at 337. In the matter at hand, CSI's right to payment of the Repurchase Obligation and the Shortfall were established by the Agreement, which was executed pre-petition. Additionally, on March 30, 2000, several months pre-petition, Grand Union informed CSI that it was terminating the agreement effective March 31, 2001. Thus, as of the Petition Date, CSI had an unmatured right to payment with regard to both contractual obligations. Consequently, application of the Frenville case to the matter at hand does not yield the conclusion that either the Shortfall or the Repurchase Obligation arose post-petition. Furthermore, CSI's argument that the Rejection Date should be treated as the Termination Date is contrary to the plain language and purpose of Bankruptcy Code § 365(g) and § 502(g). Section 365(g) provides that: (g) Except as provided in subsections (h)(2) and (i)(2) of this section, the rejection of an executory contract or unexpired lease of the debtor constitutes a breach of such contract or lease— (1) if such contract or lease has not been assumed under this section or under a plan confirmed under chapter 9, 11, 12, or 13 of this title, immediately before the date of the filing of the petition ... 11 U.S.C. § 365(g)(1)(emphasis supplied). Section 502(g) addresses the priority to be afforded a rejection claim and provides that: (g) A claim arising from the rejection, under section 365 of this title or under a plan under chapter 9, 11, 12, or 13 of this title, of an executory contract or unexpired lease of the debtor that has not been assumed shall be determined, and shall be allowed under subsection (a), (b), or (c) of this section or disallowed under subsection (d) or (e) of this section, the same as if such claim had arisen before the date of the filing of the petition. 11 U.S.C. § 502(g)(emphasis supplied). Thus it is readily evident that the rejection of an executory contract is not a termination of that contract, but rather constitutes a breach of that contract under § 365(g)(1). See In re Klein, 218 B.R. 787, 790 (Bankr.W.D.Pa.1998) (citing Enterprise Energy Corp. v. U.S. (In re Columbia Gas Sys., Inc.), 50 F.3d 233, 239 n. 8 (3rd Cir.1995); Matter of Austin Development Co., 19 F.3d 1077 (5th Cir.1994); In re Modern Textile, Inc., 900 F.2d 1184 (8th Cir.1990)). *628 Moreover, with regard to the Repurchase Obligation, even if the rejection of the Agreement can be considered to have fallen within the parameters of termination identified in the Agreement ("termination for any reason") the claim still arose from rejection and application of § 502(g), results in the Repurchase Obligation being treated as a pre-petition claim, not an administrative expense. See, Baldwin, 228 B.R. at 513 (citing Klein, 78 F.3d at 26; GATX Leasing Corp. v. Airlift Int'l Inc. (In re Airlift Int'l, Inc.), 761 F.2d 1503, 1509 (11th Cir.1985)). CSI seeks to avoid the application of the plain language of § 365(g) and § 502(g) by focusing the Court's attention on cases that conclude that the rejection of the Agreement does not automatically preclude administrative status and that § 365(g) "relate[s] only to the time a claim arises, not whether the claim is to be accorded administrative priority." See In re Woodland Corp., 48 B.R. 623, 625-626 (Bankr.D.N.M.1985). However, it is equally true that a claim is not afforded the status of an administration expense under § 503(b)(1) simply because an obligation came due or arose in the post-petition period. A claimant must still establish that the criteria for an administrative expense is met, because "in accordance with the policy of construing section 503(b) narrowly, `there must be an actual, concrete benefit to the estate before a claim is allowable ...'" Baldwin, 228 B.R. at 513 (quoting Broadcast Corp. of Georgia v. Broadfoot, II (In re Subscription Television of Greater Atlanta), 789 F.2d 1530, 1532 (11th Cir.1986)). In the cases relied on by CSI, in support of its contention that the rejection of the agreement does not preclude administrative status, the courts required that claimant meet the test for an administrative expense under § 503(b). (See In re Merry-Go-Round Enters., 180 F.3d 149, 161-162 (4th Cir.1999) (the landlord's damages for Chapter 7 trustee's rejection of a lease entered into during the Chapter 11 were a Chapter 11 administrative expense under 503(b))); In re Patient Educ. Media, Inc., 221 B.R. 97, 103 (Bankr.S.D.N.Y.1998) (debtor knowingly and willingly used premises in the pre-rejection period to preserve and maximize assets of the estate); In re Tucci, 47 B.R. 328, 333 (Bankr.E.D.Va.1985) ("a landlord is entitled to an administrative claim for post-petition rent for leased premises if the claim is a constituent of `the actual, necessary costs and expenses of preserving the estate ...'"). As the party asserting the status of an administrative claimant CSI has the burden of proof. Patient, 221 B.R. at 101 (citing In re Mid Region Petroleum, Inc., 1 F.3d 1130, 1132 (10th Cir.1993); In re Drexel Burnham Lambert Group, Inc., 134 B.R. 482, 489 (Bankr.S.D.N.Y.1991)). "He must demonstrate that (1) his claim arose from a transaction with or on account of consideration furnished to the debtor-in-possession, and (2) the transaction or consideration directly benefitted the debtor in possession." Id. (citations omitted). Here, CSI has failed to prove that any portion of either the Shortfall or the Repurchase Obligation arose during the two and a half months between the filing of the petition and the rejection date while CSI continued to provide services. Nor is this a case in which CSI should be afforded an administration expense in order to prevent unjust enrichment of the debtor's estate. In the case of In re United Trucking Service, Inc., 851 F.2d 159 (6th Cir.1988) the Sixth Circuit affirmed the bankruptcy court's determination that the equipment lessor's claim for damages for repairs to certain trailers was properly treated as an administration expense. In *629 that matter the lease required the debtor to maintain and make repairs at its own expense. The court found that the debtor had benefitted at the expense of the creditor because the failure to maintain and repair the trailers as required by the lease allowed the debtor to use the money saved to continue its operations. Id., at 162. Nothing in the record before the Court reveals that either the Shortfall or the Repurchase Obligation can be said to have arisen from Grand Union's post-petition conduct which caused it to profit at the expense of CSI. CSI seeks $891,364.34 and $3,400,837.80 for the Shortfall and Repurchase Obligation respectively. In 2 ½ months of post-petition services CSI was paid for the services it rendered, albeit not always timely. This does not demonstrate unjust enrichment of the debtor estate which constitutes a basis for treating either the Shortfall or the Repurchase Obligation as an administrative expense. To summarize, a review of the nature of the Repurchase Obligation reveals that it does not meet the usual criteria for an administrative expense and therefore it is not entitled to administrative priority. As indicated earlier, a claimant must demonstrate that the claim arose from a transaction with or on account of consideration furnished to the debtor-in-possession and that the debtor-in-possession was thereby benefitted. Jartran, 732 F.2d at 587. The Repurchase Obligation did not arise from a transaction between CSI and the Debtor and it has not been proven that any consideration supporting CSI's right to payment was both supplied to and beneficial to the Debtor in the operation of its business. The Shortfall can be similarly scrutinized. Under the terms of the Agreement, Grand Union was obligated to pay the Shortfall at the end of the contract year (March 31, 2001) if it failed to reach the Minimum Volume Threshold. Like the Repurchase Obligation, the Shortfall does not meet the criteria for administrative priority. It did not arise from a transaction between CSI and the debtor-in-possession and it has not been proven that the consideration supporting CSI's right to payment was both supplied to and beneficial to Grand Union in its operations as a debtor-in-possession. CONCLUSION The Shortfall and the Repurchase Obligation are pre-petition general unsecured claims under §§ 365(g) and 502(g). Any allowed claim arising therefrom shall constitute a pre-petition claim for damages. However, the Excess Inventory claim arose post-petition and was incurred at the request of Grand Union and for the benefit of the debtor's estate. Therefore the Excess Inventory is entitled to treatment as an administration expense.

IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT United States Court of Appeals Fifth Circuit FILED August 11, 2008 No. 07-60911 Summary Calendar Charles R. Fulbruge III Clerk NAPOLEON ARTURO BUSTAMANTE, also known as Arthur L Bustamante, also known as King Arthur XIII Petitioner v. MICHAEL B MUKASEY, U S ATTORNEY GENERAL Respondent Petition for Review of an Order of the Board of Immigration Appeals BIA No. A20 905 044 Before WIENER, STEWART, and CLEMENT, Circuit Judges PER CURIAM:* Petitioner Napoleon Arturo Bustamante, a native and citizen of the Phillippines, petitions for review of the dismissal by the Board of Immigration Appeals (BIA) of his appeal of the immigration judge’s (IJ) order of removal. The BIA determined that Bustamante was estopped from raising his alienage as an issue because he had been convicted in 2006 for impersonating a United States citizen, in violation of 18 U.S.C. § 911. * Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR. R. 47.5.4.  No. 07-60911 In a pro se brief, Bustamante asserts that he made the required prima facie showing of citizenship and that the issue of his alienage was res judicata prior to his criminal conviction because the issue was resolved when previous deportation proceedings against him were terminated in 1976. Liberally construed, Bustamante’s brief also contends that a May 2003 Social Security Administration (SSA) determination that he was a United States citizen likewise had a res judicata effect. Bustamante’s 2006 conviction for impersonating a United States citizen in violation of § 911 estops him from raising his alienage as an issue in the instant deportation proceedings. See Howard v. INS, 930 F.2d 432, 434-36 (5th Cir. 1991). Furthermore, Bustamante has not met his burden of proving his contentions that the issue of his citizenship was litigated in either the deportation or the SSA proceedings, and thus he has not shown that the BIA erred in its determination. See Andrade v. Gonzales, 459 F.3d 538, 545 (5th Cir. 2006); Moin v. Ashcroft, 335 F.3d 415, 418 (5th Cir. 2003); In re Braniff Airways, Inc., 783 F.2d 1283, 1289 (5th Cir. 1986). Bustamante also contends that the DHS wrongfully detained him for more than 90 days and that the denial of his release on bond and a change of venue were unconstitutional. To the extent that Bustamante is challenging his detention and the IJ’s denial of bail prior to the IJ’s order of removal, we do not have jurisdiction to consider these discretionary determinations. See 8 U.S.C. § 1226(e). To the extent that Bustamante is challenging his detention and the denial of bail after the order of removal was rendered, he did not raise these issues or the issue of venue before the BIA, so we do not have jurisdiction to consider these unexhausted issues. See Heaven v. Gonzales, 473 F.3d 167, 177 (5th Cir. 2006). AFFIRMED. 2 

954 F.2d 1 26 Collier Bankr.Cas.2d 372, Bankr. L. Rep. P 74,431,22 Envtl. L. Rep. 20,719 In re HEMINGWAY TRANSPORT, INC., et al., Debtors.WOBURN ASSOCIATES, Appellant,v.Herbert C. KAHN, Trustee for Hemingway Transport, Inc. andBristol Terminals, Inc., Appellees.In re HEMINGWAY TRANSPORT, INC., et al., Debtors.WOBURN ASSOCIATES, Appellee,v.Herbert C. KAHN, Trustee for Hemingway Transport, Inc. andBristol Terminals, Inc., Appellants. Nos. 91-1389, 91-1437. United States Court of Appeals,First Circuit. Heard Sept. 3, 1991.Decided Jan. 16, 1992. Thomas V. Urmy, Jr., with whom Michelle H. Blauner and Shapiro, Grace & Haber, Boston, Mass., were on brief, for Woburn Associates. Martin P. Desmery with whom William F. Macauley, Peter J. Roberts and Craig and Macauley P.C., Boston, Mass., were on brief, for Herbert C. Kahn, Trustee. Before CAMPBELL, Circuit Judge, BOWNES, Senior Circuit Judge, and CYR, Circuit Judge. CYR, Circuit Judge. 1 In the competition for what little is left for distribution in the consolidated chapter 7 estate of Bristol Terminals, Inc. and Hemingway Transport, Inc., Woburn Associates appeals from a district court judgment affirming a bankruptcy court order denying Woburn's request for administrative priority status for attorney fees incurred in defending against a postpetition action brought by the trustee in bankruptcy. The trustee in bankruptcy cross-appeals, challenging the affirmance of a bankruptcy court order allowing Woburn's claim for attorney fees as an unsecured prepetition claim. 126 B.R. 650.I BACKGROUND 2 Hemingway, a Massachusetts corporation, leased a parcel of real estate ("Property") from Woburn in 1974. The lease contained an indemnification clause whereby Hemingway agreed to hold Woburn harmless for all attorney fees incurred by Woburn as a consequence of Hemingway's occupation and possession of the Property.1 In 1980, Woburn sold the Property to Bristol, the wholly-owned subsidiary of Hemingway, receiving in return, inter alia, Bristol's $100,000 purchase money note secured by a second mortgage on the Property. 3 In 1982, Hemingway and Bristol simultaneously filed voluntary chapter 11 petitions pursuant to Bankruptcy Code §§ 109(d) and 301, 11 U.S.C. §§ 109(d) & 301 (1987). An application for an order authorizing joint administration of the Bristol and Hemingway chapter 11 estates was immediately granted by the bankruptcy court. See Fed.R.Bankr.P. 1015(b). Woburn promptly filed its proof of claim based on the Bristol note and second mortgage.2 Woburn did not file a separate proof of claim based on its indemnification agreement with Hemingway, Bristol's parent corporation. 4 Bristol, in its capacity as a chapter 11 debtor in possession, sold the Property to Juniper Development Group ("Juniper") in May 1983. Seven months later, the Hemingway-Bristol chapter 11 proceedings were voluntarily converted to chapter 7 liquidation proceedings and cross-appellant Kahn was appointed trustee in bankruptcy of both chapter 7 estates. See Fed.R.Bankr.P. 2009(c)(1). In April 1987, the bankruptcy court, after notice and hearing, granted the trustee's application for substantive consolidation of the chapter 7 estates. See 11 U.S.C. § 105(a). Woburn filed no further proof of its indemnification claim against the consolidated Bristol-Hemingway chapter 7 estate. 5 Meanwhile, in February 1986, the Environmental Protection Agency had issued an administrative order, pursuant to the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA), 42 U.S.C. §§ 9601-9657 (1981 & Supp.1990), which required Juniper, as the owner, to clean up hazardous substances which had been discovered on the Property. After expending more than $60,000 to comply with the CERCLA order, Juniper initiated an adversary proceeding against the consolidated Bristol-Hemingway chapter 7 estate for indemnification and contribution on its CERCLA response costs, which are made recoverable from "any person who at the time of disposal of any hazardous substance owned or operated any facility at which such hazardous substances were disposed...." 42 U.S.C. § 9607(a)(2) (emphasis added).3 6 The trustee in bankruptcy filed a third party complaint alleging that Woburn became a "potentially responsible party" under CERCLA section 9607(a) by virtue of its ownership of the Property between 1974 and 1980. Woburn counterclaimed against the trustee, asserting that its indemnification agreement with Hemingway shifted the risk of Woburn's potential CERCLA liability to Hemingway. The Woburn counterclaim also asserted for the first time that the indemnity clause in the Hemingway lease obligated the trustee in bankruptcy to hold Woburn harmless for the attorney fees incurred in defending against the trustee's third party action under CERCLA. 7 The bankruptcy court granted summary judgment for Woburn on the trustee's third party complaint, on the ground that the indemnification clause in Woburn's lease with Hemingway "evidence[d] a clear and unequivocal intent to redistribute risks [to Hemingway] for purposes of section 107(e)(1) of CERCLA that does not violate public policy." The bankruptcy court further ruled that the lease indemnification clause entitled Woburn to recover $51,395.84 in attorney fees from the chapter 7 estate. 8 Relying on Reading Co. v. Brown, 391 U.S. 471, 88 S.Ct. 1759, 20 L.Ed.2d 751 (1968), Woburn argued that its attorney fees were entitled to priority payment as an "administrative expense," see 11 U.S.C. §§ 503(b)(1)(A) & 507(a)(1), since the fees were incurred as a direct result of the frivolous and ill-advised third party action brought by the trustee against Woburn in an unsuccessful attempt to restore to the chapter 7 estate the monies disbursed to satisfy Juniper's CERCLA judgment against the estate. The bankruptcy court found that the third party action against Woburn was neither frivolous nor ill-advised, and that Woburn's counterclaim for attorney fees derived from its prepetition indemnity agreement with Hemingway. The court accordingly denied administrative priority status and allowed Woburn's counterclaim as an unsecured prepetition claim. 9 Woburn appealed to the district court. The trustee cross-appealed, asserting that Woburn's failure to file a timely proof of claim under its lease indemnification agreement with Hemingway barred any distribution to Woburn, even as the holder of an unsecured claim. The district court affirmed the bankruptcy court order disallowing administrative priority status, but dismissed the trustee's cross-appeal on the ground that Woburn was not the holder of a "claim" for attorney fees against Hemingway at the commencement of the case, see 11 U.S.C. § 101(4), and that "[i]t would be unjust to punish Woburn for its failure to predict this lawsuit several years before its filing." II DISCUSSION 10 A. The Woburn Appeal: Administrative Expense Priority 11 Woburn contends on appeal that the bankruptcy court committed reversible error by disallowing its request for priority payment of its attorney fees as an administrative expense. See 11 U.S.C. §§ 503(a), (b)(1)(A) & 507(a)(1). Woburn argues that administrative priority status is appropriate in these circumstances as a deterrent against the frivolous and ill-advised decision of the trustee to activate Woburn's right to indemnification under the Hemingway lease by commencing the third party action against Woburn. See, e.g., In re E.A. Nord Co., 78 B.R. 289, 292 (Bankr.W.D.Wash.1987). Woburn argues alternatively that principles of fundamental fairness warrant priority payment of its attorney fees as an administrative expense incurred as a consequence of the trustee's operation of the business of the debtor estate. See Reading Co. v. Brown, 391 U.S. 471, 88 S.Ct. 1759, 20 L.Ed.2d 751 (1968). 12 The traditional presumption favoring ratable distribution among all holders of unsecured claims counsels strict construction of the Bankruptcy Code provisions governing requests for priority payment of administrative expenses. See Southern Ry. Co. v. Johnson Bronze Co., 758 F.2d 137, 141 (3d Cir.1985); In re Chicago, Milwaukee, St. Paul & Pacific R.R. Co., 658 F.2d 1149, 1163 (7th Cir.), cert. denied sub nom., Railway Labor Executives Ass'n. v. Ogilvie, 455 U.S. 1000, 102 S.Ct. 1632, 71 L.Ed.2d 867 (1982); In re Philadelphia Mortgage Trust, 117 B.R. 820, 825 (Bankr.E.D.Pa.1990); In re Massetti, 95 B.R. 360, 363 (Bankr.E.D.Pa.1989); In re SMB Holdings, Inc., 77 B.R. 29, 32 (Bankr.W.D.Pa.1987) (conferral of administrative expense priority where not clearly entitled under the Code dilutes priorities scheme prescribed by Congress). The burden of proving entitlement to priority payment as an administrative expense therefore rests with the party requesting it. See Woods v. City Nat. Bank & Trust Co., 312 U.S. 262, 268, 61 S.Ct. 493, 497, 85 L.Ed. 820 (1941); In re Patch Graphics, 58 B.R. 743, 745 (Bankr.W.D.Wis.1986). 13 The Bankruptcy Code permits top priority payment of "actual, necessary costs and expenses of preserving the estate, including wages, salaries, or commissions for services rendered after the commencement of the case," 11 U.S.C. § 503(b)(1)(A), as a means of enabling the debtor estate to acquire the requisite postpetition credit with which to preserve itself after the filing of the petition. Preservation of the estate includes protection of the assets of the estate, as well as postpetition operation of the business of the debtor. See, e.g., In re Mammoth Mart, Inc., 536 F.2d 950, 954 (1st Cir.1976); In re Jartran, Inc., 732 F.2d 584, 586 (7th Cir.1984); In re Pierce Coal & Constr., Inc., 65 B.R. 521, 530 (Bankr.D.W.Va.1986). 14 As a general rule, a request for priority payment of an administrative expense pursuant to Bankruptcy Code § 503(a) may qualify if (1) the right to payment arose from a postpetition transaction with the debtor estate, rather than from a prepetition transaction with the debtor, and (2) the consideration supporting the right to payment was beneficial to the estate of the debtor. See In re Mammoth Mart, Inc., 536 F.2d at 954; see also Jartran, 732 F.2d at 587. There is no dispute that Woburn's request for priority payment of the attorney fees incurred in defending against the third party action brought by the trustee in bankruptcy cannot meet the traditional Mammoth Mart criteria.4 15 We have recognized a special category of expense entitled to administrative priority status, based on considerations of fundamental fairness, see Reading Co., 391 U.S. at 477, 88 S.Ct. at 1763, consisting of amounts due entities "injured by the debtor-in-possession's operation of the business even though their claims did not arise from transactions that were necessary to preserve or rehabilitate the estate." In re Mammoth Mart, 536 F.2d at 954.5 16 In Reading, a receiver appointed to operate the debtor's business in a Chapter XI arrangement proceeding negligently caused fire losses to several neighboring business establishments. The debtor was adjudicated bankrupt. The injured parties filed requests for priority payment of their losses as administrative expenses incurred after the commencement of the Chapter XI proceeding. The trustee in bankruptcy objected on the ground that the fire losses sustained as a result of the receiver's negligence conferred no benefit on the Chapter XI estate, either by preserving its assets or by facilitating its postpetition business operations. Reading, 391 U.S. at 473-74, 88 S.Ct. at 1761. 17 The Supreme Court disagreed with the lower courts and concluded that the requests for priority payment of the fire losses should take precedence over the claims of unsecured creditors for whose ultimate benefit the business of the debtor had been operated during the Chapter XI arrangement proceeding. The Court first acknowledged the "decisive, statutory objective [of] fairness to all persons having claims against the insolvent." Id. at 477, 88 S.Ct. at 1763. The Court went on to point out as follows: 18 At the moment when an arrangement is sought, the debtor is insolvent. Its existing creditors hope that by partial or complete postponement of their claims they will, through successful rehabilitation, eventually recover from the debtor either in full or in larger proportion than they would in immediate bankruptcy. Hence the present petitioner did not merely suffer injury at the hands of an insolvent business: it had an insolvent business thrust upon it by operation of law. 19 Id. at 478, 88 S.Ct. at 1736 (emphasis added). 20 Unlike losses sustained by creditors who enter into voluntary prepetition transactions with the debtor, the fire losses in Reading resulted from unilateral postpetition conduct on the part of the operating receiver, "ordinarily incident to the operation of a business." Id. at 483, 88 S.Ct. at 1766. We have extended the Reading rationale to encompass postpetition fines occasioned by an operating chapter 11 debtor in possession's intentional disregard of a state court order enjoining local zoning ordinance violations: 21 The debtor in this case deliberately continued a violation of law month after month presumably because it was more lucrative for the business to operate outside the zoning ordinance than within it. If fairness dictates that a tort claim based on negligence [Reading ] should be paid ahead of pre-reorganization claims, then, a fortiori, an intentional act which violates the law and damages others should be so treated. 22 In re Charlesbank Laundry, Inc., 755 F.2d 200, 203 (1st Cir.1985) (emphasis in original). 23 Woburn's request for allowance of an administrative expense priority is not within the ambit of either Reading or Charlesbank, for the simple reason that its attorney fees were incurred in resisting the efforts of the chapter 7 trustee to liquidate the CERCLA claim against Woburn. The postpetition operation of the Bristol-Hemingway business under chapter 11 in no manner caused or contributed to the attorney fees incurred by Woburn in resisting the chapter 7 trustee's third party action under CERCLA. Rather, the third party action against Woburn was brought by the trustee in bankruptcy in the ordinary course of the liquidation of the assets of the consolidated chapter 7 estate for distribution among Bristol-Hemingway creditors. While we do not decide that a Reading- Charlesbank administrative expense priority may never be appropriate in the context of a chapter 7 liquidation proceeding, we are nevertheless satisfied that neither fundamental fairness nor economic necessity would warrant its allowance in the present circumstances. 24 Woburn's request for allowance of an administrative expense priority cannot be distinguished on any principled basis from any other prevailing party's request for priority payment of attorney fees incurred in defending against a lawsuit brought by a chapter 7 trustee engaged in the routine liquidation of the assets of the chapter 7 estate. A chapter 7 trustee's lawsuit may indeed impose burdensome litigation expense upon successful and unsuccessful defendants alike, yet its prepetition genesis ultimately distinguishes it from the postpetition losses accorded priority in Reading and Charlesbank. Woburn's prepetition ownership of the Property and its prepetition lease with Hemingway, respectively, provided the grounds for the trustee's third party complaint and Woburn's counterclaim. Thus, Woburn's request for administrative expense priority cannot qualify under the Reading- Charlesbank exception, since its attorney fees were incurred in resisting the trustee's third party action for CERCLA contribution based on Woburn's prepetition ownership of the Property, which had nothing whatever to do with any postpetition operation of the Bristol-Hemingway business.6 We are aware of no authority that the Reading- Charlesbank exception encompasses a right to payment originating in a prepetition contract with the debtor.7 B. The Trustee's Cross-Appeal: 25 1. Lease Indemnification Agreement as "Contingent Claim" 26 The trustee in bankruptcy cross-appeals on the ground that Woburn's failure to file timely proof of its contingent prepetition indemnification claim under the Hemingway lease precludes Woburn from any distribution from the chapter 7 estate, even as the holder of an unsecured claim. Woburn responds that it possessed no "right to payment" under the indemnification agreement until the trustee instituted the third party action which caused Woburn to incur the attorney fees at issue on appeal. Woburn argues that any prepetition "right to payment" would not have been susceptible to reasonable valuation at the time of the filing of the Bristol and Hemingway chapter 11 petitions in 1982. 27 Woburn's argument disregards the remodeled claim allowance process set in place by the Bankruptcy Reform Act of 1978. Under the Bankruptcy Act of 1898, allowance of a timely proof of claim, and hence the right to participate in distribution, depended on the "provability" of the claim. See Bankruptcy Act § 63(a), 11 U.S.C. § 103(a). Consequently, a contingent or unliquidated claim incapable of either reasonable or expeditious valuation was disallowed entirely, as unprovable. See Bankruptcy Act § 57(d), 11 U.S.C. § 93(d); see also In re Esgro, Inc., 645 F.2d 794, 798 (9th Cir.1981). 28 The inequitable results occasioned by the "provability" requirement under the Bankruptcy Act--precluding the would-be creditor from participating in distribution and the debtor from obtaining a discharge of the debt--ill served the two principal legislative policies federal bankruptcy law was meant to foster. See In re Johns-Manville Corp., 57 B.R. 680, 686-87 (Bankr.S.D.N.Y.1986). Congress eventually jettisoned the "provability" requirement by defining "claim" as broadly as practicable. Under the Bankruptcy Code, a "claim" is a "right to payment, whether or not such right is reduced to judgment, liquidated, unliquidated, fixed, contingent, matured, unmatured, disputed, undisputed, legal, equitable, secured or unsecured." 11 U.S.C. § 101(4). Of course, "allowance" remains a prerequisite to distribution under the Bankruptcy Code, see 11 U.S.C. § 726; In re Butterworth, 50 B.R. 320, 322 (Bankr.W.D.Mich.1984), but the bankruptcy court is required, for purposes of allowance, to estimate the amount of every timely contingent or unliquidated prepetition claim, even if a nominal estimate alone is practicable. See 11 U.S.C. § 502(c); H.R.Rep. No. 595, 95th Cong., 1st Sess. 352-354 (1977); S.Rep. No. 989, 95th Cong., 2d Sess. 65 (1978), U.S.Code Cong. & Admin.News 1978, pp. 5787, 5851, 6307, 6309, 6310; Lawrence D. King, 3 Collier on Bankruptcy § 502.02, at 502-20 (15th ed. 1991). 29 The difficulty or impossibility of estimation no longer constitutes a legitimate basis for disallowing any prepetition right to payment as a "claim" against the estate. See In re Baldwin-United Corp., 55 B.R. 885, 898 (Bankr.S.D.Ohio 1985) ("An estimate necessarily implies no certainty.... It is merely ... for the purpose of permitting the case to go forward." (quoting In re Nova Real Estate Inv. Trust, 23 B.R. 62, 66 (Bankr.E.D.Va.1982))).8 These legislative changes were devised deliberately to permit " 'the broadest possible relief in the bankruptcy court,' " In re Black, 70 B.R. 645, 649 (Bankr.D.Utah 1986) (quoting H.R.Rep. No. 95-595, 95th Cong., 1st Sess. 309 (1977), U.S.Code Cong. & Admin.News 1978, p. 6266), and to ensure that "virtually all obligations to pay money [would] be amenable to treatment in bankruptcy." In re Robinson, 776 F.2d 30, 34 (2d Cir.1985) (survey of post-Bankruptcy Act cases recognizing statutory expansion of term "claim"), rev'd on other grounds, 479 U.S. 36, 107 S.Ct. 353, 93 L.Ed.2d 216 (1986). As most courts now recognize, the term "claim" is broad enough to encompass an unliquidated, contingent right to payment under a prepetition indemnification agreement executed by the debtor, even though the triggering contingency does not occur until after the filing of the petition under the Bankruptcy Code. See, e.g., In re THC Financial Corp., 686 F.2d 799, 802-04 (9th Cir.1982).9 30 Given the great breadth of the term "claim" as defined under the Bankruptcy Code, we conclude that Woburn held a prepetition claim against Hemingway at the time of the chapter 11 petition in 1982, albeit a right to payment contingent on a future occurrence reasonably within the contemplation of the parties as evidenced by the terms of the indemnification agreement. See supra note 1. That the claim remained contingent, unliquidated and unmatured at the time of the filing of the chapter 11 petition is immaterial to Woburn's obligation to file a timely proof of claim under the Bankruptcy Code. Although valuation of Woburn's contingent right to indemnification by Hemingway would have been difficult, if not impossible, to estimate with reasonable precision in 1982 or 1983, these considerations are no longer determinative of either the characterization or the allowability of a "claim" under the Code. We hold, nonetheless, on other grounds, see Max Sugarman Funeral Home, Inc. v. A.D.B. Investors, 926 F.2d 1248, 1253 n. 9 (1st Cir.1991); Norris v. Lumbermen's Mut. Cas. Co., 881 F.2d 1144, 1151-52 (1st Cir.1989) (court of appeals may affirm on any ground supported by record), that the bankruptcy court and the district court correctly concluded that Woburn's counterclaim for attorney fees was allowable as a general unsecured claim against the consolidated Bristol-Hemingway chapter 7 estate. 2. Woburn's Proof of Claim 31 The timely proof of claim Woburn filed against the Bristol chapter 11 estate in 1982 asserted a right to payment based on (and included a copy of) the second mortgage, which explicitly provides that the sale and second mortgage of the Property were "subject to" the 1974 Hemingway lease, containing the indemnification clause. For instance, in one of the more significant mortgage provisions, Bristol categorically warranted that it would not "modify, amend, cancel or permit the surrender of the lease with Hemingway Transport" without Woburn's consent. As surely as a trustee in bankruptcy would be found to have been on notice of Woburn's second mortgage on the Property, and of the Hemingway lease, by reason of the recordation of the second mortgage, Woburn's 1982 proof of claim placed the Bristol chapter 11 estate on reasonable notice of Woburn's contingent indemnification claim under the 1974 lease with Hemingway.10 See, e.g., In re Simms, 40 B.R. 186, 187-88 (Bankr.N.D.Ga.1984) (notice requirements of amendable proof of claim). 32 Although the original proof of claim ascribed no several value to Woburn's contingent right to indemnification, in no event would there have been any reasonably reliable means of doing so until the occurrence of the postpetition contingency covered by the Hemingway indemnification agreement. Similarly, for purposes of its allowance in 1982 any separate proof of claim under Woburn's indemnification agreement could have been assigned no more than nominal value, subject to amendment under Bankruptcy Rule 3008 at such time as the right to indemnification matured. See Fed.R.Bankr.P. 3008. Moreover, as a general rule, amendments intended merely to increase the amount of a claim grounded in the same right to payment are not considered "new" claims under the Code. See In re Hanscom Retail Foods, Inc., 96 B.R. 33, 35 (Bankr.E.D.Pa.1988); In re White Motor Corp., 59 B.R. 286, 288 (Bankr.N.D.Ohio 1986). 33 The counterclaim Woburn filed in the third party CERCLA contribution action brought by the trustee in bankruptcy constituted an allowable amendment to Woburn's 1982 proof of claim.11 Amendments to proofs of claim timely filed are to be freely allowed, whether for purposes of particularizing the amount due under a previously-asserted right to payment, or simply to cure technical defects in the original proof of claim. See, e.g., In re Sambo's Restaurants, Inc., 754 F.2d 811, 816-17 (9th Cir.1985). If allowed, of course, the amendment relates back to the filing of the original proof of claim. Id. 34 The equitable determination to allow or disallow an amendment to a proof of claim timely filed is entrusted to the sound discretion of the bankruptcy court. In re AM Int'l, Inc., 67 B.R. 79, 81 (Bankr.N.D.Ill.1986). The court must scrutinize both the substance of the proposed amendment and the original proof of claim to ensure that the amendment meets three criteria. First, the proposed amendment must not be a veiled attempt to assert a distinctly new right to payment as to which the debtor estate was not fairly alerted by the original proof of claim. See, e.g., In re Metro Transp. Co., 117 B.R. 143, 147 (Bankr.E.D.Pa.1990). Second, the amendment must not result in unfair prejudice to other holders of unsecured claims against the estate. See In re McLean Industries, Inc., 121 B.R. 704, 708-09 (Bankr.S.D.N.Y.1990); cf. In re Sambo's Restaurants, 754 F.2d at 816-17 (absent any showing of prejudice to opposing party, amendment freely allowed). Third, the need to amend must not be the product of bad faith or dilatory tactics on the part of the claimant. See McLean, 121 B.R. at 708-09. The Woburn counterclaim meets all criteria for an allowable amendment. 35 First, as previously discussed, the genesis of Woburn's indemnification counterclaim for attorney fees lay in the same prepetition lease-sale-mortgage transaction which was the subject of Woburn's original proof of claim. Thus, the Woburn counterclaim to the third party complaint for CERCLA contribution relating to the Property can in no sense be considered an entirely new "claim," see supra notes 2 & 10, as defined under the Bankruptcy Code, see supra Section B.1. 36 Second, other holders of unsecured claims against the consolidated Bristol-Hemingway chapter 7 estate were caused no unfair prejudice even though the 1982 proof of claim was filed directly against Bristol, rather than Hemingway. Cf. Liakas v. Creditors' Comm. of Deja Vu, Inc., 780 F.2d 176, 178 (1st Cir.1986) (per curiam) (absent an order either for joint administration or substantive consolidation, proof of claim filed against one corporate debtor cannot be deemed filed against estate of another corporate debtor). The procedural posture of the Bristol-Hemingway proceedings before the bankruptcy court warrants the conclusion that the Hemingway estate and the Bristol estate, through their common representative--the trustee in bankruptcy--were on reasonable notice of Woburn's claimed right to indemnification under the 1974 Woburn-Hemingway lease. 37 Hemingway and Bristol filed simultaneous chapter 11 petitions in July 1982, along with an immediate application for joint administration of their estates.12 Joint administration is a procedural device for "combining [certain related] estates by using a single docket for the matters occurring in the administration, including the listing of filed claims, the combining of notices to creditors of the different estates, and the joint handling of other purely administrative matters that may aid in expediting the cases and rendering the process less costly." Fed.R.Bankr.P. 1015 advisory committee's note (1983). The Bristol-Hemingway application for joint administration was immediately granted by the bankruptcy court, and the Hemingway and Bristol chapter 11 estates were thereupon jointly administered from the outset, utilizing a joint claims docket, as well as a single proceedings docket to record both debtors' statements of financial affairs, executory contracts, unexpired leases and schedules of assets.13 This continuous unitary administration afforded both debtors in possession, as well as the cross-appellant trustee, no less opportunity to acquire actual notice of Woburn's 1982 proof of claim against Bristol than if a separate proof of claim had been filed against each estate. One simply could not have examined the 1982 proof of claim, filed against Bristol and docketed on the joint Bristol-Hemingway claims docket, without being alerted to Woburn's indemnification agreement with Hemingway. 38 Moreover, after notice and hearing in April 1987, the bankruptcy court granted cross-appellant's motion for substantive consolidation of the Bristol and Hemingway chapter 7 estates.14 Whereas joint administration is designed in large part to promote procedural convenience and cost efficiencies which do not affect the substantive rights of claimants or the respective debtor estates, see Unsecured Creditors Committee v. Leavitt Structural Tubing Co., 55 B.R. 710 (N.D.Ill.1985), aff'd, 796 F.2d 477 (7th Cir.1986), substantive consolidation merges the assets and liabilities of the debtor entities into a unitary debtor estate,15 to which all holders of allowed claims are required to look for distribution. See In re Steury, 94 B.R. 553, 554 (Bankr.N.D.Ill.1988); In re N.S. Garrott & Sons, 63 B.R. 189, 191 (Bankr.E.D.Ark.1986). Since consolidation can cause disproportionate prejudice among claimants required to share the debtors' pooled assets, the party requesting substantive consolidation must satisfy the bankruptcy court that, on balance, consolidation will foster a net benefit among all holders of unsecured claims.16 Thus, the order for substantive consolidation, obtained at the instance of the cross-appellant trustee, constitutes an implicit determination by the bankruptcy court that any inequity to particular claimants would be overborne by the benefits to claimants generally. 39 Finally, there is no evidence whatever from which to infer that Woburn intentionally refrained, out of any improper or dilatory purpose, from asserting a more particularized indemnification claim under the 1974 lease in its original proof of claim. Rather, Woburn counterclaimed against the consolidated chapter 7 estate immediately after the trustee in bankruptcy brought the third party complaint for contribution to the cost of the CERCLA clean-up of the Property covered by the Hemingway lease and Bristol's second mortgage. In these circumstances, as the district court supportably concluded, "[i]t would be unjust to punish Woburn for its failure to predict [the trustee's third party action] several years before its filing." On the basis of the record in these proceedings, therefore, we hold that there was no abuse of discretion in the allowance of Woburn's counterclaim for indemnification for attorney fees as an amended unsecured claim, see 11 U.S.C. § 726(a)(2)(A), against the consolidated Bristol-Hemingway chapter 7 estate. 40 Affirmed; no costs to either party. 1 The indemnity clause in the Property lease provided, in pertinent part, that Hemingway, as lessee, would hold Woburn harmless against all liabilities, obligations, damages, penalties, claims, costs, charges and expenses, reasonable attorneys fees which might be imposed upon, incurred by or asserted against the lessor by reason of any work or thing done in, on or about the Property, any use, nonuse, condition, maintenance or management of the Property, any negligence on its part or on the part of its agents, any accident, injury or damage to any person or property occurring in, on, or about the property, and any failure on its part to perform or comply with any of the covenants, agreements or conditions contained in the lease to be performed or complied with. (Emphasis added). 2 The Woburn proof of claim included a copy of Bristol's second mortgage, with its numerous explicit references to the Hemingway lease. The mortgage unmistakably provides that the sale and mortgage of the Property were "subject to" the Hemingway lease and indemnity clause. See also infra note 10 & accompanying text 3 In January 1990, the bankruptcy court granted summary judgment in the amount of $38,763.60 against the trustee in bankruptcy on Juniper's claim for past response costs and accorded it administrative priority status against the consolidated chapter 7 estate. Earlier, the bankruptcy court had granted partial summary judgment in favor of the trustee on Juniper's claim for future response costs, on the ground that Bankruptcy Code § 502(e)(1)(B) required disallowance. Section 502(e)(1)(B) states that "the court shall disallow any claim for reimbursement or contribution of an entity that is liable with the debtor ... to the extent that ... such claim for reimbursement or contribution is contingent as of the time of allowance or disallowance...." 11 U.S.C. § 502(e)(1)(B) (emphasis added) 4 A right to payment predicated on an executed prepetition contract is not entitled to priority payment as an administrative expense. In re Mammoth Mart, 536 F.2d at 954. Woburn was not awarded attorney fees in its postpetition third party action with the trustee in bankruptcy. Instead, its § 503(a) request for payment of its attorney fees as an administrative expense was based entirely on its prepetition lease indemnification agreement with Hemingway. The lease agreement was no longer executory, as no further performance or consideration remained due from Woburn at the filing of Hemingway's chapter 11 petition. See In re Wegner, 839 F.2d 533, 536 (9th Cir.1988); see also In re Public Serv. Co. of N.H., 884 F.2d 11, 14 (1st Cir.1989). Indeed, although the trustee anticipated that the third party action would enhance the chapter 7 estate, Woburn concedes that no such benefit accrued 5 Most decisions employing the Reading rationale have arisen in the context of reorganization proceedings. See, e.g., In re Microfab, Inc., 105 B.R. 161, 168 n. 20 (Bankr.D.Mass.1989) (Reading- Charlesbank rationale inapplicable in liquidating chapter 7 case). But cf. In re Pierce Coal & Constr., Inc., 65 B.R. at 530 (Reading applicable where chapter 7 trustee operated business of debtor). Application of the Reading- Charlesbank rationale in the context of an ordinary, nonoperating liquidation proceeding appears extremely problematic, as one fundamental justification for the priority is that general creditors stand to benefit from the postpetition operation of the debtor's business, either through the immediate generation of operating profits or through the ultimate reorganization of the debtor as a viable business entity 6 The only arguable basis for asserting that Woburn's attorney fee expense did not derive, in its entirety, from Woburn's prepetition ownership of the Property would be that the third party action was so groundless that its commencement constituted a distinct postpetition injury to Woburn such as would warrant an award of counsel fees to the prevailing party. See, e.g., Fed.R.Civ.P. 11. The difficulties with such an assumption in the present case are twofold. First, the bankruptcy court supportably found that the trustee's action, though unsuccessful, was neither frivolous nor ill-advised. Moreover, the district court upheld the bankruptcy court determination that the trustee's action was not "frivolous," since earlier decisions had not been in agreement as to whether any pre-CERCLA indemnification agreement could shift the risk of CERCLA liability to the indemnitor. Second, it is by no means clear, nor do we suggest, that the commencement of a groundless lawsuit by the trustee in bankruptcy would warrant allowance of an administrative expense priority to the detriment of holders of unsecured claims. It might be that the more appropriate recourse for the prevailing defendant in such circumstances would be against the trustee in bankruptcy, or the trustee's attorney, or by way of an action to surcharge the trustee's bond. See, e.g., In re San Juan Hotel Corp., 847 F.2d 931, 937 (1st Cir.1988); see also 11 U.S.C. § 322(b), (d); Fed.R.Bankr.P. 2010 7 The source of the claimant's right to payment in all of the decisions cited by Woburn invariably originated during the postpetition period. For example, in Reading, 391 U.S. at 473-74, 88 S.Ct. at 1761, the claimants based their right to damages solely on a negligent act of the receiver during the operation of the insolvent business. In Charlesbank, 755 F.2d at 201, although claimants were awarded civil fines as compensation for damages caused by the debtor in possession's continuing violations of an injunction, their claim for administrative priority included only those expenses, consisting of attorney fees, directly attributable to the debtor in possession's postpetition violations. The damages attributable to prepetition violations by the debtor were allowed as general unsecured claims. In Yorke v. NLRB, 709 F.2d 1138, 1140, 1143 (7th Cir.1983), cert. denied, 465 U.S. 1023, 104 S.Ct. 1276, 79 L.Ed.2d 680 (1984), the backpay claim was traceable not to the prepetition collective bargaining agreement, but to an independent postpetition NLRB order entered pursuant to the Board's discretionary authority under the National Labor Relations Act, designed to restore the union's bargaining power following the trustee's unannounced postpetition decision to close down a plant. In In re Met-L-Wood Corp., 103 B.R. 972, 975, 976-77 (Bankr.N.D.Ill.1989), aff'd, 115 B.R. 133, 136 (N.D.Ill.1990), the claimant, counsel to the chapter 11 debtor in possession, sought administrative expense priority for attorney fees incurred in defending against allegations by the trustee, after the case was converted to chapter 7, that claimant was involved in a fraudulent postpetition sale of the debtor's assets. The claimant based his priority claim on his right, under general principles of attorney-client agency, to reimbursement for postpetition services rendered as an "agent" of the debtor in possession. In Nord, 78 B.R. at 290, the claim for attorney fees was founded on an arbitration award, concluded during the chapter 11 proceedings, based on the arbitrator's discretionary power to impose fees under 29 U.S.C. § 1401(a)(2). In none of these cases did the claimants possess a prepetition "claim." 8 Under Bankruptcy Code § 502(j), the holder of a contingent claim incorrectly estimated at the time of allowance may request reconsideration and the court "may increase or decrease the amount of [the] prior allowance ... or enter any other appropriate order." Fed.R.Bankr.P. 3008 advisory committee's note (1983) 9 Woburn relies on In re M. Frenville Co., 744 F.2d 332 (3d Cir.1984), cert. denied, 469 U.S. 1160, 105 S.Ct. 911, 83 L.Ed.2d 925 (1985), as authority for its contention that it was not necessary to file a proof of claim. Notwithstanding the expansive Code definition of the term "claim," Frenville held that the threshold requirement that the holder of the claim have an identifiable prepetition "right to payment" is controlled by non-bankruptcy law. Id. at 337. Because a defendant in a state court action sought to implead the debtors on a general theory of indemnification, rather than on the basis of a written indemnification contract with the debtors, the Frenville court concluded that any "claim" for indemnification did not arise under New York law until the state court action was instituted against the defendant. Since the suit against defendant was brought after the filing of the debtors' petitions in bankruptcy, the automatic stay was held inapplicable to the defendant's third party claim for indemnification, and the defendant was allowed to implead the debtors in the state court action. Id Woburn's reliance on Frenville is unavailing for at least two reasons. First, more recent decisions consistently have declined to accept the Frenville reasoning and its failure to accord full breadth to the term "claim," see, e.g., In re Yanks, 49 B.R. 56, 58 (Bankr.S.D.Fla.1985), and have taken particular exception to Frenville's focus on the maturation or accrual of an indemnification claim. See, e.g., In re THC Financial Corp., 686 F.2d at 802-04 (no abuse of discretion in characterization of written indemnification agreement as contingent claim, despite postpetition breach); In re Black, 70 B.R. at 650-51 (indemnification counterclaim based on state procedural law creates "contingent claim" at bankruptcy, even though claimants had no way of anticipating triggering event). These courts have found no indication in the language or legislative history of Bankruptcy Code § 101(4) that Congress intended Code "claim" criteria to turn on the peculiarities of state law, the timing of a lawsuit, or the claimant's failure to anticipate specific future contingencies. Second, and more importantly for present purposes, Frenville explicitly noted that "[t]he present case is different from one involving an indemnity or surety contract. When parties agree in advance that one party will indemnify the other party in the event of a certain occurrence, there exists a right to payment, albeit contingent, upon the signing of the agreement." Frenville, 744 F.2d at 336 (emphasis added). 10 The second mortgage provided that insurance policies on the Property held by Hemingway, as tenant under "the existing lease ... dated June 26, 1974," must include Woburn as a party insured, that Woburn would collect future condemnation awards on the Property to reduce Bristol's indebtedness on the second mortgage note, "[s]ubject ... to the provisions of the lease with Hemingway Transport " (emphasis added), and that Bristol's unilateral modification, amendment, cancellation, or acceptance of the surrender of the Hemingway lease without Woburn's prior written consent would constitute a mortgage default 11 It would be formalistic to deny amendatory consideration to Woburn's counterclaim merely for failure to style it as an "amendment" to the 1982 proof of claim. See, e.g., In re Pyramid Bldg. Co., 87 B.R. 38, 40 (Bankr.N.D.Ohio 1988) (amendments to proofs of claim need not be specifically labelled as such) 12 Bankruptcy Rule 1015(b)(4) provides that "[i]f ... two or more petitions are pending in the same court by or against ... a debtor and an affiliate, the court may order a joint administration of the estates." Fed.R.Bankr.P. 1015(b)(4). The Bankruptcy Code defines "affiliate" as a "corporation 20 percent or more of whose outstanding voting securities are directly or indirectly owned, controlled, or held with power to vote, by the debtor." 11 U.S.C. § 101(2)(B). Bristol was Hemingway's wholly-owned corporate subsidiary 13 After cross-appellant was appointed chapter 7 trustee, the bankruptcy court authorized joint administration of the chapter 7 estates 14 Substantive consolidation is not dealt with in specific terms by the Bankruptcy Code. Rather, the power to order substantive consolidation is premised on the broad language of Bankruptcy Code § 105(a), which provides that "[t]he court may issue any order, process, or judgment that is necessary or appropriate to carry out the provisions of this Title." See, e.g., In re Auto-Train Corp., 810 F.2d 270, 276 (D.C.Cir.1987) 15 Consolidation is permitted only if it is first established that the related debtors' assets and liabilities are so intertwined that it would be impossible, or financially prohibitive, to disentangle their affairs. See In re Augie/Restivo Baking Co., 860 F.2d 515, 519 (2d Cir.1988); In re R.H.N. Realty Corp., 84 B.R. 356, 358 (Bankr.S.D.N.Y.1988); In re Blum, 49 B.R. 422, 427 n. 1 (Bankr.W.D.Mo.1985). The trustee may request consolidation to conserve for creditors the monies which otherwise would be expended in prolonged efforts to disentangle the related debtors' affairs. See In re Evans Temple Church of God in Christ & Community Ctr., Inc., 55 B.R. 976, 981 (Bankr.N.D.Ohio 1986). Nevertheless, the bankruptcy court must balance the potential benefits of consolidation against any potential harm to interested parties. See In re Murray Industries, Inc., 119 B.R. 820, 829 (Bankr.M.D.Fla.1990); In re Steury, 94 B.R. 553, 554-55 (Bankr.N.D.Ill.1988) 16 The court otherwise might conclude that consolidation should not be permitted--especially if holders of unsecured claims reasonably relied on the fact that the related debtors were distinct entities at the time credit was extended. See, e.g., In re Amereco Envtl. Services, Inc., 125 B.R. 566, 568 (Bankr.W.D.Mo.1991); In re Helms, 48 B.R. 714, 717 (Bankr.D.Conn.1985); In re Ford, 54 B.R. 145, 148 n. 6 (Bankr.W.D.Mo.1984)

[pic] Court of Appeals for the First District of Texas at Houston Order Appellate case name: James Anthony Durr v. The State of Texas Appellate case number: 01-13-00256-CR Trial court case number: 1287887 Trial court: 180th District Court of Harris County Appellant's counsel in this case has filed a motion to withdraw and a brief stating there are no arguable grounds for appeal, based on Anders v. California, 386 U.S. 738 (1967). In the motion to withdraw and brief, appellant's counsel states that he sent appellant a copy of the record on appeal. Appellant, however, has filed a "Request for a Copy of the Trial Record," indicating that he received a copy of the "Appellate Record" but not "the entire trial record." Appellant requests "a copy of the trial transcripts." Pursuant to Kelly v. State, No. PD-0702-13, 2014 WL 2865901 (Tex. Crim. App. June 25, 2014), we direct the Clerk of this Court to send, at no cost to appellant, a complete copy of the appellate record so that appellant may respond to the Anders brief. Appellant has 30 days from the date of this order to file a pro se response, if any, to the Anders brief and motion to withdraw filed by appellate counsel on September 19, 2013. It is so ORDERED. Judge's signature: /s/ Jim Sharp ( Acting individually ? Acting for the Court Date: August 7, 2014

UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT No. 98-30592 NIA HOME HEALTH CARE, INC., Plaintiff-Appellant, VERSUS WHITNEY NATIONAL BANK AND JERRY TANNER, Defendants-Appellees. Appeal from the United States District Court for the Eastern District of Louisiana (97-CV-1903-E) December 10, 1999 Before DAVIS, JONES and MAGILL1, Circuit Judges. PER CURIAM:** After reviewing the record and the briefs, we conclude that the district court correctly granted summary judgment and dismissed plaintiff’s suit for the following reasons: 1. Nia’s § 1981 action is time barred; 2. The summary judgment record does not support Nia’s allegations of discrimination under the Equal Credit Opportunity Act (ECOA). 3. Whitney’s March 5, 1996 letter notifying Nia of the 1 Circuit Judge of the Eighth Circuit, sitting by designation. ** 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. denial of its application for a line of credit was timely and adequate under the ECOA. 4. We have considered Nia’s remaining arguments and conclude that they have no merit. AFFIRMED. 2 

NOTE: This order is nonprecedential United States Court of AppeaIs for the Federal Circuit JOHN F. WALTERS, Claimant-Appellant, V. ERIC K. SHINSEKI, SECRETARY OF VETERANS AFFAIRS, Respon,dent-Appellee. 2011-7193 ` Appeal from the United States Court of Appea1s for Veterans C1aims in case no. 09-3010, Judge Mary J. Sch0e1en. ON MOTION ORDER John F. Wa1ters moves without opposition to with- draw his appea1. Up0n consideration thereof IT ls ORDERED THAT: ~ (1) The motion is granted The appeal is dis1nissed. WALTERS V. DVA ccc s21 2 (2) Each side shall bear its own costs. F0R THE CoURT JAN 95 ?91? er Jan H0rba1y Date J an Horbaly C1erk Kenneth M. Carpenter, Esq. Jacob A. Schur1k, Esq. Issued As A Mandate: __I JAN 0 5 FlLED U.S. COURT 0F AFPEALS FOR THE FEDERAL C1RCUlT JAN 0 5 2012 JAN HORBALY CLEBK

NOTICE: NOT FOR OFFICIAL PUBLICATION. UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL AND MAY BE CITED ONLY AS AUTHORIZED BY RULE. IN THE ARIZONA COURT OF APPEALS DIVISION ONE STATE OF ARIZONA, Appellee, v. DAVID ALAN CROSS, Appellant. No. 1 CA-CR 15-0112 FILED 5-31-2016 Appeal from the Superior Court in Maricopa County No. CR2013-456885-001 The Honorable Erin Otis, Judge Pro Tempore AFFIRMED COUNSEL Arizona Attorney General’s Office, Phoenix By Jillian Francis Counsel for Appellee Maricopa County Public Defender’s Office, Phoenix By Christopher V. Johns Counsel for Appellant  STATE v. CROSS Decision of the Court MEMORANDUM DECISION Judge Kenton D. Jones delivered the decision of the Court, in which Presiding Judge Lawrence F. Winthrop and Judge Patricia K. Norris joined. J O N E S, Judge: ¶1 David Cross appeals his convictions and sentences for one count each of possession of a dangerous drug and possession of drug paraphernalia, arguing reversible error based upon the prosecutor’s remarks during her closing and rebuttal arguments at trial. For the following reasons, we affirm. FACTS1 AND PROCEDURAL HISTORY ¶2 In the early morning hours of February 12, 2013, a Scottsdale police officer initiated a traffic stop of a vehicle with a nonoperational headlight, which she had observed leave a Wal-Mart parking lot “making jerking movements as it was driving” and an illegal turn. The officer made contact with the driver, later identified as Cross, and two passengers, Shauna D. and Kelly A. According to the officer, Cross acted “fidgety” and, when asked for identification, provided a credit card instead. Based upon her observations, the officer believed Cross to be under the influence of methamphetamine. ¶3 Cross’s erratic behavior, “jitteriness and inability to stand still” prevented him from completing field sobriety tests, but he consented to a search of the vehicle. The search revealed a “makeshift pipe or bong of some kind [and] plastic tubing” in a grocery bag sitting on a black backpack, in the trunk, next to a laundry basket belonging to Shauna. The pipe appeared to have been used recently and contained methamphetamine residue. ¶4 Neither Shauna nor Kelly claimed ownership of the pipe. After being advised of his rights pursuant to Miranda v. Arizona, 384 U.S. 1 We view the facts in the light most favorable to upholding the verdict and resolve all reasonable inferences against the defendant. State v. Harm, 236 Ariz. 402, 404 n.2, ¶ 2 (App. 2015) (citing State v. Valencia, 186 Ariz. 493, 495 (App. 1996)). 2  STATE v. CROSS Decision of the Court 436, 444 (1966), Cross admitted the pipe was his, he had last used it six or seven hours prior to the interview, and the pipe probably contained his fingerprints. He was arrested and charged with one count each of possession of a dangerous drug and possession of drug paraphernalia. ¶5 At trial, Cross testified in his own defense, explaining Shauna had placed her personal items in the trunk after retrieving them from her ex-husband’s home. Cross and Shauna then visited friends, Phillip E. and Kelly, and then left with Kelly to do some shopping at Wal-Mart. Cross testified he gave the officer permission to search his vehicle because he was confident it did not contain any illegal items. When the officer first confronted Cross about the pipe, Cross stated it belonged to a friend, but when the officers threatened to take Shauna into custody, he claimed ownership of the pipe to “protect” her. At trial, Cross testified the pipe actually belonged to Shauna. ¶6 During his testimony, Cross admitted he had smoked methamphetamine in the past but preferred to use a different sort of pipe than was found in his trunk. He also testified the pipe found in his trunk was decorated in a feminine manner and looked like something Shauna, who enjoyed glass blowing as a hobby, would make. ¶7 Cross did not call Shauna as a witness because, prior to trial, the trial court excused her from testifying after she invoked her Fifth Amendment privilege against self-incrimination and the court determined she could not provide any relevant information without violating that right. See State v. Mills, 196 Ariz. 269, 276, ¶ 31 (App. 1999) (“If the witness validly asserts his Fifth Amendment privilege by showing ‘a reasonable ground to apprehend danger to the witness from his being compelled to answer,’ . . . the defendant’s right to compulsory process must yield to the witness’s privilege not to incriminate himself.”) (quoting United States v. Melchor Moreno, 536 F.2d 1042, 1046 (5th Cir. 1976)) (citations omitted). During her closing, the prosecutor, who is not the State’s counsel on appeal, made the following argument, with which Cross now takes issue, calling attention to Shauna’s absence: All three of the officers that testified, their testimony corroborated one another. They all viewed the defendant’s jittery, erratic movement. They all confirmed that the bong was found in the trunk. And all their statements fit together to corroborate what happened that night. 3  STATE v. CROSS Decision of the Court And again, like I said, while the State welcomes the burden, the defendant chose to put on evidence. And so now the State asks you, where are these other people that he was involved with that night? ... Where are the other people that the defendant was involved with that night? Where is Kelly A[.]? Where is . . . his sick friend, that he was with, rather than smoking methamphetamine like he told the officer? Where is Shauna . . .? The defendant has the same subpoena power as the State. They can bring anyone into court that they want and have them testify on their behalf. If he really was hanging out and watching movies rather than smoking methamphetamine, if he really did just go to Walmart to get dog food for this Kelly character, where are they? Where are they to corroborate his story? The only thing that the defendant has to offer you is his own words, and we’ve already heard that the defendant, based on the law that you are provided, should not be considered a credible witness. The prosecutor re-advanced the argument on rebuttal, stating: Secondly, corroboration or lack thereof. The State submitted to you before that the defendant talked about Phil and this Kelly, and this Shauna. And that he was with them watching movies, helping his sick friend, certainly not smoking methamphetamine like he told the officer the night in question. Yet, ladies and gentlemen, where are those people today? What evidence, other than the defendant’s statements, corroborates his story? The State would submit to you, there is none. ¶8 The jury found Cross guilty as charged. Cross admitted to four prior felony convictions and was sentenced as a non-dangerous, repetitive offender to concurrent presumptive terms of 10 years’ imprisonment for possession of a dangerous drug and 3.75 years’ imprisonment for possession of drug paraphernalia and given credit for 100 days of presentence incarceration. Cross timely appealed, and we have 4  STATE v. CROSS Decision of the Court jurisdiction pursuant to Arizona Revised Statutes (A.R.S.) sections 12- 120.21(A)(1),2 13-4031, and -4033(A). DISCUSSION ¶9 Cross argues he was deprived of a fair trial as a result of prosecutorial misconduct arising from the prosecutor’s arguments during closing and rebuttal. At trial, Cross objected only on the basis of burden shifting. That objection was insufficient to preserve a claim of prosecutorial misconduct. See State v. Rutledge, 205 Ariz. 7, 13, ¶¶ 29-30 (2003) (holding “the objection ‘shifting the burden’ did not preserve the issue of prosecutorial misconduct”). Because Cross did not raise prosecutorial misconduct until a post-trial motion to vacate the judgment, we review only for fundamental error. Id. at 13, ¶ 30 (citations omitted); State v. Mendoza, 181 Ariz. 472, 474 (App. 1995) (holding an issue raised for the first time in a post-trial motion preserves only fundamental error review). Under fundamental error review, Cross bears the burden of proving: (1) an error occurred, (2) the error was fundamental — that is, it “goes to the foundation of his case, takes away a right that is essential to his defense, and is of such magnitude that he could not have received a fair trial,” and (3) the error caused him prejudice. State v. Henderson, 210 Ariz. 561, 568, ¶¶ 22-26 (2005). ¶10 Cross argues the prosecutor improperly exploited the fact that Cross could not call Shauna as a witness to corroborate his defense by questioning her absence during closing and rebuttal arguments.3 Although he acknowledges it is not per se improper to comment on a defendant’s failure to produce evidence, he contends that, because the prosecutor knew Shauna had been declared unavailable based upon the invocation of her Fifth Amendment rights, the argument suggesting Cross did not call 2 Absent material changes from the relevant date, we cite a statute’s current version. 3 Cross also argues he was deprived of his constitutional right to confront witnesses against him. But, a defendant has no Sixth Amendment right to compel the testimony of a witness who has made a valid assertion of the Fifth Amendment privilege against self-incrimination. State v. Rosas- Hernandez, 202 Ariz. 212, 216, ¶ 10 (App. 2002) (citing United States v. Turkish, 623 F.2d 769, 773-74 (2d Cir. 1980)). Cross does not contend the trial court erred in finding Shauna validly asserted her Fifth Amendment privilege, and therefore, Cross’s Sixth Amendment rights are not implicated here. 5  STATE v. CROSS Decision of the Court Shauna because she had inculpatory information was intentionally misleading. We agree. ¶11 It is within the discretion of the trial court to exclude a witness who has indicated she will refuse to testify through the invocation of her Fifth Amendment right against self-incrimination. State v. Corrales, 138 Ariz. 583, 588 (1983). But, “an adverse inference from failure to call a witness may not be argued by counsel where counsel knows that the witness cannot be produced by his opponent.” Id. at 587 n.2 (citing 1 M. Udall & J. Livermore, Arizona Practice, Law of Evidence § 125, at 257 (2d ed. 1982)); see also State v. McDaniel, 136 Ariz. 188, 194 (1983) (“It is well settled that in criminal cases the jury is not entitled to draw any inferences from the decision of a witness to exercise his Fifth Amendment privilege.”) (citations omitted). The principle extends “to situations where the witness can be physically produced but cannot be compelled to testify.” Corrales, 138 Ariz. at 587 n.2. Although wide latitude is given during closing arguments for counsel to comment on the evidence and argue all reasonable inferences therefrom, McDaniel, 136 Ariz. at 197, it is misconduct for the prosecutor to build his case out of inferences arising from a witness’s invocation of the privilege against self-incrimination, Corrales, 138 Ariz. at 591 (citations omitted). ¶12 Here, the prosecutor directed the jury’s attention to Shauna’s absence on multiple occasions to highlight that Cross’s testimony was uncorroborated, and in a manner suggesting Cross had chosen not to call Shauna as a witness because she would not verify his version of events. In fact, the prosecutor knew the opposite was true: Shauna had refused to testify because she believed doing so would incriminate her. Under the circumstances, the prosecutor’s comments constitute misconduct. ¶13 A finding of error, however, does not end our inquiry; to be reversible, the error must also be fundamental and cause prejudice. Henderson, 210 Ariz. at 567, ¶ 20. Even assuming the nature of the violation is fundamental, see State v. Hughes, 193 Ariz. 72, 86, ¶ 63 (1998) (noting an improper comment regarding the invocation of the privilege against self- incrimination, whether direct or indirect, violates state and federal constitutional law) (citing State v. Jordan, 80 Ariz. 193, 199 (1956)); Corrales, 138 Ariz. at 591, “[p]rosecutorial misconduct is harmless error if we can find beyond a reasonable doubt that it did not contribute to or affect the verdict.” Hughes, 193 Ariz. at 80, ¶ 32 (citing State v. Towery, 186 Ariz. 168, 185 (1996), and State v. Bible, 175 Ariz. 549, 588 (1993)). Here, we find the error harmless. 6  STATE v. CROSS Decision of the Court ¶14 In a prosecution for possession of a prohibited item, the key inquiry is not ownership, but possession or use of the item. See A.R.S. §§ 13-3407(A)(1) (“A person shall not knowingly . . . [p]ossess or use a dangerous drug.”); -3415(A) (“It is unlawful for any person to use, or to possess with intent to use, drug paraphernalia . . . .”). And, while ownership may rest with a single person, possession can be shared. See State v. Gonsalves, 231 Ariz. 521, 523, ¶ 9 (App. 2013) (“[U]nder a theory of constructive possession, two or more persons may jointly possess a prohibited object; possession need not be ‘exclusive, immediate and personal.”) (quoting State v. Carroll, 111 Ariz. 216, 218 (1974)). ¶15 The jury was instructed on actual and constructive, and sole and joint possession. Even if the jury believed Shauna owned the pipe and methamphetamine, there is overwhelming evidence from which the jury could conclude Cross was in constructive possession of the items. See State v. Villavicencio, 108 Ariz. 518, 520 (1972) (noting constructive possession applies where the prohibited item is “found in a place under [the defendant’s] dominion and control and under circumstances from which it can be reasonably inferred that the defendant had actual knowledge of the existence” of the prohibited item). Cross appeared to be under the influence of methamphetamine when he was stopped, he admitted using methamphetamine earlier in the day, methamphetamine residue was found on the pipe, and he agreed his fingerprints were probably on the pipe he was charged with possessing. In proximity to his arrest, Cross admitted the pipe was his. Additionally, Cross never disputed the pipe and methamphetamine were found in his vehicle, within his dominion and control; he only later argued he did not “own” them. ¶16 In light of the overwhelming evidence Cross had at least constructive possession of the pipe and methamphetamine, we are satisfied, beyond a reasonable doubt, that the prosecutor’s improper comments on Shauna’s absence did not affect the verdict.4 We therefore find no reversible error. 4 That the State’s trial counsel’s error was ultimately harmless excuses neither her violation of the trial court’s direction to refrain from commenting on Shauna’s absence, or her knowing exploitation of Shauna’s invocation of her Fifth Amendment privilege against self-incrimination. Accordingly, pursuant to our ethical obligations, we direct the clerk of the court to forward a copy of this decision to the disciplinary department of the State Bar of Arizona. 7  STATE v. CROSS Decision of the Court CONCLUSION ¶17 Cross’s convictions and sentences are affirmed. :AA 8 

243 Ga. 247 (1979) 253 S.E.2d 692 ATLANTA NATIONAL REAL ESTATE TRUST v. TALLY. 34082. Supreme Court of Georgia. Argued January 8, 1979. Decided February 15, 1979. Rehearings Denied February 27 And March 6, 1979. *250 Cofer, Beauchamp & Hawes, James H. Rollins, for appellant. J. D. Humphries, III, John P. McNaughton, for appellee. HILL, Justice. We granted certiorari to determine whether the Court of Appeals correctly ruled in this suit on a guaranty that even though the defendant guarantor showed no consideration sufficient to support a release from the agreement, he nevertheless did raise an issue, cognizable in Georgia, as to whether plaintiff was estopped without consideration from proceeding against him on the *248 guaranty. The facts of this case were fully stated by the Court of Appeals in Tally v. Atlanta Nat. Real Estate Trust, 146 Ga. App. 585 (246 SE2d 700) (1978). Briefly, Tally personally signed a guaranty for a $165,000 loan from Atlanta National Real Estate Trust (ANRET) to his corporation, Tally Enterprises, Inc. The underlying note was secured by 14.5 acres of land located in Pascagoula, Mississippi. When the note went into default, ANRET foreclosed on the property, instituted suit in Mississippi against the corporation for a deficiency judgment, and took a consent deficiency judgment for $153,305. ANRET then brought this action on the guaranty against Tally in the State Court of Fulton County. Tally filed an affidavit in which he stated that Mr. Roan, an officer of ANRET, had stated to him that ANRET "would look solely to the real property securing such note, and would take no action against affiant personally on the guaranty." Tally further stated that "Furthermore, in the subsequent action taken by ANRET against Tally Enterprises, Inc., in the Chancery Court of Harrison County, Mississippi, affiant did not intervene in said action, or otherwise appear in any capacity to assert any defenses to the note sued on or any defenses with regard to the value paid for the property foreclosed upon. This forbearance on the part of affiant was in reliance on the representation by Mr. Roan that ANRET would not pursue affiant personally as a result of affiant's position as guarantor on the note sued on." This allegation by Tally created an issue of material fact sufficient to avoid summary judgment. Forbearance by Tally from asserting his defenses in the Mississippi litigation would be, if bargained for by ANRET, consideration sufficient to support a release. Code Ann. § 20-302. At the very least, Tally suffered an injury in that, as the Court of Appeals noted in its opinion (146 Ga. App. at 587), the Mississippi judgment "... established prima facie the amount of the deficiency for which defendant is liable under the guaranty. See Escambia Chemical Corp. v. Rocker, 124 Ga. App. 434 (2) [184 SE2d 31 (1971)]." ANRET did not negative all issues as to the existence of such a release. We therefore find that if Tally's *249 forbearance was bargained for by ANRET, then there was consideration and hence there was a release. ANRET relies on First Nat. Bank &c. Co. v. Thompson, 240 Ga. 494 (241 SE2d 253) (1978). ANRET is not a bank. Moreover, in Thompson the debtor alleged that he had been fraudulently induced to sign the note by assurances of a bank officer that he would not be liable on the note. The evidence Thompson sought to rely upon to bar summary judgment contradicted the writing and was inadmissible due to the parol evidence rule. Code § 38-501; Reuben v. First Nat. Bank, 146 Ga. App. 864, 866 (247 SE2d 504) (1978). See also Cooper v. Mercantile Nat. Bank, 137 Ga. App. 605, 609 (224 SE2d 442) (1976). Here Tally is not seeking to show that the original oral agreement was in fact contrary to the terms of the written guaranty but to show a later oral contract. Tally argues that promissory estoppel (see Restatement, Contracts § 90) was adopted in Georgia in Pethel v. Waters, 220 Ga. 543 (4) (140 SE2d 252) (1965); Wilson, Contracts, 17 Mercer L. Rev. 52 (1965). ANRET argues that that doctrine does not exist here. Fields v. Continental Ins. Co., 170 Ga. 28 (2b) (152 SE 60) (1929). See Restatement, Contracts, § 90. Whether or not that doctrine exists in Georgia, it is not applicable in this case because Tally's alleged reliance was not justifiable. Tally's affidavits state that the oral promise on which he relies was made on February 3, 1975. He admitted in his answer that ANRET made demand upon him for sums due under the terms of the note and guaranty; the demand referred to was by letter dated February 10, 1975, after the alleged oral promise, and that letter demanded payment from Tally of principal and interest, claimed the right to add attorney fees if payment was not timely made, and gave notice that the power of sale would be exercised. In the face of this formal written demand, Tally could hardly be justified, absent a release, in relying on an earlier oral promise made by an agent of ANRET that Tally would not be held liable on the guaranty. Hence the defense of promissory estoppel is not available to Tally in this case. Judgment affirmed. All the Justices concur.

707 F.2d 508 Linderv.Woods 82-6355, 82-6488 UNITED STATES COURT OF APPEALS Fourth Circuit 4/12/83 1 E.D.N.C. AFFIRMED

747 S.W.2d 479 (1988) In the Matter of the MARRIAGE OF Robert D. BURRELL and Katherine Ruth Burrell. No. 07-87-0059-CV. Court of Appeals of Texas, Amarillo. March 7, 1988. Rehearing Denied April 4, 1988. O.M. Calhoun, Hinkle, Cox, Eaton, Coffield & Hensley, Amarillo, for appellant. Mark M. Buzzard, Buzzard Law Firm, Pampa, for appellee. Before REYNOLDS, C.J., and DODSON and BOYD, JJ. REYNOLDS, Chief Justice. This appeal requires us to determine whether in a divorce action filed after the spouses' mentally retarded daughter became 18 years of age, the trial court had jurisdiction to order, as the court did, a parent to contribute monetarily to the support of the mentally retarded adult daughter. We conclude that the court has not been invested with that jurisdiction in a divorce proceeding. Affirmed in part; reversed and rendered in part. Robert D. Burrell petitioned for a divorce from Katherine Ruth Burrell, alleging that no child under 18 years of age was born to, adopted by, or expected from the marriage, and that it was believed an agreement for the division of their estate would be made. Katherine cross-petitioned for a divorce and, in addition to asserting allegations similar to those made by Robert, she alleged that the parties are the parents of Glenda Kaye Burrell, shown by the record to be almost 28 years of age, who is mentally retarded, is unable to support herself, and is dependent on her parents for maintenance and support, which enables the court to require periodic support payments pursuant to section 14.05(b) of the Texas Family Code. Robert filed a plea to the jurisdiction of the court and a special exception to Katherine's pleadings. By his filing, Robert *480 expressed that the court did not have jurisdiction to order support for the adult daughter, and that Katherine's pleading for that relief should be stricken because the daughter is neither a party to the suit nor represented by next friend therein. The court held a hearing and denied the plea to its jurisdiction and the special exception. After a bench trial, the court rendered judgment decreeing a dissolution of the Burrells' marriage and a division of their estate. Specifically finding that it had jurisdiction over Glenda, the "unemancipated, handicapped child of the parties," who "is twenty-eight (28) years old and requires continuous care and personal supervision because of a mental disability and will not be able to support herself," the court made orders for her support. The court ordered that Robert pay $200 per month until the further order of the court or until Glenda no longer requires continuous care and personal supervision because of her mental disability, or is able to support herself, or marries. The court also ordered Katherine to contribute direct support to Glenda by providing her with necessities totaling $200 or more each month. Aggrieved by the order for his monetary contribution to Glenda's support, Robert brought this appeal with six points of error. By his points, he advances the contentions that the trial court erred in (1) overruling his plea to the jurisdiction, and (2) concluding as a matter of law that it had jurisdiction; (3) finding that Glenda required continuous care and personal supervision because there was no evidence, or (4) insufficient evidence to support the finding; (5) basing its judgment on the finding that Glenda is "unable to support herself;" and (6) overruling his special exception that Glenda was not made a party to the action personally or by next friend. The first two points of error pose the question, joined in the trial court, whether section 14.05(b) of the Texas Family Code vests the trial court with jurisdiction to order, in a divorce decree, parental support for a mentally disabled son or daughter who had reached the age of 18 before the divorce action was filed. The section, following the section 14.05(a) authorization for court-ordered child support until the child is at least 18 years of age, provides that: If the court finds that the child, whether institutionalized or not, requires continuous care and personal supervision because of a mental or physical disability and will not be able to support himself, the court may order that payments for the support of the child shall be continued after the 18th birthday and extended for an indefinite period. The court may enter an order under this subsection only if a request for an order of extended support under this subsection has been made in the original suit, a petition requesting further action under Section 11.07, or a motion to modify under Section 14.08 of this code filed before the child's 18th birthday. Tex.Fam.Code Ann. § 14.05(b) (Vernon 1986). The first sentence of the section was contained in the enactment of Title 2 of the Texas Family Code by the 63rd Legislature in 1973. Act of June 15, 1973, ch. 543, § 1, 1973 Tex.Gen.Laws 1412, 1424. The last sentence was added by the 69th Legislature in 1985. Act of June 15, 1985, ch. 802, § 10, 1985 Tex.Gen.Laws 2841, 2844. Robert contends that section 14.05(b) authorizes the trial court to order support for a mentally or physically disabled child to extend beyond the child's 18th birthday only if the request therefor is filed before the child's 18th birthday in the original suit, or in a section 11.07 petition, or in a section 14.08 modification motion. Interpreting the section differently, Katherine submits that the court is allowed to order the support when the request is made either: (1) in the original suit (where her request was made), or (2) in the petition for further action under section 11.07 of the Code, or (3) in a motion to modify under section 14.08 of the Code filed before the child's 18th birthday. *481 This interpretation flows from the positions of the commas and the disjunctive "or" in the second sentence of section 14.05(b), the arrangement being viewed as setting forth three distinct occasions when the trial court possesses subject matter jurisdiction. To the contrary, Robert maintains that the disjunction sets apart the jurisdictional occasions only when the phrase "filed before the child's 18th birthday" is grammatically appended to each occasion. The susceptibility of the statute, a section of the Texas Family Code, to different interpretations requires us to determine the legislative intent of its force from a general view of the entire enactment. Conceptually, the Code is a codification of existing statutory and case law with changes to meet notions of current societal conditions. Texas courts have long recognized, and enforced, the obligation of divorced parents to support their children "in their helplessness and infancy." Rice v. Rice, 21 Tex. 62, 71 (1858). However, the Legislature did not address the matter until 1935. Then, being troubled because "divorce cases are being tried without any concern as to babies and children of tender years" and because "many parents ... seem to think that a divorce from the other is a divorce from the babies also," the Legislature moved to statutorily authorize courts to provide for child support in a divorce decree. Act of March 19, 1935, ch. 39, 1935 Tex.Gen.Laws 111. The statute, providing support authorization until the child shall have reached the age of 16 years, was codified as article 4639a of the Texas Revised Civil Statutes Annotated. By an amendment to the statute in 1953, the age for support was extended to 18 years. Act of May 14, 1953, ch. 127, § 1, 1953 Tex.Gen.Laws 439. Later, during the First Called Session of the 57th Legislature in 1961, the Legislature, concerned "that at the present time there is no provision for the continued support of children needing custodial care," authorized the courts to "require [in a divorce decree] and enforce support payments for such child, whether a minor or not." Act of Aug. 18, 1961, ch. 31, § 1, 1961 Tex.Gen.Laws 135. This enactment was codified as article 4639a-1 of the Texas Revised Civil Statutes Annotated (Vernon Supp.1962). However, upon enactment of Title 2 of the Family Code effective 1 January 1974, articles 4639a and 4639a-1, as amended, were repealed. Act of June 15, 1973, ch. 543, § 3, 1973 Tex.Gen.Laws 1412, 1458. The subject matters of the repealed articles were included in section 14.05 of Title 2, purposed toward the well-being of children through the timely fulfillment of parents' obligation to support their children. To this end, subsection (a) of section 14.05 replaced the former article 4639a, and authorizes the court to order in the divorce decree either or both parents to make payments "for the support of the child until he or she is 18 years of age." As recently amended in 1987, this subsection now provides that the court of continuing jurisdiction may, by modification of an existing order or entry of a new order, extend child support beyond the child's 18th birthday, whether the request therefor is filed before or after the child's 18th birthday, "if the child is fully enrolled in an accredited secondary school in a program leading toward a high school diploma." Tex.Fam.Code Ann. § 14.05(a) (Vernon Supp.1988). Subsection (b) of section 14.05, the meaning of which is questioned in this appeal, superceded the former article 4639a-1, and was originally enacted as a one-sentence provision, which is the first sentence of the present subsection (b). Omitted were the words "whether a minor or not" that were contained in the repealed article. As then constituted, section 14.05(b) was held to indicate legislative intent to change the previous law of article 4639a-1 so that the present law could not be originally invoked on behalf of mentally or physically handicapped adults, but would apply only to a child who had not reached the 18th birthday when the child qualified, by reason of requiring continuous care and personal supervision because of a mental or physical disability, for support payments to be continued after the 18th birthday. Red v. Red, *482 552 S.W.2d 90, 94 (Tex.1977). As a necessary corollary of that holding, the court held, albeit not specifically stating, that for payments to be continued after the child's 18th birthday, they must be ordered before the child becomes 18 years of age. Id. at 93-94, 98. In so holding, the Court recognized that other laws imposed on a financially able parent the obligation to maintain the incompetent unmarried, adult offspring. Id. at 91, 95. Accord, Young v. Young, 609 S.W.2d 758, 759-60 (Tex.1980). In connection with his view of section 14.05(b), Robert suggests that after the 1977 decision in Red, the statute was amended, by adding the second sentence in 1985, so that if any action—i.e., an original suit, a petition requesting further action under section 11.07, or a motion to modify under section 14.08—is commenced before the child reaches 18, then the court retains jurisdiction to enter an order requiring support after the child's 18th birthday. Katherine, however, proposes that the amendment was prompted by the dissenting opinion in Red, and was designed to ameliorate the harshness of the Red holding by conferring, consistent with the section 14.05(a) provision for child support through high school regardless of the child's age, the right to ordered parental support for a disabled child which is requested in the original suit filed after the child's 18th birthday. We are persuaded by controlling factors that Robert's view of section 14.05(b) is the correct one. Or stated another way, for the court to be vested with jurisdiction to order that the support payments shall be continued after the child's 18th birthday, the request therefor must be filed before the 18th birthday, although the order may be signed before or after the date the child becomes 18 years of age. At the outset of undertaking a codification and modification of existing family law, the Legislature, echoing earlier stated concerns, expressed that "[e]ach spouse has the duty to support his or her minor children." Tex.Fam.Code Ann. § 4.02 (Vernon 1975). Subsequently in 1985, the Legislature enlarged the expression to proclaim that "each parent has the duty to support his or her child, during the period that the child is a minor, and thereafter so long as the child is fully enrolled in an accredited primary or secondary school in a program leading toward a high school diploma, until the end of the school year in which the child graduates." Tex.Fam.Code Ann. § 4.02 (Vernon Supp.1988). The Legislature's meaning of a child who is a minor is defined, in the Title 2 codification and modification of existing laws concerning the parent-child relationship, as "a person under 18 years of age who is not and has not been married or who has not had his disabilities of minority removed for general purposes." This definition remains constant unless a different definition is required by the context of the Code, for in using the word "adult," the Legislature "means any other person." Tex.Fam.Code Ann. § 11.01(1) (Vernon Supp.1988). The Legislature having defined the terms "child", "minor," and "adult," the definitions are binding on the courts. Day & Zimmerman, Inc. v. Calvert, 519 S.W.2d 106, 110 (Tex.), cert. denied sub nom., Bullock v. Day & Zimmerman, Inc., 423 U.S. 832, 96 S.Ct. 54, 46 L.Ed.2d 50 (1975). Obviously, then, the Legislature's continuing concern for the child of a marriage, and particularly one affected by a divorce action, is for his or her maintenance during his or her minority. Accordingly, the Legislature vested the court with jurisdiction in a divorce action to order either or both parents to make periodic payments, or a lump-sum payment, or both for one who is defined as a child. The investment began in section 14.05(a), where the Legislature first authorized the court to provide for the support of the child until he or she is 18 years of age. Next, the Legislature, recognizing that a child fully enrolled in school seeking a high school diploma still requires parental maintenance, provided for extending child support past the 18th birthday of such child, whether the request for such support is filed before or after the 18th birthday. The support of a mentally or physically disabled child requiring continuous care *483 and supervision was addressed in subsection (b), which necessarily is an extension of subsection (a). The first sentence of subsection (b) authorizes the court to order support payments for such child to be continued after the child's 18th birthday for an indefinite time. The second sentence, which was added in 1985 and is the focus of the dispute in this appeal, is predicated on the first-sentence provision, for it begins: "The court may enter an order under this subsection only if a request for an order of extended support under this subsection has been made...." It cannot escape notice that in considering the two sentences of subsection (b) together, as they must be considered, the Legislature first speaks to the court's authorization to order that child support payments "shall be continued after the [child's] 18th birthday and extended for an indefinite period." Absent a legislative definition, the words "continued" and "extended" are accepted to express the meaning in which they are understood. Satterfield v. Satterfield, 448 S.W.2d 456, 459 (Tex.1969). Consequently, the Legislature used the word "continued" to mean "stretching out in time without interruption," and the word "extended" to mean "drawn out in length." Webster's Third New International Dictionary 493, 804 (1976). Consistent with the meaning of the language employed in section 14.05(b), it is quite apparent that support payments could not "be continued" after and "extended" beyond the child's 18th birthday unless the child was qualified for the support payments before the child became 18 years of age. Thus, the logical import of the Legislature's meaning is: The court is authorized to order payments for the support of a mentally or physically disabled child requiring continuous care and personal supervision until the child reaches 18, but support payments "continued after" and "extended" beyond the child's 18th birthday can be ordered only if a request for the extended support is filed before the child's 18th birthday. Giving this effect to the statute is harmonious with other principles. Before the Legislature added the second sentence in section 14.05(b), the Red court had construed the first-sentence provision to apply only to those children who were under 18 when they qualified for, and when the court had ordered, support payments to be continued after their 18th birthday. Red v. Red, supra, 552 S.W.2d at 92. In amending the statute by drafting the second sentence some eight years later, the Legislature was presumed to know of this judicial declaration of the condition of the law and to have acted with reference to it. Allen Sales & Servicenter, Inc. v. Ryan, 525 S.W.2d 863, 866 (Tex.1975). And by amending the statute, the Legislature intended to add to or change the existing law, and that effect must be given to the amendment. San Antonio Conserv. Soc., Inc. v. City of San Antonio, 455 S.W.2d 743, 746 (1970). By leaving the first sentence of section 14.05(b) intact and making the added second sentence operationally dependent upon it, the Legislature indicated its approval of the Red court's interpretation that the first-sentence provision could not be originally invoked on behalf of mentally or physically handicapped adults, but applies only to a child who qualifies as such before his or her 18th birthday. Love v. Wilcox, 119 Tex. 256, 28 S.W.2d 515, 524 (1930). Otherwise, by its amendment the Legislature would have, as it did in amending section 14.05(a) in 1987, conferred jurisdiction on the court to order extended support when the request for it is filed after the child's 18th birthday. Having confirmed that the statute is originally applied solely to a child before his or her 18th birthday, the Legislature had the right to prescribe, in connection with the confirmation, that the court's jurisdiction to order support payments continued after the child's 18th birthday and extended for an indefinite time could be triggered only by a request therefor filed before the child's 18th birthday. By doing so, the Legislature indicated its intent that once the court's jurisdiction was invoked by a timely request, the court retained jurisdiction *484 to make the extended support order either before or after the child's 18th birthday. Thus, the amendment evinces legislative intent to change the previous law evolving from Red and followed by its progeny, such as Attaway v. Attaway, 704 S.W.2d 492 (Tex.App.—Corpus Christi 1986, no writ), that the order for extended support must be made before the child's 18th birthday. Finally, to hold, as Katherine interprets the amended statute, that the request for extended payments is required to be filed before the child's 18th birthday only in a motion to modify under section 14.08, but that the request could be filed in the original action or in a petition for further action under section 11.07 regardless of the offspring's age, would ascribe to the Legislature an intention that parental support for a mentally or physically disabled offspring depended upon the type of action initiated. Implicit in that holding would be the imputation to the Legislature of doing an unjust or unreasonable thing, an unwarranted result when the statute is susceptible to a reasonable construction. Anderson v. Penix, 138 Tex. 596, 161 S.W.2d 455, 458-59 (1942). We, thereupon, hold that section 14.05(b) does not confer jurisdiction upon the divorce court to order support payments for a mentally or physically disabled person who is over 18 years of age when the divorce action is filed. Since Glenda was almost 28 years of age when the original divorce action was filed, the court had no jurisdiction to provide for her support in its divorce decree. Consequently, Robert's first two points of error are sustained. The sustention of these points pretermits an address of Robert's other points because a decision on any of them is unnecessary to the proper disposition of this appeal. Tex.R.App.P. 90(a); Cornell & Co. v. Pace, 703 S.W.2d 398, 404 (Tex.App.— Amarillo 1986, writ ref'd n.r.e.). Not overlooked is Katherine's contention that a construction of section 14.05(b) requiring, as we have held, that a request made in the actions mentioned for the extended support must be filed before the child's 18th birthday is against public policy for a number of reasons. The reasons given are echoes of an argument advanced for a different interpretation in the dissenting opinion in Red v. Red, supra, 552 S.W. 2d at 98, to which the Legislature has not affirmatively responded. Nor ignored is Katherine's denial of the efficacy of other laws obligating financially able parents to maintain their incompetent adult offspring. Yet, these considerations are a matter for the Legislature, not the court, for we must accept the statute as it is. Simmons v. Arnim, 110 Tex. 309, 220 S.W. 66, 70 (1920). Accordingly, that part of the trial court's judgment ordering Robert D. Burrell to pay $200 per month toward the support of Glenda Kaye Burrell is reversed, and judgment is here rendered that Katherine Ruth Burrell take nothing by her action seeking this support. In all other respects, the judgment is affirmed. Costs occasioned by this appeal are taxed against Katherine Ruth Burrell. Tex.R. App.P. 89.

Cleveland v Perry (2019 NY Slip Op 08123) Cleveland v Perry 2019 NY Slip Op 08123 Decided on November 8, 2019 Appellate Division, Fourth Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and subject to revision before publication in the Official Reports. Decided on November 8, 2019 PRESENT: CENTRA, J.P., PERADOTTO, DEJOSEPH, CURRAN, AND WINSLOW, JJ. (Filed Nov. 8, 2019.) MOTION NO. (618/19) CA 18-01138. [*1]TAMMY A. CLEVELAND, INDIVIDUALLY AND AS ADMINISTRATRIX OF THE ESTATE OF MICHAEL E. CLEVELAND, DECEASED, PLAINTIFF-APPELLANT-RESPONDENT, vGREGORY C. PERRY, M.D., FDR MEDICAL SERVICES, P.C., KALEIDA HEALTH AND KALEIDA HEALTH/DEGRAFF MEMORIAL HOSPITAL, DEFENDANTS-RESPONDENTS-APPELLANTS. (APPEAL NO. 2.) MEMORANDUM AND ORDER Motion for reargument denied.

730 So.2d 1264 (1998) Ted HERRING, Appellant, v. STATE of Florida, Appellee. No. 89937. Supreme Court of Florida. September 24, 1998. Rehearing Denied January 14, 1999. Leon H. Handley of Gurney & Handley, P.A., Orlando, Jon M. Wilson and John R. Hamilton of Foley & Lardner, Orlando, and Jeremy G. Epstein, Alan S. Goudiss, James R. Warnot, Jr., Kathryn Tabner, Daniel Schimmel, and Steven M. Davidoff of Shearman *1265 & Sterling, New York City, for Appellant. Robert A. Butterworth, Attorney General, and Kenneth S. Nunnelley, Assistant Attorney General, Daytona Beach, for Appellee. PER CURIAM. Ted Herring, a prisoner under sentence of death, appeals the trial court's denial of his motion for post-conviction relief under Florida Rule of Criminal Procedure 3.850. The issue in this appeal is whether Herring's public defender had an actual conflict of interest that adversely affected his performance. We have jurisdiction. Art. V, § 3(b)(1), Fla. Const. For the reasons expressed, we affirm the ruling of the trial court. On May 29, 1981, a convenience store in Daytona Beach was robbed and the store clerk was found dead from two gunshot wounds. A hold-up note with a fingerprint on it was recovered from the store, and the fingerprint was subsequently determined to be that of Ted Herring. Herring was arrested and interrogated regarding the crimes. Herring waived his Miranda rights and made statements to police officers William Anderson, Dozell Varner, and Martin White. In his first statement to the officers, which was taped, Herring said that he went to the store with the intent to commit a robbery, but that prior to committing the crime a second man robbed the store and killed the clerk. In a second unrecorded statement made privately to Officer Varner, Herring confessed that he shot the clerk in the head and then, while the clerk was lying on the ground, shot the clerk a second time to eliminate him as a possible witness. In a final taped statement to the officers, Herring claimed that he robbed the store but accidentally shot the clerk twice after the clerk tried to grab his gun. In February 1982, Herring was tried in Volusia County for armed robbery and first-degree murder. Herring was represented at the trial by two public defenders, Howard Pearl and Peyton Quarles. Pearl conducted the guilt phase of the trial and Quarles handled the penalty phase. Officer Varner testified at the trial regarding Harrison's unrecorded statement. At the time of his testimony, Officer Varner had received twenty-two oral reprimands for minor misconduct, one written reprimand for tardiness, and a one-day suspension for an accident involving a city vehicle. Officer Varner had also received eight commendations for his police work, including a commendation for the arrest of Ted Herring. Following the direct examination of Officer Varner, Pearl's cross-examination focused only on whether Herring received food and water during his interrogation. Pearl's cross-examinations of officers Anderson and White were also limited to the topics of food and rest. Herring testified at trial that his first statement to the officers was accurate—that the robbery and murder were committed by a second gunman. Herring denied having a private conversation with Officer Varner and claimed that the second taped confession was coerced. In closing arguments, Pearl, consistent with Herring's testimony, told the jury that a second gunman robbed the store and killed the clerk. Pearl asked the jury to question the testimony of the interrogating officers. Pearl also informed the jury that "[policemen] do a very difficult and dangerous job of community service, and the policemen that you saw, Mr. Varner and Mr. Anderson, Mr. White, are all good policemen, good detectives." Herring was convicted of first-degree murder and sentenced to death. In aggravation, the trial judge found that Herring (1) was previously convicted of an unrelated armed robbery; (2) committed the murder in the course of a robbery; (3) committed the murder for the purpose of avoiding arrest; and (4) committed the murder in a cold, calculated and premeditated manner (CCP). The judge's sentencing order reflects that the "avoiding arrest" aggravator was based on Officer Varner's testimony. In mitigation, the judge found that Herring was nineteen years of age at the time of the crime and that he had a difficult childhood and learning disabilities. This Court affirmed Herring's convictions and death sentence in Herring v. State, 446 So.2d 1049 (Fla.1984), but subsequently struck down the application of the *1266 CCP aggravator. Rogers v. State, 511 So.2d 526, 533 (Fla.1987). We rejected a motion to vacate Herring's death sentence that was predicated on our decision to recede from the application of the CCP aggravator. Herring v. State, 580 So.2d 135 (Fla.1991). In his first rule 3.850 motion, Herring raised an ineffective-assistance-of-counsel claim based on deficient performance pursuant to Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). The trial judge denied the motion and we affirmed. Herring v. State, 501 So.2d 1279 (Fla.1986).[1] Herring filed a second rule 3.850 motion and claimed, among other things, that he received ineffective assistance of counsel due to a conflict of interest between Pearl's status as a special deputy sheriff and Pearl's responsibilities owed to Herring.[2] The trial judge denied the motion, but this Court remanded the ineffectiveness issue for an evidentiary hearing. Herring v. State, 580 So.2d 135 (Fla.1991). Herring's hearing was consolidated with the hearings of eight other defendants who had raised similar "Howard Pearl claims."[3] The judge held that none of the defendants were adversely affected by Pearl's special deputy status. However, in Teffeteller v. Dugger (Herring v. State), 676 So.2d 369 (Fla.1996), this Court remanded four of the cases, including Herring's case, for individual evidentiary hearings solely on Pearl's status as a special deputy sheriff. As directed by this Court, a second evidentiary hearing was held, and Herring's motion was again denied. Herring now appeals the trial judge's ruling and raises the following issues: (1) whether the trial judge erred in finding that Pearl was not encumbered by an actual conflict of interest; (2) whether Pearl's failure to testify regarding a strategic rationale for his trial actions or omissions preludes the State from showing that his performance was not adversely affected by his conflict; and (3) whether the trial judge's findings of fact regarding Dr. Spitz's testimony are clearly erroneous. In his first claim, Herring challenges the trial judge's denial of his ineffective-assistance-of-counsel claim. Herring argues that Pearl's personal interest in maintaining his special deputy sheriff status required him to remain in the good graces of law enforcement personnel. Herring asserts that Pearl's need to ingratiate himself to law enforcement officials was an actual conflict of interest with his obligations to Herring. Herring claims that Pearl's conflict of interest adversely affected his representation in the following ways: (1) adopting the incredible second gunman defense to the exclusion of the more plausible accidental shooting defense; (2) failing to aggressively cross-examine law enforcement witnesses, including failing to question Officer Varner regarding his disciplinary record; (3) bolstering the credibility of law enforcement witnesses; and (4) abandoning Herring during the penalty phase of the trial. It must be understood at the outset that Herring cannot raise in this appeal an ineffectiveness claim based on deficient performance pursuant to Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). That claim has already been presented to and rejected by this Court, and Herring is procedurally barred from raising the claim in this appeal. We note that, had Pearl brought out Officer Varner's minor reprimands as Herring claims he should have, the door would have opened for the State to introduce Varner's commendations. In addition, Pearl's practice of not challenging the conduct of police officers in Volusia County absent hard evidence of misconduct was not unreasonable at the time Herring's case was tried in 1982. The alleged deficiency of Howard Pearl's performance is not the *1267 issue in this appeal. The only issue properly before this Court is whether Pearl had an actual conflict of interest that caused him to render ineffective assistance. To prove an ineffectiveness claim premised on an alleged conflict of interest the defendant must "establish that an actual conflict of interest adversely affected his lawyer's performance." Cuyler v. Sullivan, 446 U.S. 335, 350, 100 S.Ct. 1708, 64 L.Ed.2d 333 (1980); Buenoano v. Dugger, 559 So.2d 1116, 1120 (Fla.1990). Our responsibility is first to determine whether an actual conflict existed, and then to determine whether the conflict adversely affected the lawyer's representation. A lawyer suffers from an actual conflict of interest when he or she "actively represent[s] conflicting interests." Cuyler, 446 U.S. at 350, 100 S.Ct. 1708. To demonstrate an actual conflict, the defendant must identify specific evidence in the record that suggests that his or her interests were impaired or compromised for the benefit of the lawyer or another party. See Buenoano v. Singletary, 74 F.3d 1078, 1086 n. 6 (11th Cir.1996); Porter v. Singletary, 14 F.3d 554, 560 (11th Cir.1994); Oliver v. Wainwright, 782 F.2d 1521, 1524-25 (11th Cir.1986). Without this factual showing of inconsistent interests, the conflict is merely possible or speculative, and, under Cuyler, 446 U.S. at 350, 100 S.Ct. 1708, such a conflict is "insufficient to impugn a criminal conviction." The trial judge made the following findings in his order denying Herring's ineffectiveness claim: Howard Pearl applied to become a special deputy sheriff in Marion County in 1970. He sought to obtain this status in order to have the authority to carry a concealed firearm throughout the State of Florida "for protection of self and family."* The sheriff of Marion County in 1970, Doug Willis, apparently granted Mr. Pearl the status of special deputy sheriff for the purposes of carrying a concealed firearm.... Sheriff Moreland testified that he continued Mr. Pearl's status as a professional courtesy and that this was a common practice at that time to continue the status of prominent members of the community. Although Mr. Pearl was required to maintain liability insurance by the Marion County Sheriff's Department through the Florida Sheriff's Self-Insurance Fund, he had no criminal law enforcement authority or duties and was considered as an unpaid medium hazard special deputy sheriff.... Despite the fact that Mr. Pearl's identification card issued by the Marion County Sheriff's Department stated that he was "a regularly constituted deputy sheriff," this Court finds that the testimony of Mr. Pearl and Sheriff Moreland, at the evidentiary hearing, clearly shows that Mr. Pearl's status was an honorary appointment. Specifically, Mr. Pearl (1) was never certified as a law enforcement officer; (2) never received any compensation from or executed any employee tax forms from the Marion County Sheriff's Department; (3) received no law enforcement training from the Marion County Sheriff's Department; (4) was never issued a uniform, vehicle or any other equipment from the Marion County Sheriff's Department; (5) never made and [was] never given the authority to make any arrests, stops or any other duties as a deputy sheriff of the Marion County Sheriff's Department; (6) never reported to any roll calls at the Marion County Sheriff's Department; (7) was never on a duty roster for the Marion County Sheriff's Department; (8) was never copied on any internal memoranda from the Marion County Sheriff's Department, other than insurance renewal notices; (9) never was asked to act in any way for the Marion County Sheriff's Department; and (10) never held himself out as a regularly constituted deputy sheriff of the Marion County Sheriff's Department. In fact, Sheriff Moreland testified that Mr. Pearl's status was "honorary" in nature and was solely for the purposes of Mr. Pearl being able to carry a concealed firearm. In addition, James P. Gibson, the Public Defender for the Seventh Judicial Circuit at present and at the time of Mr. Pearl's representation of the Defendant, testified that he knew of Mr. Pearl's status as a special deputy sheriff and that status was honorary and only for the purpose of carrying *1268 a concealed firearm.... Further, Mr. Gibson testified that Mr. Pearl never failed to act responsibly to his clients due to this status and that he never questioned Mr. Pearl's integrity or ability in representing clients because of this special deputy status. Accordingly, this Court finds as a matter of fact that Mr. Pearl never was and never has been a law enforcement officer of the Marion County Sheriffs Department. Essentially, Mr. Pearl was granted a concealed firearms permit by the Marion County Sheriffs Department in the same manner that many other individuals received during that time period. Contrary to defense counsels' assertions, this Court determines that Mr. Pearl had no actual or apparent authority to act as "a regularly constituted deputy sheriff" for the Marion County Sheriffs Department because at no time did he indicate to anyone that he possessed anything other than a "gun toter's permit" as a result of his special deputy status. . . . . . Defense counsel interpreted Mr. Pearl's alleged ineffective cross-examinations and alleged bolstering of law enforcement officers as the adverse effect of his conflict of interest. However, defense counsel presented no evidence or testimony that demonstrated that Mr. Pearl was actively representing conflicting interests. Therefore, this Court finds that the Defendant and his counsel failed to demonstrate that any actual conflict of interest existed between Mr. Pearl and the Defendant resulting from Mr. Pearl's special deputy status. * At the time Mr. Pearl sought to carry a concealed firearm there were no provisions for the sanctioning of private individuals to carry concealed weapons throughout the State of Florida. As noted in the order, the trial judge found that Herring failed to establish the first prong of Cuyler—that Pearl labored under an actual conflict of interest. We agree. The record reveals no evidence suggesting that Herring's interests were impaired or compromised as a result of Pearl's special deputy status. Herring argues that the trial judge erred as a matter of law in failing to recognize that a significant "adverse effect" is sufficient alone to demonstrate an "actual conflict of interest." For this proposition, Herring cites Freund v. Butterworth, 117 F.3d 1543 (11th Cir.1997), vacated, Freund v. Butterworth, 135 F.3d 1419 (11th Cir.1998). Although the cited Freund decision is a legal nullity, we note that Herring mischaracterizes the holding of the decision and we would not grant him relief even if the decision were law. Freund does state that "inquiries into `actual conflict' and `adverse effect' necessarily interrelate," 117 F.3d at 1571 (emphasis added), but does not state that ineffectiveness can be proven by evidence of adverse effect alone. In fact, in Freund, the Eleventh Circuit identified at least three separate sources of actual conflict. Although a court's inquiry into "actual conflict" and "adverse effect" may overlap, the Cuyler decision is clear on its face that the defendant must satisfy both prongs of the claim to prove ineffective assistance of counsel. Therefore, because Herring failed to demonstrate that an actual conflict of interest existed, we do not reach the issue of whether the conflict adversely affected Pearl's representation. See Porter v. Singletary, 14 F.3d 554, 560-61 (11th Cir.1994)(declining to address question of adverse effect on representation without proof of actual conflict). We reject Herring's second and third claims because they pertain solely to the issue of "adverse effect" under Cuyler. Accordingly, we affirm the trial judge's denial of Herring's second rule 3.850 motion. It is so ordered. HARDING, C.J., and OVERTON, SHAW, KOGAN, WELLS, ANSTEAD and PARIENTE, JJ., concur. NOTES [1] Of the denial of Herring's first rule 3.850 motion, we wrote, "The trial judge, in an extensive order, fully explained why each of the ineffective-assistance-of-counsel claims did not meet the test set forth in Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984), and Knight v. State, 394 So.2d 997 (Fla.1981). We fully agree with the trial judge's findings and commend him for his detailed explanation." Herring, 501 So.2d at 1280. [2] In a separate case we held that Pearl's special deputy sheriff status was not a per se conflict of interest. Harich v. State, 573 So.2d 303 (Fla. 1990). [3] The other defendants were Robert Teffeteller, Kenneth Quince, Robert Henderson, Gerald Stano, Joel Wright, Johnny Robinson, Felix Castro, and Richard Randolph.

Order entered August 2, 2017 In The Court of Appeals Fifth District of Texas at Dallas No. 05-16-01306-CR CHRISTOPHER RYAN WALL, Appellant V. THE STATE OF TEXAS, Appellee On Appeal from the 380th Judicial District Court Collin County, Texas Trial Court Cause No. 380-81132-2015 ORDER Appellant’s brief was initially due April 26, 2017. When it was not filed, we notified appellant by postcard dated April 27 and instructed him to file his brief along with a motion to extend time. On May 10, appellant filed a motion to extend time to file his brief which we granted. On June 12, he filed a second motion which we granted although we cautioned appellant that the failure to file a brief by July 13 would result in this appeal being abated for a hearing under rule 38.8(b). TEX. R. APP. P. 38.8(b). To date, no brief has been filed and we have had no communication from appellant. Therefore, we ORDER the trial court to conduct a hearing to determine why appellant’s brief has not been filed. In this regard, the trial court shall make appropriate findings and recommendations and determine whether appellant desires to prosecute the appeal, whether appellant is indigent, or if not indigent, whether retained counsel has abandoned the appeal. See TEX. R. APP. P. 38.8(b). If the trial court cannot obtain appellant’s presence at the hearing, the trial court shall conduct the hearing in appellant’s absence. See Meza v. State, 742 S.W.2d 708 (Tex. App.–Corpus Christi 1987, no pet.) (per curiam). If appellant is indigent, the trial court is ORDERED to take such measures as may be necessary to assure effective representation, which may include appointment of new counsel. We ORDER the trial court to transmit a record of the proceedings, which shall include written findings and recommendations, to this Court within THIRTY DAYS of the date of this order. The Clerk is DIRECTED to send copies of this order to the Honorable Benjamin Smith, Presiding Judge, 380th Judicial District Court; William Pigg; and the Collin County District Attorney’s Office. This appeal is ABATED to allow the trial court to comply with the above order. The appeal shall be reinstated thirty days from the date of this order or when the findings are received, whichever is earlier. /s/ LANA MYERS JUSTICE 

Case: 14-30787 Document: 00512932234 Page: 1 Date Filed: 02/10/2015 IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT United States Court of Appeals Fifth Circuit FILED February 10, 2015 No. 14-30787 Summary Calendar Lyle W. Cayce Clerk CHARLES E. LOWMAN; ROBERT A. LOWMAN; JUANITA NEAL LOWMAN, Plaintiffs - Appellants v. JERRY WHITAKER TIMBER CONTRACTORS, L.L.C.; RICKY WHITAKER; EVERGREEN TIMBER CORPORATION, also known as Evergreen Timber; BRADY TIMBER CORPORATION; JERRY WHITAKER, Defendants - Appellees Appeal from the United States District Court for the Western District of Louisiana USDC No. 5:10-CV-1603 Before KING, JOLLY, and HAYNES, Circuit Judges. PER CURIAM:* Plaintiffs-Appellants Charles E. Lowman, Robert A. Lowman, and Juanita Neal Lowman, proceeding pro se, brought this action against Defendants-Appellees Jerry Whitaker Timber Contractors, L.L.C. (“JWTC”), * Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR. R. 47.5.4.  Case: 14-30787 Document: 00512932234 Page: 2 Date Filed: 02/10/2015 No. 14-30787 Evergreen Timber Corporation (“Evergreen”), Brady Timber Corporation (“Brady”), Ricky Whitaker, and Jerry Whitaker, alleging various claims arising out of the theft of timber from Appellants’ property. Appellants are siblings who own contiguous tracks of land (comprising approximately twenty acres) in DeSoto Parish, Louisiana. In November 2009, Appellants discovered that the land, which previously had been populated by timber bearing trees, was mostly devoid of trees. Appellants filed suit in October 2010, alleging that loggers Ricky Whitaker, Michael Whitaker, and Jerry Whitaker trespassed onto their land and harvested their timber, and that Evergreen and Brady acted in conjunction with the Whitakers. In particular, Appellants allege that siblings “Ricky Whitaker, Michael Whitaker, and/or Jerry Whitaker was/were at all times acting as an agent(s) of and for Evergreen . . . and/or Brady . . . thereby rendering the latter vicariously liable for the actions of the former.” Brady, Evergreen, Jerry Whitaker, and JWTC filed motions for summary judgment, contending that they were not involved with the removal of timber from Appellants’ property. The district court granted the motions. First, the district court accepted as true Appellees’ statement of material facts because Appellants’ opposition to the motions was untimely. Based on those facts, the court concluded that Appellants failed to demonstrate that Brady, Evergreen, Jerry Whitaker, or JWTC participated directly in the removal of the timber. Moreover, although there was evidence showing that Michael and Ricky Whitaker cut down the timber, there was no evidence, according to the district court, that Michael or Ricky Whitaker acted as agents or employees of the moving Appellees. Thus, the district court granted summary judgment dismissing the claims against Brady, Evergreen, Jerry Whitaker, and JWTC on the merits. Alternatively, the district court dismissed the claims for Appellants’ failure to prosecute, reasoning that Appellants “have repeatedly 2  Case: 14-30787 Document: 00512932234 Page: 3 Date Filed: 02/10/2015 No. 14-30787 failed to comply with deadlines set by the Court and were warned of the potential ramifications for future transgressions.” The case then proceeded against Ricky Whitaker and Michael Whitaker, and a jury found Ricky Whitaker liable for timber theft in the amount of $87,838.65. 1 After the entry of final judgment, Appellants timely appealed. Appellants challenge the grant of summary judgment in favor of Brady, Evergreen, Jerry Whitaker, and JWTC. This court reviews de novo a district court’s order granting a defendant’s motion for summary judgment, applying the same standard as did the district court. Adams v. Travelers Indem. Co. of Conn., 465 F.3d 156, 163 (5th Cir. 2006). “Summary judgment is appropriate ‘if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.’” Johnston & Johnston v. Conseco Life Ins. Co., 732 F.3d 555, 561 (5th Cir. 2013) (quoting Fed. R. Civ. P. 56(a)). This court views the evidence in the light most favorable to the non-moving party. United Fire & Cas. Co. v. Hixson Bros., Inc., 453 F.3d 283, 285 (5th Cir. 2006). Appellants’ claims against Brady, Evergreen, Jerry Whitaker, and JWTC are premised on Lousiana’s timber cutting statute, which states: It shall be unlawful for any person to cut, fell, destroy, remove, or to divert for sale or use, any trees, or to authorize or direct his agent or employee to cut, fell, destroy, remove, or to divert for sale or use, any trees, growing or lying on the land of another, without the consent of, or in accordance with the direction of, the owner or legal possessor, or in accordance with specific terms of a legal contract or agreement. La. Rev. Stat. Ann. § 3:4278.1(A)(1). One who “willfully and intentionally” violates this provision is subject to treble damages. La. Rev. Stat. Ann. 1 The claims against Michael Whitaker were dismissed, as he died during the course of the litigation. 3  Case: 14-30787 Document: 00512932234 Page: 4 Date Filed: 02/10/2015 No. 14-30787 § 3:4278.1(B). Thus, because the statute “is punitive in nature,” it “must be strictly construed.” Sullivan v. Wallace, 859 So. 2d 245, 248 (La. Ct. App. 2003). The district court did not err in granting summary judgment. First, although there was evidence before the district court showing that Ricky Whitaker and Michael Whitaker cut the timber at issue, there was no evidence suggesting that those individuals were employees of Brady, Evergreen, Jerry Whitaker, or JWTC—thus precluding respondeat superior liability. See Smith v. Hughes Wood Prods., Inc., 544 So. 2d 687, 690 (La. Ct. App. 1989) (suggesting that employer may be liable under timber cutting statute for actions of employees based on the doctrine of respondeat superior, even if the employer did not direct or authorize the cutting). In determining whether an employer-employee relationship exists, “the most important element to be considered is the right of control and supervision over an individual.” Pender v. Elmore, 855 So. 2d 930, 937–38 (La. Ct. App. 2003). “Factors to be considered in assessing the right of control are the selection and engagement of the worker, the payment of wages, and the power of control and dismissal.” Id. Here, Brady and Evergreen have put forward evidence describing their relationship with the Whitakers: [T]he Whitakers would sell timber to the mill and in turn, they would receive a scale ticket from the mill. . . . [T]he Whitakers would bring the scale tickets to [Evergreen]. The scale tickets would have the product (wood, soft wood), class (pulpwood) and weight of the load. . . . [Evergreen] would purchase the scale tickets from the Whitakers for a fee. The sale of scale tickets would allow the Whitakers to get their payment for the scale tickets several weeks earlier. [Evergreen] would sell their scale tickets to [Brady] for a fee. [Brady] would ultimately receive payment from [the mill]. . . . [T]he selling and purchasing of scale tickets for a fee is a common practice in the timber industry. The practice allows smaller companies the ability to meet their payroll on a weekly basis. 4  Case: 14-30787 Document: 00512932234 Page: 5 Date Filed: 02/10/2015 No. 14-30787 Appellants have put forward no evidence disputing this arrangement, nor have they put forward evidence showing that either Brady or Evergreen controlled or supervised Ricky or Michael Whitaker’s logging work in any way. Louisiana courts have rejected the argument that because parties “profited from [timber] sales, they should also share whatever liability is imposed on” the cutter pursuant to the timber cutting statute. Id. at 937–38; see also Morgan v. Fuller, 441 So. 2d 290, 297–98 (La. Ct. App. 1983) (rejecting argument that timber cutter’s vendor may be held liable under timber cutting statute). With respect to Jerry Whitaker and JWTC, there is evidence in the record— uncontroverted by Appellants—that although “Jerry Whitaker is the brother of Ricky Whitaker and Michael Whitaker,” there “is no business relationship between Jerry Whitaker and his brothers,” nor is there a “business relationship between [JWTC] and Ricky Whitaker or Michael Whitaker.” Indeed, Appellants concede that they “do not seek to establish an employer/employee relationship, between any of the actors.” Rather, Appellants appear to argue that Appellees directed or authorized the cutting of the timber at issue. However, Brady, Evergreen, Jerry Whitaker, and JWTC have each submitted evidence showing that they had no involvement in the cutting of the timber. Even considering the (untimely) evidence submitted by Appellants along with their opposition to the motions for summary judgment, that evidence is insufficient to create a genuine dispute of material fact as to this issue. 2 First, Appellants point to an affidavit filed by an investigator for the Louisiana Department of Agriculture and Forestry suggesting that Evergreen and Brady profited from prior schemes involving the theft of timber and the falsifying of scale tickets. Baldwin opines that, 2 Therefore, we need not decide whether it was appropriate for the district court to disregard this evidence as untimely submitted. 5  Case: 14-30787 Document: 00512932234 Page: 6 Date Filed: 02/10/2015 No. 14-30787 based on the scale tickets he analyzed in relation to the theft of Appellants’ timber, he saw “the same pattern” of activity. However, there is no evidence connecting those scale tickets with the timber cut from Appellants’ land. 3 Thus, even if Baldwin’s affidavit indicates that Brady and Evergreen falsified certain scale tickets, it does not suggest that they instructed the Whitakers to cut the timber at issue here. Appellants also point to evidence showing that officers of Evergreen had previously walked Appellants’ property. But this, without more, shows only that Evergreen was familiar with the property, not that they “authorize[d] or direct[ed]” Michael or Ricky Whitaker to cut down the timber in this case. La. Rev. Stat. Ann. § 3:4278.1(A)(1). 4 Nor is there any evidence that either Jerry Whitaker or JWTC had any such involvement. 5 Accordingly, the grant of summary judgment in favor of Jerry Whitaker, JWTC, Evergreen, and Brady was appropriate. Because we conclude that summary judgment was proper on the merits, we need not decide whether the district court erred by dismissing those claims, in the alternative, based on Appellants’ failure to prosecute. For the foregoing reasons, the judgment of the district court is AFFIRMED. 3 Indeed, Evergreen submitted evidence showing that it “never saw or inspected the timber” and did not know the origin of the timber related to the scale tickets it purchased. 4 In addition, Appellants have submitted, in their appendix on appeal, a “final report” issued by Baldwin. However, that report does not appear in the record and will therefore be disregarded. 5 Even Ricky Whitaker, who admitted that he “did enter upon [Appellants]’ property and cut timber,” has declared that “neither Jerry Whitaker nor [JWTC] were involved in any manner with the cutting, logging, or selling of the timber on [Appellants]’ property.” 6 

Filed 6/25/12 IN THE SUPREME COURT OF CALIFORNIA DEBRA COITO, ) ) ) Petitioner, ) S181712 ) v. ) Ct.App. 5 F057690 ) THE SUPERIOR COURT OF ) Stanislaus County STANISLAUS COUNTY, ) Super. Ct. No. 624500 ) Respondent; ) ) STATE OF CALIFORNIA, ) ) Real Party in Interest. ) ___________________________________ ) In California, an attorney‟s work product is protected by statute. (Code Civ. Proc., § 2018.010 et seq.; all further unlabeled statutory references are to the Code of Civil Procedure.) Absolute protection is afforded to writings that reflect “an attorney‟s impressions, conclusions, opinions, or legal research or theories.” (§ 2018.030, subd. (a).) All other work product receives qualified protection; such material “is not discoverable unless the court determines that denial of discovery will unfairly prejudice the party seeking discovery in preparing that party‟s claim or defense or will result in an injustice.” (§ 2018.030, subd. (b).) In this case, we decide what work product protection, if any, should be accorded two items: first, recordings of witness interviews conducted by investigators employed 1 by defendant‟s counsel, and second, information concerning the identity of witnesses from whom defendant‟s counsel has obtained statements. Defendant objected to plaintiff‟s requests for discovery of these items, invoking the work product privilege. The trial court sustained the objection, concluding as a matter of law that the recorded witness interviews were entitled to absolute work product protection and that the other information sought was work product entitled to qualified protection. A divided Court of Appeal reversed, concluding that work product protection does not apply to any of the disputed items. The Court of Appeal issued a writ of mandate directing the trial court to grant the motion to compel discovery. We conclude that the Court of Appeal erred. In light of the legislatively declared policy and the legislative history of the work product privilege, we hold that the recorded witness statements are entitled as a matter of law to at least qualified work product protection. The witness statements may be entitled to absolute protection if defendant can show that disclosure would reveal its “attorney‟s impressions, conclusions, opinions, or legal research or theories.” (§ 2018.030, subd. (a).) If not, then the items may be subject to discovery if plaintiff can show that “denial of discovery will unfairly prejudice [her] in preparing [her] claim . . . or will result in an injustice.” (§ 2018.030, subd. (b).) As to the identity of witnesses from whom defendant‟s counsel has obtained statements, we hold that such information is not automatically entitled as a matter of law to absolute or qualified work product protection. In order to invoke the privilege, defendant must persuade the trial court that disclosure would reveal the attorney‟s tactics, impressions, or evaluation of the case (absolute privilege) or would result in opposing counsel taking undue advantage of the attorney‟s industry or efforts (qualified privilege). We reverse the judgment of the Court of Appeal and remand the matter for further proceedings, consistent with our opinion, to determine whether the disputed materials should be produced. 2  I. On March 9, 2007, 13-year-old Jeremy Wilson drowned in the Tuolumne River in Modesto, California. His mother, Debra Coito, filed a complaint for wrongful death naming several defendants, including the State of California. The Department of Water Resources (DWR) is the agency defending the action for the state, represented by the Attorney General. Six other juveniles witnessed what happened. There were allegations that all of the juveniles, including the decedent, were engaged in criminal conduct immediately before the drowning. On November 12, 2008, after codefendant City of Modesto had noticed the depositions of five of the six juvenile witnesses, counsel for the state sent two investigators, both special agents from the Bureau of Investigation of the Department of Justice, to interview four of the juveniles. The state‟s counsel provided the investigators with questions he wanted asked. Each interview was audio-recorded and saved on a separate compact disc. On January 27, 2009, the City of Modesto began its deposition of one of the four interviewed witnesses. The state‟s counsel used the content of the witness‟s recorded interview in questioning the witness at the deposition. On February 5, 2009, plaintiff served the state with supplemental interrogatories and document demands. The interrogatories included Judicial Council form interrogatory No. 12.3, which sought the names, addresses, and telephone numbers of individuals from whom written or recorded statements had been obtained. The document demands sought production of the audio recordings of the four witness interviews. The state objected to the requested discovery based on the work product privilege. Plaintiff filed a motion to compel an answer to form interrogatory No. 12.3 and the production of the recorded interviews. In support of the motion, plaintiff filed declarations from two of the interviewed witnesses asserting that they had not intended their statements to be confidential. The state opposed the motion, relying primarily on 3 Nacht & Lewis Architects, Inc. v. Superior Court (1996) 47 Cal.App.4th 214, 217 (Nacht & Lewis), which held that recorded witness statements are entitled to absolute work product protection and that information sought by form interrogatory No. 12.3 is entitled to qualified work product protection. After an April 10, 2009 hearing, and without having reviewed the audio recordings, the trial court issued a written order that relied on Nacht & Lewis in denying plaintiff‟s motion except as to the recording used by the state to examine the witness during the January 27, 2009 deposition. As to that recording, the court reasoned that the state had waived the work product privilege by using the interview to examine the witness during the deposition. Plaintiff petitioned for a writ of mandate that the Court of Appeal granted. The majority, relying on Greyhound Corp. v. Superior Court (1961) 56 Cal.2d 355 (Greyhound) and expressly declining to follow Nacht & Lewis, concluded that witness interviews and the information sought by form interrogatory No. 12.3 are not entitled as a matter of law to absolute or qualified work product protection. Because defendant‟s attorney made no showing of entitlement to work product protection in the specific context of this case, the Court of Appeal directed the trial court to compel discovery. Justice Kane wrote a concurring and dissenting opinion. While agreeing that the trial court‟s order denying discovery should be vacated, he concluded that the recorded interviews were entitled as a matter of law to at least qualified work product protection, whereas the information sought by form interrogatory No. 12.3 must be produced unless the objecting party has made an adequate showing to support a claim of qualified privilege. We granted review. As with all matters of statutory construction, our review of the Court of Appeal‟s interpretation of the work product statute is de novo. (Imperial Merchant Services, Inc. v. Hunt (2009) 47 Cal.4th 381, 387.) 4  II. California‟s civil work product privilege is codified in section 2018.030. Subdivision (a) provides absolute protection to any “writing that reflects an attorney‟s impressions, conclusions, opinions, or legal research or theories.” (§ 2018.030, subd. (a).) Such a writing “is not discoverable under any circumstances.” (Ibid.) The term “writing” includes any form of recorded information, including audio recordings. (§ 2016.020, subd. (c) [adopting the definition set forth in Evidence Code section 250].) Section 2018.030, subdivision (b) provides qualified protection for all other work product. Such material “is not discoverable unless the court determines that denial of discovery will unfairly prejudice the party seeking discovery in preparing that party‟s claim or defense or will result in an injustice.” (§ 2018.030, subd. (b).) Here, we address the work product privilege in the civil context only, as criminal discovery is regulated by a different statute. (Pen. Code, § 1054 et seq.) The language of section 2018.030 does not otherwise define or describe “work product.” Courts have resolved whether particular materials constitute work product on a case-by-case basis (City of Long Beach v. Superior Court (1976) 64 Cal.App.3d 65, 71), although they have sometimes taken different approaches. Some courts have attempted to answer the question by distinguishing between “derivative” or “nonderivative” material, or between “interpretative” and “evidentiary” material. (E.g., Fellows v. Superior Court (1980) 108 Cal.App.3d 55, 68-69 (Fellows); Rodriguez v. McDonnell Douglas Corp. (1978) 87 Cal.App.3d 626, 647 (Rodriguez); Mack v. Superior Court (1968) 259 Cal.App.2d 7, 10-11 (Mack).) These cases have concluded that only derivative or interpretive material — material created by or derived from an attorney‟s work reflecting the attorney‟s evaluation of the law or facts — constitutes work product. Examples of such material include “diagrams prepared for trial, audit reports, appraisals, and other expert opinions, developed as a result of the initiative of counsel in preparing for trial.” (Mack, at p. 10.) Nonderivative material — material that is only evidentiary in 5 nature — does not constitute work product. Examples of such material include the identity and location of physical evidence or witnesses. (Ibid.; City of Long Beach, at p. 73.) Other courts, instead of distinguishing between derivative and nonderivative material, have determined the scope of protected work product by relying primarily upon the policies underlying the work product statute and its legislative history. (E.g., Dowden v. Superior Court (1999) 73 Cal.App.4th 126, 130-133, 135 (Dowden).) Because those policies and the legislative history are instructive in resolving the instant case, we begin by reviewing the origins and development of California‟s work product privilege. A. The idea that an attorney‟s work product should receive protection from discovery was first recognized by the United States Supreme Court in Hickman v. Taylor (1947) 329 U.S. 495 (Hickman). There, the defendant‟s counsel interviewed and took statements from the surviving crewmembers of a tugboat accident. (Id. at p. 498.) The plaintiff sought the production of any written or oral statements taken from the crewmembers. (Id. at pp. 498-499.) After concluding that the statements were not covered by the attorney-client privilege (id. at p. 508), the court nonetheless affirmed the denial of the plaintiff‟s request. The court explained that the plaintiff‟s request was “simply an attempt, without purported necessity or justification, to secure written statements, private memoranda and personal recollections prepared or formed by an adverse party‟s counsel in the course of his legal duties.” (Id. at p. 510.) The court continued: “In performing his various duties, . . . it is essential that a lawyer work with a certain degree of privacy, free from unnecessary intrusion by opposing parties and their counsel. Proper preparation of a client‟s case demands that he assemble information, sift what he considers to be the relevant from the irrelevant facts, prepare his legal theories and plan his strategy without undue and needless interference. 6 That is the historical and the necessary way in which lawyers act within the framework of our system of jurisprudence to promote justice and to protect their clients‟ interests. This work is reflected, of course, in interviews, statements, memoranda, correspondence, briefs, mental impressions, personal beliefs, and countless other tangible and intangible ways — aptly though roughly termed by the Circuit Court of Appeals in this case as the „work product of the lawyer.‟ Were such materials open to opposing counsel on mere demand, much of what is now put down in writing would remain unwritten. An attorney‟s thoughts, heretofore inviolate, would not be his own. Inefficiency, unfairness and sharp practices would inevitably develop in the giving of legal advice and in the preparation of cases for trial. The effect on the legal profession would be demoralizing. And the interests of the clients and the cause of justice would be poorly served. “We do not mean to say that all written materials obtained or prepared by an adversary‟s counsel with an eye toward litigation are necessarily free from discovery in all cases. Where relevant and non-privileged facts remain hidden in an attorney‟s file and where production of those facts is essential to the preparation of one‟s case, discovery may properly be had. Such written statements and documents might, under certain circumstances, be admissible in evidence or give clues as to the existence or location of relevant facts. Or they might be useful for purposes of impeachment or corroboration. And production might be justified where the witnesses are no longer available or can be reached only with difficulty. . . . But the general policy against invading the privacy of an attorney‟s course of preparation is so well recognized and so essential to an orderly working of our system of legal procedure that a burden rests on the one who would invade that privacy to establish adequate reasons to justify production through a subpoena or court order.” (Hickman, supra, 329 U.S. at pp. 510-512.) At the time Hickman was decided, California law protected work product only through the attorney-client privilege. In response to Hickman, the California State Bar‟s Committee on Administration of Justice (Committee or State Bar Committee) in 1952 7 proposed an amendment to the definition of attorney-client privilege in former section 1881. (State Bar Com., Ann. Rep., Proposals for Legislation, Evidence, 27 State Bar J. 175, 191-192; McCoy, Cal. Civil Discovery: Work Product of Attorneys (1966) 18 Stan. L.Rev. 783, 787-788 (McCoy).) The proposed amendment would have provided that “ „an attorney‟s working papers, including, but without limitation, witness statements, investigators‟ reports, appraiser‟s reports, medical, scientific, economic or other reports, made for the attorney in preparation of or in connection with a trial, [cannot] be examined without the consent of the client.‟ ” (State Bar Com., Ann. Rep., supra, 27 State Bar J. at p. 191, italics omitted.) However, the proposal was dropped when this court decided Holm v. Superior Court (1954) 42 Cal.2d 500. In Holm, which involved allegations of driver negligence in connection with a city bus accident, the court held that written reports by the driver and photographs of the accident scene were protected by the attorney-client privilege, although the plaintiff‟s own signed statement to an investigator was not. (Id. at pp. 503- 504, 508, 510.) The State Bar Committee concluded that Holm “removes many of the problems on „working papers‟ of the attorney; and that [the proposed amendment of section 1881] is not necessary at this time.” (State Bar Com., Ann. Rep., Proposals for Legislation, Evidence (1954) 29 State Bar J. 224, 240; Note, Attorney-Client Privilege in California (1958) 10 Stan. L.Rev. 297, 316, 318.) In 1957, the Legislature took up consideration of the Discovery Act, modeled on provisions of the Federal Rules of Civil Procedure. (McCoy, supra, 18 Stan. L.Rev. at p. 788.) Proposed section 2016, subdivision (b), as recommended by the State Bar Committee, permitted the discovery of any relevant information that was “not privileged.” (State Bar Com., Ann. Rep., Discovery (1956) 31 State Bar J. 204, 211; McCoy, at p. 788.) One concern raised during legislative hearings on the proposal was whether “discovery of working papers and materials collected by an attorney in preparation for trial would be discoverable, and whether the courts would follow 8 Hickman and other federal cases stating that such material was not always protected.” (McCoy, at pp. 788-789; Pruitt, Lawyers’ Work Product (1962) 37 State Bar J. 228, 233- 234 (Pruitt).) In response to this concern, the enacted version of section 2016, subdivision (b) provided that all matters privileged under California law “are privileged against disclosure through any discovery procedure.” (Stats. 1957, ch. 1904, § 3, p. 3323.) It further provided that the legislation should not be interpreted to alter the law “with respect to the existence of any privilege, whether provided for by statute or judicial decision, nor shall it be construed to incorporate by reference any judicial decisions on privilege of any other jurisdiction.” (Ibid.; McCoy, at p. 789; Pruitt, at p. 233.) The text and enactment history of this latter provision left unclear whether California law incorporated Hickman‟s understanding of protected work product. (McCoy, at pp. 789- 790.) Against this statutory backdrop, this court in 1961 concluded that neither the attorney-client privilege nor the work product doctrine protected nonparty witness statements from discovery. (Greyhound, supra, 56 Cal.2d at pp. 399, 401.) In Greyhound, the plaintiff in a personal injury suit arising from a car accident sought written statements that had been obtained from witnesses by the defendant‟s insurance adjusters and investigators. (Id. at p. 386.) In opposing the discovery request, the defendant argued that the statements fell within the attorney-client privilege. The court rejected the argument and distinguished Holm. (Greyhound, at pp. 395, 398-399 & fn. 20.) The defendant also argued that the statements were protected under the work product doctrine. (Id. at pp. 399-400.) The court rejected this argument as well, noting that the Legislature had not created such a privilege when it enacted the Discovery Act. (Id. at p. 401.) “In its essence,” the court explained, “the „work product rule‟ is a form of federally created privilege. [Citation.] The Legislature expressly refused to extend the concepts of privilege when adopting the discovery procedures. Since privilege is created by statute it should not be extended by judicial fiat. While the Hickman case . . . may be 9 persuasive, and its reasoning accepted where applicable to California [citations][,] such should not be accepted as creating a privilege where none existed. We are therefore inclined to the view that the work product privilege does not exist in this state.” (Ibid.) In response to Greyhound, the State Bar Committee proposed an amendment the following year with the purpose of codifying a work product privilege. (State Bar Com., Ann. Rep., Amendments of Discovery Act (1962) 37 State Bar J. 585, 586-587 (1962 Annual Report); Dowden, supra, 73 Cal.App.4th at p. 132.) As introduced, Senate Bill No. 24 (1963 Reg. Sess.) (Bill No. 24) proposed to amend former section 2016, subdivision (b) to provide that “it is the policy of this state (i) to preserve the rights of parties and their attorneys to prepare cases for trial with that degree of privacy necessary to encourage them to prepare their cases thoroughly and to investigate not only the favorable but the unfavorable aspects of such cases and (ii) to so limit discovery that one party or his attorney may not take undue advantage of his adversary‟s industry or efforts.” (Bill No. 24, as introduced Jan. 8, 1963, p. 2; see 1962 Ann. Rep., supra, 37 State Bar J. at pp. 586-587.) Nearly identical language was ultimately enacted as section 2016, subdivision (g). (Stats. 1963, ch. 1744, § 1, p. 3479.) Bill No. 24, as introduced, also proposed to amend section 2016, subdivision (b) to provide that “the following shall not be discoverable unless the court determines that denial of discovery will unfairly prejudice the party seeking discovery in preparing his claim or defense or will result in injustice: (1) the work product of an attorney and (2) except as provided in Section 2032, any opinion or report of an expert prepared for or in anticipation of litigation and any writing or things created by or for a party or his agent in preparation for or in anticipation of litigation; provided always that any writing that reflects an attorney‟s mental impressions, conclusions, opinions or legal theories shall not be discoverable under any circumstances.” (Bill No. 24, as introduced Jan. 8, 1963, p. 2, italics added; see 1962 Ann. Rep., supra, 37 State Bar J. at p. 587.) The italicized language was later deleted (Bill No. 24, as amended May 17, 1963, p. 2), but the State 10 Bar Committee‟s proposed language was otherwise included in the enacted version (Stats. 1963, ch. 1744, § 1, p. 3478; Dowden, supra, 73 Cal.App.4th at p. 133). Senator Cobey, who introduced Bill No. 24 at the request of the State Bar, explained the deletion of the italicized language above: “The bill, as amended in the Assembly, does not attempt to define the term „work product of an attorney‟ and eliminates from the bill as originally introduced certain language which partially defines the term. It is believed that by deleting this specific language courts will be enabled to interpret the term in accordance with the large body of case law that has developed in the Federal courts and elsewhere.” (Sen. Cobey, letter to Gov. Brown re Bill No. 24, June 22, 1963, p. 1.) Senator Cobey‟s explanation is consistent with a provision included in the final version of the bill, which said: “The amendments to this act during the course of its passage shall not constitute evidence that the Legislature intended thereby to limit the courts in their interpretation of what constitutes the work product of an attorney.” (Stats. 1963, ch. 1744, § 3, p. 3480 [uncodified provision].) According to the State Bar Committee‟s 1962 Annual Report, the 1963 amendments were intended to “protect the lawyer‟s normal work processes” and “to establish a more desirable balance between „discovery‟ and the rights of litigants and prospective litigants to obtain advice of experts, make investigations and do other acts, without fear of unlimited or indiscriminate disclosures to, and use by adversaries.” (1962 Ann. Rep., supra, 37 State Bar J. at p. 586.) The 1963 amendments were crafted to limit discovery “when the facts indicate that „one litigant is attempting to take advantage of the other‟ or that there is „an abusive attempt to “ride free” on the opponent‟s industry.‟ [Citation.]” (Id. at p. 588; see Dowden, supra, 73 Cal.App.4th at p. 133 [finding 1962 Annual Report “use[ful] as an interpretive aid” because “the Legislature enacted the State Bar‟s proposal almost verbatim”].) Contemporaneous commentary observed that the 1963 amendments intended to give some work product even greater protection than the qualified protection afforded by Hickman. (See Pruitt, supra, 37 State Bar J. at p. 229; 11 Hazen L. Matthews, Legislative Representative of State Bar, letter to Gov. Brown re Bill No. 24, July 2, 1963, p. 2.) Although the work product privilege was moved first from section 2016 to section 2018 (Stats. 1986, ch. 1334, §§ 1-2, pp. 4700-4702) and then from section 2018 to its present location (Stats. 2004, ch. 182, §§ 22-23, pp. 824, 830-831), the current text is virtually identical to the version first enacted in 1963. Section 2018.020 declares: “It is the policy of the state to do both of the following: [¶] (a) Preserve the rights of attorneys to prepare cases for trial with that degree of privacy necessary to encourage them to prepare their cases thoroughly and to investigate not only the favorable but the unfavorable aspects of those cases. [¶] (b) Prevent attorneys from taking undue advantage of their adversary‟s industry and efforts.” Toward that end, section 2018.030 provides: “(a) A writing that reflects an attorney‟s impressions, conclusions, opinions, or legal research or theories is not discoverable under any circumstances. [¶] (b) The work product of an attorney, other than a writing described in subdivision (a), is not discoverable unless the court determines that denial of discovery will unfairly prejudice the party seeking discovery in preparing that party‟s claim or defense or will result in an injustice.” As noted (see ante, at pp. 1, 5), section 2018.030, subdivision (a) provides absolute protection for certain work product, while subdivision (b) provides qualified protection for all other work product. B. In light of the origins and development of the work product privilege in California, we conclude that witness statements obtained as a result of an interview conducted by an attorney, or by an attorney‟s agent at the attorney‟s behest, constitute work product protected by section 2018.030. As mentioned, the Legislature in enacting section 2018.030 did not define “work product” and instead left the term open to judicial interpretation. From the very inception 12 of judicial recognition of the concept, attorney work product has been understood to include witness statements obtained through an interview conducted by an attorney. The high court in Hickman specifically referred to “statements” and “interviews” in its nonexclusive enumeration of items comprising the “ „work product of [a] lawyer.‟ ” (Hickman, supra, 329 U.S. at p. 511.) And Hickman held that the district court in that case improperly ordered the defendant‟s attorney “to produce all written statements of witnesses” and other items that the attorney had obtained through his own interviews. (Id. at p. 509, italics added; see id. at p. 508 [plaintiff sought “discovery as of right of oral and written statements of witnesses whose identity is well known and whose availability to [plaintiff] appears unimpaired” (italics added)].) The closest we have come to examining the applicability of section 2018.030 to witness statements is our decision in Rico v. Mitsubishi Motors Corp. (2007) 42 Cal.4th 807 (Rico). There, we held that work product “protection extends to an attorney‟s written notes about a witness‟s statements” and that “[w]hen a witness‟s statement and the attorney‟s impressions are inextricably intertwined,” the entire document receives absolute protection. (Id. at p. 814.) The question in Rico was not whether a witness‟s statement is itself protected work product, and the document at issue was not “a verbatim record of the [witnesses‟] statements” but rather a summary prepared at the request of the defendant‟s attorney. (Id. at p. 815.) Rico thus did not speak to the issue now before us. Nevertheless, in finding the document protected, Rico‟s observation that “ „its very existence is owed to the lawyer‟s thought process‟ ” (Rico, supra, 42 Cal.4th at p. 815, quoting trial court) provides a useful touchstone for our present inquiry. There is no dispute that a statement independently prepared by a witness does not become protected work product simply upon its transmission to an attorney. (See Wellpoint Health Networks, Inc. v. Superior Court (1997) 59 Cal.App.4th 110, 119; Nacht & Lewis, supra, 47 Cal.App.4th at p. 218.) The issue here is what protection, if any, should be afforded where the witness‟s statement has been obtained through an attorney-directed interview. 13 “In such situations,” the Court of Appeal correctly observed, “it can surely be said that the witness statement is in part the product of the attorney‟s work.” The witness statement would not exist but for the attorney‟s initiative, decision, and effort to obtain it. This essential fact informs our analysis of whether absolute or qualified work product privilege applies to such witness statements. Absolute privilege. It is not difficult to imagine that a recorded witness interview may, in some instances, reveal the “impressions, conclusions, opinions, or legal research and or theories” of the attorney and thus be entitled to absolute protection. (§ 2018.030, subd. (a).) This may occur not only when a witness‟s statements are “inextricably intertwined” with explicit comments or notes by the attorney stating his or her impressions of the witness, the witness‟s statements, or other issues in the case. (Rico, supra, 42 Cal.4th at p. 814.) It also may occur when the questions that the attorney has chosen to ask (or not ask) provide a window into the attorney‟s theory of the case or the attorney‟s evaluation of what issues are most important. Lines of inquiry that an attorney chooses to pursue through follow-up questions may be especially revealing. In such situations, redaction of the attorney‟s questions may sometimes be appropriate and sufficient to protect privileged material. At other times, however, it may not do to simply redact the questions from the record, as the witness‟s statements will reveal what questions were asked. Moreover, in some cases, the very fact that the attorney has chosen to interview a particular witness may disclose important tactical or evaluative information, perhaps especially so in cases involving a multitude of witnesses. (See post, at p. 22.) These are circumstances where absolute work product protection may apply. We cannot say, however, that witness statements procured by an attorney will always reveal the attorney‟s thought process. The Court of Appeal below posited a scenario in which an attorney collects statements from witnesses to an accident with no particular foresight, strategy, selectivity, or planning: “What, for example, of the situation in which an attorney sends an investigator to interview all witnesses listed in a 14 police report, and the investigator asks few if any questions while taking the witnesses‟ statements? Clearly, these statements would reveal nothing significant about the attorney‟s impressions, conclusions, or opinions about the case.” For this reason (and such scenarios do not seem uncommon), we hold that witness statements procured by an attorney are not automatically entitled as a matter of law to absolute work product protection. Instead, the applicability of absolute protection must be determined case by case. An attorney resisting discovery of a witness statement based on absolute privilege must make a preliminary or foundational showing that disclosure would reveal his or her “impressions, conclusions, opinions, or legal research or theories.” (§ 2018.030, subd. (a).) Upon an adequate showing, the trial court should then determine, by making an in camera inspection if necessary, whether absolute work product protection applies to some or all of the material. Qualified privilege. Although witness statements obtained through an attorney- directed interview may or may not reveal the attorney‟s thought process, we believe such statements necessarily implicate two other interests that the Legislature sought to protect in enacting the work product privilege. Based on these interests, we conclude that witness statements procured by an attorney are entitled as a matter of law to at least qualified work product protection under section 2018.030, subdivision (b). First, when an attorney obtains through discovery a witness statement obtained by opposing counsel through his or her own initiative, such discovery undermines the Legislature‟s policy to “[p]revent attorneys from taking undue advantage of their adversary‟s industry and efforts.” (§ 2018.020, subd. (b).) Even when an attorney exercises no selectivity in determining which witnesses to interview, and even when the attorney simply records each witness‟s answer to a single question (“What happened?”), the attorney has expended time and effort in identifying and locating each witness, securing the witness‟s willingness to talk, listening to what the witness said, and preserving the witness‟s statement for possible future use. An attorney who seeks to 15 discover what a witness knows is not without recourse. The attorney is free to interview the witness for himself or herself to find out what information the witness has that is relevant to the litigation. As Justice Jackson said in Hickman, it may be that the rules of discovery “were to do away with the old situation where a law suit developed into „a battle of wits between counsel.‟ But a common law trial is and always should be an adversary proceeding. Discovery was hardly intended to enable a learned profession to perform its functions either without wits or on wits borrowed from the adversary.” (Hickman, supra, 329 U.S. at p. 516 (conc. opn. of Jackson, J.).) Absent a showing that a witness is no longer available or accessible, or some other showing of unfair prejudice or injustice (§ 2018.030, subd. (b)), the Legislature‟s declared policy is to prevent an attorney from free-riding on the industry and efforts of opposing counsel (§ 2018.020, subd. (b)). Second, a default rule authorizing discovery of witness statements procured by an attorney would impede the Legislature‟s intent “to encourage [attorneys] to prepare their cases thoroughly and to investigate not only the favorable but the unfavorable aspects of those cases.” (§ 2018.020, subd. (a).) If attorneys must worry about discovery whenever they take a statement from a witness, it is reasonably foreseeable that fewer witness statements will be recorded and that adverse information will not be memorialized. As Justice Kane observed below, without work product protection, “no meaningful privacy exists within which an attorney may have sufficient confidence to thoroughly investigate and record potentially unfavorable matters.” This result would derogate not only from an attorney‟s duty and prerogative to investigate matters thoroughly, but also from the truth- seeking values that the rules of discovery are intended to promote. Accordingly, we hold that a witness statement obtained through an attorney-directed interview is, as a matter of law, entitled to at least qualified work product protection. 16  C. The protection afforded by section 2018.030, subdivision (b) to the witness statements in this case is essentially the same protection that the high court afforded to the witness statements in Hickman. There, the court held the statements protected and placed the burden on the party seeking discovery “to establish adequate reasons to justify production,” such as unavailability or inaccessibility of the witnesses. (Hickman, supra, 329 U.S. at p. 512.) Qualified protection of this sort, the court said, is necessary if a lawyer is to discharge his duty “to work for the advancement of justice while faithfully protecting the rightful interests of his clients.” (Id. at p. 510.) In reaching a contrary conclusion, the Court of Appeal below relied primarily on Greyhound‟s conclusion that witness statements are not protected by the work product privilege. Such reliance on Greyhound is misplaced. As previously discussed (see ante, at pp. 10-12), the Legislature‟s 1963 amendments to the Discovery Act were intended as a corrective to Greyhound. (1962 Ann. Rep., supra, 37 State Bar J. at p. 588 [1963 amendments “will afford substantially more protection to „work product‟ than” Greyhound]; Dowden, supra, 73 Cal.App.4th at p. 132.) Although the Court of Appeal sought to “balance” the legislatively declared policies in section 2018.020 with the purposes underlying the Discovery Act as a whole (e.g., truth seeking, efficiency, safeguarding against surprise), the 1963 amendments already represent the Legislature‟s considered judgment on how best to balance the competing interests. (1962 Ann. Rep., supra, 37 State Bar J. at p. 586.) Moreover, Greyhound itself is inapt authority for denying work product protection in the present case. In Greyhound, the witness statements at issue were made to employees of the defendant, not to defendant‟s counsel or to agents of defendant‟s counsel. (Greyhound, supra, 56 Cal.2d at p. 386.) The statements were only later transmitted to defendant‟s attorney. (Id. at p. 387.) On those facts, it is unsurprising that Greyhound said the plaintiff had “failed to indicate that the reasons underlying [the work 17 product] doctrine would be applicable to this proceeding.” (Id. at p. 401; see ibid. [“Facts which give rise to the work product privilege in other jurisdictions may, in some circumstances, indicate an abusive attempt to „ride free‟ on the opponent‟s industry. Such facts are not even hinted at herein . . . .”].) Greyhound did not involve a witness statement procured by an attorney through his or her own initiative. The Court of Appeal also cited several cases suggesting that witness statements made to an attorney do not constitute work product. (E.g., Fellows, supra, 108 Cal.App.3d at p. 69; People v. Williams (1979) 93 Cal.App.3d 40, 63-64; Rodriguez, supra, 87 Cal.App.3d at p. 647; Kadelbach v. Amaral (1973) 31 Cal.App.3d 814, 822.) But those cases address the issue in a conclusory manner without discussing the legislatively declared policy or the history of the work product privilege. In Kadelbach v. Amaral, supra, 31 Cal.App.3d at page 822, the court stated simply that “the view [that witness statements made to attorneys constitute work product] is not supported by the authorities.” It cited Mack, supra, 259 Cal.App.2d at page 10 for this proposition. However, Mack did not involve an attorney‟s interview of a witness, nor did it purport to address whether such material constituted work product. In Rodriguez, supra, 87 Cal.App.3d at page 647, the court said that the portion of an attorney‟s notes that recorded a witness‟s statements “[could] not be protected by the attorney‟s work- product privilege, since recorded or written statements of a prospective witness are considered material of a nonderivative or noninterpretative nature.” For that proposition, Rodriguez cited People v. Boehm (1969) 270 Cal.App.2d 13. But the court in Boehm merely recounted, without indicating approval, that the trial court had permitted discovery of witness statements. (Id. at p. 21.) Thus, Boehm did not suggest, much less hold, that witness statements do not constitute work product. An erroneous citation to Boehm for that proposition appears not only in Rodriguez but also in Jefferson, California Evidence Benchbook (1972) Meaning of “Work Product” for Attorney‟s Work-Product Privilege, section 41.2, pages 710 to 711, which in turn was cited by two other cases on 18 which the Court of Appeal relied. (See Fellows, supra, 108 Cal.App.3d at p. 69; People v. Williams, supra, 93 Cal.App.3d at pp. 63-64.) Underlying these assertions that witness statements do not constitute work product is the notion that such writings are nonderivative or noninterpretative material that is wholly evidentiary in nature. (Fellows, supra, 108 Cal.App.3d at p. 69; People v. Williams, supra, 93 Cal.App.3d at pp. 63-64; Rodriguez, supra, 87 Cal.App.3d at p. 647.) However, as all three justices of the Court of Appeal observed below, a witness statement taken by an attorney possesses both derivative characteristics (i.e., an attorney must put time and effort, and possibly thought and planning, into conducting the interview) and non-derivative characteristics (i.e., the statement may contain information regarding events provable at trial or the identity or location of physical evidence, or it may be useful for impeachment or refreshing the witness‟s recollection). While acknowledging that “an attorney could reveal his or her thoughts about a case by the way in which the attorney conducts a witness interview,” the Court of Appeal concluded that “competent counsel will be able to tailor their interviews so as to avoid the problem should they choose to do so.” However, as discussed above, a core purpose of the work product privilege is “to encourage [attorneys] to prepare their cases thoroughly and to investigate not only the favorable but the unfavorable aspects of those cases.” (§ 2018.020, subd. (a).) Placing the burden on attorneys to tailor witness interviews so as to avoid unwanted discovery is precisely what Hickman warned against when it said: “Were such materials open to opposing counsel on mere demand, much of what is now put down in writing would remain unwritten. . . . Inefficiency, unfairness and sharp practices would inevitably develop in the giving of legal advice and in the preparation of cases for trial. The effect on the legal profession would be demoralizing. And the interests of the clients and the cause of justice would be poorly served.” (Hickman, supra, 329 U.S at p. 511.) 19  In sum, we disapprove Fellows v. Superior Court, supra, 108 Cal.App.3d 55, People v. Williams, supra, 93 Cal.App.3d 40, Rodriguez v. McDonnell Douglas Corp., supra, 87 Cal.App.3d 626, and Kadelbach v. Amaral, supra, 31 Cal.App.3d 814 to the extent they suggest that a witness statement taken by an attorney does not, as a matter of law, constitute work product. In addition, Greyhound, supra, 56 Cal.2d 355, which was decided before the Legislature codified the work product privilege, should not be read as supporting such a conclusion. At the same time, we reject the dicta in Nacht & Lewis, supra, 47 Cal.App.4th at page 217 that said “recorded statements taken by defendants‟ counsel would be protected by the absolute work product privilege because they would reveal counsel‟s „impressions, conclusions, opinions, or legal research or theories‟ . . . . [Citation.]” Instead, we hold that a witness statement obtained through an attorney- directed interview is entitled as a matter of law to at least qualified work product protection. A party seeking disclosure has the burden of establishing that denial of disclosure will unfairly prejudice the party in preparing its claim or defense or will result in an injustice. (§ 2018.030, subd. (b).) If the party resisting discovery alleges that a witness statement, or portion thereof, is absolutely protected because it “reflects an attorney‟s impressions, conclusions, opinions, or legal research or theories” (§ 2018.030, subd. (a)), that party must make a preliminary or foundational showing in support of its claim. The trial court should then make an in camera inspection to determine whether absolute work product protection applies to some or all of the material. In the present case, we remand the matter for consideration of whether absolute privilege applies to all or part of the recorded witness interviews. If any or all of the interviews are not absolutely protected, the trial court should consider whether plaintiff can make a sufficient showing of unfair prejudice or injustice under section 2018.030, subdivision (b) to permit discovery. We do not disturb the trial court‟s conclusion that the state waived the work product privilege as to the recording used to examine a witness during the January 27, 2009 deposition. 20  D. In addition to the witness statements, plaintiff sought to compel defendant to answer form interrogatory No. 12.3, which asked: “Have YOU OR ANYONE ACTING ON YOUR BEHALF obtained a written or recorded statement from any individual concerning the INCIDENT?” For any such statement, the interrogatory requested (among other things) the name, address, and telephone number of the witness and the date the statement was obtained. The Court of Appeal reasoned that, because the recorded witness statements themselves were not entitled to work product protection, defendant could not refuse to answer form interrogatory No. 12.3. In so concluding, the majority disagreed with Nacht & Lewis, which held that the information sought by form interrogatory No. 12.3 is entitled as a matter of law to qualified work product protection to the extent it consists of recorded statements taken by an attorney. (Nacht & Lewis, supra, 47 Cal.App.4th at p. 217.) Justice Kane, in his separate opinion below, identified a third approach. He would have adopted a default rule requiring parties to respond to form interrogatory No. 12.3, while permitting parties to make a showing that the responsive material is entitled to qualified or absolute protection. As explained below, the approach suggested by Justice Kane is most consistent with the policies underlying the work product privilege. At the outset, we note that form interrogatory No. 12.3 — in asking whether a party or its agent has “obtained” a written or recorded witness statement — appears to include within its compass any statement independently prepared by a witness and subsequently obtained by an attorney. Such statements “neither reflect an attorney‟s evaluation of the case nor constitute derivative material, and therefore are neither absolute nor qualified work product.” (Nacht & Lewis, supra, 47 Cal.App.4th at p. 218.) It follows that “a list of potential witnesses who turned over to counsel their independently prepared statements would have no tendency to reveal counsel‟s 21 evaluation of the case” (id. at pp. 217-218), and compelled disclosure of such a list pursuant to form interrogatory No. 12.3 would invade no work product privilege. The issue here is whether disclosure of a list of witnesses from whom an attorney took recorded statements at his or her own initiative implicates the work product privilege. Parties in litigation typically know the full universe of witnesses, not least because form interrogatory No. 12.1 requires parties to provide a list of all known witnesses. Thus, form interrogatory No. 12.3 specifically aims to reveal which witnesses an attorney for one party saw fit to ask for a recorded statement. As discussed above (see ante, at p. 14), disclosing a list of witnesses from whom an attorney has taken recorded statements may, in some instances, reveal the attorney‟s impressions of the case. Take, for example, a bus accident involving 50 surviving passengers and an allegation that the driver fell asleep at the wheel. If an attorney for one of the passengers took recorded statements from only 10 individuals, disclosure of the list may well indicate the attorney‟s evaluation or conclusion as to which witnesses were in the best position to see the cause of the accident. (See Hickman, supra, 329 U.S. at p. 511 [“Proper preparation of a client‟s case demands that [the attorney] . . . sift what he considers to be the relevant from the irrelevant facts . . . .”].) Such information may be entitled to absolute privilege under section 2018.030, subdivision (a). If absolute privilege were inapplicable, such a list may still be entitled to qualified privilege under section 2018.030, subdivision (b) to the extent it reflects the attorney‟s industry and effort in selecting which witnesses to ask for a recorded statement. Perhaps the attorney devoted significant effort to tracking down bus tickets and passenger logs in order to determine which passengers sat in which seats, and then decided to take recorded statements from the 10 passengers closest to the driver. Even without obtaining the witness statements themselves, the bus company‟s lawyer would gain valuable information by free-riding on the attorney‟s identification of the most salient witnesses. 22 Such undue advantage-taking is precisely what the Legislature intended the work product privilege to prevent. (§ 2018.020, subd. (b).) At the same time, however, we cannot say that it will always or even often be the case that a witness list responsive to form interrogatory No. 12.3 reflects counsel‟s premeditated and carefully considered selectivity as in the scenario above. As Justice Kane posited in his separate opinion below: “Take, for example, a typical automobile accident. The police report may disclose the existence of several witnesses. If the attorney for one party obtains witness statements from one or more of those individuals whom everyone in the case knows are percipient witnesses, that fact does not show anything definite about the attorney‟s evaluation of the strengths and weaknesses of the case, attorney strategy or tactics, or even the relative strength of any particular witness. . . . Indeed, a particular witness statement might be in an attorney‟s file for a host of reasons, including that the person happened to be available when the attorney sent out an investigator.” Although the witness statements themselves reflect the attorney‟s time and effort in taking the statements and are therefore qualified work product (see ante, at p. 16), disclosing the list of such witnesses in Justice Kane‟s scenario does not implicate the problem of one attorney free-riding on the work of another, as no significant work or selectivity went into creating the list. The instant case presents another scenario in which the work product privilege may be inapplicable. Where it appears that an attorney has sought to take recorded statements from all or almost all of the known witnesses to the incident, compelling a response to form interrogatory No. 12.3 is unlikely to violate the work product privilege. As Justice Kane observed: “In our case, DWR‟s attorney sent an investigator to interview the eyewitnesses to the drowning. There were six eyewitnesses, although it appears only five were known at the time the statements were sought. DWR‟s investigator succeeded in interviewing four eyewitnesses and generated four recorded statements. These facts, had they been disclosed in a response to form interrogatory No. 23 12.3, would have revealed nothing of consequence regarding DWR‟s evaluation of the case, one way or the other.” Nor would it have implicated any time or effort expended by DWR‟s attorney in selecting the witnesses to interview, as it does not appear that any meaningful selection occurred. Because it is not evident that form interrogatory No. 12.3 implicates the policies underlying the work product privilege in all or even most cases, we hold that information responsive to form interrogatory No. 12.3 is not automatically entitled as a matter of law to absolute or qualified work product privilege. Instead, the interrogatory usually must be answered. However, an objecting party may be entitled to protection if it can make a preliminary or foundational showing that answering the interrogatory would reveal the attorney‟s tactics, impressions, or evaluation of the case, or would result in opposing counsel taking undue advantage of the attorney‟s industry or efforts. Upon such a showing, the trial court should then determine, by making an in camera inspection if necessary, whether absolute or qualified work product protection applies to the material in dispute. Of course, a trial court may also have to consider non-party witnesses‟ privacy concerns. (See Weil & Brown, Cal. Practice Guide: Civil Procedure Before Trial (The Rutter Group 2011) ¶¶ 8:298 to 8:299.15, pp. 8C-88 to 8C-89.) CONCLUSION We reverse the judgment of the Court of Appeal and remand the matter for further proceedings, consistent with our opinion, to determine whether the disputed materials should be produced. LIU, J. WE CONCUR: CANTIL-SAKAUYE, C. J. KENNARD, J. BAXTER, J. WERDEGAR, J. CHIN, J. CORRIGAN, J. 24 See next page for addresses and telephone numbers for counsel who argued in Supreme Court. Name of Opinion Coito v. Superior Court __________________________________________________________________________________ Unpublished Opinion Original Appeal Original Proceeding Review Granted XXX 182 Cal.App.4th 758 Rehearing Granted __________________________________________________________________________________ Opinion No. S181712 Date Filed: June 25, 2012 __________________________________________________________________________________ Court: Superior County: Stanislaus Judge: William A. Mayhew __________________________________________________________________________________ Counsel: Law Offices of Carcione, Cattermole, Dolinksi, Okimoto, Stucky, Ukshini, Markowitz & Carcione, Joseph W. Carcione, Jr., Gary W. Dolinski and Neal A. Markowitz for Petitioner. Rose, Klein & Marias and David A. Rosen for Consumer Attorneys of California as Amicus Curiae on behalf of Petitioner. No appearance for Respondent. Edmund G. Brown, Jr., and Kamala D. Harris, Attorneys General, David S. Chaney, Chief Assistant Attorney General, Manuel M. Medeiros, State Solicitor General, Gordon Burns, Deputy State Solicitor General, James M. Schiavenza, Assistant Attorney General, Steven M. Gevercer and Peter A. Meshot, Deputy Attorneys General, for Real Party in Interest. O‟Melveney & Myers, Paul Salvaty and Michael Reynolds for Association of Southern California Defense Counsel as Amicus Curiae on behalf of Real Party in Interest. Dennis J. Herrera, City Attorney, (San Francisco) and Danny Chou, Chief of Complex and Special Ligation, for League of California Cities and California State Association of Counties as Amici Curiae on behalf of Real Party in Interest. Counsel who argued in Supreme Court (not intended for publication with opinion): Gary W. Dolinski Law Offices of Carcione, Cattermole, Dolinksi, Okimoto, Stucky, Ukshini, Markowitz & Carcione 601 Brewster Avenue, Second Floor Redwood City, CA 94064 (650) 367-6811 Steven M. Gevercer Deputy Attorney General 1300 I Street, Suite 125 Sacramento, CA 94244-2550 (916) 322-7487 

398 F.Supp. 405 (1975) UNITED STATES of America v. Robert WOLK. Crim. No. 74-305. United States District Court, E. D. Pennsylvania. July 31, 1975. *406 Robert F. Haley, II, Sp. Atty., Joseph Kiel, Organized Crime & Racketeering Section, Crim. Div., Philadelphia Strike Force, Philadelphia, Pa., for plaintiff. Mark S. Levy, Philadelphia, Pa., for defendant. *407 MEMORANDUM AND ORDER BRODERICK, District Judge. This matter comes before the Court on the defendant's Motion for a New Trial or, in the alternative, for a Judgment of Acquittal after a jury verdict of guilty on the count charged in the indictment. The count upon which the defendant was found guilty is as follows: COUNT I: That from on or about October 26, 1973, up to and including February 15, 1974, in the Eastern District of Pennsylvania, and elsewhere ANTHONY MERLINO, a/k/a TONY ANN MERLINO ALBERT CARTER, a/k/a AL JOEL BARBALOCK KENNETH COOPER ROBERT WOLK WILLIAM CASPERSON JOSEPH CROGHAN MARGARET DEL CONTE, a/k/a MAGGIE defendants herein, and Joseph McCreary, a/k/a Big Joe, Edward J. Troise, Jr., Mark A. Hirsch, Richard Erwin, a/k/a Richie, Maurice Altamuro, a/k/a Moe, Stuart Kellerman, Richard Bear, a/k/a Alfie, Miles Taylor, named as co-conspirators but not as defendants herein, wilfully, knowingly, and intentionally did combine, conspire, confederate and agree together, with each other and with diverse other persons whose names are to the Grand Jury known and unknown, to manufacture, distribute, dispense and possess, with intent to manufacture, distribute and dispense, methamphetamine, amphetamine, cocaine, pentabarbital, phexcyclidine and other controlled substances, as listed in the Schedule of Controlled Substances in Title 21, United States Code, Section 812, in violation of Title 21, United States Code, Section 841(a)(1). Robert Wolk was tried alone on this count since all the other named conspirators, with the exception of William Casperson, whose trial was severed,[1] had previously pleaded guilty to the conspiracy charge or other counts in the indictment. The defendant's motion has raised five issues for the Court to decide. 1. Did the admission of a hearsay statement of a co-conspirator violate the defendant's right of confrontation? 2. Did the Court err in permitting the Government to use evidence obtained from a search of the defendant's wallet? 3. Did the Court err in permitting the Government to use a photograph taken by a government agent of chemicals and chemical equipment? 4. Did the Court err in permitting a Government witness, John Fascinello, to testify as an expert? 5. Did the Court err in not directing a mistrial when the attorney for the Government referred to the United States of America as his "client"? 1. Did the admission of hearsay statements of co-conspirators violate the defendant's right of confrontation? At 7:45 p. m. on October 26, 1973, James Bannister, a Special Agent with the Drug Enforcement Agency (DEA), was introduced by informer William Casperson to Anthony Merlino and his wife, Ann Merlino, at the Merlinos' apartment. At this meeting, Agent Bannister purchased approximately 5½ ounces of cocaine from Mr. Merlino for $2,700.00 and initiated discussions concerning the possibility of a future purchase of two pounds of methamphetamine in exchange for five gallons of a chemical, phenyl-2-propanal (P-2-P), which is used to manufacture methamphetamine. During the discussions concerning *408 the future drug deal, Mr. Merlino stated to Agent Bannister that an individual referred to as "Al" would control the methamphetamine transaction. At a subsequent meeting held on November 1, 1973, Special Agent Vincent Moran, also with DEA, was introduced to Anthony Merlino as an associate of Agent Bannister. At two subsequent meetings at Mr. Merlino's apartment, Agents Bannister and Moran discussed with Mr. Merlino the proposed methamphetamine for P-2-P transaction and learned more about "Al", including the fact that he worked in Pennsauken, New Jersey for an establishment known as Mirror Magic, Inc. Finally, on November 21, 1973, Agents Bannister and Moran, together with Mr. Merlino, went to Mirror Magic and met "Al", whose full name is Albert Carter. Mr. Carter supplied the Agents with a sample of the methamphetamine which they would receive in exchange for their five gallons of P-2-P and stated this his "chemist" was currently working on a batch of methamphetamine which was supposed to be finished by November 26, 1973. Mr. Carter instructed the Agents to contact Mr. Merlino to make the final arrangements for the exchange. However, no exchange took place and on November 29, 1973, Mr. Merlino informed Agent Bannister that the scheduled exchange had been called off because Mr. Carter was apprehensive. Finally, on January 10, 1974, at approximately 11:50 p. m., Mr. Merlino telephoned Agent Bannister and asked if he had the P-2-P ready to exchange. Agent Bannister replied that he did and Mr. Merlino said that he would contact Agent Bannister when he had the methamphetamine in his possession. Early in the afternoon on January 11, 1974, Agents Bannister and Moran arrived at Mr. Merlino's new house located in Harleysville, Pennsylvania, carrying the five gallons of P-2-P in three red two-gallon gasoline cans. Present at this meeting were Agents Bannister and Moran and Mr. Merlino and Mr. Carter. Mr. Carter stated that he would not release the methamphetamine until the P-2-P had been sampled by some unknown person, referred to as "his man". The Agents, Mr. Merlino and Mr. Carter then agreed that Mr. Carter would deliver the P-2-P to whomever was designated in order to have the chemical checked and that the Agents and Mr. Merlino would meet at 19th and Sansom Streets in Philadelphia, at approximately 4:00 p. m. to finalize the transaction. Shortly after 4:00 p. m., the Agents and Mr. Merlino met with Mr. Carter at 19th and Sansom Streets and Carter stated that the P-2-P was satisfactory. After leaving Mr. Merlino's residence in his car at approximately 2:25 p. m. with the three red gas cans, Mr. Carter was placed under moving surveillance by DEA agents. Mr. Carter drove directly from Harleysville, Pennsylvania to a parking lot located near Eighth and Sansom Streets in Philadelphia. He arrived at the lot at 3:20 p. m., took the three red gas cans out of his car, and proceeded with the cans to the General Radio and TV shop located at 801 Sansom Street. The defendant is a partner in the General Radio and TV shop located at that address. At about 3:50 p. m., Mr. Carter left General Radio and TV without the three red gas cans. Beginning at the time Mr. Carter left the three red gas cans at 801 Sansom Street, General Radio and TV was kept under constant surveillance by DEA agents. At about 5:00 p. m. on January 17, 1974, the defendant left his place of business at 801 Sansom Street and entered a white Lincoln Continental and drove past his store and around the block approximately three times. He then parked his car opposite his store at 801 Sansom Street and entered the premises. Within five minutes the defendant re-appeared in the doorway of 801 Sansom Street carrying three red gas cans, proceeded to his car and placed the three red cans in his car trunk. The defendant then returned to his store and approximately ten minutes later locked *409 the store and left the area. The defendant was then followed up Broad Street in Philadelphia to Germantown Avenue. He then circled a block in the Germantown area three times and temporarily evaded the Government surveillance. The car was located again parked on the south side of Germantown Avenue. The defendant is the owner of a second establishment known as General Radio and TV, located on Germantown Avenue in Philadelphia. Surveillance of the defendant then continued for approximately ten days. The Government also produced testimony, based upon the records of the Bell Telephone Company of Pennsylvania[2] and the records of the New Jersey Bell Telephone Company,[3] that for the period encompassing August, 1973 to January, 1974 at least 15 long distance telephone calls were made from the defendant's phone located at 801 Sansom Street to Mirror Magic, Inc., Mr. Carter's place of business, and that at least 32 long distance telephone calls were placed from Mirror Magic, Inc., to 801 Sansom Street, Philadelphia. The Government also introduced into evidence a telephone book taken from the person of Albert Carter by Officer Zajak of the Bensalem Township Police Department, Bucks County, Pennsylvania on January 16, 1974, which was later given to Agent Bannister. In this phonebook, under the name "Bob", was listed the home phone number of the defendant, as well as his business numbers at the Germantown store and the store located at 801 Sansom Street. Further testimony by the Government revealed that for approximately two years prior to his arrest, the defendant had purchased various chemicals and laboratory equipment from a distributor called Scientific Equipment Company located in Philadelphia and that these purchased chemicals and equipment were useful, and in some cases necessary, in the manufacturing of methamphetamine. The Government also introduced the hearsay statement of Albert Carter made to Agents Bannister and Moran at a meeting held on February 6, 1974, the purpose of which was to discuss another large methamphetamine transaction. Mr. Carter was pressed at this meeting for an explanation as to the reason for the delay in consummating this second transaction. Mr. Carter stated that the delay was caused by the fact that his contact believed that he was being followed by the F.B.I. Mr. Carter said that his "man" drove a white vinyl topped Lincoln Continental Mark IV with white interior and owned two stores, one of which was located in an all black area in Germantown. He further described this individual as a white Jewish male who was a younger man and drew suspicion from the other store owners who were in his area because these people were apparently much older than he. (N.T. 6-16, 7-79). This description of Mr. Carter's "man" identified the defendant. Objection was made that the hearsay statement violated the defendant's Sixth Amendment right to confront his accusers. The general rule is that a declaration by one co-conspirator, made in furtherance of the conspiracy and during its pendency, is admissible against each co-conspirator provided a foundation is laid for its admission by independent proof of the conspiracy and the linkage of the defendant to the declarant. United States v. Rodrigues, 491 F. 2d 663 (3d Cir. 1974); United States v. Bey, 437 F.2d 188 (3d Cir. 1971). The judge must determine, when all the evidence is in, whether in his view the prosecution has proved participation in the conspiracy by the defendant against whom the hearsay is offered, by a fair preponderance of the evidence independent of the hearsay utterances. If it has, the utterances go to the jury for them to consider along with all the other evidence in determining whether the defendant *410 is guilty beyond a reasonable doubt. United States v. Geaney, 417 F. 2d 1116 (2d Cir. 1969); United States v. Bey, 437 F.2d 188 (3d Cir. 1971). Furthermore, where the existence of the conspiracy is established by proof aliunde, slight evidence is sufficient to connect a defendant with the conspiracy. United States v. Kates, 508 F.2d 308 (3d Cir. 1975). In the instant case, clearly, there was sufficient evidence, independent of the hearsay statements, to submit the defendant's participation in the alleged conspiracy to the jury. Prior to permitting testimony of the hearsay statement, the Court ruled that such a foundation had been established by the Government's evidence. The prior evidence disclosed that the Agents, Merlino and Carter agreed to exchange a quantity of methamphetamine for the Agents' P-2-P, but that an unknown person's approval of the chemical was required. After the exchange, the cans containing the P-2-P were traced directly into the defendant's possession, linking the defendant to the conspiracy. We find that there was sufficient proof aliunde to submit the issues of the existence of a conspiracy and the defendant's connection with it to the jury. Defendant contends, however, that in the circumstances of this case, the admission into evidence of Carter's hearsay statement to the Agents violated his right of confrontation. Reliance is placed by the defendant on the case of Park v. Huff, 493 F.2d 923 (5th Cir. 1974). That case held that where hearsay testimony introduced against the defendant under Georgia's co-conspirator exception to the hearsay rule was "crucial" and "devastating" and was not supported by significant indicia of reliability, and where the declarants were not shown to be unavailable to testify at trial, its introduction violated the accused's Sixth Amendment right of confrontation. The Court held that the rules of evidence must comply with the constitutional requirements of the Sixth Amendment. The Park Court made it clear that its decision was based upon the particular facts of the case before it and was grounded on an evaluation of the trustworthiness and accuracy of the testimony offered. The Supreme Court has made it plain that although the confrontation clause of the Sixth Amendment and the hearsay rule overlap, the two are not co-extensive. Thus, even statements properly admitted under hearsay rules may be examined by the Court to assure that "the trier of fact [has] a satisfactory basis for evaluating the truth of the prior statement." Dutton v. Evans, 400 U.S. 74, 91 S.Ct. 210, 27 L.Ed.2d 213 (1970); United States v. Menichino, 497 F.2d 935 (5th Cir. 1974). The mission of the confrontation clause is to assure that such a basis is provided, whether the evidence is hearsay or non-hearsay and whether the satisfactory basis for such a truth evaluation is provided by cross-examination or otherwise. Hoover v. Beto, 467 F.2d 516 (5th Cir. 1972). A case by case analysis is necessary to determine whether, under the circumstances, the unavailability of the declarant deprived the jury of a satisfactory basis for evaluating the truth of the extrajudicial declaration. If so, and if the challenged testimony is "crucial" to the prosecution or "devastating" to the defense, it must be excluded. Menichino, supra at 943. Unlike the situation in Park, the challenged testimony in this case was neither "crucial" nor "devastating".[4] In *411 Park, the hearsay statements of co-conspirators were the only evidence linking the defendant to the murder conspiracy there involved. In the instant case, there is ample independent non-hearsay evidence of the existence of a conspiracy and the defendant's membership in that conspiracy, without Albert Carter's statement as to his "man". Therefore, although the hearsay statements in this case are undoubtedly damaging to the defendant and may have lessened his hopes of acquittal, they are not crucial in the sense referred to in Park.[5] Further, in our case, unlike Park, the hearsay testimony which indicated that the defendant was part of a conspiracy was surrounded by sufficient indicia of reliability to establish a satisfactory basis for the jury to evaluate the truth of the extrajudicial declaration even in the absence of cross-examination. California v. Green, 399 U.S. 149, 161, 90 S.Ct. 1930, 26 L.Ed.2d 489 (1970). The statement was made spontaneously by Albert Carter, during the course of the conspiracy, while discussing with agents who had gained his confidence the details of their drug dealings. The Court is not aware of any motive which Mr. Carter would have had to mislead the agents as to the description of his "man".[6] These factors, together with the finding that the statement meets the requirements of a recognized exception to the hearsay rule, point to the reliability of these hearsay statements and serve as an adequate substitute for the right of cross-examination for purposes of the confrontation clause. Defendant also argues that the Government has failed to establish that the declarant, Carter, was unavailable to testify and this fact, coupled with the crucial nature of the testimony, has denied him his constitutional right of confrontation.[7] We have already found that the testimony was not crucial within the meaning of Park and was surrounded with sufficient indicia of reliability. We can find no support for the conclusion that the declarant must be unavailable or that the reasons must be shown why the declarant was not called to testify before a hearsay statement is admissible in a criminal trial. Dutton v. Evans, 400 U.S. 74, 80, 91 S.Ct. 210, 27 L.Ed.2d 213 (1970). There is, furthermore, in this case a significant likelihood that the declarant would have successfully refused to testify on Fifth Amendment grounds and was, therefore, unavailable. See Hoover v. Beto, 476 F. 2d 516, 540 (5th Cir. 1972). It is true that the Government did not call Carter to testify but it did inform the Court that Mr. Carter's attorney had stated that Mr. Carter would refuse to testify on Fifth Amendment grounds. At that point Carter had pleaded guilty before *412 this Court to two counts of an indictment which charged him in four counts and was awaiting sentencing by this Court. The remaining two counts were not to be dismissed by the Government until sentencing. It would seem that Carter could have successfully invoked the privilege. United States v. Gloria, 494 F.2d 477 (5th Cir. 1974); United States v. Johnson, 488 F.2d 1206 (1st Cir. 1973); Mills v. United States, 281 F.2d 736 (4th Cir. 1960); McCormick on Evidence, § 121 at 257 (2d Ed. 1972). For all the foregoing reasons, we hold that the defendant's right to confrontation was not violated by the admission of the hearsay statement of a coconspirator.[8] 2. Did the Court err in permitting the Government to use evidence obtained from a search of the defendant's wallet? At trial, the Government introduced certain business records of Scientific Equipment Company which consisted of five receipts which showed that the defendant's company, General Radio and TV, had purchased various chemicals and laboratory equipment from Scientific Equipment Company. Scientific Equipment Company sells and distributes laboratory chemicals, reagents and apparatus. The Government then introduced, through an expert, testimony which showed that the various chemicals and equipment could be used to manufacture methamphetamine. Defendant contended at trial that the business records evidence from Scientific Equipment Company was obtained as the fruit of an illegal search of the defendant's wallet, which wallet contained a purchase receipt from Scientific Equipment Company. The Court held a suppression hearing, outside the presence of the jury, on November 8, 1974 during the trial of this case, pursuant to an oral motion by the defendant, to determine whether the Government had obtained the business records of Scientific Equipment Corporation as the result of an illegal search. Defendant's attack on the admission of the records of Scientific Equipment Company required the Court to undertake a two step inquiry. The Court was required to determine whether the wallet and the receipt were obtained from an illegal search and, if so, whether the Government's discovery of the records of Scientific Equipment Company was the product of that illegal search. The following facts were presented at the hearing. At approximately midnight on May 29, 1974, Government agents, acting pursuant to a valid arrest warrant issued following the defendant's indictment by a Grand Jury, appeared at the defendant's home in Philadelphia, Pennsylvania to effectuate his arrest. The defendant who was upstairs in his home watching television, answered the agents' knock on his door and was informed that he was under arrest. Agent Mignault, one of the arresting officers, testified that as part of their normal routine, the defendant was requested to produce some type of personal identification. Since the defendant had no identification at that time, he called upstairs to his wife and instructed her to bring down his wallet which contained his driver's license. Pursuant to the direction of the arresting agents, Mrs. Wolk placed the wallet on the steps leading downstairs so that the agents could be certain that no weapons were involved. After the wallet was briefly examined by the agents, it was placed by them in the defendant's back pocket and he was taken to the DEA offices for processing. It was during this routine processing at the DEA offices that the defendant's wallet *413 was searched and the Scientific Equipment Company receipt was found. We accept this testimony of the Government agents as credible as to what occurred on the night of the defendant's arrest. The testimony of the defendant and Mrs. Wolk did not differ substantially from that of Agent Mignault as to what occurred on the night of the defendant's arrest. However, both testified that when the defendant asked Mrs. Wolk to bring down his wallet which contained his driver's license, she handed the wallet to the defendant. Their testimony was that the defendant withdrew his license from the wallet, showed the license to the arresting agents, and then returned the wallet to his wife. According to the defendant and Mrs. Wolk, it was then that the agents seized the wallet from Mrs. Wolk. Under the principles laid down by the Supreme Court in Chimel v. California, 395 U.S. 752, 89 S.Ct. 2034, 23 L.Ed.2d 685 (1969), a search incident to an arrest must be limited to the person of the defendant or the area under his control. The reasonableness of a search depends upon its particular facts and circumstances but must be limited in scope to the area necessary to protect the arresting officer's safety and to prevent the concealment or destruction of contraband or evidence. Even if we were to accept the defendant's version and were to find that the wallet was taken from the defendant's wife, there would be no question that at the time that the wallet was seized, it was within the defendant's immediate control. We find that the seizure and subsequent search of the wallet by the arresting officers was reasonable and lawful. See United States v. Woods, 468 F.2d 1024 (9th Cir. 1972). However, even if we were to find that the search of the wallet was improper, we would not suppress the testimony and documentary evidence concerning the business records of Scientific Equipment Company. To be inadmissible as the "fruit of a poisonous tree", the Court must find that the business records were not obtained "from an independent source", but were the product of the illegal search and were "the fruit of the poisonous tree". Wong Sun v. United States, 371 U.S. 471, 83 S.Ct. 407, 9 L.Ed.2d 441 (1963); Silverthorne Lumber Co. v. United States, 251 U.S. 385, 40 S.Ct. 182, 64 L.Ed. 319 (1920). The Government's evidence, which was credible and uncontradicted, showed that the evidence found in the Scientific Equipment Company's business records was obtained entirely without reference to the receipt found in the defendant's wallet. The testimony showed that on January 16, 1974, pursuant to a search warrant, Lieutenant Theodore Zajac of the Bensalem Township Police, Bucks County, Pennsylvania entered and searched the apartment of Stephen Stein in Cornwells Heights, Pennsylvania. During the course of the search, which revealed evidence of illegal drug dealings, Albert Carter entered Mr. Stein's apartment. Pursuant to Lieutenant Zajac's request, Mr. Carter accompanied the police to their headquarters for futher questioning. Before leaving Mr. Stein's apartment, Lieutenant Zajac found, in the apartment, a sheet of paper with the names of chemicals written thereon, as well as the name Baker written after some of the chemicals. Lieutenant Zajac then contacted DEA Agent James Bannister and transmitted the document to him for whatever use he might find for it. While reviewing the file in preparation for the trial of this case, Agent Vincent Moran found a xerox copy of the aforesaid mentioned paper. After further research, Agent Moran found that there was a J. T. Baker Chemical Company (Baker) located in Phillipsburg, New Jersey. Agent Moran then determined from Baker that it had three distributors in the Philadelphia area, one of which was Scientific Equipment Company. Agent Moran prepared a list of names associated with the present case and asked an investigator in the *414 DEA office to call the three local distributors and inquire as to whether they had ever dealt with any of the persons or companies on the list. General Radio and TV Company was included on Agent Moran's list and that name brought a positive response from Scientific Equipment Company. Thereafter, Agent Moran spoke with the proprietor of Scientific Equipment Company, Ronald McCutcheon, and procured from him the five invoices involved herein. Based upon these facts, we find that the Scientific Equipment Company business records and the testimony of Ronald McCutcheon were not obtained as the result of the search of the defendant's wallet, but were obtained as the result of the independent investigation conducted by the Government. For the foregoing reasons, the Court denied the defendant's motion to suppress. 3. Did the Court err in permitting the Government to use a photograph taken by a Government agent of certain chemicals and chemical equipment? At trial, the Government introduced a photograph which showed the various chemicals and chemical equipment which the defendant had purchased from Scientific Equipment Company. The defendant contends that the Government placed the items all in one photograph in a manner which gave the appearance of a laboratory for the purpose of creating the inference that the defendant purchased the chemicals for use in a drug laboratory. It is well settled that the admission of photographs rests largely in the trial court's discretion. Burns v. Beto, 371 F.2d 598 (5th Cir. 1967); United States v. Odom, 348 F.Supp. 889 (M.D.Pa.1972); United States ex rel. Victor v. Yeager, 330 F.Supp. 802 (D.C. N.J.1971). The photograph introduced here was helpful to explain the testimony concerning the chemicals and equipment the defendant purchased from Scientific Equipment Company. The Court carefully examined the photograph before admitting it into evidence and again after the trial and we can find no support for the defendant's contention that the items were arranged to depict a laboratory scene. Nor can we say that one viewing the photograph would find that it inadvertently has the appearance of a laboratory. Furthermore, the defendant, as part of his defense, brought into Court all the chemicals and chemical equipment which were shown by the business records of Scientific Equipment Company to have been purchased by the defendant. The jury not only had the Government's photograph but also the defendant's chemicals and chemical equipment and could determine for themselves whether the chemicals were to be used in a laboratory. Thus, there was no error in admitting the Government's photograph into evidence. 4. Did the Court err in permitting the Government's witness, John Fascinello, to testify as an expert? At the outset of the trial, pursuant to the defendant's request, the Court ordered the sequestration of witnesses who were scheduled to testify. The defendant, in his defense, testified extensively concerning his business use of the chemicals which he had purchased from Scientific Equipment Company. In an effort to impeach this testimony of the defendant and in rebuttal of the defendant's explanation of his use of the chemicals which he purchased from Scientific Equipment Company, the Government presented John Fascinello, a DEA chemist who was present in court during the presentation of the defense. The defendant objected to the testimony of Mr. Fascinello on the grounds that permitting him to testify would violate the Court's prior sequestration order. The Government contended, however, that Mr. Fascinello was originally brought into court to aid it in the cross-examination of the defendant, and only after the defendant had testified at length concerning his use of the chemicals in question did it become apparent that his testimony as an expert would be required. *415 Sequestration of witnesses is a matter which is committed to the trial judge's sound discretion. United States v. Strauss, 473 F.2d 1262 (3d Cir. 1973); United States v. Mallis, 467 F.2d 567 (3d Cir. 1972). The purpose for sequestering a witness is "to prevent the shaping of testimony by witnesses to match that given by other witnesses." United States v. Cozzetti, 441 F.2d 344, 350 (9th Cir. 1971). In this case, Mr. Fascinello was called as an expert, not to corroborate the evidence which the prosecution presented in its case, but to rebut the defendant's testimony as to his use of the various chemicals which the defendant purchased from Scientific Equipment Company. Mr. Fascinello was not called as a fact witness and his testimony was limited to his expert opinion as to various chemical reactions. This expert opinion testimony required an informed factual basis upon which to base the opinion. The Court does not consider such an expert witness, who is called in rebuttal and whose questioning was confined to the effect of the use of certain chemical combinations, the use of which had been previously testified to by the defendant, to be within its sequestration order. In fact, at the time that the sequestration was ordered the Court stated that the order did not apply to rebuttal testimony. (N.T. 2-14). Defendant further contends that Mr. Fascinello was not qualified to testify as an expert chemist. The competency of a witness to give an opinion concerning a matter of expertise lies largely within the trial court's discretion. Salem v. United States Lines Company, 370 U.S. 31, 82 S.Ct. 1119, 8 L.Ed.2d 313 (1962); United States v. Kienlen, 415 F.2d 557 (10th Cir. 1969); White v. United States, 399 F.2d 813 (8th Cir. 1968); United States v. Alker, 260 F.2d 135 (3d Cir. 1958). Mr. Fascinello testified that he worked for the DEA as a forensic analytical chemist and had testified on numerous occasions for that agency. He stated that he was a college graduate with a Bachelor of Science degree in chemistry, had undergone chemistry training with the DEA, and was currently enrolled in graduate courses and was working toward a master's degree in Forensic Sciences. After finding Mr. Fascinello competent to testify as an expert, the Court instructed the jury that they should consider each expert opinion received in the case and give it only such weight as they thought it deserved and that they should disregard the opinion if not based upon sufficient education and experience. United States v. Jackson, 138 U.S.App.D.C. 143, 425 F.2d 574 (1970). 5. Did the Court err in permitting the attorney for the Government to refer to the United States of America as his "client"? During his closing argument, the Assistant United States Attorney referred to the United States of America as his "client". Defendant contends that by this comment the United States Attorney was telling the jury that he was the attorney for their Government and that this comment was prejudicial. In assessing claims of prosecutorial misconduct due to allegedly prejudical remarks, we must first determine whether the defendant was prejudiced by the characterizations. United States v. Somers, 496 F.2d 723, 738 (3d Cir. 1974). As the Third Circuit stated in United States v. Leftwich, 461 F.2d 586, 590 (3d Cir. 1972): [I]mproprieties of argument by counsel to the jury do not call for a new trial unless they are so gross as probably to prejudice the defendant and the prejudice has not been neutralized by the trial judge before submission of the case to the jury. The Court is not aware, and the defendant has not disclosed to the Court, the precise manner in which the statement was prejudicial. Indeed, we do not feel that in the context in which the remark was made, at the beginning of his closing argument, that the prosecutor's remark that the United States of America was his "client" was improper. *416 Even if we were to determine that the remark was improper, viewed in the context of this lengthy two week trial, considering the ambiguous nature of the remark, and in light of the fact that the evidence adduced at trial was more than sufficient to convict the defendant, we conclude that the remark was not in any way prejudicial to the defendant and certainly does not warrant the granting of a new trial. See United States v. Somers, 496 F.2d 723 (3d Cir. 1974); United States v. Richard Dabney, et al., 393 F.Supp. 529 (E.D.Pa.1975) (Fogel, J.). Motion denied. NOTES [1] William Casperson, after the severance of his case, eventually pleaded guilty to this conspiracy count. [2] Exhibit G-16. [3] Exhibit G-17. [4] In Dutton v. Evans, 400 U.S. 74, 91 S.Ct. 210, 27 L.Ed.2d 213 (1970), the Supreme Court enunciated the concept of "crucial" or "devastating" hearsay and other factors which might lead to a violation of the defendant's right of confrontation. This case does not involve evidence in any sense "crucial" or "devastating," as did all the cases just discussed. It does not involve the use, or misuse, of a confession made in the coercive atmosphere of official interrogation, as did Douglas, [Douglas v. Alabama, 380 U.S. 415, 85 S.Ct. 1074, 13 L.Ed.2d 934] Brookhart, [Brookhart v. Janis, 384 U.S. 1, 86 S.Ct. 1245, 16 L.Ed.2d 314] Bruton, [Bruton v. United States, 391 U.S. 123, 88 S.Ct. 1620, 20 L.Ed.2d 476] and Roberts, [Roberts v. Russell, 392 U.S. 293, 88 S.Ct. 1921, 20 L.Ed.2d 1100]. It does not involve any suggestion of prosecutorial misconduct or even negligence, as did Pointer, [Pointer v. Texas, 380 U.S. 400, 85 S.Ct. 1065, 13 L.Ed. 923] Douglas, and Barber, [Barber v. Page, 390 U.S. 719, 88 S.Ct. 1318, 20 L.Ed.2d 255]. It does not involve the use by the prosecution of a paper transcript, as did Pointer, Brookhart, and Barber. It does not involve a joint trial, as did Bruton and Roberts. And it certainly does not involve the wholesale denial of cross-examination, as did Brookhart. None of these factors are present in our case. [5] The hearsay statement by Carter took on even less significance as the trial progressed. The issue became one of credibility and whether the jury believed the defendant's assertions that his relationship with Carter and with the three red gas cans was innocent. [6] In Park, the hearsay statement was made after the co-conspirator's arrest during the concealment stage when a hearsay statement placing the blame on other co-conspirators is inherently less trustworthy than one made during the pendency of, and in furtherance of, the conspiracy. [7] If it can be shown that a declarant is unavailable to testify, the necessity of hearing the testimony against the defendant may well require the admission of the hearsay statement. Mattox v. United States, 156 U.S. 237, 15 S.Ct. 337, 39 L.Ed. 409 (1894). [8] It is interesting to note that the defendant made no objection when recordings of phone conversations revealed a statement by Anthony Merlino, a co-conspirator, made to a Government agent that Mr. Carter was having trouble arranging a drug deal because his guy was being tailed and described Carter's guy as a white person with a white Mark IV who was doing things in a black neighborhood. (TRANSCRIPT OF PHONE CONVERSATIONS, REEL A3, Log 56, February 3, 1974).

845 F.2d 1033 56 USLW 2468 Unpublished DispositionNOTICE: Federal Circuit Local Rule 47.8(b) states that opinions and orders which are designated as not citable as precedent shall not be employed or cited as precedent. This does not preclude assertion of issues of claim preclusion, issue preclusion, judicial estoppel, law of the case or the like based on a decision of the Court rendered in a nonprecedential opinion or order.USD TECHNOLOGIES, INC., Appellant,v.The UNITED STATES, Appellee. No. 87-1439. United States Court of Appeals, Federal Circuit. Feb. 3, 1988. Before RICH, Circuit Judge, NICHOLS, Senior Circuit Judge, and EDWARD S. SMITH, Circuit Judge. EDWARD S. SMITH, Circuit Judge. DECISION 1 The decision of the Armed Services Board of Contract Appeals (board), dated March 17, 1987, ASBCA No. 31305, denying USD Technologies, Inc.'s (USD) appeal taken from the refusal of the contracting officer to issue a decision on USD's certified claim in the amount of $521,536 for its "additional costs of performance" under an allegedly expired contract, is affirmed. OPINION 2 The board, finding that the Government failed to satisfy its burden of proving that modification P00009, a unilateral modification purporting to exercise the "First Priced Option," was deposited in the mails on or before January 31, 1983, held that the evidence in the record established that USD consciously relinquished and waived any objection it might have had to the Government's untimely exercise of the First Priced Option. As grounds for its decision, the board reasoned that because modification P00010, a bilateral modification, was signed by the parties to correct a variation in option quantities set forth by the Government in modification P00009, USD agreed without reservation to render continued performance under the restated terms of the First Priced Option, notwithstanding the Government's untimely exercise of that option. 3 We agree with both parties before us that the board erred by resting its decision on this ground. The only difference between modification P00009 and the terms of the First Priced Option was a change of certain administrative letter codes: modification P00010 was signed by the parties merely to correct these letter codes and not, as the board concluded, to correct a variation in option quantities. On this basis, we hold that the board committed error; however, alternate grounds exist for us to affirm the board's decision. 4 There is no dispute that an untimely exercise of the First Priced Option would cause the contract to expire and give rise to USD's ability to object to the continuation of the contract. However, it is well established that a contractor may be estopped from avoiding its obligation under a contract by the contractor's failure to protest the improper or ineffective exercise of an option pursuant to the contract at the time it becomes aware that the option was not exercised properly. See Cities Service Helex, Inc. v. United States, 543 F.2d 1306, 1313-14 (Ct.Cl.1976); see also E. Walters & Co. v. United States, 576 F.2d 362 (Ct.Cl.1978); Ling-Temco-Vought, Inc. v. United States, 475 F.2d 630 (Ct.Cl.1973). On the basis of the facts both found by the board and stipulated by the parties, we must conclude that USD had knowledge of the Government's untimely exercise of the First Priced Option. Because USD failed, in view of this knowledge, to protest the Government's untimely exercise of the option and continued to perform pursuant to the contract, we must hold that USD consciously relinquished and waived any objection it might have had to the untimely exercise of the option. 5 Here, the parties' factual stipulations reveal that the envelope containing modification P00009 would have been imprinted with a postmark indicating the month, day, and year that the envelope was weighed, meter stamped, sorted, and readied for collection by the U.S. Postal Service. For purposes of our review, these stipulations, coupled with the board's conclusion that the Government failed to satisfy its burden of proving that the modification purporting to exercise the First Priced Option, modification P00009, was deposited in the mails on or before January 31, 1983, leads to the conclusion that the envelope containing modification P00009 received by USD would have been imprinted with a postmark indicating a date later than January 31, 1983. See Koppers Co. v. United States, 405 F.2d 554, 558-59 (Ct.Cl.1968). This postmark should have put USD on notice of the Government's untimely exercise of the First Priced Option. By further performing on the contract, in view of this notice, we hold, as a matter of law, that USD consciously relinquished and waived any objection it might have had to the Government's untimely exercise of the First Priced Option. 6 USD argues that it could not have consciously relinquished its ability to object to the untimely exercise of the First Priced Option because the waiver doctrine, as a matter of law, is appropriately applied only where there is a "ivoluntary, intentional abandonment of a known right" (emphasis in original). USD asserts that the waiver doctrine is inapplicable in this case because the facts found by the board do not establish a voluntary, intentional abandonment of a known right. USD contends the board did not find or hold in its opinion, and the record does not set forth any evidence, that USD had actual knowledge of what information was printed on the envelope. We disagree. 7 As discussed above, the record establishes that an envelope containing modification P00009 would have been imprinted with a postmark indicating a date later than January 31, 1983. Such a postmark would have given USD either the knowledge or, at the very least, reason to know, of the Government's untimely exercise of the First Priced Option. By further performing on the contract, in view of this knowledge, we hold, as a matter of law, that USD intentionally and voluntarily abandoned its known right to object to the Government's untimely exercise of the First Priced Option. 8 USD further argues that, assuming the waiver doctrine is applicable in this case, there was no reason or duty for USD personnel to examine the envelope containing modification P00009. USD contends that the Government should not be allowed to relieve itself of liability for its untimely option exercise merely because no attention was paid by an "unsuspecting mail handler to a routine and nondescript envelope." On this basis, USD apparently contends that USD did not voluntarily abandon its right to object to the exercise of the First Priced Option. We are not persuaded. 9 The board specifically found that "[a]ll mail from the Government, including contract modifications, was opened and routed by USD's contract administrator" (emphasis supplied). Contrary to USD's assertion, its contract administrator is not an "unsuspecting mail handler"; rather, a contract administrator must be presumed to have knowledge of the importance of timeliness in the exercise of Government contracts. See ITT Arctic Services, Inc. v. United States, 524 F.2d 680, 684 (Ct.Cl.1975). The postmarked envelope gave USD notice of the Government's untimely exercise of the First Priced Option; USD's policy of discarding envelopes after opening them does not negate this notice. Because USD failed to protest, in view of its knowledge of the Government's untimely exercise of the option, and continued to perform under the contract, we must affirm the board's decision that USD consciously relinquished and waived its ability to object to the Government's untimely exercise of the First Priced Option.

Filed 6/5/14 IN THE SUPREME COURT OF CALIFORNIA THE PEOPLE, ) ) Plaintiff and Respondent, ) ) S201443 v. ) ) Ct.App. 2/3 B231678 CARMEN GOLDSMITH, ) ) Los Angeles County Defendant and Appellant. ) Super. Ct. No. 102693IN ____________________________________) Defendant was cited for failing to stop at a red traffic light at an intersection located in the City of Inglewood in violation of Vehicle Code section 21453. She was found guilty of the traffic infraction based on evidence of several photographs and a 12-second video. The evidence was generated by an automated traffic enforcement system (ATES), in common parlance referred to as a red light traffic camera. Her conviction was upheld on appeal by both the appellate division of the superior court and the Court of Appeal. We granted review to consider defendant‘s claim that the trial court improperly admitted the ATES evidence over her objections of inadequate foundation and hearsay. We conclude that the trial court did not abuse its discretion in finding the officer‘s testimony in this case provided sufficient authentication to admit the ATES evidence and that the ATES evidence was not hearsay. We affirm the judgment of the Court of Appeal. 1  BACKGROUND A. Statutory authorization of ATES Local governmental agencies are statutorily authorized to equip a traffic intersection with an ATES, if the system meets certain requirements. (Veh. Code, § 21455.5.) Specifically, the system must be identified by signs visible to approaching traffic that clearly indicate the system‘s presence and the traffic signal light governing the intersection must have a minimum yellow light change interval as set by the state Department of Transportation for the designated approach speed. (Veh. Code, § 21455.7.) A city council or county board of supervisors proposing to install an ATES within its jurisdiction must conduct a public hearing on the proposal prior to entering into a contract for the use of an ATES. (Veh. Code, § 21455.6, subd. (a).) If the proposal is adopted, the local jurisdiction must at each affected intersection ―commence a program to issue only warning notices for 30 days‖ and must ―also make a public announcement of the automated traffic enforcement system at least 30 days prior to the commencement of the enforcement program.‖ (Veh. Code, § 21455.5, subd. (b); see People v. Gray (2014) 58 Cal.4th 901, 904.) ―Only a governmental agency, in cooperation with a law enforcement agency, may operate‖ an ATES. (Veh. Code, § 21455.5, subd. (c).) To operate an ATES, the governmental agency, in cooperation with law enforcement, must develop uniform guidelines for screening and issuing violation citations, as well as for processing and storing confidential information. (Veh. Code, § 21455.5, subd. (c)(1).) It must establish procedures to ensure compliance with such guidelines. (Ibid.) The governmental agency, in cooperation with a law enforcement agency, must also (a) establish guidelines for selection of a location, (b) ensure that the equipment is regularly inspected, (c) certify that the equipment is properly 2 installed and calibrated and is operating properly, (d) regularly inspect and maintain the warning signs, (e) oversee the establishment or change of signal phases and signal timing, and (f) maintain controls necessary to ensure that only those citations that have been reviewed and approved by law enforcement are delivered to violators. (Id., subd. (c)(2)(A), (B), (C), (D), (E), & (F).) The statutory scheme allows the governmental agency to contract out these described operational activities or duties ―if it maintains overall control and supervision of the system.‖ (Veh. Code, § 21455.5, subd. (d).) But this is subject to an important qualification. The governmental agency may not contract out to ―the manufacturer or supplier of the automated traffic enforcement system‖ certain of the described duties. (Ibid. [providing that the activities specified in Veh. Code, § 21455.5, subd. (c)(1) & (2)(A), (D), (E), & (F) may not be contracted out to the ATES manufacturer or supplier].) The only duties that may be contracted out to the ATES manufacturer or supplier are the activities of ―[e]nsuring that the equipment is regularly inspected‖ and ―[c]ertifying that the equipment is properly installed and calibrated, and is operating properly.‖ (Veh. Code, § 21455.5, subds. (c)(2)(B), (C), (d).) A contract between a governmental agency and an ATES manufacturer or supplier entered into, renewed, extended or amended on or after January 1, 2004, is statutorily prohibited from including a ―provision for the payment or compensation to the manufacturer or supplier based on the number of citations generated, or as a percentage of the revenue generated, as a result of the use of the equipment.‖ (Veh. Code, § 21455.5, subd. (h)(1); see id., former subd. (g), as amended by Stats. 2003, ch. 511, § 1, p. 3925 [applicable at the time of defendant‘s citation].) 3  B. The evidence submitted in this case A notice to appear was issued to defendant pursuant to the City of Inglewood‘s implementation of the automated traffic enforcement statutes we have described. (Veh. Code, §§ 21455.5–21455.7.) The citation alleged that on March 13, 2009, defendant failed to stop at a red traffic light located at the intersection of Centinela Avenue and Beach Avenue in the City of Inglewood (Inglewood). Defendant entered a plea of not guilty. At the court trial held before a traffic commissioner, only one witness testified. Dean Young, an investigator with the Inglewood Police Department, testified that he was assigned to the traffic division in red light camera enforcement, and had more than six years of experience in that assignment. Young testified that defendant‘s citation was the result of the red light camera program first implemented by Inglewood in 2003. Young testified that Inglewood‘s ATES was operated by the police department, but was maintained by Redflex Traffic Systems, Inc. (Redflex). Based on his experience and the knowledge that he acquired from city engineers regarding how the traffic signals and system work and from Redflex regarding how the ATES works, Young testified that the computer-based digital camera system operates ―independently‖ and records events occurring within an intersection after the traffic signal has turned red. Young stated that the ATES information is stored as it is ―reported‖ on the hard disc of a computer at the scene. According to Young, Redflex technicians retrieve that computerized information periodically throughout the day through an Internet connection. A police officer then reviews all photographs before a citation is printed or mailed. Young explained the photos and video images that are recorded and produced by the ATES as follows. There are three photographs taken, plus a 12- second video. The first photograph taken by the ATES camera, referred to as a 4 ―previolation‖ photograph, shows the vehicle at or before the crosswalk or limit line for the intersection with the traffic signal shown in the background during its red phase. The second photograph, referred to as a ―postviolation‖ photograph, shows the vehicle within the intersection either in the process of making a right turn or going straight through the intersection. The third photograph shows the vehicle‘s license plate. A data bar is imprinted on all the photographs by the ATES to show the date, time, location, and how long the light had been red at the time of the photograph. The 12-second video shows the approach and progression of the vehicle through the intersection. Young testified, based on the ATES evidence, that defendant‘s violation occurred at the intersection of Centinela Avenue and Beach Avenue on Friday, March 13, 2009. It involved a ―straight through movement‖ by defendant. Defendant objected that the photographs did not establish that she was the driver of the vehicle depicted in the photographs because the right eye and part of the forehead of the person shown in the photograph was obscured. The trial court stated that it was satisfied that the photograph depicted defendant as the driver. Defendant then objected to Young‘s testimony on the grounds of lack of foundation and hearsay. The trial court overruled the objections after defendant examined Young on voir dire. Young proceeded to testify that the data bar printed on the previolation photograph of defendant‘s vehicle showed the traffic light had been red for 0.27 seconds and that defendant‘s vehicle‘s approach speed was 53 miles per hour at the time the photograph was taken. According to Young, in the postviolation photograph taken 0.66 second later, defendant‘s vehicle was shown in the intersection while the signal light remained in the red light phase. Young testified that the 12-second video of defendant‘s vehicle crossing the intersection began with the signal light in its green phase and showed the transitioning of the light phases, including a four-second yellow light. 5  Defendant challenged Young‘s characterization of the yellow light interval as being four seconds. Asked by the court to lay a foundation for his opinion regarding the yellow light interval, Young testified that he visually inspected the traffic signal at this intersection and each of the other camera-enforced intersections on a monthly basis to ensure that the yellow phase timing complies with the minimum guidelines established by California‘s Department of Transportation. According to Young, on February 16, 2009, and March 16, 2009, he conducted timing checks of the signal at this intersection, which showed averages of 4.11 and 4.03 seconds, respectively. He testified that these test results were well above the 3.9 seconds established by the Department of Transportation for a 40-mile-an-hour zone. Based on this evidence, the trial court found beyond a reasonable doubt that defendant was guilty of failing to stop at a red signal light and imposed a fine of $436. DISCUSSION Photographs and video recordings with imprinted data are writings as defined by the Evidence Code. (Evid. Code, § 250.)1 To be admissible in evidence, a writing must be relevant and authenticated. (§§ 350, 1401.) The proffered evidence must be an original writing or otherwise admissible secondary evidence of the writing‘s content. (§§ 1520, 1521.) And it must not be subject to any exclusionary rule. (See, e.g., § 1200.) Defendant contends the trial court erred in admitting the ATES evidence in this case because the prosecution failed to provide the foundational testimony 1 All further statutory references are to the Evidence Code unless otherwise indicated. 6 necessary to authenticate it and because the evidence included inadmissible hearsay. We review claims regarding a trial court‘s ruling on the admissibility of evidence for abuse of discretion. (People v. Alvarez (1996) 14 Cal.4th 155, 203, 207; People v. Lucas (1995) 12 Cal.4th 415, 466.) Specifically, we will not disturb the trial court‘s ruling ―except on a showing the trial court exercised its discretion in an arbitrary, capricious, or patently absurd manner that resulted in a manifest miscarriage of justice.‖ (People v. Rodriguez (1999) 20 Cal.4th 1, 9-10.) Applying this standard, we conclude that the trial court did not err in admitting the ATES evidence over defendant‘s objections. A. The ATES evidence was adequately authenticated Defendant argues that the trial court erred in overruling her objection to the ATES evidence on the basis of inadequate foundation. We disagree. Authentication of a writing, including a photograph, is required before it may be admitted in evidence. (§§ 250, 1401.) Authentication is to be determined by the trial court as a preliminary fact (§ 403, subd. (a)(3)) and is statutorily defined as ―the introduction of evidence sufficient to sustain a finding that it is the writing that the proponent of the evidence claims it is‖ or ―the establishment of such facts by any other means provided by law.‖ (§ 1400.) The statutory definition ties authentication to relevance. As explained by the California Law Revision Commission‘s comment to section 1400, ―[b]efore any tangible object may be admitted into evidence, the party seeking to introduce the object must make a preliminary showing that the object is in some way relevant to the issues to be decided in the action. When the object sought to be introduced is a writing, this preliminary showing of relevancy usually entails some proof that the writing is authentic — i.e., that the writing was made or signed by its purported maker. Hence, this showing is normally referred to as ‗authentication‘ of the writing.‖ 7 (Cal. Law Revision Com. com., 29B pt. 4 West‘s Ann. Evid. Code (1995 ed.) foll. § 1400, p. 440.) Authentication is essentially a subset of relevance. (See Lorraine v. Markel Amer. Ins. Co. (D.Md. 2007) 241 F.R.D. 534, 539 (Lorraine); 2 Broun, McCormick on Evidence (7th ed. 2013) § 212, p. 5 (McCormick).) As with other writings, the proof that is necessary to authenticate a photograph or video recording varies with the nature of the evidence that the photograph or video recording is being offered to prove and with the degree of possibility of error. (Annot., Authentication or Verification of Photograph as Basis for Introduction in Evidence (1950) 9 A.L.R.2d 899, 900.) The first step is to determine the purpose for which the evidence is being offered. The purpose of the evidence will determine what must be shown for authentication, which may vary from case to case. (2 McCormick, supra, § 221, pp. 82-83.) The foundation requires that there be sufficient evidence for a trier of fact to find that the writing is what it purports to be, i.e., that it is genuine for the purpose offered. (People v. Valdez (2011) 201 Cal.App.4th 1429, 1434-1435 (Valdez).) Essentially, what is necessary is a prima facie case. ―As long as the evidence would support a finding of authenticity, the writing is admissible. The fact conflicting inferences can be drawn regarding authenticity goes to the document‘s weight as evidence, not its admissibility.‖ (Jazayeri v. Mao (2009) 174 Cal.App.4th 301, 321.) Here the ATES evidence was offered to show what occurred at a particular intersection in Inglewood on a particular date and time when the traffic signal at the intersection was in its red phase. The ATES evidence was offered as substantive proof of defendant‘s violation, not as demonstrative evidence supporting the testimony of a percipient witness to her alleged violation. We have long approved the substantive use of photographs as essentially a ―silent witness‖ to the content of the photographs. (People v. Bowley (1963) 59 Cal.2d 855, 860.) As we stated in Bowley, ―[t]o hold otherwise would illogically limit the use of a 8 device whose memory is without question more accurate and reliable than that of a human witness. It would exclude from evidence the chance picture of a crowd which on close examination shows the commission of a crime that was not seen by the photographer at the time. It would exclude from evidence pictures taken with a telescopic lens. It would exclude from evidence pictures taken by a camera set to go off when a building‘s door is opened at night.‖ (Id., at p. 861.) A photograph or video recording is typically authenticated by showing it is a fair and accurate representation of the scene depicted. (People v. Gonzalez (2006) 38 Cal.4th 932, 952; People v. Cheary (1957) 48 Cal.2d 301, 311-312.) This foundation may, but need not be, supplied by the person taking the photograph or by a person who witnessed the event being recorded. (People v. Mehaffey (1948) 32 Cal.2d 535, 555; People v. Doggett (1948) 83 Cal.App.2d 405, 409; 2 Witkin, Cal. Evidence (5th ed. 2012) Documentary Evidence, § 7, pp. 154-156 (Witkin).) It may be supplied by other witness testimony, circumstantial evidence, content and location. (Valdez, supra, 201 Cal.App.4th at p. 1435; People v. Gibson (2001) 90 Cal.App.4th 371, 383; see People v. Skiles (2011) 51 Cal.4th 1178, 1187; Witkin, supra, at pp. 154-155.) Authentication also may be established ―by any other means provided by law‖ (§ 1400), including a statutory presumption. (Cal. Law Revision Com. com., supra, foll. § 1400, p. 440 [―The requisite preliminary showing may also be supplied by a presumption.‖].) The People argue that sections 1552 and 1553 provide such a presumption of authenticity for ATES images and data. The People are correct that sections 1552 and 1553 are applicable here. These statutes‘ presumptions partly, but not completely, supply the foundation for admission of ATES evidence. Subdivision (a) of section 1553 provides, as pertinent here, that ―[a] printed representation of images stored on a video or digital medium is presumed to be an accurate representation of the images it purports to represent. . . . If a party to an 9 action introduces evidence that a printed representation of images stored on a video or digital medium is inaccurate or unreliable, the party introducing the printed representation into evidence has the burden of proving, by a preponderance of evidence, that the printed representation is an accurate representation of the existence and content of the images that it purports to represent.‖ Subdivision (a) of section 1552 provides a similar presumption for ―[a] printed representation of computer information or a computer program.‖ In 2012, the Legislature added a subdivision (b) to both sections to expressly clarify the applicability of the statutes to printed representations of video or photographic images stored by an ATES and printed representations of computer-generated information stored by an ATES. (§§ 1552, subd. (b) [―Subdivision (a) applies to the printed representation of computer-generated information stored by an automated traffic enforcement system‖], 1553, subd. (b) [―Subdivision (a) applies to the printed representation of video or photographic images stored by an automated traffic enforcement system‖]; Sen. Rules Com., Off. of Sen. Floor Analyses, 3d reading analysis of Sen. Bill No. 1303 (2011-2012 Reg. Sess.) as amended May 29, 2012, p. 4, par. 8; Assem. Com. on Judiciary, Analysis of Sen. Bill No. 1303 (2011-2012 Reg. Sess.) as amended June 26, 2012, p. 14.)2 Sections 1552 and 1553 were added to the Evidence Code as part of the 1998 legislation that repealed the best evidence rule (former § 1500) and adopted the secondary evidence rule (§§ 1520-1523; Stats. 1998, ch. 100, §§ 4, 5, pp. 634- 2 Because the statutes were intended to be declarative of existing law, no question of retroactive application is presented. (McClung v. Employment Development Dept. (2004) 34 Cal.4th 467, 471-472; see Carter v. California Dept. of Veterans Affairs (2006) 38 Cal.4th 914, 922-923, 930.) 10 635.)3 Under the secondary evidence rule, the content of a writing may now be proved either ―by an otherwise admissible original‖ (§ 1520) or by ―otherwise admissible secondary evidence.‖ (§ 1521, subd. (a); see People v. Skiles, supra, 51 Cal.4th at p. 1187.) Sections 1552 and 1553 permit the writings that they describe to be introduced as secondary evidence. Thus, the presumptions in sections 1552 and 1553 eliminate the basis for any objection that a printed version of the described writings is not the ―original‖ writing. Because sections 1552 and 1553 provide a presumption for both ―the existence and content‖ of computer information and digital images that the printed versions purport to represent (§§ 1552, subd. (a), 1553, subd. (a)), the presumptions operate to establish, at least preliminarily, that errors in content have not been introduced in the course of printing the images and accompanying data. As the court in People v. Hawkins (2002) 98 Cal.App.4th 1428, 1450 (Hawkins) explained, the presumptions essentially operate to establish that ―a computer‘s print function has worked properly.‖ As applicable here, the presumptions provided by sections 1552 and 1553 support a finding, in the absence of contrary evidence, that the printed versions of ATES images and data are accurate representations of the images and data stored in the ATES equipment. 3 Section 1552 continues the provisions of former section 1500.5, subdivisions (c) and (d) without substantive change, except that the reference to ― ‗best available evidence‘ ‖ in former section 1500.5, subdivision (c) is changed to ― ‗an accurate representation,‘ ‖ ―due to the replacement of the Best Evidence Rule with the Secondary Evidence Rule.‖ (Cal. Law Revision Com. com., 29B pt. 4 West‘s Ann. Evid. Code (2014 supp.) foll. § 1552, p. 233.) Section 1553 continues a portion of former section 1500.6 without substantive change, except for a similar change in terminology. (Cal. Law Revision Com. com., 29B pt. 4 West‘s Ann. Evid. Code (2014 supp.) foll. § 1553, p. 235.) 11  We reject defendant‘s contention that application of these presumptions violate her right to constitutional due process as described in Western & Atlantic Railroad v. Henderson (1929) 279 U.S. 639, 642-644. The court in Henderson held invalid a statutory rebuttable presumption in a civil case for lack of a rational connection between the ultimate fact presumed and the fact actually placed in evidence. (See Lavine v. Milne (1976) 424 U.S. 577, 585.) In the criminal context, however, a due process challenge to an evidentiary presumption requires us to distinguish between mandatory presumptions, which either can be conclusive or rebuttable, and permissive inferences. (Francis v. Franklin (1985) 471 U.S. 307, 313-315.) Mandatory presumptions will violate due process if they relieve the prosecution of the burden of persuasion on an element of the offense. (Patterson v. New York (1977) 432 U.S. 197, 215; see Sandstrom v. Montana (1979) 442 U.S. 510, 520-524.) Permissive inferences violate due process only if the permissive inference is irrational. (Francis, supra, at pp. 314-315; Ulster County Court v. Allen (1979) 442 U.S. 140, 157-163; People v. Moore (2011) 51 Cal.4th 1104, 1131-1132.) The rebuttable presumptions set forth in sections 1552 and 1553 affect the burden of producing evidence regarding a preliminary fact necessary for the admission of evidence. As their presumptions affect the admissibility of the described writings when offered by any party, but do not require any weight to be given to the evidence if admitted, sections 1552 and 1553 do not reduce the prosecution‘s burden of proof to show defendant‘s violation beyond a reasonable doubt. They establish only permissive inferences, which, being logically grounded on advances in technology, are not irrational. (Francis, supra, at pp. 314-315; Moore, supra, at p. 1132.)4 Contrary to defendant‘s 4 Defendant contends it would be arbitrary in this case to assume that the ATES evidence is reliable because Redflex has previously ―falsified evidence.‖ In (Footnote continued on next page.) 12 argument, these presumptions do not deny defendant a fair opportunity to rebut the presumed accuracy or reliability of the offered evidence. (Henderson, supra, 279 U.S. at p. 642.)5 Although we reject defendant‘s constitutional challenge, it is important to recognize that the presumptions in sections 1552 and 1553 do not in themselves fully supply the necessary foundation for admission of ATES evidence. The secondary evidence rule does not ―excuse[] compliance with Section 1401 (authentication).‖ (§ 1521, subd. (c).) ―[T]o be ‗otherwise admissible,‘ secondary (Footnote continued from previous page.) support of this claim, defendant requested that we take judicial notice of documents she obtained from the Arizona secretary of state reflecting the investigation, and consequent revocation of the commission, of an Arizona notary public who was found to have improperly notarized a Redflex ―deployment form‖ for a speed photo radar vehicle. It would be pure conjecture to conclude that all evidence generated by Redflex ATES technology and handled by Redflex employees for Inglewood is suspect because of the actions of a single errant notary public in a different state regarding a different type of technology and documentation. We have denied defendant‘s request for judicial notice and reject her argument that the involvement of Redflex in this case requires a different constitutional conclusion. 5 Claiming that traffic court defendants appear almost universally in propria persona and that they lack the motive, means, or opportunity to engage in discovery prior to trial or to spend thousands of dollars on expert fees, defendant argues the presumptions stated in sections 1552 and 1553 deny traffic court defendants a fair opportunity to ―repel‖ the presumptions. We will not speculate that traffic defendants lack motivation to contest their tickets. And, contrary to defendant‘s claim, traffic defendants have sufficient means and opportunity to contest their alleged violation because individuals charged with infractions are accorded the same rights as individuals charged with misdemeanors to subpoena witnesses and documents, to present testimony and other evidence, and to cross- examine the prosecution‘s witnesses. (Pen. Code, § 19.7 [―Except as otherwise provided by law, all provisions of law relating to misdemeanors shall apply to infractions . . . .‖].) 13 evidence must be authenticated.‖ (People v. Skiles, supra, 51 Cal.4th at p. 1187; see § 1401, subd. (b) [―Authentication of a writing is required before secondary evidence of its content may be received in evidence.‖].) Here, Young‘s testimony was adequate to show that the ATES photographs at issue were from Inglewood‘s ATES equipment located at the corner of Centinela and Beach Avenues. From his explanation regarding the independent operation of the ATES camera system, it can be reasonably inferred that the ATES system automatically and contemporaneously recorded the images of the intersection and the data imprinted on the photographs when it was triggered. Young was not asked anything about the city‘s or the police department‘s records or supervision of Redflex‘s maintenance or certification of the equipment. 6 Defendant does not argue that Young‘s testimony was insufficient to demonstrate that the evidence was properly received in the normal course and manner of Inglewood‘s operation of its ATES program. Finally, we note that the content of the photographs themselves may be considered and here the content supplied 6 Young was asked when the ―photo system‖ was last calibrated. Young answered that ―there is no calibration of this [photo] system.‖ Defendant argues that such testimony revealed Inglewood‘s failure to comply with the statutory requirements that the ATES equipment be regularly inspected and certified to have been properly installed and calibrated and to be operating properly. (Veh. Code, § 21455.5, subds. (c)(2)(B), (C), d.) We do not read the testimony in this way. In context, it appears Young understood that question and the followup question regarding calibration to ask only about the connection between the ATES camera and the traffic signal. He responded that the systems operate independently and that the only connection is an electrical connection that lets the camera know that the light is in its red phase. Defense counsel did not clarify or pose further followup questions regarding calibration of the ATES system. Counsel did not ask any questions concerning Inglewood‘s or the police department‘s oversight of Redflex‘s maintenance and certification of the installed ATES equipment at this intersection. 14 further support for a finding that the images were genuine.7 Indeed, at oral argument, defendant‘s counsel conceded that the ATES photographs in this case actually depicted his client in the intersection. Accordingly, we conclude that, in conjunction with the operation of the presumptions of sections 1552 and 1553, sufficient evidence was submitted to the court to sustain a finding (§ 403, subd. (a)(3)) that the ATES evidence ―is the writing that the [prosecution] claimed it is‖ (§ 1400) and the trial court properly exercised its discretion to admit the evidence. Defendant claims, however, that in this case involving digital images it was necessary for the prosecution as part of its foundational showing to additionally present the testimony of a Redflex technician regarding the operation and maintenance of the system that generated the ATES evidence because digital images are more readily and inexpensively subject to manipulation, and yet at the same time, such manipulations are more difficult to detect, compared with an analog alteration. We disagree that the testimony of a Redflex technician or other witness with special expertise in the operation and maintenance of the ATES computers was required as a prerequisite for authentication of the ATES evidence. Contrary to defendant‘s assertion, the record contains no evidence that the ATES evidence was materially altered, enhanced, edited or otherwise changed; 7 Specifically, given Young‘s testimony regarding how the ATES system operates, the fact that in this case it produced a photograph showing defendant driving her vehicle at or before the limit line with the signal light in its red phase and then another photograph of defendant driving her vehicle in the intersection with the signal light in its red phase, as well as a 12-second video showing defendant‘s vehicle crossing the intersection and the transition of the traffic signal light phases, including a four-second yellow light, is circumstantial evidence that the system was working properly. 15 rather it consisted of entirely automatically produced photos and video and contemporaneously recorded data. No elaborate showing of accuracy is required. (See 2 McCormick, supra, § 227, p. 111 [accuracy of an individual computer‘s basic operations will not be scrutinized unless specifically challenged, and even perceived errors go to the weight of the evidence, not its admissibility].) We decline to require a greater showing of authentication for the admissibility of digital images merely because in theory they can be manipulated. (See Owens v. State (Ark. 2005) 214 S.W.3d 849, 854 [refusal to impose a higher burden of proof for admissibility of still photographs taken from a store surveillance camera‘s videotape merely because digital images are easier to manipulate].) We have not required testimony regarding the ― ‗acceptability, accuracy, maintenance, and reliability of . . . computer hardware and software‘ ‖ in similar situations. (People v. Martinez (2000) 22 Cal.4th 106, 132, quoting People v. Lugashi (1988) 205 Cal.App.3d 632, 642; accord, People v. Nazary (2010) 191 Cal.App.4th 727, 755.) The standard foundational showing for authentication of a photograph, video, or other writing will suffice for ATES images and data information. 8 8 People v. McWhorter (2009) 47 Cal.4th 318, 364-367, and State v. Swinton (Conn. 2003) 847 A.2d 921, 942-945, on which defendant relies for her contention that expert testimony regarding the accuracy and reliability of the ATES computer process should be required, are distinguishable because they involved computer- enhanced photographic images. Similarly, People v. Duenas (2012) 55 Cal.4th 1, 20-21, is inapposite because it involved a computer animation and the comments defendant relies on were directed at computer simulations. Computer animations and simulations are types of digital imaging technology distinctly different from the ATES-generated evidence involved here. Finally, People v. Beckley (2010) 185 Cal.App.4th 509, 514-516, is distinguishable because the issue there concerned the admission of a photograph found on a social media Web site, which presented questions of accuracy and reliability different from the evidence here. These cases serve to demonstrate the need to carefully assess the specific nature of the photographic image being offered into evidence and the purpose for which it is (Footnote continued on next page.) 16  We conclude that the trial court did not abuse its discretion in overruling defendant‘s objection of lack of foundation. B. ATES evidence does not constitute hearsay Defendant contends that some of the data bar information imprinted on the ATES photographs constitutes hearsay that does not come within either the business records or public records exception to the hearsay rule. She asserts that the trial court erred in overruling her objection raising that ground for exclusion of the evidence. We disagree. As we have explained, the evidence before the trial court reflects that the digital photographs were taken automatically by the ATES. Admittedly, the ATES must be programmed to activate when certain criteria are met, but it is undisputed that at the time any images are captured by the digital image sensors in the ATES cameras, there is no Inglewood city employee, law enforcement officer or Redflex technician present watching the intersection and deciding to take the photographs and video. 9 The ATES routinely monitors the intersection without (Footnote continued from previous page.) being offered in determining whether the necessary foundation for admission has been met. 9 Redflex has filed an amicus curiae brief with this court in which it describes its ATES technology in much more detail than provided to the trial court. We decline to consider the technical details of the ATES provided by Redflex in its brief. Not only is Redflex‘s description not a matter of ―common knowledge‖ (§ 452, subd. (g)) or a proposition ―not reasonably subject to dispute and . . . capable of immediate and accurate determination by resort to sources of reasonably indisputable accuracy‖ (id., subd. (h)) so as to come within the parameters of permissible judicial notice, it would be inappropriate to take judicial notice of additional facts that the prosecution did not introduce at trial. (People v. Davis (2013) 57 Cal.4th 353, 360.) 17 human presence at the site. When the camera is activated and takes the video and the three digital photographs of the intersection, the computer also records various data regarding the captured incident, including the date, time, location, and length of time since the traffic signal light turned red. The information is imprinted on a data bar on the photographs. The photographs, video and data bar information are entirely computer produced. Evidence Code section 1200 defines hearsay as ―evidence of a statement that was made other than by a witness while testifying at the hearing and that is offered to prove the truth of the matter stated.‖ (§ 1200, subd. (a), italics added.) A statement, in turn, is defined as an ―oral or written verbal expression or . . . nonverbal conduct of a person intended by him as a substitute for oral or written verbal expression.‖ (§ 225, italics added.) ― ‗Person‘ includes a natural person, firm, association, organization, partnership, business trust, corporation, limited liability company, or public entity.‖ (§ 175.) The ATES-generated photographs and video introduced here as substantive evidence of defendant‘s infraction are not statements of a person as defined by the Evidence Code. (§§ 175, 225.) Therefore, they do not constitute hearsay as statutorily defined. (§ 1200, subd. (a).) Because the computer controlling the ATES digital camera automatically generates and imprints data information on the photographic image, there is similarly no statement being made by a person regarding the data information so recorded. Simply put, ―[t]he Evidence Code does not contemplate that a machine can make a statement.‖ (Hawkins, supra, 98 Cal.App.4th at p. 1449; accord, People v. Lopez (2012) 55 Cal.4th 569, 583, agreeing with United States v. Moon (7th Cir. 2008) 512 F.3d 359, 362 [― ‗the instruments‘ readouts are not ―statements‖ ‘ ‖] & U.S. v. Washington (4th Cir. 2007) 498 F.3d 225, 231 [― ‗the raw data generated by the machines do not constitute ―statements,‖ and the machines are not ―declarants‖ ‘ ‖]; U.S. v. 18 Hamilton (10th Cir. 2005) 413 F.3d 1138, 1142-1143 [computer-generated header information on digital images does not constitute hearsay]; see Wolfson, “Electronic fingerprints”: Doing Away with the Conception of Computer- Generated Records as Hearsay (2005) 104 Mich. L.Rev. 151, 159-160.) Our conclusion that the ATES evidence does not constitute hearsay is confirmed by recent legislative action intended to clarify the non-hearsay status of ATES evidence. (Assem. Com. on Judiciary, Analysis of Sen. Bill No. 1303 (2011-2012 Reg. Sess.), supra, p. 14.) As amended in 2012, Vehicle Code section 21455.5, subdivision (e), now specifically provides that ―[t]he printed representation of computer-generated information, video, or photographic images stored by an automated traffic enforcement system does not constitute an out-of- court hearsay statement by a declarant under Division 10 (commencing with Section 1200) of the Evidence Code.‖ (Italics added.)10 Nevertheless, defendant argues that the ATES evidence is ―unquestionably testimonial‖ and as a result, she contends, its admission violated her federal constitutional right to confrontation. As defendant later appears to acknowledge, People v. Lopez, supra, 55 Cal.4th at page 583, undermines both her hearsay and confrontation clause arguments. Consistent with Lopez, we conclude that our determination that the ATES evidence is not hearsay necessarily requires the rejection of defendant‘s confrontation claims. (Ibid. [―Because, unlike a person, a machine cannot be cross-examined, here the prosecution‘s introduction into evidence of the machine-generated printouts . . . did not implicate the Sixth Amendment‘s right to confrontation.‖].) 10 Again, because we find the statute to be declarative of existing law, no question of retroactive application is presented. (McClung v. Employment Development Dept., supra, 34 Cal.4th at pp. 471-472.) 19  C. There is no reason to adopt a heightened requirement for red light camera traffic cases Defendant contends that the dynamics of the traffic court system — which she contends routinely rushes defendants through trial of their cases before traffic commissioners who generally discount a defendant‘s individual recollection of the events and accept the prosecution‘s evidence as ―gospel‖ — provides a basis for imposing and enforcing strict evidentiary requirements for obtaining red light camera convictions. Defendant asks that, in order to restore the public‘s trust in the integrity of the traffic court system, we exercise our inherent powers to ―regulate criminal procedure‖ by requiring ―proper‖ testimony regarding ―questionable‖ ATES photos and data prepared by Redflex before the photos and data may be admitted into evidence. Any other rule would, according to defendant, allow a relaxed standard for red light camera infractions. Although defendant claims to be advocating an evidentiary standard commensurate with the standard applicable in other criminal contexts, she is in essence asking that we adopt a special rule for red light camera cases based on her suspicions regarding the operation of ATES by local jurisdictions contracting with Redflex. As we have earlier noted, the Penal Code provides that ―[e]xcept as otherwise provided by law, all provisions of law relating to misdemeanors shall apply to infractions‖ (Pen. Code, § 19.7), but we find no legal ground for adopting heightened evidentiary requirements for infractions, specifically one type of alleged infraction — traffic violations in red light camera cases. Nor does the relative speed and informality of traffic court support imposing unique requirements for the admission of ATES evidence. Years ago we recognized that ―it is in the interests of the defendant, law enforcement, the courts, and the public to provide simplified and expeditious procedures for the adjudication of less serious traffic offenses.‖ (People v. Carlucci (1979) 23 Cal.3d 249, 257.) 20  We decline to adopt special rules for the ATES digital evidence offered in trials of red light traffic camera cases. CONCLUSION The judgment of the Court of Appeal is affirmed. CANTIL-SAKAUYE, C. J. WE CONCUR: BAXTER, J. WERDEGAR, J. CHIN, J. CORRIGAN, J. LIU, J. KENNARD, J.* * Retired Associate Justice of the Supreme Court, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution. 21 See next page for addresses and telephone numbers for counsel who argued in Supreme Court. Name of Opinion People v. Goldsmith __________________________________________________________________________________ Unpublished Opinion Original Appeal Original Proceeding Review Granted XXX 203 Cal.App.4th 1515 Rehearing Granted __________________________________________________________________________________ Opinion No. S201443 Date Filed: June 5, 2014 __________________________________________________________________________________ Court: Superior County: Los Angeles Judge: John Robert Johnson, Commissioner __________________________________________________________________________________ Counsel: Wilson, Elser, Moskowitz, Edelman & Dicker, Robert Cooper; Law Offices of John J. Jackman and John J. Jackman for Defendant and Appellant. Kin Wah Kung as Amicus Curiae on behalf of Defendant and Appellant. Law Offices of Joseph W. Singleton and Joseph William Singleton for Mishel Rabiean as Amicus Curiae on behalf of Defendant and Appellant. The Law Office of Richard Allen Baylis, R.A. Baylis & Associates, R. Allen Baylis; The Ticket Dump and Patrick T. Santos as Amici Curiae on behalf of Defendant and Appellant. Wilson, Elser, Moskowitz, Edelman & Dicker and Robert Cooper for David Martin as Amicus Curiae on behalf of Defendant and Appellant. Cal Saunders, City Attorney; Best Best & Krieger, Dean R. Derleth, John D. Higginbotham and Kira L. Klatchko for Plaintiff and Respondent. Joseph Straka, Interim City Attorney (Santa Ana), José Sandoval, Chief Assistant City Attorney, and Melissa Crosthwaite, Deputy City Attorney, for City of Santa Ana as Amicus Curiae on behalf of Plaintiff and Respondent. Dapeer, Rosenblit & Litvak, William Litvak and Caroline K. Castillo for City of West Hollywood, City of Beverly Hills and City of Culver City as Amici Curiae on behalf of Plaintiff and Respondent. Sheppard, Mullin, Richter & Hampton, Gregory P. Barbee, Michael D. Stewart, John M. Hynes, Jessica A. Johnson; Woodruff, Spradlin & Smart and Jason McEwen for Redflex Traffic Systems, Inc., and City of Garden Grove as Amici Curiae on behalf of Plaintiff and Respondent. Richards, Watson & Gershon, T. Peter Pierce and Andrew J. Brady for League of California Cities as Amicus Curiae on behalf of Plaintiff and Respondent. Counsel who argued in Supreme Court (not intended for publication with opinion): Robert Cooper Wilson, Elser, Moskowitz, Edelman & Dicker 555 South Flower Street, 29th Floor Los Angeles, CA 90071 (213) 443-5100 Kira L. Klatchko Best Best & Krieger 74-760 Highway 111, Suite 200 Indian Wells, CA 92210 (760) 568-2611 

535 U.S. 942 CISNEROS-GARZAv.UNITED STATES. No. 01-8123. Supreme Court of the United States. March 18, 2002. 1 C. A. 5th Cir. Certiorari denied. Reported below: 275 F. 3d 1079.

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701 S.W.2d 103 (1985) 287 Ark. 431 Dr. Rosemary BRANDT, Appellant, v. ST. VINCENT INFIRMARY, Appellee. No. 85-142. Supreme Court of Arkansas. December 16, 1985. Rehearing Denied January 21, 1986. *104 Kenneth C. Coffelt, Dale Price, Little Rock, for appellant. House, Wallace, Nelson & Jewell by Janice Wegener and Thomas B. Staley, Little Rock, for appellee. HAYS, Justice. In this case of first impression we are asked to decide whether a private hospital has the right to set its own policies regarding medical treatment, against an assertion by one of its staff physicians that those policies are arbitrary. Appellant invoked the jurisdiction of this court pursuant to Rule 29(1)(a), alleging her constitutional rights were violated by certain hospital restrictions and the Court of Appeals certified the appeal to us on the basis of Rule 29(4)(b). Appellant, Dr. Rosemary Brandt, is a licensed physician on the medical staff of appellee, St. Vincent Infirmary, specializing in psychiatry. She brought this suit in chancery court claiming the appellee had unreasonably, capriciously and arbitrarily restricted her right to prescribe and administer megadose vitamin therapy and candida antigens. She asked that the hospital be enjoined from such interference. Upon motions by appellee for dismissal under A.R.C.P. 12(b)(6) and for summary judgment under ARCP Rule 56, the Chancellor summarily dismissed the case, finding that appellant failed to allege facts upon which relief could be granted and that no justiciable controversy existed. We agree with the Chancellor with respect to the Rule 12(b)(6) motion, that no cause of action was alleged upon which relief could be granted. That being so, there was no need to consider whether there were issues of material fact relevant to Rule 56. If a complaint fails to allege a cause of action in the first instance, the absence of issues of fact are of no concern. Dismissal under Rule 12(b)(6) should be granted when taking all the facts alleged in the complaint as true, the complainant is not entitled to the relief sought. See McAllister v. Forrest City Street Improvement Dist. No. 11, 274 Ark. 372, 626 S.W.2d 194 (1981). We conclude the Chancellor correctly held that no cause of action was stated. Appellant was licensed to practice medicine in Arkansas in 1957, and began specializing in psychiatry in 1966. In 1971 she was certified by the American Board of Psychiatry and Neurology. She has been on the medical staff of appellee hospital since 1978 and has treated patients with allergic modalities and nutritional therapy. Treatments have included the use of megavitamins and candida vaccines, as well as the more traditional methods of psychotherapy. Sometime prior to October 16, 1984, when appellant filed this suit, she was instructed by appellee's Psychiatry Controls Committee to refrain from use of the mega-vitamins and candida vaccines except to patients with a diagnosed deficiency state or unless administered on an experimental basis. She contends these restrictions are imposed discriminately by the hospital and by its Psychiatry Controls Committee, which determined that the treatments were without sufficient scientific validation to justify their use other than on an experimental basis. Appellant declined to submit to an experimental protocol, *105 claiming the treatments are not experimental. Appellant concedes that SVI is a private hospital, which simplifies the issue. Public hospitals are prohibited from acting arbitrarily and capriciously under the Equal Protection Clause and Due Process Clause of the 14th Amendment to the United States Constitution, and under article 2, sections 2 and 3 of the Arkansas Constitution. See Ware v. Benedict, 225 Ark. 185, 280 S.W.2d 234 (1955). Anno: Physician, Surgeon-Hospital Exclusion, 37 ALR 3d 645, 669, (1971). And it is generally held that private hospitals are not subject to the same standards as public hospitals, 37 ALR3d 645, 649 (1971). A private hospital however, will be considered public and subject to judicial review under some circumstances: 1) when the relationship or nexus between the state and the institution is symbiotic in character and the state has so far insinuated itself into a position of interdependence that it must be recognized as a joint participant in the challenged activity—that the nexus is sufficiently close so that the action of the institution may be fairly treated as that of the state itself, Jackson v. Metropolitan Edison Co., 419 U.S. 345, 95 S.Ct. 449, 42 L.Ed.2d 477 (1974); Burton v. Wilmington Parking Authority, 365 U.S. 715, 81 S.Ct. 856, 6 L.Ed.2d 45 (1961); and 2) when the institution is dedicated to a public purpose, Greisman v. Newcomb Hospital, 40 N.J. 389, 192 A.2d 817 (1963) or may exercise some power delegated to it by the state which is traditionally reserved exclusively to the state. Jackson, supra; Flagg Bros. Inc. v. Brooks, 436 U.S. 149, 98 S.Ct. 1729, 56 L.Ed.2d 185 (1978). For a discussion of the basis of state action in such cases, see generally Bello v. South Shore Hospital, 338 Mass. 770, 429 N.E.2d 1011 (1981); Daniels v. Twin Oaks Nursing Home, 692 F.2d 1321 (11th Cir.1982) (Hoffman, J., concurring). In both instances, the courts may review the hospital rule or policy looking for its reasonableness, as though reviewing actions or policies of a public hospital. The Eighth Circuit Court of Appeals considered the nexus argument in a recent Arkansas case, Lubin v. Crittenden Hospital Assn., 713 F.2d 414 (8th Cir.1983). Dr. Lubin was placed on probation for misconduct as a staff member at the Crittenden Memorial Hospital, a private, nonprofit corporation. He argued the disciplinary action constituted state action and was in violation of his due process rights under the federal constitution, and rights defined under 42 U.S.C. § 1983 and 28 U.S.C. § 1343(3). Rejecting Lubin's argument, the court stated: In order for the Hospital's discipline of Dr. Lubin to be classified as state action there must be a sufficiently close nexus between the challenged action of the Hospital and the state's regulation so that the action of the former may be fairly treated as that of the state itself. Jackson v. Metropolitan Edison Co., 419 U.S. 345, 351, 95 S.Ct. 449, 453-54, 42 L.Ed.2d 477 (1974). "The purpose of this requirement is to assure that constitutional standards are invoked only when it can be said that the State is responsible for the specific conduct of which the plaintiff complains." Blum v. Yaretsky, 457 U.S. 991, 1004, 102 S.Ct. 2777, 2786, 73 L.Ed.2d 534 (1982) (emphasis in original). This court applied the nexus test in Briscoe v. Bock, supra, 540 F.2d [392] 393 [(8th Cir.)], a case in which a physician was dismissed by a private, non-profit, tax-exempt hospital. Id. at 394. The hospital in question in Briscoe was subject to extensive state regulation and received substantial federal funding. Id. We held that there was "no such nexus between the state's relationship to the Hospital's operation and the dismissal of the plaintiff as to justify attribution of the challenged action of the Hospital to the state." Id. at 396. The court went on to note the only distinction between the Lubin and Briscoe cases lay in the fact that the county owned the hospital in Lubin, which was not sufficient to establish state action, thus the *106 state was not controlling the activity from which Lubin's complaint arose. The Lubin court held that unless the state or subdivision is directly responsible or indirectly connected with the action of which the plaintiff complains, the action will not be attributed to the state. We note that Crittenden Memorial Hospital received aid under the Hill-Burton Act, as well as from Medicare and Medicaid programs, and was regulated as a health care facility. Notwithstanding the hospital's participation in these programs, it was not considered to fall within the public function category. A majority of federal circuits which have addressed the question have held that a private hospital's actions are not state action and thus not governed by the 14th Amendment, even though the cases may involve hospitals receiving Hill-Burton funding and Medicare or Medicaid payments, tax exempt status, and were licensed and regulated by the state. See Hodge v. Paoli Memorial Hosp., 576 F.2d 563 (3d Cir.1978); Madry v. Sorel, 558 F.2d 303 (5th Cir.1977), cert. denied, 434 U.S. 1086, 98 S.Ct. 1280, 55 L.Ed.2d 791 (1978); Schlein v. Milford Hospital, Inc., 561 F.2d 427 (2d Cir.1977); Briscoe v. Bock, 540 F.2d 392 (8th Cir.1976); Watkins v. Mercy Medical Center, 520 F.2d 894 (9th Cir. 1975); Jackson v. Norton-Children's Hospitals, Inc., 487 F.2d 502 (6th Cir.1973), cert. denied, 416 U.S. 1000, 94 S.Ct. 2413, 40 L.Ed.2d 776 (1974); Ward v. St. Anthony Hospital, 476 F.2d 671 (10th Cir.1973); Doe v. Bellin Memorial Hospital, 479 F.2d 756, 757 (7th Cir.1973). In that light, it is difficult to conceive of a situation where a private hospital will be governed by a reasonableness standard unless the challenged regulation or action is prompted by the state. Here, the appellant offered nothing by way of argument on appeal or in pleadings or affidavits below that the state or any subdivision was in any way responsible for the action she challenges. She does not even meet a threshold requirement of stating or claiming there was state involvement with SVI in any manner whatsoever. Under these circumstances we find no basis for state action and hence no judicial review on the grounds of any nexus between SVI and the state. The alternative basis for finding judicial review appropriate is one grounded on policy and finding the hospital in a public function or dedicated to a public purpose. The leading case in this area is Greisman v. Newcomb Hosp., supra. Our research indicates that since that opinion in 1963, only a minority of courts have been persuaded to follow Greisman in its reasoning. To that effect, see Bello v. South Shore Hospital, supra; Daniels, supra; Kelly v. St. Vincent Hosp., 102 N.M. 201, 692 P.2d 1350 (1984); Hoffman v. Garden Hospital, 115 Mich.App. 773, 321 N.W.2d 810 (1981); Kiracofe v. Reid Memorial Hospital, 461 N.E.2d 1134 (Ind.App.1984) (Ratliff, J., concurring). We also decline to follow Greisman on the allegations presented here. All hospitals cater to the health needs of the community, an essential public function, and therefore their policies and practices are of particular concern to the public. Nevertheless, there are sufficient regulations now in effect designed to protect the public in the operation of health care facilities in the state. We see no compelling reason to conclude that a private hospital which is following appropriate state regulations must also be subject to judicial scrutiny as to the reasonableness standard of public hospitals in order to preserve the public interest. Its own medical staff can guarantee adherence to reasonableness more capably than the courts. We think it unnecessary to strip the private hospital of its right to adopt policies of its own choosing simply because the hospital serves an overall public function. And see Bello, supra. Appellant insists if we affirm the Chancellor we will be making a public declaration that a physician does not have the right to use those methods of treatment he or she considers beneficial to patients. But that assertion distorts the issue. Nothing in this opinion denies to the appellant the *107 right to use any lawful treatment she deems appropriate, only that she may not use the facilities of the appellee to administer those treatments except in accordance with conditions prescribed by the governing body of that institution. In Branch v. Hempstead County Memorial Hospital, 539 F.Supp. 908 (W.D.Ark. 1983) the issue of a physician's rights within a public hospital was addressed. In Branch, the court merely required the hospital to afford minimal due process procedures-notice and a hearing. It recognized the principle that great deference should be accorded the decisions of the hospital governing body. 539 F.Supp., at 917-918. And see Sosg v. Bd. of Managers of Val Verde Memorial Hospital, 437 F.2d 173 (5th Cir.1971). In light of that deference accorded even public hospital boards, we believe the Chancellor's order dismissing the complaint should be affirmed. Affirmed. HICKMAN, and DUDLEY, JJ., concur. PURTLE, J., not participating. DUDLEY, Justice, concurring. I concur in affirming the decision of the trial court, but do not agree with the reasoning expressed by the majority in reaching that result. The majority opinion sets forth the rule that the managing authority of a private hospital can unreasonably and arbitrarily dictate how medicine is to be practiced by a physician or surgeon in that hospital. The better rule would be to allow the managing authority to dictate how a physician or surgeon is to practice medicine only after a reasonable exercise of judgment. The various interests are not necessarily in opposition. Hospital authorities must be given great managerial discretion in order to elevate hospital standards and provide higher quality medical care. The physician, by being on the hospital staff, carries the imprimatur of the hospital. Understandably, hospital authorities must have some control over the physicians on their staff. At the same time, physicians must be allowed to practice medicine to the best of their ability and should never be unreasonably and arbitrarily restrained from so doing. Physicians and hospitals hold their powers relating to the practice of medicine in trust for the public. The majority undercuts that trust since, in compliance with their opinion, Courts of this State in the future must decline to intervene on behalf of a physician and the public when the managing authority of a private hospital arbitrarily, unreasonably and without medical basis dictates that some particular medical practice must be followed. It is no answer to state, as the majority does, that the doctor can go elsewhere if he does not want to follow the dictates of the hospital authority. "It is common knowledge that a physician or surgeon who is not permitted to practice his profession in a hospital is as a practical matter denied the right to fully practice his profession ... [because] much of what a physician or surgeon must do can only be performed in a hospital." Wyatt v. Tahoe Forest Hospital District, 174 Col. App.2d 709, 345 P.2d 93 (1959). The majority bases its conclusion on the distinction between public and private hospitals. That distinction, however, is rapidly changing. The better view of hospitals, such as the one before us, is that they are quasi-public institutions. The concept is explained in Silver, M.D. v. Castle Memorial Hospital, 53 Hawaii 475, 497 P.2d, 564, 569 (1972): At this point it is appropriate that we note the distinction that has been drawn in characterizing a hospital as a public or private institution. It has been recognized that the generally accepted view is that "a public hospital is an instrumentality of the state, founded and owned in the public interest, supported by public funds, and governed by those deriving their authority from the state. A private hospital is founded and maintained by private persons or a corporation, a state or municipality having no voice in the management or control of its property or the formation of rules for its government." *108 Woodard v. Porter Hospital, Inc., 125 Vt. 419, 422, 217 A.2d 37, 39 (1966). The principal distinguishing feature of a hospital that is characterized as being private is that it as an entity has the power to manage its own affairs and is not subject to the direct control of a governmental agency. [citations omitted] Such a private identity is usually evidenced by the fact that under the hospital's charter or corporate powers granted, it has the right to elect its own board of officers and directors. It is this board in whom is placed, either expressly or impliedly, the discretionary power of granting staff privileges. It is evident that recently some courts have recognized another hospital classification falling between that of public and private. Such a status can be termed "quasi public" as distinguished from a hospital that is truly private. E.g., Sussman v. Overlook Hospital Association, 92 N.J.Super. 163, 168, 222 A.2d 530, 533 (1966), aff'd 95 N.J.Super. 418, 231 A.2d 389 (1967). The "quasi public" status is achieved if what would otherwise be a truly private hospital was constructed with public funds, is presently receiving public benefits or has been sufficiently incorporated into a governmental plan for providing hospital facilities to the public. It is not surprising that courts would be more readily willing to grant judicial review of a private hospital's administrative decision if it could be shown that the hospital in question was not a truly private institution. However, if the proposition that any hospital occupies a fiduciary trust relationship between itself, its staff and the public it seeks to serve is accepted, then the rationale for any distinction between public, "quasi public" and truly private breaks down and becomes meaningless, especially if the hospital's patients are considered to be of primary concern. In holding that the actions of appellee hospital in this case are subject to judicial review we do not mean to characterize appellee as anything other than a private hospital. In relation to this point we are in concurrence with the reasoning that "a private nonprofit hospital, which receives part of its funds from public sources and through public solicitation, which receives tax benefits because of its nonprofit and nonprivate aspects and which constitutes a virtual monopoly in the area in which it functioned, is a `private hospital' in the sense that it is nongovernmental, but that it is in no position to claim immunity from public supervision and control because of its private nature. The power of the staff of such a hospital to pass on staff membership applications is a fiduciary power which must be exercised reasonably and for the public good." Davidson v. Youngstown Hospital Association, 19 Ohio App.2d 246, 250 N.E.2d 892, 895 (1969). In the case at bar the record does not disclose whether the hospital actually received Hill-Burton funds, but federal grants for construction costs were made to both public and private hospitals. 42 U.S.C. § 291 (1982). It is common knowledge that Medicare and Medicaid pay the hospital expenses of many patients in both public and private hospitals. St. Vincent's is licensed by the State and sufficiently incorporated into a governmental plan that it and the other established hospitals have a virtual monopoly on hospital rooms in the area. In fact, this very hospital prevented a competing 150 bed hospital from opening. Statewide Health Coordinating Council, Baptist Medical System, St. Vincent Infirmary, et al. v. General Hospitals of Humana, Inc., 280 Ark. 443, 660 S.W.2d 906 (1983). It is basically unfair for the state and federal governments to give this hospital a monopolistic power, and then for this court to rule that the hospital is a totally private corporation. A fair weighing of the various interests requires that the hospital in this case be termed a quasi-public hospital and, consequently, it must afford physicians or surgeons a fair consideration, or due process, before dictating how they shall practice medicine. The hospital in this case did in fact afford the physician a fair consideration. *109 Thus, I would affirm the case on the basis of a summary judgment instead of on the basis that an arbitrary and unreasonable dictation of the method of medical practice is not actionable.

Order Michigan Supreme Court Lansing, Michigan November 4, 2015 Robert P. Young, Jr., Chief Justice Stephen J. Markman Brian K. Zahra 151461 Bridget M. McCormack David F. Viviano Richard H. Bernstein Joan L. Larsen, PEOPLE OF THE STATE OF MICHIGAN, Justices Plaintiff-Appellee, v SC: 151461 COA: 318216 Ionia CC: 2012-015595-FC KEITH ARTHUR THIBEAULT, Defendant-Appellant. _________________________________________/ On order of the Court, the application for leave to appeal the February 26, 2015 judgment of the Court of Appeals is considered, and it is DENIED, because we are not persuaded that the questions presented should be reviewed by this Court. I, Larry S. Royster, Clerk of the Michigan Supreme Court, certify that the foregoing is a true and complete copy of the order entered at the direction of the Court. November 4, 2015 s1028 Clerk 

426 F.Supp. 85 (1976) UNITED STATES of America v. Grace SHERMAN, Defendant. Nos. 76 Cr. 383 (HFW), 76 Cr. 641 (HFW). United States District Court, S. D. New York. November 4, 1976. *86 *87 Robert B. Fiske, Jr., U. S. Atty., S. D. N. Y., New York City, for the United States by Joel N. Rosenthal, Asst. U. S. Atty., New York City, of counsel. Arnold D. Levine, Tampa, Fla., for petitioner Grace Sherman. MEMORANDUM DECISION WERKER, District Judge. The defendant, Grace Sherman, is charged in two separate indictments, 76 Cr. 383, and 76 Cr. 641, with several counts of aiding and abetting William Sherman in the attempted evasion and defeating of income tax. The court has before it a series of pretrial motions brought on by the defendant Grace Sherman seeking rulings on discovery requests as well as with regard to substantive matters. MOTIONS TO COMPEL DISCLOSURE OF EVIDENCE FAVORABLE TO THE DEFENDANT The government consents to the motion to compel the disclosure of all evidence favorable to the defendant. MOTION FOR INQUIRY-ELECTRONIC SURVEILLANCE The government opposes the motion for an inquiry to ascertain whether any mechanical or electronic surveillance was conducted by its various investigative agencies. The government indicates that it is unaware of any use of electronic surveillance. The Assistant United States Attorney further indicates that the IRS agents who investigated the case have assured him that they have no knowledge of any electronic surveillance of the defendant. The defendant's motion is devoid of any statement of facts which would serve as a basis for believing that Grace Sherman was the subject of electronic surveillance. The motion is therefore denied. *88 MOTION PURSUANT TO 18 U.S.C. § 3504 As to defendant's motion pursuant to 18 U.S.C. § 3504,[1] the government has denied it committed any unlawful act in the nature of electronic surveillance conducted with reference to this defendant. By inference, the government similarly denies that it has obtained inadmissible evidence as a product of such an act. The government's response therefore resolves this motion. REQUEST FOR DISCOVERY AND INSPECTION With respect to the defendant's motion requesting disclosure, the government consents to furnishing statements of the defendant within the possession of the government as requested in paragraph (a) of the motion. The government raises an objection however to the production of the substance of any witness's testimony on the grounds that this constitutes trial evidence. There is no disagreement on this point; the language used in the motion tracks the language of Rule 16(a)(1)(A) of the Federal Rules of Criminal Procedure exactly and, the defendant requests only the statements of the defendant, not those of any other witnesses. The government declines to provide statements of the defendant made to persons not government agents on the grounds that such statements are the substance of the testimony of those persons and that the defendant is not entitled to discover evidentiary matter, citing United States v. Politi, 334 F.Supp. 1318, 1321 (S.D.N.Y.1971). That case stands for the proposition that the government is not compelled to produce statements of non-government agent witnesses if they are not written or recorded. However, the discovery requested by the defendant relates to statements which were made in response to interrogation either before or after arrest. This discovery request has not therefore been specifically addressed by the Assistant United States Attorney and citation to United States v. Politi is unilluminating. If such statements are in existence, the government is directed to produce them in accordance with Rule 16(a)(1)(A) of the Federal Rules of Criminal Procedure. The government consents to furnishing a copy of the defendant's prior criminal record. It also consents to permit the inspection and copying of photograph books, papers, etc. within the possession of the government and which are material to the preparation of the defense or are intended for use by the government as evidence or were obtained from the defendant. The government further consents to the inspection and copying of the results of any examinations or scientific tests made in connection with the case. WITNESS LIST The defendant has sought a list of witnesses the government intends to call together with the addresses and records of felony convictions of these persons. The government's opposition to this request is based on the contention that there has been no showing of particularized need for this information and that there is a risk of harassment to these witnesses by the defendants or others. The government notes that these indictments arise out a massive narcotics operation and that William Sherman, a man with a history of violent crimes and narcotics offenses, may obtain this information *89 and may threaten witnesses or that others of the many people involved in the alleged narcotics operation could try and affect the testimony of government witnesses. The government alleges that Grace Sherman has herself swayed the testimony of at least one grand jury witness — her sister — in the past. The basis for the final allegation is that when Ms. Sherman's sister was subpoenaed to testified before the grand jury in New York, that Grace Sherman accompanied her, consulted with her, and did in fact, in the opinion of the Assistant United States Attorney, cause an alteration in her sister's testimony. It is within the court's discretion to grant or deny a request for the list of witnesses of the government. United States v. Payseur, 501 F.2d 966, 972 (9th Cir. 1974); United States v. Addonizio, 451 F.2d 49, 62 (3d Cir. 1971), cert. denied, 405 U.S. 936, 92 S.Ct. 949, 30 L.Ed.2d 812 (1972); United States v. Persico, 425 F.2d 1375, 1378 (2d Cir.), cert. denied, 400 U.S. 869, 91 S.Ct. 102, 27 L.Ed.2d 108 (1970); Cf. 18 U.S.C. § 3432. The principle to be followed, however, is that the defendant be permitted a fair and reasonable opportunity to prepare his defense. United States v. Palmisano, 273 F.Supp. 750, 752 (E.D.Pa. 1967). The defendant indicated that such information would enable a proper and intelligent preparation of the case and eliminate surprise at the trial. She also claims that she does not know the people whose names are reflected in the indictment nor the community in which they reside or how they may be contacted. In United States v. Cannone, 528 F.2d 296, 302 (2d Cir. 1975), cited by defendant, the Second Circuit noted that a mere abstract conclusory claim that such disclosure is necessary to the proper preparation for trial is not a basis for granting such discovery at least where the government advanced specific grounds (that the defendants had been indicted for obstruction of justice by beating a grand jury witness) for denying the discovery request. The defendant has made no showing of a particularized need for this information and has not met her burden of proof in this respect. United States v. Payseur, supra. MOTION TO DISMISS ON STATUTE OF LIMITATIONS GROUNDS The defendant's contentions in her motion to dismiss on statute of limitations grounds is based on the contention that in order for a crime to constitute an offense under 26 U.S.C. § 7201 that there must be a positive act of evasion. Defendant therefore argues that the statute of limitations should run from the time of the commission of the affirmative act instead of from the date upon which a tax return for the year in question would have been due. The cases do indicate that in order for there to be a crime in the nature of attempting to defeat or evade taxes that there must be an affirmative act of evasion aside from an omission of the duty to make a return. United States v. Ming, 466 F.2d 1000, 1004 (7th Cir.), cert. denied, 409 U.S. 915, 93 S.Ct. 235, 34 L.Ed.2d 176 (1972); United States v. Mesheski, 286 F.2d 345, 346 (7th Cir. 1961); United States v. Jannuzzio, 184 F.Supp. 460, 464 (D.Del.1960). However, in a case cited by the government, United States v. Myerson, 368 F.2d 393, 395 (2d Cir. 1966) (per curiam), cert. denied, 386 U.S. 991, 87 S.Ct. 1305, 18 L.Ed.2d 335 (1967), the Second Circuit, in calculating the running of the statute of limitations on a crime charged under 26 U.S.C. § 7201 noted that the six year statute of limitations as provided in 26 U.S.C. § 6531 runs from the last date upon which the tax return was due. It seems clear that the completion of the offense of attempting to defeat and evade taxes necessitates the filing of the return and thus depends upon the day when the return is in fact due. Cf. United States v. Kafes, 214 F.2d 887, 890 (3d Cir.), cert. denied, 348 U.S. 887, 75 S.Ct. 207, 99 L.Ed. 697 (1954) (the statute of limitations for this offense under the predecessor statute to § 6531 commenced running the day when payment became due). In United States v. Mahler, 181 F.Supp. 900 (S.D.N.Y.1960) (Weinfeld, J.), moreover, the defendants were charged with conspiracy to willfully evade taxes, *90 and as one of the overt acts the filing of a tax return was alleged. The issue in part was whether the date of mailing or the date of receipt of the tax return was the relevant date for the commencement of the running of the statute of limitations. The court determined that the relevant date was the date of receipt of the return. One of the acts which is alleged in the case at bar to be the violation of the tax statute is the failure to make an income tax return. Thus, the evasion of taxes would have been completed with the failure to make the income tax return, and the relevant date for the commencement of the running of the statute of limitations should be April 15, 1970. The filing of the indictment on April 15, 1976 was thus within the statute of limitations. MISCELLANEOUS MOTIONS TO DISMISS Without addressing the manner in which the indictments in this case are specifically defective the defendant baldly makes the following contentions. Without specifying which of the two indictments to which she refers, defendant claims that all counts of the indictment are vague and ambiguous and that she may not therefore adequately prepare her defense as well as that the judgment in this case could not be pleaded as a bar to a later proceeding as a result. Secondly, she claims that the vagueness of the counts in the indictment (again the specific indictment is not alleged) deprives her of due process and is in violation of her sixth amendment right to be informed of the nature of the crime with which she is charged. Third, she claims that the indictment (again which one is not clear) joins offenses so as to prejudice the defendant in violation of her sixth amendment right to a fair trial and in violation of the due process clause of the fifth amendment. The indictment is said to be based on an unconstitutional statute or in the alternative, the statute upon which the indictment is based is unconstitutional as applied to the facts of this case. The provisions of the constitution allegedly violated are the fourth, fifth, sixth and fourteenth amendments. The defendant further alleges that the indictment fails to state facts sufficient to constitute a crime or offense against the United States and that the facts do not constitute the violation of any statute that could be enacted. The defendant further seeks to have the indictment dismissed on the basis that illegal evidence was presented to the grand jury in violation of 18 U.S. § 119 [sic]. The defendant also alleges that the indictment is based on matters that were obtained as the consequence of an illegal search and that the indictment should therefore be dismissed. Finally, she alleges that the potential penalties that may be imposed under the allegedly unconstitutional statute constitute cruel and unusual punishment. As far as vagueness of the various counts of the two indictments is concerned, there is little doubt that the indictments here meet the standard required of an indictment in that they inform the defendant of "what he must be prepared to meet." United States v. Salazar, 485 F.2d 1272, 1277 (2d Cir. 1973), cert. denied, 415 U.S. 985, 94 S.Ct. 1579, 39 L.Ed.2d 882 (1974). The criteria for measuring the sufficiency of the indictment are: "[W]hether the indictment `contains the elements of the offense intended to be charged, "and sufficiently apprises the defendant of what he must be prepared to meet,"' and, secondly, `"in case any other proceedings are taken against him for a similar offense, whether the record shows with accuracy to what extent he may plead a former acquittal or conviction." Cochran and Sayre v. United States, 157 U.S. 286, 290, 15 S.Ct. 628, 630, 39 L.Ed. 704; Rosen v. United States, 161 U.S. 29, 34, 16 S.Ct. 434, 480, 40 L.Ed. 606.' Hagner v. United States, 285 U.S. 427, 431, 52 S.Ct. 417, 419, 76 L.Ed. 861. See Potter v. United States, 155 U.S. 438, 445, 15 S.Ct. 144, 146, 39 L.Ed. 214; Bartell v. United States, 227 U.S. 427, 431, 33 S.Ct. 383, 384, 57 L.Ed. 583; Berger v. United States, 295 U.S. 78, 82, 55 S.Ct. 629, 630, 79 L.Ed. 1314; United States v. Debrow, 346 U.S. 374, 277-378, 74 S.Ct. 113, 115-116, 98 L.Ed. 92." *91 Russell v. United States, 369 U.S. 749, 763-64, 82 S.Ct. 1038, 1047, 8 L.Ed.2d 240 (1962). As noted in United States v. Salazar, supra, it is sufficient if the indictment tracks the language of the statute and as in this case specifies the amount of money allegedly earned and the amount of taxes that were allegedly evaded. See also United States v. Fortunato, 402 F.2d 79, 82 (2d Cir. 1968), cert. denied, 394 U.S. 933, 89 S.Ct. 1205, 22 L.Ed.2d 463 (1969). As far as the defendant's conclusory claim that the joining of the offenses charged is prejudicial, it is hard to imagine the line of reasoning underlying this contention. The various counts in indictment number 76 Cr. 641 charge the defendant with aiding and abetting the attempted evasion and defeating of taxes for the calendar years 1970, 1971 and 1972. Joined in that indictment are counts charging William Sherman with attempted evasion and defeating of income taxes during the same years and also charging him on three counts of willful failure to file a return. The indictment in 76 Cr. 383 charges Grace Sherman with aiding and abetting William Sherman in attempting to evade and defeat income taxes for the calendar year of 1969 and also charges William Sherman in count 2 with failure to make an income tax return for the calendar year of 1969. No basis for prejudice would appear to exist on the basis of the kinds of counts which are joined here since the same proof would support the counts alleging her aiding and abetting the attempted evasion of taxes as would support the counts alleging the willful failure of William Sherman to file income tax returns for the same calendar years. The various claims with respect to the unconstitutionality of the statute under which the defendant is charged are wholly frivolous. The constitutionality of the section is not in doubt. No basis is set forth as to why the statute is so characterized. United States v. Coppola, 425 F.2d 660, 661 (2d Cir. 1969) (per curiam). Cf. United States v. Sullivan, 274 U.S. 259, 47 S.Ct. 607, 71 L.Ed. 1037 (1927) (upholding the constitutionality of former sections of the Revenue Act of 1921 proscribing the willful refusal to make a return). Finally, as to the allegation that illegally obtained evidence was presented to the grand jury, no factual basis is set forth in support of this contention. As contended by the Assistant United States Attorney, even if the indictment was issued on the basis of illegally obtained evidence, this would not be a basis for the dismissal of the indictment. United States v. Calandra, 414 U.S. 338, 334-345, 94 S.Ct. 613, 38 L.Ed.2d 561 (1974); Costello v. United States, 350 U.S. 359, 76 S.Ct. 406, 100 L.Ed. 397 (1956). REQUEST FOR NOTICE OF INTENTION TO USE EVIDENCE With regard to defendant's request for notice of intention to use evidence, the government has consented to disclose the evidence which could be the subject of a motion to suppress. MOTION TO COMPEL DISCLOSURE OF PROMISES OF IMMUNITY, ETC. The government has similarly consented to the motion to compel disclosure of the existence of and substance of promises of immunity, leniency of preferential treatment but with the provision that such material be provided on the evening prior to the trial day of the expected testimony of such witnesses. The defendant asks that this information be provided within ten days after this court's ruling with respect to this motion. The basis for the request for early disclosure is the claim that such commitments and promises made to government witnesses may have been communicated to attorneys or representatives of the witnesses rather than to the witnesses themselves and that therefore, it may not be possible to elicit such information during cross-examination of these individuals. The mere statement of the argument demonstrates its absurdity. The information which would be of concern to the defense attorney would be the information which the particular witness had as to any promises *92 made to him. If the promise was never conveyed to the witness himself, the fact that the attorney or representative had received the information would be irrelevant. It seems to this court that providing the information sought on the eve of the day any particular witness is to testify is adequate notice to the defendant. MOTION FOR SEVERANCE Finally, defendant Grace Sherman moves to have her trial severed from that of William Sherman. The defendant claims that her defenses and the defenses of William Sherman would be inconsistent. Moreover, defendant claims that testimony which William Sherman would offer at a separate trial which he would not testify to at a joint trial would wholly exonerate Grace Sherman. Finally defendant claims that a substantial amount of evidence admissible against William Sherman would be inadmissible against Grace Sherman and that the likelihood of guilt by association would therefore be great. The claims that prejudice will arise due to inconsistent defenses and that prejudice will also accrue as a result of the inadmissibility with respect to Grace Sherman of evidence which is admissible against William Sherman are meritless. These arguments can be made in any case where more than one defendant is involved, and the defendant has set forth no facts to show that the effect of a joint trial in this particular case as a result of these factors would be prejudicial. It is the defendant's burden of demonstrating sufficient prejudice to warrant a severance, United States v. Finkelstein, 526 F.2d 517, 525 (2d Cir. 1975), and the defendant has failed to carry her burden of proof on this motion. An affidavit by William Sherman is affixed to the motion papers setting forth the fact that William Sherman is willing to testify in a separate trial that Grace Sherman never assisted in the concealment of income by William Sherman in the years charged, but also stating that he would not so testify in a joint trial. The affidavit also indicates that William Sherman has no intention of pleading guilty but that he intends to go to trial. The court has not been advised beyond the conclusory statements contained in the affidavit, of the nature of the testimony which is said to exculpate Grace Sherman. Without any information at this time as to the nature of the proof the government intends to put forth at the trial, and without any knowledge of the nature of the evidence which William Sherman could provide in rebuttal, there is no way for the court to evaluate the importance of this evidence to the defendant. This case is distinguishable in this respect from a number of decisions in which a severance has been held to be appropriate. In United States v. Shuford, 454 F.2d 772 (4th Cir. 1971), for example, severance was found warranted to enable one defendant to take advantage of the testimony of a co-defendant where that person's testimony would be the only testimony available to rebut the statements of the key government witness. The specific content of the exculpatory testimony was known and was crucial to the defendant's defense. Similarly, in United States v. Echeles, 352 F.2d 892 (7th Cir. 1965), the court found severance to be required when the testimony of a co-defendant specifically refuted the facts upon which a charge of obstruction of justice was based. The statement of the co-defendant had been made several times in the context of an earlier trial of that co-defendant on a different offense, and thus the exact nature and significance of that testimony was known. Also in United States v. Gleason, 259 F.Supp. 282 (S.D.N.Y.1966), Judge Frankel severed the trial of two co-defendants where oral and written statements had been made by one co-defendant specifically supporting the main defendant's defense of lack of criminal intent in an income tax evasion case. By way of contrast, in United States v. Crisona, 271 F.Supp. 150 (S.D. N.Y.1967), where the significance and content of the alleged exculpatory testimony of a co-defendant could not be determined in advance of the trial, the court denied the motion for separate trials. *93 Furthermore, the likelihood of William Sherman's testifying as indicated in his affidavit has become subject to question. In a letter sent by the attorney for William Sherman to the attorney for Grace Sherman, a copy of which was sent to the court, William Sherman's attorney takes the position that he would not have advised his client to execute the affidavit in question. The general rule in cases of defendants jointly charged in one indictment is that they be tried together. Kroll v. United States, 433 F.2d 1282 (5th Cir. 1970), cert. denied, 402 U.S. 944, 91 S.Ct. 1616, 29 L.Ed.2d 112 (1971). A motion for severance is addressed to the discretion of the court under Rule 14, Federal Rules of Criminal Procedure. Byrd v. Wainwright, 428 F.2d 1017 (5th Cir. 1970); Barton v. United States, 263 F.2d 894 (5th Cir. 1959). The defendant has not overcome the burden required to persuade the court otherwise by failing to make a clear showing as to what William Sherman would testify to. Byrd v. Wainwright, supra at 1020. The motion for severance is therefore denied with leave to renew at the close of the government's case when the value of William Sherman's testimony can be better evaluated. THE GOVERNMENT'S MOTIONS The government is entitled to reciprocal discovery under Rule 16(b) of the Federal Rules of Criminal Procedure and such discovery is hereby directed. The motion by the government for consolidation of the two indictments under Rule 13 of the Federal Rules of Criminal Procedure is granted. There is no reason why the offenses could not originally have been joined in a single indictment, the earlier numbered indictment charging the identical offenses in relation to an earlier year. SO ORDERED. NOTES [1] 18 U.S.C. § 3504 provides in pertinent part: § 3504. Litigation concerning sources of evidence (a) In any trial, hearing, or other proceeding in or before any court, grand jury, department, officer, agency, regulatory body, or other authority of the United States — (1) upon a claim by a party aggrieved that evidence is inadmissible because it is the primary product of an unlawful act or because it was obtained by the exploitation of any unlawful act, the opponent of the claim shall affirm or deny the occurrence of the alleged unlawful act; . . . . . (b) As used in this section `unlawful act' means any act the use of any electronic, mechanical, or other device (as defined in section 2510(5) of this title) in violation of the Constitution or laws of the United States or any regulation or standard promulgated pursuant thereto."

NOT FINAL UNTIL TIME EXPIRES TO FILE REHEARING MOTION AND, IF FILED, DETERMINED IN THE DISTRICT COURT OF APPEAL OF FLORIDA SECOND DISTRICT KACEY GRUDEM; CORY ) PETCOFF; SALLY PETCOFF; and ) THOMAS PETCOFF, ) ) Appellants, ) ) v. ) Case No. 2D19-510 ) BLACKHÄGEN-DESIGN, INC.; ) COOL-VIEW, LLC; DAVID M. ) MEDINIS; BRIAN HUMMEL; BRAD ) HUMMEL; HAWKEYE ) DISTRIBUTING, LLC; OPTILIGHT ) LLC; and LINDA DONALDSON; ) ) Appellees. ) ) Opinion filed August 28, 2019. Appeal pursuant to Fla. R. App. P. 9.130 from the Circuit Court for Pinellas County; George M. Jirotka, Judge. John W. Frost, II, Frost Law Firm, P.A., Bartow, for Appellant. Stephenie Biernacki Anthony and Lydia M. Gazda of Anthony & Partners, LLC, Tampa, for Appellee BlackHӓgen- Design, Inc. No appearance for remaining Appellees. PER CURIAM. Affirmed. LaROSE, ROTHSTEIN-YOUAKIM, and SMITH, JJ., Concur. 

974 So.2d 391 (2008) BOLDEN v. STATE. No. 2D07-5730. District Court of Appeal of Florida, Second District. January 16, 2008. Decision without published opinion. Hab.Corp.denied.

940 F.2d 648 U.S.v.Jimenez NO. 90-1683 United States Court of Appeals,Second Circuit. JUN 10, 1991 1 Appeal From: S.D.N.Y. 2 AFFIRMED.

116 So.2d 180 (1959) Mabel WHITNER, Plaintiff-Appellant, v. Aaron SCOTT et al., Defendants-Appellees. No. 4884. Court of Appeal of Louisiana, First Circuit. November 16, 1959. J. D. DeBlieux, Baton Rouge, for appellant. Taylor, Porter, Brooks, Fuller & Phillips, Baton Rouge, for appellees. Before ELLIS, LOTTINGER, TATE, and CULPEPPER, Judges. *181 CULPEPPER, Judge. The plaintiff, Mabel Whitner, originally filed this tort action for damages against Aaron Scott and Earl Lee Miller and Miller's liability insurance carrier, New Amsterdam Casualty Company. Plaintiff was injured while riding as a guest passenger in the automobile being driven by Aaron Scott and which was involved in a collision with an automobile owned and being driven by the defendant Earl Lee Miller. Issue was never joined as to the defendant Aaron Scott. The matter was tried by a jury of 12 in the lower court as to the defendants Earl Lee Miller and New Amsterdam Casualty Company and after judgment dismissing plaintiff's suit at her cost she has filed this appeal. The accident in question here occurred at about 9 o'clock p. m. on April 8, 1956, at the intersection of La. Highway 413 and U. S. Highway 190, near Irwinville, Louisiana. At this intersection Highway 190 is a fourlane thoroughfare running east and west with a neutral ground located between the east bound and west bound lanes. Louisiana Highway 413 is a two-lane, asphalt highway running north and south and crossing Highway 190 at this point. It was a clear, dry night and there was nothing in the immediate vicinity of the intersection to obscure the vision of either one of the drivers. The plaintiff was a passenger on the back seat of the 1952 Dodge automobile being driven by Aaron Scott in a southerly direction on Highway 413. Although there is some conflict in the testimony as to how many Negroes were in this vehicle, plaintiff's own witnesses admit that there were at least seven, that is, three on the front seat and four on the back seat. They had just left a small cafe located a short distance away on Highway 413. The plaintiff and three of her witnesses, Mary Carter, Melvina Lockett and Ruby Lee Hayes testified that as Scott approached Highway 190 he stopped at the stop sign before he entered Highway 190 and waited for a car to pass going west toward Krotz Springs. These witnesses were not certain as to whether Aaron Scott came to a full stop again at the neutral ground but they all testified that when he proceeded out into the east bound lanes of Highway 190, he was struck broadside by the oncoming vehicle which was being driven by Mr. Miller. The plaintiff's witness, Arthur Thomas, who was sitting on the front seat of the Scott vehicle, gave a different version and testified that Scott did not stop at the stop sign before he entered Highway 190. The witness also was uncertain as to whether Scott came to a full stop at the neutral ground but he said that when Scott reached the third lane, that is the inside east bound lane of Highway 190, he stopped in the middle of this lane and was struck by the oncoming vehicle driven by Miller. Aaron Scott did not testify in this case, it appearing from the record that he has since gone to Chicago and his address is unknown. However, Mr. Warren B. Knight, the State Trooper who investigated this accident, testified without objection that immediately after the accident Aaron Scott told him that he did not stop at the stop sign or at the intersection. Trooper Knight placed the point of impact in the third lane, that is the inside east bound lane of Highway 190. Knight also testified that he smelled intoxicating liquor on Scott's breath but that he did not think his driving ability was impaired. This State Trooper also fixed the speed limit on Highway 190 at this point at 60 miles per hour and testified further that in his opinion this was a safe speed at this intersection. Most of the plaintiff's witnesses testified that they saw the Miller vehicle approaching from their right but none of them could give any distances as to how far away the Miller vehicle was when Scott first entered Highway 190 or when Scott pulled out of the neutral ground. From this brief resume of the testimony of plaintiff's witnesses it can be seen that *182 they were not at all certain as to how the accident occurred and that they contradicted each other as to several material points. The defendant, Mr. Earl Miller, testified that on this Sunday, April 8, 1956 he and his wife had been to Lake Charles to attend a reception given by the Eastern Star in honor of his wife who had just been elected Worthy Grand Matron. That night they were driving back toward Baton Rouge at a speed of 60 miles per hour and as they approached the intersection in question Miller saw the lights of the Scott vehicle approaching the opposite side of Highway 190 on Highway 413 but it was going slow and he took no particular notice of it, he assuming that it would stop and yield the right of way to him. Mr. Miller testified that he had traveled this highway many times and that he knew the intersection and knew that Highway 190 had the right of way. Miller testified that although he could not be certain of the distances, he estimated that when he was approximately 50 feet from the point of impact the Scott vehicle pulled into the neutral ground and either slowed down or stopped. He was not certain whether Scott stopped or simply slowed down but he definitely got the impression that Scott was going to yield the right of way. Miller testified that when he was no more than 20 or 25 feet from the point of impact Scott suddenly accelerated and came directly out into the path of Miller's vehicle. Miller testified that he did not have time to apply his brakes or cut to the right or left to avoid the collision. This testimony is substantiated by the State Trooper who found no skid marks for Miller's automobile. As to speed, Miller testified that he had been going approximately 60 miles an hour but when he saw the Scott vehicle he took his foot off the accelerator and he estimated that at the time of the impact he was going between 50 and 55 miles per hour. Mrs. Earl Lee Miller, the wife of the defendant, testified substantially to the same effect as her husband. She stated that the first time she saw the Scott vehicle was when it was in the neutral ground and that it seemed as if Scott stopped there for a moment and then suddenly came out quickly right into their path. She testified that in her opinion they were no more than 11 or 12 yards from the point of impact when the Scott vehicle pulled out from the neutral ground. In his argument and brief to this court, the sole grounds urged by counsel for the plaintiff, as a basis for reversal of the finding of the jury, is that Miller had the last clear chance to avoid the collision. In the recent case of Ballard v. Piehler, 98 So.2d 273, 276, decided by the First Circuit Court of Appeal in 1957, Judge Ellis, in a well reasoned opinion, sets forth the law of Louisiana regarding the doctrine of last clear chance as follows: "In Brown v. Louisville & N. R. Co., D.C., 135 F.Supp. 28, affirmed 5 Cir., 234 F.2d 204, and Segreto v. American Auto Ins. Co., D.C., 137 F.Supp. 194, affirmed 5 Cir., 239 F.2d 641, the essential elements of this doctrine are set forth. These are, first, that the plaintiff be in a position of peril from which he is unaware or unable to extricate himself, second, that the defendant be in a position where he should have or actually did discover the plaintiff's peril and, three, that at such time the defendant could have, with the exercise of reasonable care, avoided the accident. All three of these elements must be present before the doctrine can be applied. "A late Court of Appeal case; Maryland Casualty Co. v. Allstate Insurance Company, 96 So.2d 340 (Second Circuit) has discussed the doctrine of `Last Clear Chance' or `Discovered Peril' and it sets forth the same requisites as are found in the two Federal cases just cited. This case notes the fact that our jurisprudence was broadened in *183 Rottman v. Beverly, 183 La. 947, 165 So. 153, to include those types of cases where the driver of a car did not see but could have plainly seen plaintiff's peril if he had been looking. Now a defendant might be held liable if, under the circumstances, he should have seen the position of the plaintiff. The former cases held the peril must have been discovered. The Maryland Casualty Co. case went on to cite the Bergeron case, stating the following (96 So.2d 344): "`In Bergeron v. Department of Highway, 1952, 221 La. 595, 60 So.2d 4, Justice LeBlanc noted that testing the ability of a motorist to avoid an accident involves calculation of: the rate of speed, the time it takes to react to an emergency, and apply the brakes; as well as a determination of the distance in which the vehicle can be brought to a stop, traveling at the given speed. The resulting conclusions which may be arrived at are based principally on assumptions, the difference being one of seconds in the matter of time, and of a few feet only in the matter of distance. He then quoted with approval from Hutcheson v. Misenheimer, 169 Va. 511, 194 S.E. 665, 667: "`The doctrine of the last clear chance is one involving nice distinctions, often of a technical nature, and courts should be wary in extending its application.' "The soundness of the foregoing statement is impressive and we hesitate in cases where the last clear chance doctrine is relied upon to relieve a party of his negligent acts except when opportunity presented to the other party to avert the accident is manifest. Therefore, it has been a rule which has often been followed in our courts that when a pedestrian moves precipitantly from a point of relative safety into the path of a motor vehicle at a moment when it is too late from both point of time and distance to do anything to circumvent an impending accident, the pedestrian may not avail himself of the last clear chance doctrine. Bailey v. Reggie, La.App.1945, 22 So.2d 698; Conway v. Serio, La. App.1950, 47 So.2d 126; Kimble v. Airco Refrigeration Service, Inc., La. App.1952, 57 So.2d 788; Hall v. Alfortish, La.App.1952, 60 So.2d 723; Dupuy v. Veazey, La.App.1953, 63 So. 2d 756; Moore v. Moran, La.App. 1954, 74 So.2d 767.' "The only issue here is whether the defendant discovered or should have discovered a perilous position of the plaintiff in time to avoid the accident by the exercise of reasonable diligence and care. It is extremely difficult if not impossible to determine from the record exactly how far away the defendant was from the plaintiff when the situation of peril was created. From all of the evidence the trial court concluded this distance to be about 70 feet and that at the time the defendant's vehicle was traveling at the approximate speed of 40 miles per hour or 58 feet per second. At this speed the defendant could not have brought his car to a stop before reaching the plaintiff no matter what care he exercised." In the present case the peril was not created until the Scott vehicle left the neutral ground at which time the Miller automobile was only 25 feet away according to the testimony of Mr. Miller and only 36 feet away according to the testimony of Mrs. Miller. The Miller vehicle traveling at 55 miles per hour was going 80 feet per second. At this speed the defendant could not have brought his car to a stop or avoided the accident no matter what care he exercised. Counsel for the plaintiff argues that when Miller was four hundred yards from the intersection and saw the Scott vehicle *184 slowly approaching the opposite side of Highway 190 on this side road, he should have at that time begun to take precautionary measures to avoid this accident. In the case of Gautreaux v. Southern Farm Bureau Casualty Company, 83 So.2d 667, 669, decided by the First Circuit Court of Appeal in 1955, the Court held as follows regarding the duty of motorists on the favored street: "To paraphrase the rule we have stated several times: A motorist crossing an intersection has the right to rely on the assumption that those approaching it will respect a stopsign which the motorist knows is located there, and accordingly he may proceed. If, however, in driving on the favored street he sees, or in the exercise of due care should see, that the other vehicle neglected to make the stop required by law, the motorist may himself be under a duty of stopping if by the exercise of reasonable care on his part the accident could have been avoided at the time he saw or should have seen the other vehicle violating its legal duty to stop before entering the favored thoroughfare. See Blashfield, Cyclopedia of Automobile and Practice, (Perm. Edition) Volume 2, Section 1032, pp. 333-334, cited in Miller v. Abshire, La.App. 1 Cir., 68 So.2d 143; Droddy v. Southern Bus Lines Inc., La. App. 1 Cir., 26 So.2d 761; Termini v. Aetna Life Insurance Co., La.App. 1 Cir., 19 So.2d 286. See also Federal Insurance Co. v. Lepine, La.App. 1 Cir., 55 So.2d 83, where excessive speed on part of driver on main thoroughfare at blind intersection was held not to be proximate cause of accident. "In the everyday world, ordinarily prudent motorists on the main thoroughfare do not slow before each corner and attempt to peer down the side streets, but instead concentrate most of their attention on the path ahead, relying on their legal `right of way'. Legislative provisions for right of way are to facilitate the passage of traffic in this congested twentieth century world. If to accomplish this purpose, and in realization that even observing the path ahead may tax the ordinary motorists' powers of sustained observation, the legislature has relieved the motorist on the right of way street of a duty ordinarily to slow before each intersection (and, consequently, of a duty to take his attention from the path ahead by darting glances each way down the intersecting streets), appellate courts should not supply artificial standards in an unrealistic attempt to allocate damages after an accident has occurred." If the Scott vehicle moved slowly out into the neutral ground and then momentarily paused or stopped the defendant, Miller, could safely assume that Scott was not going to try to cross the highway immediately in front of him, and there was no peril presented until Scott made his sudden move from the neutral ground. Miller was aware of this peril as soon as it was created but by that time it was simply too late for him to avoid the accident. We conclude that there was no manifest error in the judgment appealed. As was stated in Norman v. State, La.App., 69 So.2d 120, 131: "It has become axiomatic that the findings of a trial judge on questions of fact will not be set aside nor disturbed by an appellate court in the absence of manifest error. The same principal is applicable to a consideration of the verdict of a jury. Consistent adherence to this rule is evidenced by a long line of cases." For the reasons hereinabove set forth the judgment appealed from the lower Court is affirmed.

712 N.W.2d 828 (2006) 2006 ND 84 STATE of North Dakota ex rel. Wayne STENEHJEM, Attorney General, Plaintiff and Appellee v. FREEEATS.COM, INC., dba The FreeEats Companies, ccAdvertising, ccAdvertising.biz, ccAdvertising.Info, ElectionResearch.com, FECads.com, and FECResearch.com, Defendant and Appellant. No. 20050171. Supreme Court of North Dakota. April 21, 2006. *831 James Patrick Thomas (argued), Assistant Attorney General, Parrell D. Grossman (appeared), Assistant Attorney General, Office of Attorney General, Bismarck, ND, and Wayne K. Stenehjem (appeared), Attorney General, Office of Attorney General, Bismarck, ND, for plaintiff and appellee. Patrick J. Ward (argued), Lawrence E. King (appeared), Zuger Kirmis & Smith, Bismarck, ND, Emilio W. Cividanes (appeared), Venable, L.L.P., Washington, DC, David H. Bamberger (on brief), and James P. Rathvon (on brief), DLA Piper Rudnick Gray Cary, U.S., L.L.P., Washington, DC, for defendant and appellant. KAPSNER, Justice. [¶ 1] FreeEats.com, Inc. ("FreeEats") has appealed from a summary judgment finding FreeEats in violation of North Dakota's telephone solicitation statutes and imposing civil penalties, attorney fees, costs, and disbursements. We affirm, concluding North Dakota's prohibition against placement of political polling calls using an automatic dialing — announcing device is not preempted by federal law. I [¶ 2] FreeEats is based in Herndon, Virginia, and conducts telephone surveys and polling services. In August 2004, FreeEats placed numerous political polling calls from its call center in Ashburn, Virginia, to residences in North Dakota. FreeEats employed an automatic dialing-announcing device to place the calls, and all of the calls used prerecorded messages with no live person on the line. [¶ 3] On September 17, 2004, the State brought this action against FreeEats seeking civil penalties for violations of N.D.C.C. § 51-28-02. FreeEats admitted it made the automated calls to North Dakota residents, but argued application of N.D.C.C. § 51-28-02 to interstate political polling calls was preempted by federal law. On cross-motions for summary judgment, the district court concluded that application of N.D.C.C. § 51-28-02 was not preempted by federal law and that the calls placed by FreeEats to North Dakota residents violated the statute. Judgment was entered ordering FreeEats to pay $10,000 in civil penalties and $10,000 in attorney fees, costs, and disbursements. FreeEats has appealed, alleging the district court erred in concluding that federal law did not preempt application of N.D.C.C. § 51-28-02 to interstate political polling calls. II [¶ 4] Summary judgment is a procedural device for the prompt resolution of a controversy on the merits without a trial if there are no genuine issues of material fact or inferences that can reasonably be drawn from the undisputed facts, or if the only issues to be resolved are *832 questions of law. Wheeler v. Gardner, 2006 ND 24, ¶ 8, 708 N.W.2d 908; Jacob v. Nodak Mut. Ins. Co., 2005 ND 56, ¶ 11, 693 N.W.2d 604. Summary judgment is appropriate if the issues in the case are such that resolution of any factual disputes will not alter the result. Jacob, at ¶ 11; Tibert v. Slominski, 2005 ND 34, ¶ 8, 692 N.W.2d 133. Whether the trial court properly granted summary judgment is a question of law that we review de novo on the entire record. Wheeler, at ¶ 8; Heng v. Rotech Med. Corp., 2004 ND 204, ¶ 9, 688 N.W.2d 389. [¶ 5] In this case there are no disputed issues of material fact, and the sole question presented involves interpretation of statutes. Interpretation and application of a statute is a question of law, which is fully reviewable on appeal. Wheeler, 2006 ND 24, ¶ 10, 708 N.W.2d 908; Smith v. Hall, 2005 ND 215, ¶ 15, 707 N.W.2d 247. Accordingly, this case was appropriate for resolution on a motion for summary judgment. III [¶ 6] The sole question presented on appeal is whether federal law preempts the application of N.D.C.C. § 51-28-02 to automated political polling calls made from Virginia to residents in North Dakota. [¶ 7] Section 51-28-02, N.D.C.C., prohibits the placement of telephone calls using an automatic dialing-announcing device except in certain enumerated instances: A caller may not use or connect to a telephone line an automatic dialing-announcing device unless the subscriber has knowingly requested, consented to, permitted, or authorized receipt of the message or the message is immediately preceded by a live operator who obtains the subscriber's consent before the message is delivered. This section and section 51-28-05 do not apply to a message from a public safety agency notifying a person of an emergency; a message from a school district to a student, a parent, or an employee; a message to a subscriber with whom the caller has a current business relationship; or a message advising an employee of a work schedule. The calls placed by FreeEats to North Dakota residents in 2004 did not fit under any of the exemptions in N.D.C.C. § 51-28-02. [¶ 8] FreeEats contends, however, that application of N.D.C.C. § 51-28-02 to interstate calls is preempted by 47 U.S.C. § 227, the Telephone Consumer Protection Act of 1991 ("TCPA"). The TCPA prohibits calls to a residential telephone line using an artificial or prerecorded voice without the recipient's prior express consent, "unless the call is initiated for emergency purposes or is exempted by rule or order by the [Federal Communications] Commission under paragraph (2)(B)." 47 U.S.C. § 227(b)(1)(B). Under paragraph (2)(B), the FCC is authorized to exempt calls that are not made for a commercial purpose. 47 U.S.C. § 227(b)(2)(B)(i). The FCC has adopted a regulation exempting calls not made for a commercial purpose from the TCPA's general prohibition on calls using an artificial or prerecorded voice message. 47 C.F.R. § 64.1200(a)(2)(ii) (2005). FreeEats contends the political polling calls at issue in this case were not made for a commercial purpose, and were therefore permissible under federal law. A [¶ 9] The crux of this case lies in the interpretation of the TCPA's "savings clause," 47 U.S.C. § 227(e)(1): (1) State law not preempted Except for the standards prescribed under subsection (d) of this section and subject to paragraph (2) of this subsection, nothing in this section or in the *833 regulations prescribed under this section shall preempt any State law that imposes more restrictive intrastate requirements or regulations on, or which prohibits — (A) the use of telephone facsimile machines or other electronic devices to send unsolicited advertisements; (B) the use of automatic telephone dialing systems; (C) the use of artificial or prerecorded voice messages; or (D) the making of telephone solicitations. [¶ 10] The parties offer conflicting interpretations of the statute, centering upon the scope of the term "intrastate." The State contends the language of the statute is clear and unambiguous, and the term "intrastate" modifies only "more restrictive. . . requirements or regulations," and does not modify "which prohibits." The State argues that the TCPA therefore expressly permits application of state statutes which prohibit certain classes of calls placed with automatic dialing systems or which use artificial or prerecorded voice messages to interstate calls placed to North Dakota residents. FreeEats argues the legislative history of the TCPA indicates Congressional intent to preempt state regulation of interstate calls, and therefore urges that the term "intrastate" must be read as applying to the phrase "which prohibits." Thus, FreeEats contends, the TCPA preempts any attempt by a state to either regulate or prohibit interstate calls which employ automatic dialers or prerecorded messages. [¶ 11] In interpreting the statute, we are guided by well-settled rules of federal statutory construction. When the language of a statute is plain, "the sole function of the courts—at least where the disposition required by the text is not absurd—is to enforce it according to its terms." Dodd v. United States, 545 U.S. 353, ___, 125 S.Ct. 2478, 2483, 162 L.Ed.2d 343 (2005) (quoting Hartford Underwriters Ins. Co. v. Union Planters Bank, N.A., 530 U.S. 1, 6, 120 S.Ct. 1942, 147 L.Ed.2d 1 (2000)); Lamie v. United States Trustee, 540 U.S. 526, 534, 124 S.Ct. 1023, 157 L.Ed.2d 1024 (2004) (quoting Hartford). The "preeminent canon of statutory interpretation" requires that courts "presume that [the] legislature says in a statute what it means and means in a statute what it says there." BedRoc Ltd. v. United States, 541 U.S. 176, 183, 124 S.Ct. 1587, 158 L.Ed.2d 338 (2004) (quoting Connecticut Nat'l Bank v. Germain, 503 U.S. 249, 253-54, 112 S.Ct. 1146, 117 L.Ed.2d 391 (1992)); see Dodd, at 2482 (quoting Connecticut Nat'l Bank). The court's inquiry "begins with the statutory text, and ends there as well if the text is unambiguous," BedRoc, at 183, 124 S.Ct. 1587, and courts and administrative agencies must give effect to the unambiguously expressed intent of Congress. Norfolk & Western Ry. Co. v. American Train Dispatchers Ass'n, 499 U.S. 117, 128, 111 S.Ct. 1156, 113 L.Ed.2d 95 (1991). [¶ 12] The Supreme Court has concluded that "vague notions of a statute's `basic purpose' are . . . inadequate to overcome the words of its text regarding the specific issue under consideration." Great-West Life & Annuity Ins. Co. v. Knudson, 534 U.S. 204, 220, 122 S.Ct. 708, 151 L.Ed.2d 635 (2002) (quoting Mertens v. Hewitt Assocs., 508 U.S. 248, 261, 113 S.Ct. 2063, 124 L.Ed.2d 161 (1993)). It is not a court's function "to find reasons for what Congress has plainly done," but rather the court's job is to "avoid rendering what Congress has plainly done . . . devoid of reason and effect." Great-West, at 217-18, 122 S.Ct. 708. It is for Congress, not the courts, to amend a statute if the plain language of the statute does not accurately reflect the true intent of Congress. See *834 Dodd, 125 S.Ct. at 2483. As noted by the Supreme Court in Carter v. United States, 530 U.S. 255, 271, 120 S.Ct. 2159, 147 L.Ed.2d 203 (2000) (citation omitted) (quoting Bank One Chicago, N.A. v. Midwest Bank & Trust Co., 516 U.S. 264, 279, 116 S.Ct. 637, 133 L.Ed.2d 635 (1996) (Scalia, J., concurring)), when construing a statute a court must "begin by examining the text, not by `psychoanalyzing those who enacted it.'" [¶ 13] The TCPA savings clause expressly exempts from preemption "any State law that imposes more restrictive intrastate requirements or regulations on, or which prohibits" unsolicited fax advertisements, use of automatic dialers, use of artificial or prerecorded voice messages, or making of telephone solicitations. 47 U.S.C. § 227(e)(1). The State contends that the use of the disjunctive "or," preceded by a comma, indicates the word "intrastate" in the first clause does not modify the second clause. FreeEats essentially ignores the language of the statute and bases its argument upon the contention that the legislative history demonstrates Congressional intent to preempt all state statutes affecting interstate calls. [¶ 14] The word "or" is disjunctive in nature and ordinarily indicates an alternative between different things or actions. Reiter v. Sonotone Corp., 442 U.S. 330, 338-39, 99 S.Ct. 2326, 60 L.Ed.2d 931 (1979); Christl v. Swanson, 2000 ND 74, ¶ 12, 609 N.W.2d 70; Narum v. Faxx Foods, Inc., 1999 ND 45, ¶ 20, 590 N.W.2d 454. Terms or phrases separated by "or" have separate and independent significance. Reiter, at 338-39, 99 S.Ct. 2326. Coupled with the comma preceding "or," which indicates a separate clause, the statutory language clearly creates two distinct and independent phrases. Thus, read logically and grammatically, the statute states that nothing in the TCPA preempts any state law "that imposes more restrictive intrastate requirements or regulations on" the enumerated classes of calls, and nothing in the TCPA preempts any state law "which prohibits" calls within the enumerated list. "Intrastate" unambiguously modifies only the first clause, not the second. If Congress had intended that the second part of the statute apply only to intrastate calls, "it could simply have said that." Great-West, 534 U.S. at 218, 122 S.Ct. 708. Because the statutory text is unambiguous, our inquiry into its meaning ends there. BedRoc, 541 U.S. at 183, 124 S.Ct. 1587. [¶ 15] FreeEats contends that, even if the statutory language is clear, a literal interpretation of the statute would create an absurd result. See Dodd, 125 S.Ct. at 2483; Lamie, 540 U.S. at 534, 124 S.Ct. 1023. Specifically, FreeEats argues it is illogical to allow states to adopt more restrictive regulations on only intrastate calls, but to allow wholesale prohibition of certain classes of both intrastate and interstate calls. [¶ 16] FreeEats contends that one important policy basis for enactment of the TCPA was to alleviate the excessive burdens which might be placed upon interstate telemarketers if they were required to comply with a plethora of conflicting regulations from all fifty states. In this context, there may be a substantial difference between the effect of state laws which seek to impose voluminous regulations upon interstate calls and those which wholly prohibit a specific class of interstate calls. The TCPA and corresponding regulations govern many diverse aspects of such calls. For example, under the relevant federal regulation, telephone solicitations may only be made to a residential telephone customer between 8 a.m. and 9 p.m. local time. 47 C.F.R. § 64.1200(c)(1). It is foreseeable that, if each state adopted differing time restrictions on telemarketing *835 calls, it may be difficult for a telemarketer to adjust its equipment to place calls to the various states only within a particular state's permissible hours. The states could conceivably create a stream of inconsistent and conflicting regulations on innumerable aspects of telemarketing calls, thereby making compliance with each individual state's unique set of rules and regulations burdensome. [¶ 17] By contrast, it would be a relatively simple matter for a telemarketer to comply with a state statute which wholly prohibits certain enumerated classes of calls. When contemplating placing a certain type of call, the telemarketer need only review state law to determine if such calls are prohibited in a particular state. If so, it is presumably an easy task for the telemarketer to refrain from placing calls to that state's residents. See Utah Div. of Consumer Prot. v. Flagship Capital, 2005 UT 76, ¶ 22, 125 P.3d 894 ("the record does not reflect that a national telemarketer would confront any substantial hardship by being required to determine which of its calls reach the telephones of Utah residents"). [¶ 18] We conclude that a literal interpretation of the unambiguous language of the statute does not lead to an absurd result. See Dodd, 125 S.Ct. at 2483; Lamie, 540 U.S. at 534, 124 S.Ct. 1023. We therefore interpret the express language of 47 U.S.C. § 227(e)(1) to provide that the TCPA does not preempt any state law which prohibits interstate calls using automatic telephone dialing systems or using artificial or prerecorded voice messages. We must review FreeEats' claim of federal preemption within the context of this interpretation of the TCPA. B [¶ 19] Under the Supremacy Clause, U.S. Const. art. VI, the laws of the United States are the "supreme law of the land," and state law that conflicts with federal law is without effect. Home of Economy v. Burlington N. Santa Fe R.R., 2005 ND 74, ¶ 5, 694 N.W.2d 840. In Home of Economy, we quoted the United States Supreme Court's outline of the parameters of federal preemption under the Supremacy Clause: First, Congress can define explicitly the extent to which its enactments pre-empt state law. Pre-emption fundamentally is a question of congressional intent, and when Congress has made its intent known through explicit statutory language, the courts' task is an easy one. Second, in the absence of explicit statutory language, state law is pre-empted where it regulates conduct in a field that Congress intended the Federal Government to occupy exclusively. Such an intent may be inferred from a "scheme of federal regulation . . . so pervasive as to make reasonable the inference that Congress left no room for the States to supplement it," or where an Act of Congress "touch[es] a field in which the federal interest is so dominant that the federal system will be assumed to preclude enforcement of state laws on the same subject." Although this Court has not hesitated to draw an inference of field pre-emption where it is supported by the federal statutory and regulatory schemes, it has emphasized: "Where. . . the field which Congress is said to have pre-empted" includes areas that have "been traditionally occupied by the States," congressional intent to supersede state laws must be "`clear and manifest.'" Finally, state law is pre-empted to the extent that it actually conflicts with federal law. Thus, the Court has found pre-emption where it is impossible for a private party to comply with both state and federal requirements, or where state law "stands as an obstacle to the *836 accomplishment and execution of the full purposes and objectives of Congress." Home of Economy, at ¶ 5 (quoting English v. General Elec. Co., 496 U.S. 72, 78-79, 110 S.Ct. 2270, 110 L.Ed.2d 65 (1990)). Thus, federal preemption analysis includes three components: express preemption, field preemption, and conflict preemption. [¶ 20] Because of the "interstitial nature of Federal law," preemption of state law is not favored, and the framework for analyzing a preemption claim under the Supremacy Clause begins with the basic assumption that Congress did not intend to displace state law. Billey v. North Dakota Stockmen's Ass'n, 1998 ND 120, ¶ 28, 579 N.W.2d 171 (quoting Federal Land Bank of St. Paul v. Lillehaugen, 404 N.W.2d 452, 455 (N.D. 1987)); see also Home of Economy, 2005 ND 74, ¶ 6, 694 N.W.2d 840. The United States Supreme Court has expressly noted that, because "the States are independent sovereigns in our federal system, we have long presumed that Congress does not cavalierly pre-empt" state law. Bates v. Dow Agrosciences LLC, 544 U.S. 431, 125 S.Ct. 1788, 1801, 161 L.Ed.2d 687 (2005) (quoting Medtronic, Inc. v. Lohr, 518 U.S. 470, 485, 116 S.Ct. 2240, 135 L.Ed.2d 700 (1996)). Although the assumption that Congress did not intend to displace state law is not ordinarily triggered when a state statute touches upon an area where there has been a history of significant federal presence, where the state acts in a field that states have traditionally occupied, the assumption that the state's historic police powers are not superseded by federal law applies unless Congress clearly and manifestly expresses a contrary intent. Home of Economy, at ¶ 6. [¶ 21] It has long been recognized that the police power of a state extends beyond the health, morals, and safety of the community, and encompasses the duty to protect the privacy of its citizens, including the authority to protect the peaceful enjoyment of the home and the well-being and tranquility of the community. See Hynes v. Mayor and Council, 425 U.S. 610, 619, 96 S.Ct. 1755, 48 L.Ed.2d 243 (1976); Breard v. City of Alexandria, 341 U.S. 622, 640, 71 S.Ct. 920, 95 L.Ed. 1233 (1951); Thornhill v. Alabama, 310 U.S. 88, 105, 60 S.Ct. 736, 84 L.Ed. 1093 (1940). This authority includes the power to enact laws regulating or prohibiting interstate telemarketing practices. See Flagship Capital, 2005 UT 76, ¶¶ 19-20, 125 P.3d 894. Furthermore, the United States Court of Appeals for the Eighth Circuit, in a case upholding the constitutionality of the North Dakota Telephone Solicitations Act, N.D.C.C. ch. 51-28, the statute involved here, noted that "residential privacy is a `significant' government interest, particularly when telemarketing calls `are flourishing, and becoming a reoccurring nuisance by virtue of their quantity.'" Fraternal Order of Police v. Stenehjem, 431 F.3d 591, 597 (8th Cir.2005) (quoting Van Bergen v. Minnesota, 59 F.3d 1541, 1555 (8th Cir.1995)). In concluding that a Utah statute regulating telemarketing was not preempted by the TCPA, the Supreme Court of Utah held that, "[w]here the police power is at issue, there is a presumption that the regulations can constitutionally coexist, with a resulting burden of proof placed on the party claiming preemption." Flagship Capital, at ¶ 20 (citing Hillsborough County v. Automated Med. Labs., Inc., 471 U.S. 707, 716, 105 S.Ct. 2371, 85 L.Ed.2d 714 (1985)). As noted by the United States Supreme Court, when considering preemption a court must "start with the assumption that the historic police powers of the States were not to be superseded by the Federal Act unless that was the clear and manifest purpose of Congress." City of Columbus v. Ours Garage & Wrecker Serv., Inc., 536 U.S. 424, 432, 122 S.Ct. 2226, 153 L.Ed.2d *837 430 (2002) (quoting Wisconsin Pub. Intervenor v. Mortier, 501 U.S. 597, 605, 111 S.Ct. 2476, 115 L.Ed.2d 532 (1991)). [¶ 22] We thus begin our analysis with the assumption that Congress did not intend the TCPA to abrogate statutes implementing the state's police power to protect its citizens' privacy and peaceful enjoyment of their homes, and FreeEats, as the party claiming preemption, bears the burden of proving it was the clear and manifest intent of Congress to supersede state law. See Bates, 125 S.Ct. at 1801; Cipollone v. Liggett Group, Inc., 505 U.S. 504, 516, 112 S.Ct. 2608, 120 L.Ed.2d 407 (1992); Billey, 1998 ND 120, ¶ 28, 579 N.W.2d 171; State v. Liberty Nat'l Bank & Trust Co., 427 N.W.2d 307, 310 (N.D.1988). The "ultimate touchstone" of preemption analysis is Congressional intent. Cipollone, 505 U.S. at 516, 112 S.Ct. 2608 (quoting Malone v. White Motor Corp., 435 U.S. 497, 504, 98 S.Ct. 1185, 55 L.Ed.2d 443 (1978)). When Congress has expressly addressed preemption in the federal statute, the question whether the federal law preempts state law necessarily is largely a matter of statutory construction. Home of Economy, 2005 ND 74, ¶ 6, 694 N.W.2d 840; Billey, at ¶ 28; Liberty Nat'l, at 310 (quoting L. Tribe, American Constitutional Law § 6-25, at 480 (2d ed. 1988)). In such cases, the plain wording of the statute "necessarily contains the best evidence of Congress' pre-emptive intent." Sprietsma v. Mercury Marine, 537 U.S. 51, 62-63, 123 S.Ct. 518, 154 L.Ed.2d 466 (2002) (quoting CSX Transp., Inc. v. Easterwood, 507 U.S. 658, 664, 113 S.Ct. 1732, 123 L.Ed.2d 387 (1993)). C [¶ 23] As previously noted, there are three forms of federal preemption: express preemption, field preemption, and conflict preemption. Express preemption arises when Congress has explicitly defined the extent to which its enactment preempts state law. English, 496 U.S. at 78, 110 S.Ct. 2270; Home of Economy, 2005 ND 74, ¶ 5, 694 N.W.2d 840. There is no provision in the TCPA which explicitly states that the federal statute was intended to preempt state laws prohibiting certain classes of interstate calls. Rather, the federal act includes a provision explicitly stating that such state laws are not preempted by the TCPA. See 47 U.S.C. § 227(e)(1). There is no express preemption in this case. D [¶ 24] FreeEats contends that the pervasive and comprehensive scope of the TCPA evidences Congressional intent to fully occupy the field and preempt any and all state laws attempting to regulate or prohibit interstate telemarketing calls. [¶ 25] Field preemption occurs when Congress intends federal law to occupy the entire field covered by the federal statute, to the exclusion of state regulation of the same subject matter. English, 496 U.S. at 79, 110 S.Ct. 2270; Home of Economy, 2005 ND 74, ¶ 5, 694 N.W.2d 840. Such an intent may be inferred when the scheme of federal regulation is so pervasive as to create an inference that Congress left no room for the states to supplement it, or when the federal interest in the field is so dominant that it will be assumed to preclude enforcement of state laws on the same subject. English, at 79, 110 S.Ct. 2270; Home of Economy, at ¶ 5. Where the field to be preempted encompasses areas that have been traditionally occupied by the states through their police power, congressional intent to displace state law must be "clear and manifest." English, at 79, 110 S.Ct. 2270 (quoting Jones v. Rath Packing Co., 430 U.S. 519, 525, 97 S.Ct. 1305, 51 L.Ed.2d 604 (1977)); Home of *838 Economy, at ¶ 5; see also Ours Garage, 536 U.S. at 432, 122 S.Ct. 2226. [¶ 26] In Flagship Capital, 2005 UT 76, ¶ 18, 125 P.3d 894, the court expressly rejected the notion that the federal interest in regulating interstate telemarketing is so dominant that it supersedes all state laws touching the issue: While it is unquestioned that telemarketing is national, in fact global, in its scope, this confluence of commerce and technology, despite its power to inspire widespread annoyance and worse, throughout our nation, has not necessarily thereby created an exclusive federal interest. The Supreme Court has stated that "every subject that merits congressional legislation is, by definition, a subject of national concern. That cannot mean, however, that every federal statute ousts all related state law." Hillsborough County v. Automated Labs., Inc., 471 U.S. 707, 716, 105 S.Ct. 2371, 85 L.Ed.2d 714 (1985). An apt analogy is the regulation of interstate highways. There, the interstate nature of the field is so undisputable that the subject has the word "interstate" in its name. However, this does not mean that federal interests dominate in the regulation of this interstate system. Instead, most of the regulation of the highways is left to the individual states to regulate through their police power to protect their citizens' health, welfare, and safety. Interstate telemarketing fits a similar niche. Like interstate highways, there is a federal interest, as illustrated by the TCPA, to define the basic parameters within which interstate telemarketing may occur. Within those walls, however, the states are left with discretion to determine whether the welfare of their citizens requires greater protection and to act on that determination. [¶ 27] Similarly, the United States Supreme Court in Hillsborough, 471 U.S. at 717, 105 S.Ct. 2371, concluded that the comprehensive nature of federal law on a subject does not necessarily mean states are barred from imposing additional requirements: In New York Dept. of Social Services v. Dublino, 413 U.S. 405, 93 S.Ct. 2507, 37 L.Ed.2d 688 (1973), the Court stated that "[t]he subjects of modern social and regulatory legislation often by their very nature require intricate and complex responses from the Congress, but without Congress necessarily intending its enactment as the exclusive means of meeting the problem." Id., at 415, 93 S.Ct., at 2514. There, in upholding state work-incentive provisions against a pre-emption challenge, the Court noted that the federal provisions "had to be sufficiently comprehensive to authorize and govern programs in States which had no. . . requirements of their own as well as cooperatively in States with such requirements." Ibid. But merely because the federal provisions were sufficiently comprehensive to meet the need identified by Congress did not mean that States and localities were barred from identifying additional needs or imposing further requirements in the field. [¶ 28] The inclusion in a federal act of a specific, limited preemption provision is a clear expression of Congressional intent that federal law was not meant to wholly preempt state law in this field. Billey, 1998 ND 120, ¶ 31, 579 N.W.2d 171. The United States Supreme Court recognized in Cipollone, 505 U.S. at 517, 112 S.Ct. 2608: When Congress has considered the issue of pre-emption and has included in the enacted legislation a provision explicitly addressing that issue, and when that provision provides a "reliable indicium of congressional intent with respect to state authority," Malone v. White Motor *839 Corp., 435 U.S., at 505, 98 S.Ct., at 1190, "there is no need to infer congressional intent to pre-empt state laws from the substantive provisions" of the legislation. California Federal Savings & Loan Assn. v. Guerra, 479 U.S. 272, 282, 107 S.Ct. 683, 690, 93 L.Ed.2d 613 (1987) (opinion of Marshall, J.). [¶ 29] The United States Court of Appeals for the Eighth Circuit has expressly held that there was no intent by Congress to create field preemption under the TCPA: The TCPA carries no implication that Congress intended to preempt state law; the statute includes a preemption provision expressly not preempting certain state laws. If Congress intended to preempt other state laws, that intent could easily have been expressed as part of the same provision. Further, the preemption provision makes it clear that Congress did not intend to "occupy the field" of ADAD regulation, see Florida Lime & Avocado Growers v. Paul, 373 U.S. 132, 142, 83 S.Ct. 1210, 1217, 10 L.Ed.2d 248 (1963), or to promote national uniformity of ADAD regulation, as it expressly does not preempt state regulation of intrastate ADAD calls that differs from federal regulation. Van Bergen, 59 F.3d at 1548. [¶ 30] The TCPA includes explicit provisions stating the TCPA was not intended to preclude enforcement of all state laws within its subject matter. See 47 U.S.C. § 227(e)(1). In fact, 47 U.S.C. § 227(e)(1) is expressly titled "State law not preempted." See Chair King, Inc. v. GTE Mobilnet of Houston, Inc., 184 S.W.3d 707, 718 (Tex.2006). The TCPA also contains a provision reserving the right of state officials to bring actions in state courts "on the basis of an alleged violation of any general civil or criminal statute of such State." 47 U.S.C. § 227(f)(6). The statutory language of the TCPA clearly expresses the intent of Congress that the TCPA was not meant to wholly occupy the field within its subject matter, and was not intended to preempt all state law affecting the same subject. We conclude there is no field preemption in this case. E [¶ 31] The final prong of preemption analysis is conflict preemption. Conflict preemption may be found to exist "where it is impossible for a private party to comply with both state and federal requirements, or where state law `stands as an obstacle to the accomplishment and execution of the full purposes and objectives of Congress.'" English, 496 U.S. at 79, 110 S.Ct. 2270 (citation omitted) (quoting Hines v. Davidowitz, 312 U.S. 52, 67, 61 S.Ct. 399, 85 L.Ed. 581 (1941)); Home of Economy, 2005 ND 74, ¶ 5, 694 N.W.2d 840 (quoting English). [¶ 32] FreeEats has failed to meet its burden of demonstrating that application of N.D.C.C. § 51-28-02 to interstate political polling calls would make it impossible for a private party to comply with both federal and state law. In analyzing such "actual conflict" preemption, the United States Supreme Court has used the example of a state law that would "premis[e] liability upon the presence of the very windshield retention requirements that federal law requires." Geier v. American Honda Motor Co., 529 U.S. 861, 871-72, 120 S.Ct. 1913, 146 L.Ed.2d 914 (2000). There has been no showing that a telemarketer's compliance with the prohibitions in N.D.C.C. § 51-28-02 would place it in direct noncompliance with the TCPA. In the context of this case, FreeEats would not have violated any provision in the TCPA if it had complied with North Dakota law and refrained from placing calls to North Dakota residents. *840 [¶ 33] FreeEats argues that there is an actual conflict between federal and state law because "FreeEats can conform to both sets of requirements only by forsaking the federally recognized right to use prerecorded messages when making interstate polling calls to residents of North Dakota." In addition to being premised upon a misreading of the clear and unambiguous language of the TCPA's savings clause, FreeEats' contention ignores the "interstitial nature" of federal law. See Billey, 1998 ND 120, ¶ 28, 579 N.W.2d 171. States are generally free to complement federal law by identifying additional local needs and imposing further regulations. See Hillsborough, 471 U.S. at 717, 105 S.Ct. 2371. A federal statutory prohibition of certain conduct does not automatically create an overarching right to engage in all conduct not expressly prohibited by the statute. [¶ 34] Addressing whether the TCPA preempts application of state telemarketing laws to interstate telemarketing calls, the Supreme Court of Utah reasoned: Close examination of the Utah laws shows that they are not in conflict with the TCPA, nor do they stand as an obstacle to the accomplishment and full objective of federal law. We see no reason why telemarketing companies would be unable to comply with both the Utah laws and the federal statutes. This intention of the Utah legislature is made clear by Utah Code section 13-25a-103(4), which reads: "A person may not make or authorize a telephone solicitation in violation of Title 47 U.S.C. 227." The telemarketing standards set by our legislature are stricter than, but do not directly conflict with, the federal standards. A telemarketer who complies with the Utah standards will have little difficulty complying with the federal standards. Moreover, the record does not reflect that a national telemarketer would confront any substantial hardship by being required to determine which of its calls reach the telephones of Utah residents. Therefore, the Utah law does not force a telemarketer to conform its nationwide practices with Utah standards in order to prevent an inadvertent violation. The telemarketer can simply identify those calls that would be made to Utah and choose to not make those calls or to conform those calls to the Utah regulations. That the TCPA creates a uniform nationwide minimum set of prohibited telemarketing activities does not mean that Utah's heightened standard for companies wishing to make phone calls to this state conflicts with the federal scheme. Flagship Capital, 2005 UT 76, ¶ 22, 125 P.3d 894 (footnote omitted); see also Chair King, 184 S.W.3d at 718 ("Congress clearly did not intend the TCPA to establish a ceiling if states decided to be more aggressive in their approach"). [¶ 35] Similarly, we conclude FreeEats has failed to demonstrate that application of N.D.C.C. § 51-28-02 to interstate political polling calls would stand as an obstacle to the accomplishment of the full purposes of Congress in enacting the TCPA. When Congress has addressed preemption in the federal statute, preemption is necessarily a question of statutory construction, Home of Economy, 2005 ND 74, ¶ 6, 694 N.W.2d 840, and where Congress has expressed its intent in reasonably plain terms the language of the statute is ordinarily regarded as conclusive. Negonsott v. Samuels, 507 U.S. 99, 104, 113 S.Ct. 1119, 122 L.Ed.2d 457 (1993). Here, the plain language of 47 U.S.C. § 227(e)(1) demonstrates that it was not within the full purposes of the TCPA to prevent states from prohibiting certain interstate telemarketing calls. [¶ 36] FreeEats argues that the United States Supreme Court's decisions in Geier, 529 U.S. 861, 120 S.Ct. 1913, 146 L.Ed.2d *841 914 (2000) and United States v. Locke, 529 U.S. 89, 120 S.Ct. 1135, 146 L.Ed.2d 69 (2000), make it clear that statutory savings clauses do not insulate state enactments from preemption analysis. See also Sprietsma, 537 U.S. at 65, 123 S.Ct. 518. The Court in those cases recognized that inclusion of a savings clause in a federal statute does not bar the ordinary working of conflict preemption principles. See Sprietsma, at 65, 123 S.Ct. 518; Geier, at 869, 120 S.Ct. 1913. The Court did not, however, hold that the language Congress employed in a savings clause is wholly immaterial to preemption analysis. The Court merely rejected the notion that inclusion of a savings clause created a "special burden" beyond that inherent in ordinary preemption principles, and concluded state law may be found preempted by federal law if there is an actual conflict with the federal objective. See Geier, at 870-72, 120 S.Ct. 1913. [¶ 37] We do not read those cases as holding that a court may not consider the precise language of a savings clause when discerning the intent of Congress and the purpose of the federal act when determining whether conflict preemption is present. In each of those cases, the Court was required to determine whether conflict preemption existed when there were inconsistent and conflicting preemption provisions and savings clauses within the federal statutes. They did not involve, as this case, an express provision explicitly providing that nothing in the federal statute "shall preempt any State law" on the precise subject matter involved in the case. [¶ 38] We have analyzed the preemption question under ordinary conflict preemption principles. In doing so, we have attempted to discern the intent of Congress and to give effect to the purposes underlying the TCPA. We have found Congressional intent and the resulting purpose of the statute in the clear and unambiguous language of the statute. Where Congress has included an express provision granting states the power to enact laws prohibiting the use of automatic telephone dialing systems or artificial or prerecorded voice messages in interstate telemarketing calls, it cannot frustrate the intent of Congress when the state acts within the terms of that grant. [¶ 39] In defining express preemption, the United States Supreme Court has held that "[p]re-emption fundamentally is a question of congressional intent, and when Congress has made its intent known through explicit statutory language, the courts' task is an easy one." English, 496 U.S. at 78-79, 110 S.Ct. 2270 (citation omitted). Although this rule is ordinarily applied in situations where Congress has expressly declared that certain state laws are preempted, we see no reason why it does not apply with equal force when Congress clearly and unambiguously states that certain state laws are not preempted by the federal act. In either case, the intent of Congress is clear from the statutory language, and the court's "easy" and solitary task is to enforce the statute according to its terms. We conclude Congress has clearly and unambiguously expressed its intent that the TCPA does not preempt application of a state statute prohibiting interstate telemarketing calls which use automatic dialing equipment or artificial or prerecorded voice messages. [¶ 40] Our holding is in accord with the only other appellate decision expressly addressing this issue to date. See Flagship Capital, 2005 UT 76, 125 P.3d 894. FreeEats has drawn our attention to a recent federal trial court decision holding, in the context of interstate facsimile advertisements, that the TCPA's savings clause did not preclude preemption of California's attempt to regulate interstate fax advertising. Chamber of Commerce v. Lockyer, *842 2006 WL 462482 (E.D.Cal. Feb.27, 2006). The court's decision in Lockyer was premised upon its conclusion that the presumption against preemption does not apply and upon a strained reading of the language of 47 U.S.C. § 227(e)(1). We decline to follow Lockyer. IV [¶ 41] We have considered the remaining issues and arguments raised by the parties and they are either unnecessary to our decision or are without merit. We affirm the judgment. [¶ 42] GERALD W. VANDE WALLE, C.J., MARY MUEHLEN MARING, and DANIEL J. CROTHERS, JJ., and WILLIAM F. HODNY, Surrogate Judge, concur. [¶ 43] The Honorable WILLIAM F. HODNY, Surrogate Judge, sitting in place of SANDSTROM, J., disqualified.

239 S.W.2d 325 (1951) BENNETT v. WOOD et al. No. 41898. Supreme Court of Missouri, Division No. 2. May 14, 1951. Rene J. Lusser, St. Louis, for appellant. Tyree C. Derrick and Karl E. Holderle, Jr., St. Louis, for respondents. Harold B. Kline, St. Louis, for himself as guardian ad litem for minor respondents. BOHLING, Commissioner. Dr. Floyd W. Bennett instituted this suit in the Circuit Court of the City of St. Louis against Gertrude Wood, John S. *326 Wood, Equality Savings and Loan Association, a corporation, Associated Fund, Inc., a corporation; Mississippi Valley Trust Company, a corporation; and Jeanne Renee Bennett Wood and Jacqueline K. Bennett Wood, minors, by Harold B. Kline, guardian ad litem. The general object and purpose of plaintiff's first amended petition, upon which the trial was had, was to determine whether any trust existed with respect to specified items of personal property (of a value in excess of $7,500) specifically described in the petition; that it be determined that no trust existed with respect thereto and that said personal property be adjudged to be the property of plaintiff; or if a trust be found, that it be determined to be revocable at the will of plaintiff; that, if contrary to plaintiff's contention the court determine that a trust exists and has not been effectively revoked, the court determine and reduce to writing the terms of the trust et cetera. A judgment, under the circumstances hereinafter narrated, was entered decreeing a trust and stating its conditions and provisions. Plaintiff prosecutes this appeal. Floyd W. Bennett, Jr., plaintiff's son, was an orthopedic surgeon. He married Gertrude I. Bennett (Now Gertrude Bennett Wood). They had two children, Jeanne Renee Bennett, born September 1, 1942 and Jacqueline K. Bennett, born September 2, 1944. Floyd, Jr., and his family resided at plaintiff's home. Floyd, Jr., died on December 26, 1943; and Gertrude and the children continued to live with his parents. At the time of his son's death, according to plaintiff, he gave Gertrude certain securities which are not here involved. Gertrude married defendant John S. Wood on July 5, 1947, and he adopted the children. Plaintiff's wife died on July 7, 1945. Plaintiff remarried and his second wife is living. The property involved under plaintiff's petition consisted of (Item 1) a $500 and (Item 2) a $300 deposit with defendant Equality Savings and Loan Association; the $500 was alleged to be plaintiff's property and the $300 was alleged to be plaintiff's property but deposited for the benefit of the children. A pass book was issued in the name of "F. W. Bennett, M.D. and Gertrude I. Bennett" for the $500 deposit, and in the name of "Floyd W. Bennett, M. D. and Gertrude I. Bennett, Trustees," for the $300 deposit. "Item 3" is certificate No. 25282 for 100 shares of "Keystone Custodian S2," purchased by plaintiff and issued in the name of "F. W. Bennett, M.D., and Gertrude I. Bennett, as joint tenants with right of survivorship but not as tenants in common." "Item 4" consists of installment payment form certificates Nos. 1138 for $1,500; No. 1310 for $1,500; No. 1464 for $2,000; No. 1668 for $1,000; and No. 2073 for $3,000, of an alleged total value of $10,300 of the Associated Fund, Inc. Certificate No. 1138 was issued to "Jeanne Renee Bennett and/or Jacqueline K. Bennett, either or the survivor, Floyd W. Bennett and Gertrude I. Bennett, Trustees." Certificates Nos. 1310, 1464, 1668 and 2073 were issued to "Floyd W. Bennett and Gertrude I. Bennett, Trustees for Jeanne Renee Bennett and Jacqueline K. Bennett, either or the survivor." The guardian ad litem filed on behalf of the minor defendants an "Answer, Counterclaim and Cross-claim," wherein it is alleged, so far as material, that plaintiff established an unconditional and irrevocable trust or trusts with respect to the personal property mentioned in plaintiff's petition; and, as a counterclaim against plaintiff and a cross-claim against defendant Gertrude Wood, that additional securities, having an alleged value of $8,000 or $9,000 but not specifically known to the pleader, were set up in a trust or trusts for the minor defendants and held in the name of plaintiff as trustee or plaintiff and Gertrude Wood as cotrustees. The prayer conformed to the allegations of the pleading. Plaintiff's responsive pleading thereto in effect re-affirmed the allegations of his petition and denied that any securities exist in addition to those mentioned in plaintiff's petition subject to any trust or trusts as alleged in the counterclaim of the guardian ad litem. The other pleadings need not be specifically noted. There is no occasion to state the evidence. It is evident from the record made *327 after the noon recess on the second day of the trial, May, 24, 1949, that an offer of settlement involving a decree providing for the establishment of a trust fund consisting of the personal property mentioned in plaintiff's petition, having an estimated value of $13,040, for the benefit of the minor defendants, with the Mississippi Valley Trust Company as trustee, plaintiff agreeing to pay the court costs of approximately $500, was before the court. Plaintiff's counsel, Mr. Fred Armstrong, stated there were some details that had not been worked out and the parties would have to agree to them or come to the court for guidance; and when asked what these were, he answered: "Well, the exact provision for [plaintiff] seeing the children." The Court stated the children were not to be affected by any disagreement between the parties. Mr. Armstrong suggested passing the case to some future date for the purpose of working out the details, and if they could not be worked out, the case was to stand where they left off. "The Court: It will be partially heard and passed." The Court, however, desired testimony on the allowance of attorney's fees to the guardian ad litem. "Mr. Armstrong: I was going to say that we will say that plaintiff's case is submitted subject to proof in the future if it indicates the necessity on the prayer for attorney's fees for plaintiff to be allowed out of the fund." And later: "Mr. Armstrong: If the case is settled this way, there will be no occasion for my testimony at all, but you are right about Mr. Kline [the guardian ad litem]. The Court: That is right." Thereupon evidence was heard on an allowance to the guardian ad litem and no opposition was interposed to his request of $425 for attorney's fee and $23.03 for expenses. On November 22, 1949, the Court entered a judgment. It recites that it was upon the evidence adduced and agreements between the parties and by their consent, there being no waiver of any rights of the minor defendants by their guardian ad litem. It established a trust of the items of property described in plaintiff's petition and hereinbefore set out for the benefit of the minor defendants, Jeanne Renee Bennett Wood and Jacqueline K. Bennett Wood, appointed the Mississippi Valley Trust Company as trustee thereof, and prescribed the conditions of the trust and the powers of the trustee. It also provided for plaintiff to see the minor defendants, his granddaughters, once a week and allowed the guardian ad litem $425 for attorney fees and $23.03 for expenses. However, the judgment does not mention or dispose of the counterclaim and cross-claim of the guardian ad litem; who contends the decree should be modified to include within the trust 175 shares of Group Securities—Steel; 100 shares of New York Stocks—Metals; 475 shares of Fundamental Investors, Inc., and 100 shares of Union Common Stock Fund; or if the evidence adduced be considered insufficient therefor, then the case should be remanded to afford him an opportunity to introduce his case-in-chief. Mr. Armstrong withdrew as plaintiff's attorney on November 29, 1949, and Mr. Rene J. Lusser entered his appearance as attorney for plaintiff, filed a motion for new trial and later perfected this appeal. The case should be remanded. We are in no position under the instant record to dispose of the merits of the counterclaim and cross-claim involving the additional securities asserted to be part of the trust fund. We find no order for a separate trial. See R.S.1949, Sec. 510.180 (2); and Supreme Court rule 3.29. The judgment states it was the result of the evidence adduced and the agreements between and consent of the parties; but, as hereinbefore indicated and urged by the guardian ad litem, no disposition of his counterclaim and cross-claim was had. Appellate courts take a record as they find it. In re McMemamy's Guardianship, 307 Mo. 98, 270 S.W. 662, 667[9]. Perhaps matters somewhat beclouded in the instant record may become clear upon further development in the trial court. Appeals are authorized from final judgments. R.S.1949, Sec. 512.020. "A judgment is the final determination of the right of the parties in the action." Id., Sec. 511.020. It must ordinarily dispose of all *328 parties and all issues in the case. The instant judgment does not do this. Plaintiff's appeal is premature and, whether the parties raise the issue or not, it is our duty to determine whether the judgment is a final appealable judgment. Deeds v. Foster, Mo.Sup. 235 S.W.2d 262, 265[1-5] citing authorities; Madison v. Sheets, Mo. Sup. 236 S.W.2d 286; Severs v. Williamson, Mo.App., 198 S.W.2d 368, 370[3, 4]. Consult Albert J. Hoppe, Inc. v. St. Louis Pub. Serv. Co., Mo.Sup., 235 S.W.2d 347. The appeal is dismissed and the cause remanded for such further proceedings as may be proper. WESTHUES and BARRETT, CC., concur. PER CURIAM. The foregoing opinion by BOHLING, C., is adopted as the opinion of the court. All concur.

227 F.Supp.2d 1136 (2002) UNITED STATES of America, Plaintiff, v. Harold J. MOBERG, Defendant. No. CS-00-120-CI. United States District Court, E.D. Washington. April 30, 2002. *1137 *1138 Rolf H. Tangvald, U.S. Atty's Office, Spokane, WA, for Plaintiff. Dennis Patrick Hession, Richter Wimberly, Spokane, WA, Harold J. Moberg, Moberg Law Firm, Moses Lake, WA, for Harold J. Moberg. Stephen John Hallstrom, Grant County Prosecuting Attorney, Ephrata, WA, for Grant Co. Treasurer. ORDER GRANTING DEFENDANT'S MOTION TO VACATE LEVY AND QUASH WRIT OF EXECUTION IMBROGNO, United States Magistrate Judge. BEFORE THE COURT is Defendant's Motion to Vacate Levy, continued for hearing without oral argument to April 17, 2002. (Ct.Rec.53.) Assistant United States Attorney Rolf H. Tangvald represents Plaintiff; attorney Dennis P. Hession, Richter-Wimberley, P.S., represents Defendant. The parties have consented to resolve the matter before a magistrate judge. (Ct.Rec.23.) Following entry of summary judgment in favor of Plaintiff, an Amended Judgment was entered against Defendant on December 19, 2000, for the sum of $33,481.19,[1] plus interest at 7% until date of judgment, $150 filing fee and post-judgment interest at the legal rate until paid in full, for failure to pay numerous guaranteed student loans. (Ct.Rec.30.) The loans, executed on August 12, 1980, August 13, 1981, August 26, 1982, and November 4, 1983, were guaranteed by the Washington Student Loan Guaranty Association and reinsured by the Department of Education. (Ct.Rec.70, att.A.) Following default, the loans were reassigned to the Department of Education, and this litigation ensued. On June 4, 2001, the court signed a Writ of Execution to sell certain real property owned by Defendant located at 1560 Mary Street, Moses Lake, Washington (referenced to as the Mary Street property). The U.S. Marshal had scheduled a sale of that property on September 21, 2001; the day before, counsel for Defendant filed the instant Motion. The sale was cancelled by the United States to permit the parties time to complete discovery and file briefs in response to Defendant's Motion to Quash the Writ of Execution and Vacate Levy. During discovery, a factual issue arose whether the Mary Street property was exempt from execution based on Defendant's assertion Plaintiff could not demonstrate by clear and convincing evidence it was Defendant's separate property. Previously, Defendant had been asked by interrogatory whether he had signed a community property agreement; he answered "no." Additionally, he signed a declaration under penalty of perjury stating "I have not received any separate inheritance or property of any kind or nature and do not have any separate property in my possession." (Ct.Rec. 60, Ex. B and D.) Contrary to those statements, discovery disclosed a quit claim deed dated June 25, 1990, conveying the Mary Street property from Helen Moberg, Defendant's mother, to Harold J. Moberg. (Ct.Rec.70, Ex. D, Ex. T.) Additionally, discovery disclosed *1139 the existence of a community property agreement signed by Harold and Janis Moberg on March 25, 1986, which provides for the conversion of all property of both individuals to community property in the event of the death or incompetency of either party. (Ct.Rec.70, Ex. F.) Plaintiff contends the community property agreement does not affect the present separate status of the Mary Street property. Additional facts revealed Defendant attended Gonzaga University Law School from 1980 to 1983, the same years his student loans were executed. (Ct.Rec. 70, Ex. C, Harold Moberg Decl.) Defendant married Janis Whitener in 1984. (Ct.Rec. 70, Ex. C, Harold Moberg Decl.) The couple has purchased, managed, and sold rental properties since 1984. (Ct.Rec. 70, Ex. H, Janis Moberg Dep. at 8.) The only piece of rental property acquired and held in Harold Moberg's name only is the Mary Street property. (Ct.Rec. 70, Ex. I, Harold Moberg Dep. at 23; Ex. J.) While the couple would discuss issues related to the ownership and management of the rental properties, only Defendant performed the daily rental management duties. (Ct.Rec. 70, Ex. H, Janis Moberg Dep. at 36, 37.) A separate bank account in Defendant's name was maintained for deposits and expenditures of income and expenses attributable to all of the rental units. Janis Moberg was neither listed on the account, nor did she have signature rights (Ct.Rec. 70, Ex. H, Janis Moberg Dep. at 37, 38). Notwithstanding, because the account involved money from all the rental units, community and separate, it was, in effect, a commingled account. Janis Moberg's knowledge about and management participation in the Mary Street property was limited: her deposition testimony indicated the property was acquired in 1986 (rather than 1990); she stated $10,000 of community funds was used to cure the mortgage when in fact the amount was $1,426; and during the six months it took to repair the Mary Street property, she stated she spent only 12 hours working on or dealing with those repairs. (Ct.Rec. 70, Ex. H, Janis Moberg Dep. at 45, 49, 52.) With respect to the mortgage on the Mary Street property, NationsBank, the mortgagor, advised Plaintiff financing was arranged in 1977 under the names of John and Helen Moberg. The bank had no record of an assumption of the mortgage by Harold Moberg or Harold and Janis Moberg, but the loan was paid in full in June 1997. (Ct.Rec. 70, Ex. K, Faygas Decl.) It is undisputed the property, at the time it was quitclaimed to Defendant, was not in habitable condition and had been abandoned. Defendant's brother Michael Moberg stated he had started to make repairs and was offered the property by his parents, but he refused because the mortgage and Utility Local Improvement District (ULID) debt exceeded the value of the property. (Ct.Rec. 55, Michael Moberg Decl.) The assessed value of the Mary Street property in 1988 was $24,270. In 1990, the mortgage payments were in arrears in the amount of $1,462.70 and foreclosure proceedings had begun. The balance due on the mortgage was $14,520.04. (Ct.Rec.709, Ex. R.) The property also was encumbered with a ULID assessment of $6,704.60. (Ct.Rec. 70, Ex. K., Faygas Decl.; Ex. L.) The property was scheduled for Sheriff's sale on June 27, 1990. (Ct.Rec.70, Ex. R.) Foreclosure proceedings were halted when Defendant paid the cure amount of $1,462.70. On June 25, 1990, Helen Moberg quitclaimed the property to Defendant. Based on the 1988 assessed value, less the amounts owed for the mortgage and ULID, the court finds the net value of the transfer to Defendant in 1990 was about $3,000. *1140 The ULID was compromised to $3,810.87 and paid by Defendant on December 20, 2000. Expenses from 1990 to 2000 paid by Defendant for the mortgage, the cure of the foreclosure proceedings, the compromised ULID assessment, remodeling costs, accrued interest and delinquent taxes totaled $52,277.15.[2] (Ct. Rec.70, Ex. U.) In 2001, the assessed value of the property had increased to $46,165. (Ct.Rec.70, Ex. M.) From 1990 through 1999, rental income on the Mary Street property totaled $31,425; depreciation was claimed in the amount of $6,270 leading to a total tax deductible loss during those years on the couple's joint tax return of $14,406. (Ct.Rec. 70, Ex. N., 1990-1999 Moberg Tax Returns, Schedule E.) Other evidence discloses Janis Moberg is a District Court Judge for Grant County; Defendant is an attorney and owner of the Moberg Law Firm. The Mobergs also own at least five additional rental properties, as well as the Grant County Title Insurance Company. They have estimated their earnings in 2001 to be over $200,000. (Ct. Rec. 70, Ex. H., Janis Moberg Dep. at 24, 27.) MOTION TO VACATE LEVY AND QUASH WRIT OF EXECUTION Defendant contends the Mary Street property is presumed to be community property; the consideration for the transfer was the community's assumption of the liabilities on the property, which exceeded the property's value in 1990. Defendant asserts since 1990, the marital community has spent in excess of $45,000 of community funds in repairing the property, servicing its debts, satisfying the ULID assessment, and restoring the property to a liveable and rentable condition. Thus, Defendant concludes, even were this court to find the property to be separate, the community's lien exceeds the fair market value of the property. Defendant also relies on RCW 26.16.200, which holds the separate debt of one spouse cannot be satisfied from that spouse's "earnings and accumulations," unless the debt has been reduced to judgment within three years after marriage. Defendant also argues the Mary Street property was not a gift, but was a transfer in exchange for valuable consideration given by the community, including an assumption of the debt represented by the note and deed of trust, payment of delinquencies and acceptance of the responsibility to restore the property to a habitable condition. Additionally, Defendant asserts, at the time of the transfer, Helen Moberg became dependent on his support for her living expenses and accommodations. Plaintiff responds the transfer was a gift, admits the community paid $5,278.57 in expenses ($1,462.70 to cure a foreclosure and $3,810.87 to settle the ULID), entitling it to a marital lien for the payment of these expenses. However, Plaintiff argues the lien should be reduced by any equitable benefit received by the marital community, including tax benefits of $17,707, and rental income of $37,425, funds which were available to pay the mortgage and other expenses associated with the property. Alternatively, Plaintiff contends the marital contribution should be set off against the benefit received from the appreciation of the property based on the percentage of ownership interest attributable to the marital community at the time of transfer *1141 (21%) of the appreciated assessed value ($21,895), or $4,751. ANALYSIS Writs of execution necessary to enforce a judgment shall be in accordance with "the practice and procedures of the state in which the district court is held, existing at the time the remedy is sought, except to the extent any statute of the United States governs is applicable." Fed.R.Civ.P. 69(a). The Federal Debt Collection Procedures Act provides co-owned property is subject to execution to the extent provided under applicable state law. 28 U.S.C. § 3203(a). There is no dispute the debt sought to be satisfied is the separate debt of Defendant; there is also no dispute under state law the only property which can be the subject of a writ of execution is Defendant's separate property, since the debt was not reduced to judgment until far beyond the first three years of marriage. RCW 26.16.200. RCW 26.10.010 defines the separate property of the husband as property and pecuniary rights acquired by him either before marriage or after marriage "by gift, bequest, devise or descent, with the rents, issues and profits thereof." As to property acquired after marriage, such property is presumed to be community property, unless proven otherwise by clear and convincing evidence. In Re Marriage of Harrington, 85 Wash.App. 613, 625, 935 P.2d 1357 (1997). Here, the property at issue was "acquired" after marriage and, thus, is presumed to be community property, unless there is clear and convincing evidence to the contrary. The classification of property as separate or community presents a mixed question of law and fact. The time of acquisition, the method of acquisition, and the intent of the donor are factual questions; whether the facts found support the classification of property as separate or community is for the court to determine as a matter of law. In re Marriage of Martin, 32 Wash.App. 92, 94, 645 P.2d 1148 (1982). The community property agreement executed by Defendant and Janis Moberg is of no assistance as it does not take effect until the death or incompetency of either spouse. Thus, the only conveyance relevant here which would permit a characterization of the property as separate by operation of RCW 26.16.010 would be the gift provision. State case law states the elements of a gift are (1) a donative intent; (2) a subject matter capable of passing by delivery; and (3) an actual delivery. Martin, at 96, 645 P.2d 1148, citing Oman v. Yates, 70 Wash.2d 181, 422 P.2d 489 (1967). The only issue as to these three elements involves the first — donative intent. In construing whether a deed effects a gift of real property, courts "must give meaning to every word if reasonably possible, and carry out the real intention of the parties. That intention is to be gathered from the deed, if possible, but when necessary by resort to the circumstances surrounding the entire transaction." Matter of Estate of Little, 106 Wash.2d 269, 287, 721 P.2d 950 (1986). In Andrews v. Andrews, 116 Wash. 513, 519-522, 199 P. 981 (1921), the court examined a factual scenario similar to the one here where a dependent parent transferred property in exchange for valuable consideration, that being his maintenance and support for the remainder of his life. The court held this was a contractual event, not a gift, which by definition involves a transfer with no consideration. Andrews noted the "gift, bequest, devise or descent" of RCW 26.16.010 does not contemplate contractual obligations. Thus, based on Andrews, the court concludes the transfer was a contractual event and not a gift. *1142 Even assuming the property was a gift to bring it within the operation of RCW 26.16.010, community property law requires evidence of a clear intent by the donor to make the gift to the married donee as separate property. In re Marriage of Olivares, 69 Wash.App. 324, 331, 848 P.2d 1281, rev. denied, 122 Wash.2d 1009, 863 P.2d 72 (1993). In Olivares, the court held it was necessary to demonstrate a contemporaneous clearly stated intent to make the gift one of separate property. Olivares, at 334, 848 P.2d 1281. Here, the only direct contemporaneous evidence of Helen Moberg's stated intent is the deed. As noted in case law, the presence or absence of a name on a deed is not dispositive as to whether the property should be characterized as separate or community. Merritt v. Newkirk, 155 Wash. 517, 520-21, 285 P. 442, 444 (1930); In re Marriage of Skarbek, 100 Wash.App. 444, 997 P.2d 447 (2000). Rather, the court may also look beyond the language of the deed to determine whether the property was acquired with community assets and/or credit or separate assets and/or credit. In re Marriage of Sedlock, 69 Wash.App. 484, 506, 849 P.2d 1243, rev. denied, 122 Wash.2d 1014, 863 P.2d 73 (1993); Rustad v. Rustad, 61 Wash.2d 176, 178, 377 P.2d 414 (1963) (character of real property is determined by character of funds used to purchase it). State law also holds the character of property is established at the date of acquisition and remains unchanged until agreement of the parties or by operation of law. Skarbek, at 447. Evidence in favor of concluding the property was to be separate other than the deed are facts supporting an inference Helen Moberg was familiar with the concept of separate property, having quit claimed her interest to her former spouse at an earlier date, and he, in turn, quit claimed the property back to her as separate property at the time of their dissolution. Additionally, it is undisputed Defendant was a practicing attorney and was presumed to have been familiar with the distinction between the conveyance of property to separate or community interests. However, other more persuasive evidence suggests the transfer was to the community. It is undisputed Helen Moberg did not have sufficient assets to cure the default and was in danger of losing the property to foreclosure. Additionally, at the same time, she became dependent on Defendant's household for her living arrangements and expenses, which this court would find to be a contribution by the community. There is no showing by Plaintiff the obligations here, the support and maintenance of Defendant's mother and the renovation of the property, were underwritten with separate property as opposed to community. Defendant's 1990 Schedule E indicates $9,572 (before depreciation) was spent renovating the property and only $975 in rent was received that year. (Ct.Rec.70, Ex. N.) In 1991, Defendant's Schedule E return indicates $2,800 in rental income was received and expenses totaled $3,505 (before depreciation). There is no evidentiary proffer Defendant had separate assets to support the expenses involved with the Mary Street property during the first few years of ownership. Additionally, there is no evidence the time commitment involved in the renovation of the property and its management did not involve community resources. Accordingly, the court must conclude the transfer was neither a gift to Defendant, nor was it intended to be separate property. The evidence in this case is very troubling —from Defendant's impeached responses to his interrogatories, his refusal to disclose the existence of the deed to the *1143 Mary Street property, his assertion he and his spouse had assumed the Mary Street mortgage when the bank has no record of an assumption, and the nonpayment of the ULID until ten years after its assessment and then at a compromised amount. These facts are even more troubling in light of Defendant's obvious financial ability to repay the student loans, an estate which is the direct result of the education the student loans made possible, and his professional standing in the community and that of his spouse. The court is also mindful of Congressional intent in collecting delinquent student loans, the fact there is no statute of limitations and the loans are not dischargeable in bankruptcy. 20 U.S.C. § 1091a. However, the court is constrained by the community property laws of the state; for this reason, Defendant's Motion to vacate the levy and quash the Writ of Execution is GRANTED. IT IS SO ORDERED. The District Court Executive is directed to file this Order and provide a copy to counsel for Plaintiff and Defendant. NOTES [1] The court notes an $8,600.69 IRS tax refund was offset against the debt in 1996. (Ct.Rec.25.) [2] This figure is based on Plaintiff's summary of acquisition costs ($58,981.75), less the full amount of the ULID ($6,704.60). It is undisputed the ULID assessment was compromised to $3,816, a figure which is reflected in the court's total of $52,277.15. (Ct.Rec.70, Ex. J.)

Order Michigan Supreme Court Lansing, Michigan December 21, 2016 Robert P. Young, Jr., Chief Justice 153745 & (12) Stephen J. Markman Brian K. Zahra Bridget M. McCormack David F. Viviano Richard H. Bernstein PEOPLE OF THE STATE OF MICHIGAN, Joan L. Larsen, Plaintiff-Appellee, Justices v SC: 153745 COA: 330917 Wayne CC: 06-010123-FC KEVIN D. BROWN, a/k/a ANTHONY PAUL JORDAN, Defendant-Appellant. _____________________________________/ On order of the Court, the application for leave to appeal the March 29, 2016 order of the Court of Appeals is considered and, it appearing to this Court that the case of People v Comer (Docket No. 152713) is pending on appeal before this Court and that the decision in that case may resolve an issue raised in the present application for leave to appeal, we ORDER that the application be held in ABEYANCE pending the decision in that case. I, Larry S. Royster, Clerk of the Michigan Supreme Court, certify that the foregoing is a true and complete copy of the order entered at the direction of the Court. December 21, 2016 t1214 Clerk